Philadelphia DA Candidate's Tips on Jury Selection: "To Win, Limit Black Jurors, McMahon Said"

Philadelphia Inquirer
April 1, 1997
By L. Stuart Ditzen, Linda Loyd and Mark Fazlollah, Inquirer Staff Writers

Jack McMahon, the Republican candidate for Philadelphia district attorney, made a training tape while working as a prosecutor 10 years ago in which he advised young prosecutors to try to keep "blacks from low-income areas'' off juries.

"The blacks from the low-income areas are less likely to convict,'' McMahon said on the videotape. "I understand it. It's an understandable proposition. There's a resentment for law enforcement. There's a resentment for authority. And as a result, you don't want those people on your jury.

"And it may appear as if you're being racist, but again, you're just being realistic. You're just trying to win the case. The other side is doing the same thing.''

McMahon, then a homicide prosecutor, also cautioned colleagues against accepting teachers, doctors, liberals, social workers or anyone "smart'' on a jury. And he told the rookie prosecutors that their mission was not to "get a competent, fair and impartial jury,'' but to win.

"The only way you're going to do your best is to get jurors that are unfair, and more likely to convict than anybody else in that room,'' he said. "Because the defense is doing the exact same thing.''

McMahon, now a prominent defense lawyer who recently won the acquittal of a defendant in the Center City jogger case, made the comments in a videotaped session in which he instructed assistant district attorneys on jury-selection techniques.

In an interview yesterday, McMahon said he did not intend to make racially insensitive remarks on the tape.

"My actions in my career have displayed complete sensitivity to blacks,'' he said. "I've been representing individuals for the last seven years, and seen their mothers cry. I've been in their homes. No one understands the injustices to minorities done in the legal system better than me.''

The hour-long tape was made after the U.S. Supreme Court issued a ruling in April 1986 barring prosecutors from striking blacks from juries solely on the basis of race.

On the tape, McMahon said that: "In selecting blacks, you don't want the real educated ones. This goes across the board. All races. You don't want smart people. If you're sitting down and you're going to take blacks, you want older black men and women, particularly men. Older black men are very good.''

"Blacks from the South. Excellent . . . If they are from South Carolina and places like that, I tell you, I don't think you can ever lose a jury with blacks from South Carolina. They are dynamite.''

"My experience, young black women are very bad. There's an antagonism. I guess maybe because they're downtrodden in two respects. They are women and they're black . . . so they somehow want to take it out on somebody and you don't want it to be you.''

McMahon did not advocate keeping blacks off juries altogether. Rather, he said that the best juries consist of a racial mix -- four blacks and eight whites, or "three and nine.''

On the tape, he also said he was opposed to all-white juries because they are susceptible to "reverse racism.'' With a mixed-race jury, he said, "you're not going to get any of that racist type of attitude because a white guy is not going to sit on that jury and say, 'Oh, these people live
like this and that' with three other blacks sitting there in the room.''

McMahon said yesterday that he recalled making the tape, but never watched it. And he accused District Attorney Lynne Abraham, whom he is expected to oppose in the November election, of playing politics by putting the tape in circulation.

Abraham, in a statement, said: "The sentiments and practices discussed on that videotape are repugnant to me, and they are in direct contradiction to my beliefs and to the policies of this office.''

Several defense lawyers said yesterday that the tape might provide grounds for seeking new trials for their convicted clients.

Attorney Ross Begelman said he would immediately file a request for a new trial for Anthony Lewis, who was convicted in 1984 of murdering James Brown outside a North Philadelphia bar.

Begelman, a former prosecutor in New Jersey, characterized McMahon's statements on the videotape as "the most disgraceful thing I've ever seen. . . . I find it revolting.''

Another lawyer, Jules Epstein, who represents Thaddeus Ford, serving life in prison for the 1980 murder of Reginald Short in South Philadelphia, said he would review the case to determine if any young black women were excluded from the jury at Ford's 1983 trial.

"My duty, and the duty of every other lawyer who has had a case prosecuted in these circumstances, is to go back and check the jury pool,'' Epstein said. "If there were young black females . . . who were challenged by the district attorney, then we have to petition for evidentiary hearings and seek to win a new trial.''

William Davol, spokesman for Abraham, said McMahon successfully prosecuted 36 murder defendants in jury trials before leaving the District Attorney's Office in 1990. Davol said the office was notifying the lawyers for those defendants about the tape.

One of Abraham's top deputies, Raymond J. Harley, sent a copy of the videotape last week to 19 defense attorneys whose clients were successfully prosecuted by McMahon in the 1980s.

McMahon, clearly angry at the district attorney's actions, said: "I find it reprehensible that the D.A.'s Office would attempt to come to the aid of convicted murderers, to assist them in some political fashion.''

"I stand on my record both as a prosecutor and defense attorney for being fair and one who understands the minority issues probably a lot better than Lynne Abraham,'' he said.

Officials in the D.A.'s Office denied a political motive in circulating the tape to defense lawyers. Abraham has been accused by some black politicians, including City Council President John F. Street, of insensitivity to racial bias in the justice system. The controversy has been seen as a potential liability in her reelection bid.

The decade-old tape surfaced in February. Harley, in his letter, said that when McMahon announced his candidacy for district attorney in mid-February, he was quoted in the media "regarding his sensitivity to the concerns of minorities.''

McMahon's comments, Harley wrote, triggered an unnamed assistant district attorney's memory of the videotape, which was made between 1986 and 1988 when Ronald Castille, now a state Supreme Court justice, was district attorney.

Harley said the unnamed prosecutor told his supervisors about the tape, and it was retrieved from storage in City Hall. After viewing it, Harley wrote the lawyers, "we have determined, that disclosure to you is the ethically appropriate course.''

Officials in the D.A.'s Office said it was unclear whether McMahon's views, as expressed on the tape, could result in new trials in any of the murder cases he prosecuted.

The 1986 Supreme Court ruling on jury selection struck down a traditional court practice in which lawyers were allowed to eliminate a certain number of jurors without any explanation.

Some prosecutors had used those "peremptory challenges'' to keep blacks off juries, particularly in cases involving black defendants.

The Supreme Court concluded that the practice was widespread and had to be stopped. As a result of the court's ruling, prosecutors are required to explain their reasons for keeping blacks off a jury.

In McMahon's videotape -- one of many such tapes the D.A.'s Office has produced over the years for training young prosecutors -- he is forthright about his objectives in picking a jury.

"The case law says the object of getting a jury . . . is to get a competent, fair and impartial jury,'' McMahon said on the tape. "Well, that's ridiculous. You're not trying to get that. Both sides are trying to get the jury most likely to do whatever they want them to do.''

"You are there to win,'' he said. ". . . If you think that it's some noble thing, some esoteric game, you're wrong and you'll lose.''

He said the best jurors, from the prosecutor's standpoint, were stable, conservative individuals.

"If you take middle-class people, that are well dressed, you're going to do well,'' he said. "It's that simple sometimes.''

But he cautioned against picking intelligent people.

"You do not want smart people. I wish we could ask everyone's IQ. If you could know their IQ, you could pick a great jury all the time. You don't want smart people because smart people will analyze the hell out of your case. They have a higher standard. They hold you up to a higher standard. They hold the courts up to a higher standard . . . They take those words `reasonable doubt,' and they actually try to think about them.''

He continued: "You don't want social workers. . . . Teachers, you don't like. Teachers are bad, especially young teachers. . . . If you get like a white teacher teaching in a black school that's sick of these guys, maybe that may be one you accept. . . . Bad luck with teachers, bad luck with social workers. Bad luck with intelligent doctors.''

McMahon said yesterday that he did not recall details of the tape. "It's hard for me to comment on specific points in it without seeing it,'' he said. "Obviously, back then there were certain ways that people went about picking a jury.''

He was instructed to explain on the tape "how it's really done,'' he said, and that's what he did.

[THE FOLLOWING MATERIAL WAS IN A BOX ON PAGE A9]

Some of McMahon's tips for rookie prosecutors

Here are excerpts from a training videotape in which Jack McMahon, then an assistant district attorney, offers advice on picking a jury:

You always want to ask what section of the city they live in.... Let's be honest: People who live in North Philadelphia have a different perspective on law enforcement and the government than people who live in... Somerton or Chestnut Hill. People from Mayfair are good, and people from
33d and Diamond stink.... You don't want any jurors from 33d and Diamond.
. . .

The case law says the object of getting a jury... is to get a competent, fair and impartial jury. Well, that's ridiculous. You're not trying to get that. Both sides are trying to get the jury most likely to do whatever they want them to do. If you go in there, any one of you, and think you are going
to be some noble civil libertarian... that's ridiculous. You'll lose. You'll be out of the office.

You are there to win... The defense is there to win, too. The only way you're going to do your best is to get jurors that are unfair, and more likely to convict than anybody else in that room. Because the defense is doing the exact same thing ...

You want stable, conservative people. That's what you want. What do you do to get those types of people? You look at their married life, their background, how long they have been married, how long they have been employed ...

Let's face it.... The blacks from the low-income areas are less likely to convict. I understand it.... There's a resentment for law enforcement. There's a resentment for authority. And as a result, you don't want those people on your jury. And it may appear as if you're being racist, but again,
you're just being realistic....

In my experience, you look for how prospective jurors are dressed.... If you take middle-class people, that are well dressed, you're going to do well.... Another thing I've learned over the years to look at... Most jurors bring to court a book. Look at that book. If they're reading Karl
Marx, you know you don't want this person....

My opinion is you don't want smart people.... Because smart people will analyze the hell out of your case. They have a higher standard. They hold you up to a higher standard. They hold the courts up to a higher standard because they're intelligent people. They take those words `reasonable doubt' and they actually try to think about them. (Audience laughter.) You don't want those people. You don't want people who are going to think it out.

Another factor, in selecting blacks, you don't want the real educated ones. This goes across the board. All races... If you're sitting down and you're going to take blacks, you want older black men and women, particularly men. Older black men are very good, guys 70, 75 years old are
very good jurors generally speaking.... They are from a different era, and a different time. And they have a different respect for the law....

Older black women, on the other hand -- when you have a black defendant who is a young boy and they can identify, a motherly type thing -- are a little different. The men don't have that same kind of maternal instinct towards them. They are a little bit more demanding, a little bit more law and order.

The other thing is, blacks from the South. Excellent. Ask where they are from. If they say I've lived in Philadelphia five years, if they are from South Carolina and places like that, I tell you, I don't think you can ever lose a jury with blacks from South Carolina. They are dynamite. They just have a different way of living down there, a different philosophy. They are law and order. They are on the cops' side. Those people are good.

Again, my experience, young black women are very bad. There's an antagonism. I guess maybe because they're downtrodden in two respects. They are women, and they're black. So they are downtrodden in two areas, so they somehow want to take it out on somebody and you don't want it to be you....

You want people of all the same intellectual capabilities, all middle class, same economic backgrounds. That's the ideal jury because ... they are cohesive. You don't want a person that's real smart, and you don't want the real dumb ones because the dynamics are not there. You're not going to have some brain surgeon from Chestnut Hill with some nitwit from 33d and Diamond....

Again, some people say well, the best jury is an all-white jury. I don't buy that. Particularly with a black defendant... You don't want this all-white jury to go back there and say to themselves, `Who gives a expletive?'

You don't want that attitude at all. And you may get that kind of reverse racism in your case. I've always felt that a jury of eight whites and four blacks is a great jury, nine and three.... You're not going to get any of that racist type of attitude because a white guy is not going to sit on that
jury and say, `Oh, these people live like this and that' with three other blacks sitting there in the room....

You don't want social workers. That's obvious. They got intelligence, sensitivity, all this stuff. You don't want them.... Teachers are bad, especially young teachers. Like teachers who teach in the grade-school level. Sometimes, you get teachers. I've had good luck with teachers who teach in the public school system.... They may be so fed up with the garbage that they've had in their school, they may say, `I know this kind of kid. He's a pain in the ass.' If you get like a white teacher teaching in a black school that's sick of these guys maybe, that may be one you accept.

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