Race, Prejudgment, and the Death Penalty By Edward J. Bronson and Robert S. Ross NS

For over twenty years we have investigated the relationship between pretrial publicity and the likelihood that a defendant can receive a fair trial locally. These are usually sensational cases that have generated a significant amount of publicity locally and often nationally. Included among the cases one or both of us have worked on have been the Oklahoma City bombing, the Unabomber case, the Polly Klaas case, the San Francisco dog mauling case, the Enron (Lay/Skilling) case, and over two hundred others across the country, using survey data from jury-eligible respondents to determine if sufficient prejudice exists to warrant a change of venue. Occasionally the issue of race has become important, especially where the defendant was black and the victim white.

In some cases we have asked respondents if they knew that the defendant was black. The results of these experiments, particularly in capital cases, are striking. We know from generic questions about the death penalty included for many years in national polls such as Gallup and Harris that whites have been far more supportive of capital punishment than others. In our own studies of specific cases with respondents eligible for jury service locally, we have found such racial differences, although in some cases they were small.

While a number of limitations affect these data—our respondents do not have all of the information that would be presented at trial, for example, nor is there the felt responsibility of real jurors—the ability to compare the voting behavior of white and black jury-eligible respondents in real cases allows us to gain insights into survey findings based on more representative samples.

Kern County, California, located north of Los Angeles, is large in both population and size. Bakersfield, the county seat, received many Oklahomans during the Dust Bowl exodus of the Great Depression, and the county still retains a tinge of that culture. Its militantly law-and-order district attorney led the fight for California’s three-strike law and is a strong supporter of the death penalty. According to the National Coalition Against the Death Penalty, Kern County, as of a few years ago, had twenty-three people awaiting execution, ten more than the per-capita norm for the state. (By contrast, the liberal county of San Francisco, which then had about the same population, has only one person on death row.) A bestseller, Mean Justice, provided a chilling description of the Kern County justice system.

Of several cases in Kern County on which we have conducted research, three were death penalty cases. Our interest in the question of prejudice and race, as measured in venue surveys, was first piqued in a 1999 case from Bakersfield related to the rape and murder of a college student. The defendant, Willie Harris, was black, and the victim was white. The defense claimed that the victim and the accused had consensual sex, and that the victim’s white boyfriend found out and killed her in a jealous rage

The first trial ended in a hung jury, although it was 11–1 in favor of guilt. In the retrial, the jury found the defendant guilty and recommended the death penalty. Parenthetically, we believe it is more than coincidental that of the twenty-four jurors in the two trials, only one was black, and he was the lone not-guilty vote.

In 2006, we returned to Kern County for a venue survey in another case involving a black defendant, Vincent Brothers, whose trial just concluded. In this case the defendant is a middle class, former public-school administrator accused of the murder of his estranged wife, mother-in-law, and three very young children. His defense was that he was out of town, in Cleveland, at the time of the murders. There was only one black juror, but that juror was mysteriously removed in a sealed courtroom just before the guilt phase of the case went to the jury. During the past few weeks, the jury found Brothers guilty of all charges and sentenced him to death.

We were especially interested in comparing these two cases, given the sociological differences of black-on-white and black-on-black crimes. In both, respondents who recognized the case were read the following:

As Figures 1 and 2 show, while the number of black respondents was small, the difference between black and white respondents was large and significant. Approximately three and a half times as many whites as blacks believed Harris was guilty, and approximately two and three-quarters times more whites thought Brothers was guilty. Moreover, the survey results in the two cases was remarkably similar, even though the cases were quite different.

When the two cases are combined to increase the number of black respondents (Figure 3), the statistical significance of this pattern, which we have consistently found in our research, is very powerful.

“Based on What You Know…”: Race, Prejudgment, and the Death Penalty