I have railed against the barbaric practice in the US of having the death penalty, something that many countries have dispensed with. But the existence of the death penalty also brings with it a set of perverse incentives for prosecutors. If they have a so-called death penalty case, one in which the district attorney or other body decides merits the death penalty, then the prosecutors in that case are also evaluated on whether they are able to get the jury to apply that penalty.

In most death penalty cases, there are two phases. The first is to determine the guilt or innocence of the accused. If the person is found guilty, the next phase is to decide whether the person is to be executed. The same jury makes both decisions, and it is considered a sign of success if a prosecutor can get a jury to vote for death and is good for their career. So they try everything they can to ensure that the jury that is empaneled will be willing to vote for death if a guilty verdict is reached.

Obtaining a death verdict, Anderson once said, was a “mark of distinction” in the office. As Quatman put it, “Anybody can try a homicide successfully. Not everybody can try a death-penalty case successfully.” A capital prosecutor had to win twice: first at trial (persuading twelve jurors to convict a defendant of first-degree murder with a so-called special circumstance) and then during the “penalty phase” (persuading all the jurors to sentence the defendant to death). The key, Quatman said, was to pick the right jury, and the pressure to win was intense: “Every other day, the boss comes by—‘How’s that case going?’ ” Preparing for and trying a death-penalty case could take at least a year, and after Anderson or Quatman sent a defendant to death row they framed his mug shot and hung it on their office wall, next to a copy of his death verdict.

In theory, a jury is supposed to consist of randomly selected members of the community but there is an extensive set of questioning during the jury selection process designed to weed out anyone that may not be able to make an impartial judgment. Lawyers for both sides can question potential jurors and have them removed from the panel for just cause, such as (say) because they have some connection with the case or have a personal history that might prevent them from reaching an impartial conclusion. Lawyers also are allowed a certain number of what are called peremptory challenges where they can ask that a person be removed from the pool without giving a reason.

But Aimee Solway, a new arrival at the Alameda County district attorney’s office in Oakland, California, in going through the boxes left by her predecessor, discovered that they had excluded jurors using illegal means.

Prosecutors would strike Jewish jurors from the pool because they were considered ‘soft’ on the death penalty, i.e.., unlikely to vote for it. The same was true for Black jurors, especially women.
…

Picking a jury in a capital case was far more onerous than in a typical homicide case. Prospective jurors had to fill out questionnaires and be interviewed individually by lawyers for both sides to determine not only whether they could be fair but whether they were “death qualified.” (Those who said that they could never vote for the death penalty were dismissed, as were those who said that they would always vote for it.)
…

He prepared a four-page outline that included notes about the sorts of people he didn’t want as jurors, because he thought they might be too empathetic (psychiatrists, nurses, doctors), and those he did want (women over forty, blue-collar workers).
…

As one colleague, Colton Carmine, later put it, “He prefaced his remarks by saying, ‘I know I probably shouldn’t say this, and I’m probably going to get in trouble.’ ” But then, Carmine added, “he said, ‘Never, ever leave a Jewish person on a capital jury. It’s just not fair to the case, and it’s not fair to the jurors, given what’s happened to them in the past, to ask them to execute another human being by lethal gas.’ ” (At the time, California used a gas chamber for executions.)

Solway found notes on the cards used by the prosector for each juror that revealed their thinking.

Prosecutors often brought notes—one index card for each juror. There wasn’t enough time to read every word on every card, though, so beforehand they would assign each possible juror a score. Quatman used a scale of zero to ten. “Zero is somebody you want to get off that jury any way you can,” he explained. “My rule was six and above.” Each time a potential juror was removed, another took that person’s seat in the jury box. The process ended when the allotted challenges ran out—or earlier, if both sides agreed on a jury.
…

On the cards were handwritten notes, which Solway realized were comments about prospective jurors for Dykes’s trial, presumably compiled by the prosecutors. One card described an “MW”—male, white—who was a Republican and in favor of the death penalty. That didn’t seem too surprising, but a card for a Black woman read “Don’t believe she could vote D/P”—for the death penalty—and characterized her as a “Short, Fat, Troll.” A card for a forty-seven-year-old man said that he had a “Jewish background.” Another card, for a man who had a Ph.D. in physics, read “I liked him better than any other Jew But No Way,” then added, “Must Kick, too Risky.”
…

Solway immediately knew that some of the notes posed a serious problem. Historically, prosecutors had sought to keep certain groups of people off juries who they assumed would be less likely to vote for a conviction. That practice had denied untold numbers of Americans their constitutional right to a fair trial. To counter this, the California Supreme Court, in 1978, banned striking jurors because of their race, ethnicity, or religion. In 1986, the U.S. Supreme Court, in Batson v. Kentucky, prohibited prosecutors nationwide from eliminating jurors based on their race. “The harm,” the Court found, “extends beyond that inflicted on the defendant and the excluded juror to touch the entire community,” and the result is to “undermine public confidence in the fairness of our system of justice.”

Prosecutors often use proxy measures to weed out people from certain groups and sometimes even the judge would aid them in this illegal practice, as one judge did with one prosecutor named Quatman.

Judge Stanley P. Golde, a revered courthouse figure known as the Maven, presided over Freeman’s trial. Quatman knew Golde well; the judge had been a guest at his wedding, and Quatman was a frequent visitor to his chambers. There was always an urn of hot coffee, and lawyers gathered there to socialize, talk business, and seek Golde’s counsel. In April, 1987, one day before the Big Spin began in the Freeman case, Golde permitted lawyers for both sides to eliminate a few additional jurors, though it was not the usual protocol. Freeman’s attorney did so, but Quatman did not.

Afterward, in Quatman’s telling, Golde called him into his chambers and said, “Quatman, what are you doing? You didn’t challenge the Jew,” adding, “No Jewish person could sit on a death-penalty jury and return a verdict” for death. Quatman said that Golde, who was Jewish, reminded him that after the former Nazi official Adolf Eichmann had been captured in Argentina, in 1960, Israelis were divided on whether he should be executed. Quatman responded, “Say no more.”

Before the trial began, Quatman removed three potential jurors he thought might be Jewish. In the end, he prevailed: the jury convicted Freeman, then voted to send him to death row.

There is so much that is wrong with the death penalty on simply moral grounds. But what this article shows is that it leads to other perversions of justice, such as excluding people who might be excellent jurors when it comes to deciding guilt or innocence simply because they might not be willing to have someone executed.