Fault Lines
30 April 2017

Dissension In The Ranks: Prosecutor Told To Toss Blacks From Jury

Mar. 23, 2016 (Mimesis Law) — An unusual story is unfolding in the small Texas county of Wharton, where allegations are being made against the elected District Attorney, accusing him of “encouraging” an assistant district attorney to strike black residents from juries.  Although accusations of Batson violations happen on almost a daily basis in the criminal justice world, these allegations are unusual because they are being made the assistant district attorney himself.

The Houston Chronicle’s Brian Rogers is reporting that Assistant District Attorney Nathan Wood testified in a March 11th hearing that his boss, District Attorney Ross Kurtz told him to strike three black venire members from a jury panel.  The allegations arose in the middle of the trial of Chrisandra L. Ware.  During voir dire, Wood had used three of his peremptory strikes to remove the only three African-Americans in the “strike zone.”  Ware’s defense counsel, Mark Racer, made a Batson challenge, which was denied.

The jury subsequently convicted Ms. Ware, but she elected to go to the Court for sentencing. The March 11th hearing occurred before the punishment phase had commenced and its purpose was to readdress the earlier Batson challenge.  The timing of the hearing was odd, but Wood explained in a statement he read to the court.

On February 26th, the Friday before trial, I confided certain concerns and expressed my stress over the Ware trial to a person who was, and continues to be, a very dear friend.  Among those concerns expressed was my stress over being instructed by the District Attorney to strike black jurors.  Because my friend was aware of the facts and circumstances of this trial, and because my friend also owes a duty of candor to the court, my friend informed the Court that I stated I had been instructed to use strikes to exclude black jurors.

Since the Court is aware of this private conversation, I feel that it is necessary to candidly explain the statements that I made during that personal interaction.

So, it doesn’t appear that Mr. Wood had a sudden “crisis of conscience” moment which led him to drop his boss in the grease.   Rather, he confided to a friend (who was also a lawyer, apparently) his feelings, and that friend informed Judge Randy M. Clapp.  The judge then informed Ware’s attorney, and a hearing was scheduled.  When explaining himself to the Court, Wood did his best to soft sell what his boss had said.

To be clear about the word “instructed,” the District Attorney never gave me a direct order or a chain-of-command directive to strike jurors based on race.

It was not an “I’m-your-boss” instruction. I used the word “instructed” inartfully during a conversation with my friend that I expected would remain private. Because of the incendiary nature of this extraneous information, I must explain to the Court the external pressures I was feeling prior to this trial and affirm to the Court that these external pressures bore no fruit and had no impact on this trial.  I was not “instructed” to strike black jurors so much as I was encouraged to do so as a matter of trial strategy.

Apparently, both Wood and his co-counsel had considered telling the Court about the “encouragement” to strike black jurors that their boss was giving them, but decided against it.

I asked him at that time whether we had a duty to inform Defense counsel or the Court regarding any encouragement or advice to exercise strikes based on race. We reached the conclusion that our ethical obligations are unaffected by the haphazard conversations and inarticulate goings-on within our daily office lives.  We knew that we would not be exercising our strikes based on race.

To be fair, Wood and his co-counsel for the State did articulate race neutral reasons for striking the three black venire members in question. One had a Facebook profile picture of herself wearing a t-shirt that said “Dope” and had a picture of a marijuana leaf on it.  The second appeared to be a family member of an individual who had recently been sentenced to a life sentence.  The third had expressed her own unwillingness to serve on the jury due to suffering from Nutcracker Syndrome.  Had it not been for Wood’s friend feeling a duty to show candor toward the court, the record most likely would have supported the Court’s denial of the Batson challenge.

Assuming for the sake of argument that all three of those reasons were listed with pure intentions, one does have to wonder what Wood would have done had there been no race neutral reasons available to him. According to his testimony, the potential for that type of scenario happening in the future has been addressed now.

I have since addressed my concerns with [Kurtz], and – of course – he has a very different interpretation of his statements and the events that I am addressing today. At any rate, we now have a better understanding of how the two of us should communicate regarding the subject of race.

Stunningly, Wood seemed to feel that this issue was so benign that he was confident enough to admonish the Judge:

. . . it’s possible that the pressures that I felt demonstrate a genuine need to address the way we communicate in the office. Regardless, the Court cannot be, and should not be, the thought police over prosecutors.  Regardless of any prosecutor’s opinions on racial issues, the true test of a just prosecutor is his actions – not his thoughts.

Unsurprisingly, District Attorney Kurtz denied the allegation, in an e-mail to the Chronicle.

“My instructions and guidance has always been and will always be that prosecutors should not take race into account in exercising the choices allowed by law on which potential jurors to strike,”[Kurtz] said.

For the moment, what happens next in the trial of Ms. Ware is on hold, but Judge Clapp stated that “these are events that I believe have some bearing on this case.” Ultimately, he instructed Racer to talk to his client and let the court know how she wished to proceed.  One would suspect that if Ms. Ware decided to ask for a new trial, Judge Clapp would be pretty open-minded in considering that motion.

In the meantime, Judge Clapp’s statements to the two prosecutors were insightful. After asking both prosecutors how long they had been licensed and prosecuting, he stated:

. . . one of the things that concerns me is – and it’s really beyond the – probably beyond consideration in this case, the Ware case, and that is the fact that Mr. Kurtz is your boss; but he’s also your mentor in the sense that there are only two ADAs, correct, the two of you?

And he’s the one that is bringing you up in the world of legal prosecution and teaching you how to prosecute cases and sharing with you that the proper strategy in a case like this is to strike all the blacks?

Regardless of the ultimate outcome of Ms. Ware’s case, hopefully Mr. Wood knows that he was right to feel anxiety if his boss was encouraging him to do something that was both legally and morally wrong. Unfortunately, the tone of his statement seems to indicate that the only true lesson he learned out of the ordeal was not to share his anxiety about possibly committing prosecutorial conduct with his friend.

And they wonder why men don’t like to share their feelings.

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  • Scott Jacobs
    23 March 2016 at 2:57 pm - Reply

    I used the word “instructed” inartfully during a conversation with my friend that I expected would remain private.

    Translation: “I made the mistake of being honest about how things work to someone I assumed to be as unethical as I am, forgetting that my friend actually knows right from wrong.”