"That's What That N----- Deserved"

In fact, state and federal courts have routinely avoided the evidence and consequences of racism in the criminal-justice system. (See "5 Death Penalty Cases Tainted by Racism.") Consider one of the most famous examples, the 1987 Supreme Court case of McCleskey v. Kemp, in which lawyers for Warren McCleskey, a black man sentenced to death for killing a white police officer, presented statistics from more than 2,000 Georgia murder cases. The data demonstrated a clear bias against black defendants whose victims were white: When both killer and victim were black, only 1 percent of the cases resulted in a death sentence. When the killer was black and the victim white, 22 percent were sentenced to death—more than seven times the rate for when the races were reversed.

It wasn't just jurors who were biased. Prosecutors sought the death penalty for black defendants in 70 percent of murder cases when the victim was white, but only 15 percent when the victim was black.

The Supreme Court was less than impressed with all of this. Justice Lewis Powell, in a 5-4 majority opinion he would later call his greatest regret on the bench, wrote that McCleskey could not prove that "the decisionmakers in his case acted with discriminatory purpose." In short, evidence of systemic racial bias had no relevance in individual cases. Further on, Powell got down to his true concern: "McCleskey's claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system."

Justice William Brennan dissented with one of the most memorable statements of his iconic career: "Taken on its face, such a statement seems to suggest a fear of too much justice." He went on: "The prospect that there may be more widespread abuse than McCleskey documents may be dismaying, but it does not justify complete abdication of our judicial role."

Georgia executed McCleskey in 1991, but the McCleskey rationale—which the New York Times labeled the "impossible burden" of proving that racial animus motivated any particular prosecutor, judge, or jury—has been used by dozens of courts to reject statistical claims of discrimination in capital cases, even though today's numbers are not much better.

The Fults case was different, though. Here was an actual juror explaining his decision to impose the death sentence through a blatantly racist lens. It was precisely the sort of evidence the Supreme Court claimed was lacking in the McCleskey case. So why has Kenneth Fults not been granted a new sentencing?

Fults during a prison visit with his son

 

Justice Powell's concerns are understandable. After all, what part of the criminal justice system is untouched by racism? Some death penalty critics, in fact, view capital punishment as a direct descendent of lynching.

The phrase "legal lynching" first appeared in the New York Times during the infamous 1931 Scottsboro Boys trials, in which nine black youths were charged with raping two white women in Alabama. Their lack of counsel, coupled with the explicit exclusion of black jurors, led the Supreme Court to intercede twice and reverse convictions.

It's hard to read those opinions today without feeling a sense of horror. Within two weeks of the alleged crime, eight of the nine young men had been sentenced to death in three separate trials by the same jury. Although there was no shortage of black men in Scottsboro County who were legally eligible to serve on juries, there was no record of any of them ever serving on one. Perhaps most remarkably, none of the defendants had a lawyer appointed to represent him until the morning of trial. In 2013, more than 80 years after the arrests, the Alabama Board of Pardons and Paroles posthumously pardoned the three Scottsboro Boys whose convictions still stood.

We have not come nearly as far from these outrages as you might think. People of color are still dramatically underrepresented on juries and grand juries, even though excluding people based on race is illegal and undermines "public confidence in our system of justice," as the Supreme Court put it in 1986. Prospective black jurors are routinely dismissed at higher rates than whites. The law simply requires some rationale other than skin color.

"Question them at length," a prominent Philadelphia prosecutor suggested to his protégés after the Supreme Court banned race as a reason for striking jurors. "Mark something down that you can articulate at a later time." For instance, a lawyer might say, "Well, the woman had a kid about the same age as the defendant, and I thought she'd be sympathetic to him."

In 2005, a former prosecutor in Texas revealed that her superiors had instructed her, if she wanted to strike a black juror, to falsely claim that she'd seen the person sleeping. This was just a dressed-up version of the Dallas prosecution training manual from 1963, which directed assistant district attorneys to "not take Jews, Negroes, Dagos, Mexicans, or a member of any minority race on a jury, no matter how rich or how well educated."

The 1969 edition of the manual, used into the 1980s, promoted a more subtle brand of stereotyping, noting that it was "not advisable to select potential jurors with multiple gold chains around their necks." But it hardly mattered: Overt, covert, or in between—the result was the same.

Virtually every state with a death penalty has dealt with accusations that black jurors have been improperly kept off juries. During the 1992 death penalty trial of a defendant named George Williams, for example, a California prosecutor dismissed the first five black women in the jury box. "Sometimes you get a feel for a person," he explained, "that you just know that they can't impose it based upon the nature of the way that they say something." The judge went even further, noting that "black women are very reluctant to impose the death penalty; they find it very difficult." In 2013, the California Supreme Court ruled that these jury strikes were not race-based, and deemed the judge's statement "isolated." Williams remains on death row.

After North Carolina passed its Racial Justice Act, a 2009 law that let inmates challenge death sentences based on racial bias, a state court determined that prosecutors were dismissing black jurors at twice the rate of other jurors. The probability of this being a race-neutral fluke, according to two professors from Michigan State University, was less than 1 in 10 trillion; even the state's expert agreed that the disparity was statistically significant. Based on these numbers, the court vacated the death sentences of three inmates and resentenced each to life without parole. Six months later, the state legislature repealed the Racial Justice Act.

Perhaps You're Still wondering, despite all of the above, how Thomas Buffington ended up on the Fults jury.

The answer is simple. He lied:

Defense attorney: Do you have any racial prejudice resting on your mind?
Buffington: No, sir.
Defense attorney: Does it make any difference that in this case the defendant is black and the victim was white?
Buffington: No, sir.

Even this sort of cursory questioning wasn't required by the Supreme Court until 1986, and then only in capital cases—and when the defense requests it. In order to function, the justice system has to presume that jurors will tell the truth under oath, just as it presumes lawyers are competent.

And what of the lawyers' role? Since 1976, when mandatory death sentences were ruled unconstitutional, the decision of whether to seek execution has rested entirely with the local district attorney. In practice, this means a white man usually gets to decide who should face the death chamber. A 2009 study found that more than 85 percent of chief prosecutors in the United States were white, and the majority were male.

In the Fults case, that white man was William McBroom, district attorney of the Griffin Judicial Circuit. McBroom had already put two men on death row by the time he prosecuted Fults, and continued to aggressively seek and obtain death verdicts until 2004, when he lost his reelection by a hair. He wasn't the type to fret over moral ambiguities: McBroom sought death sentences at every opportunity, thereby avoiding allegations of discrimination in the charging process.

His tough approach found an unlikely ally in Johnny Mostiler, the Spalding County public defender, who happened to be representing Kenneth Fults. "We're finding ourselves facing crimes we think are Atlanta big-city crimes," Mostiler proclaimed at one point. "We're a law-abiding town. We want our criminals prosecuted."

McBroom and Mostiler knew each other so well that the Fults transcript sometimes reads like old friends reminiscing: McBroom points out how Mostiler is going to respond, mentions an argument his rival made in an earlier case, and refers to him by first name before handing over the floor for closing arguments. "Mostiler was the toughest trial lawyer in Spalding County," McBroom recalled some years after the Fults trial. "He would take cases where you didn't think defendants had a chance, and you'd be fighting for your life."

He had every reason to praise Mostiler. A death verdict is invariably followed by appeals in which the defense attorney's work comes under close scrutiny. Prosecutors routinely hail their adversaries as giants in the field of capital defense to make it harder for any defendant to claim his lawyer was incompetent. And McBroom, who had obtained death verdicts against Mostiler in several prior cases, needed to defend some deplorable behavior: For all intents and purposes, Johnny Mostiler, like Thomas Buffington, was a racist.
 

Spalding County, 40 miles south of Atlanta, has but a single public defender to represent criminal defendants who can't afford an attorney—and a great majority cannot. All through the 1990s, Mostiler was that defender, responsible for handling as many as 900 felonies a year. He also maintained a significant civil practice on the side and took on serious felony cases outside of Spalding County. But he was hardly your humble, nose to the grindstone type. According to a 2001 profile in The American Prospect, he stood out in a black cowboy hat; a silver beard with handlebar mustache; six gold, silver, and onyx rings; and three gold bracelets. He also drove a mustard-green 1972 Cadillac El Dorado convertible—with cattle horns as a hood ornament.

But Mostiler's true legacy—he died of a heart attack a few years after the Fults trial—involved the case of his former client Curtis Osborne, who was tried in 1991, found guilty of murder, and finally scheduled for execution in 2008. As the clock wound down on Osborne's appeals, a former US attorney general, a former Georgia chief justice, and former President Jimmy Carter (previously the governor of Georgia) all spoke out against the execution. They had heard the allegation by another one of Mostiler's clients, a white man named Gerald Huey, that Mostiler had told him, speaking of Osborne, that "that little nigger deserves the chair."

Some time later, a Georgia lawyer named Arleen Evans stepped forward with a sworn recollection about Mostiler's personal conduct:

I recall one occasion when I was in the lawyer's lounge at the Spalding County Courthouse. There were a number of other lawyers there including Mr. Mostiler. Mr. Mostiler began telling racist jokes filled with racial epithets like "nigger." Some of the lawyers would laugh. Some would laugh nervously. Some would try to ignore it. And others would leave the room to get away from it. On another occasion, I remember walking into the lawyer's lounge and Mr. Mostiler was again telling racist jokes. Ms. Nancy Bradford, who is now deceased, looked at me, noticed that it was making me uncomfortable, and told me "that's just Johnny."

Osborne's lawyers soon dug up yet more evidence: a transcript from the trial of Derrick Middlebrooks, a black defendant who was so troubled by the racist talk that he asked the judge to dismiss Mostiler as his public defender: "He indicated to me that he wouldn't—he couldn't go up there among them niggers because them niggers would kill him," Middlebrooks said. "Now personally I don't know if he meant anything really by it. But I find it, you know, kind of hard to have an attorney to represent me when he uses those type of words. It doesn't help my confidence in my attorney."

"I honestly don't remember," Mostiler responded when the judge asked him about it. "I don't use those terms out in public. And I probably—if I did use it I certainly am sorry. I didn't mean to indicate that it was any—or any racial overtones. I think my—I think my record on race is…"

"Well documented in this court," the judge interjected.

Mostiler was long dead by the time his racist language became an issue in the Osborne case, but several prosecutors, including McBroom and his successor, District Attorney Scott Ballard, spoke up in his behalf. Mostiler had presented a "very adequate defense" of Curtis Osborne, Ballard argued. He urged that the execution go forward.
 

Small counties tend to have incestuous legal communities. Public defenders and assistant district attorneys often swap sides and socialize together too; top assistants become bosses, and, most predictably, district attorneys end up on the bench. Such was the case with Johnnie Caldwell, Fults' trial judge.

Caldwell had preceded McBroom as district attorney of the Griffin Judicial Circuit. As both a prosecutor and a judge, Caldwell was well aware of the racism allegations surrounding Mostiler. It was he, in fact, who had heard Middlebrooks' claim and used the opportunity to assure the public defender, saying: "It's unchallenged in this court with your actions concerning the races and certainly of standing up for the rights of all individuals regardless of their race or color or religious preference." Turning to Middlebrooks, he added: "I find nothing in Mr. Mostiler's conduct of this trial or in representing you that would cause me to disqualify him."

By suggesting that the public defender of Spalding County—a man hired year after year by the county commissioners—was a racist, Middlebrooks had also, unwittingly, impugned the dignity of the prosecutor and the presiding judge. Caldwell was clearly put out:

Middlebrooks: My motion for a new attorney is denied?
Caldwell: Yes, sir.
Middlebrooks: Okay. Thank you.
Caldwell: And I know you're sitting over there reading a book on ineffective assistance of counsel, you read it real well and write everything down, okay.
Middlebrooks: Yes, sir.
Caldwell: I'm directing you to. You write everything down and you write it well. You've been reading that book ever since you've been sitting over there.
Middlebrooks: Judge, that has—
Caldwell: Sir, don't say anything else.
Middlebrooks: Yes, sir.

When race became an issue in the Osborne case, Caldwell didn't step forward to disclose his interactions with Mostiler, nor did any of those other lawyers in the lounge, who had certainly heard the same racist jokes and comments Arleen Evans had. (Caldwell had his own problems: He resigned his judgeship in 2010 in light of allegations that he was soliciting female attorneys in open court. He was nonetheless elected, soon after, to the Georgia Legislature.)

Ultimately, neither local nor federal courts were moved by the consistency of the race testimony. In 2006, the 11th Circuit Court of Appeals soundly rejected Osborne's claim that Mostiler was ineffective due to racial animosity. (Osborne was executed two years later.) Citing McCleskey, the court said it was the racial animus of the decision makers—the prosecutors and the jurors, not the defense attorney—that mattered.

So what would the same court say eight years later, when lawyers for Kenneth Fults came before it with claims of racial animus involving a decision maker, the juror Thomas Buffington?