Prejudice and prosecution: Juror racism at issue in Tulsa County DA election

In late 2017, during jury selection for a trial where a black man stood accused of attempting to rob an Owasso shoe store with a loaded pistol, one potential juror offered a compelling reason why she shouldn’t serve.

“I’m probably racist,” the woman told District Attorney Steve Kunzweiler, District Judge Kelly Greenough, and defense attorney Brian Boeheim who represented the suspect.

“I’ve got to admit, and I’m ashamed of this, but with all of the cop killing that’s been going on, and then I’m probably racist,” she said according to court transcripts.

“You’re probably what?” Kunzweiler asked.

“Racist,” the woman replied.

The stunning admission was enough for Greenough, who ultimately excused the woman from having to serve on the jury.

But the admission appears to not have been an immediate deal-breaker for Kunzweiler, who continued to ask why the potential juror should not remain under consideration.

“Everybody is going to bring what I kind of call some baggage from their past,” Kunzweiler said, according to the transcript.

The defendant, 27-year-old Howard Jones, was eventually convicted and sent to prison for 40 years. He had been convicted before for robbery in San Antonio, records show, and his sentence — the maximum allowable under Oklahoma law — may have reflected his prior conviction.

The transcript and Jones’ case have become part of the current District Attorney election. A social media post on the Instagram page for Kunzweiler’s opponent, Jenny Proehl-Day, promoting a candidate forum scheduled for Saturday alludes to it.

“We will have on hand copies of a partial court transcript that highlights Mr. Kunzweiler’s problematic acceptance of jury members with racial prejudices,” the post states. The event is sponsored by the Oklahoma African American Democratic Federation, which says it “reached out to” Kunzweiler to attend, but his campaign “never followed through.” Proehl-Day and District 1 Congressional Candidate Tim Gilpin, D-Tulsa, are set to speak at the event, Saturday at 3:30 p.m. at Rudisill Regional Library, 1520 N. Hartford Ave.

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Kunzweiler told The Frontier that the transcript is “just a snippet” of an interaction between a potential juror, a judge and two attorneys. That’s true — the transcript is a seven page document that begins at the moment the potential juror begins to tell her tale with the judge and attorneys in a sidebar, and ends when she is done.

“The context of what was being said up to that point is relevant and you don’t have that, and the part after that is relevant and you don’t have that,” Kunzweiler said.

Kunzweiler said that he was attempting during that discussion to “provide a full record” and was asking questions “that are foundational to any juror’s ability to serve.” He said he did not object to the juror’s eventual removal by Greenough.

In the transcript, after Boeheim tells Greenough that the potential juror should be removed because of her bias, Kunzweiler doesn’t necessarily agree or disagree, though he does tell Greenough that although the woman expressed reservations about her ability to be a juror, that she said “every time that she will … try and follow the (jury) instructions. She never once said she can’t do it.”

[perfectpullquote align=”full” bordertop=”false” cite=”” link=”” color=”” class=”” size=””]”I need her to explain in detail why she feels how she feels so that it enters in the record. That’s what I was doing … I made the record that needed to be made.” – Tulsa County District Attorney Steve Kunzweiler[/perfectpullquote]

Kunzweiler then tells Greenough that he “stands on my record,” referring to the discussion that had just taken place between he, the juror, and Greenough. That, he told The Frontier, was his way of letting the woman state the full context of why she believed she would not make a good juror.

“As a lawyer, that’s kind of my duty,” he told The Frontier. “We need to explore her issues and pull that information out of her. Like ‘walk me through why you feel that way, I need to know more.’ I’ve not met that person before that day, I need her to explain in detail why she feels how she feels so that it enters in the record. That’s what I was doing … I made the record that needed to be made.”

The issue of race is never far from courthouse steps — juries are predominately white and, especially in Oklahoma, defendants and convictions skew disproportionately against people of color. In Tulsa County, black residents make up about 10 percent of the population but 30 percent of the felony charges. In Oklahoma, about 8 percent of the population is black. But behind bars, more than 1-in-4 inmates are black.

And in Tulsa, with the background of the 1921 Race Massacre where dozens of black citizens were killed and six recent trials stemming from white officers killing unarmed black men, the issue is perhaps even more prevalent.

But little is done in Tulsa or in the state to keep track of the racial makeup of juries, so relatively little is known about what affect juror race can have in the courtroom.

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When it comes to racial and gender demographics of people suspected, charged, or convicted of a crime, the information comes easily to anyone with a little time to dig around.

For instance, according to internal data kept by the Tulsa County District Attorney’s Office, 11,254 felony cases were filed between Jan. 1, 2017, and Oct. 1, 2018.

About 77 percent of those cases were filed against men, while the remaining 23 percent were filed against women.

More than 30 percent of the felony cases in that time frame were filed against “Black/African American” men and women, records show, a rate almost three times higher than population figures would suggest. (U.S. Census data from 2017 shows “black or African American” citizens make up less than 11 percent of Tulsa County’s population.)

That figure stands out for reasons other than just the jarring discrepancy. Census data shows the “Hispanic or Latino” population of Tulsa County sits at 12.7 percent, yet felony charges against that ethnic group make up only 4 percent of cases filed since 2017.

Whites make up about 60 percent of the charges filed, but represent 73 percent of Tulsa County’s population, according to Census figures.

Those numbers mostly align with Oklahoma Department of Corrections data that shows statewide 26.61 percent of inmates are identified as African American, 7.69 percent are identified as Hispanic and 53.82 percent are identified as white.

Meanwhile, state census data shows 74.3 percent of Oklahomans are white, 7.8 percent are black, and 10.6 percent are Hispanic.

As for jurors, the peer group tasked with determining innocence, guilt, and proposed punishment?

No one knows.

Thousands of potential jurors flood into county courthouses every year during jury trial terms, awaiting their turn to see if they get selected. They’re summoned there by random draw — a computer picks names from a database of licensed drivers and state IDs, and orders them to their local county courthouse.

In Tulsa County courts, similar to court systems in other Oklahoma counties The Frontier spoke with, no information is kept on who actually responds to the summonses, and no one keeps information on the jurors ultimately placed in the jury box. Some sporadic information is kept — juror names are kept as part of the court record, and they’re paid for jury duty, but court clerks questioned by The Frontier on if it was possible to cobble together racial or gender information on jurors was met with uncertainty.

Jari Askins, Oklahoma’s Administrative Director of the Courts, told The Frontier that “I’m not sure if we always even know if the people (who receive summons or arrive to court to serve as potential jurors) are male or female.”

“We don’t have any way of being able to distinguish that,” Askins said. “The closest that would ever come would likely just be individual work products from lawyers who have kept track of it in their notes during jury selection.”

However, it appears at least one person is storing at least names and addresses on some past jurors. Tulsa County District Judge Jim Caputo apologized in a letter earlier this week for sending campaign mailers to former jurors, asking for their votes. Caputo is set to face Tracy Priddy next month.

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In Florida, a study earlier this decade by Duke University-led researchers determined the evidence regarding the impact of the jury pool on conviction rates “is straightforward and striking.”

In the study, which examined juries and defendants based solely on race, the authors found the presence even one or two black jurors “results in significantly higher conviction rates for white defendants and lower conviction rates.”

“In cases with no blacks in the jury pool, black defendants are convicted at an 81 percent rate and white defendants at a 66 percent rate,” the study found. “When the jury pool includes at least one black potential juror, conviction rates are almost identical: 71 percent for black defendants and 73 percent for white defendants.”

The authors came to “three main conclusions.”

“There is a significant gap in conviction rates for black versus white defendants when there are no blacks in the jury pool, the gap in conviction rates for black versus white defendants is eliminated when there is at least one black member of the jury pool, and conviction rates for white defendants are significantly higher when there is at least one black member of the
jury pool (rather than an all-white jury.)”

Interestingly, in Tulsa County, there are two high-profile examples to the opposite.

In 2016, an all-white jury convicted Robert Bates, a wealthy white reserve Tulsa County deputy, of second-degree manslaughter for the fatal on-duty shooting of Eric Harris, an unarmed black man. The all-white jury recommended Bates, whose attorney had claimed was so frail he would die while incarcerated, to four years in prison — the maximum possible punishment.

A year later, a jury with two black female jurors acquitted Betty Shelby, a white Tulsa Police Department officer, of an on-duty killing of Terence Crutcher, an unarmed black man. Shelby had been charged with first-degree manslaughter and faced a potential minimum of four years in prison.

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Earlier this year, the U.S. Supreme Court ruled that a man convicted of murder and sentenced to death should receive a new trial due to the racism of one of the jurors.

The inmate, Keith Tharpe, had been convicted and sentenced to death in 1991 for killing his ex-wife’s sister. Years later one of the jurors, a white man named Barney Gattie, signed an affidavit in which he drew “a distinction between Mr. Tharpe and his victim, both of whom were black,” according to a Washington Post article.

In the affidavit, Gattie wrote that the victim and her husband’s family were “good black folks,” while Tharpe wasn’t. Gattie had previously written in the affidavit that “there are two types of black people. 1. Black folks and 2. N——s.”

Gattie also questioned in the affidavit if “black people even have souls,” the paper wrote. Gattie, who later died, eventually recanted his views, according to an Atlanta Journal Constitution story.

Based on that affidavit, Tharpe had filed a motion for a hearing to discuss a new trial, which a lower court declined to hear. The majority Supreme Court decision ruled the court should reconsider its motion to not hear the appeal.

The 11th Circuit U.S. Court of Appeals later ruled against Tharpe, who remains on death row.

Before the trials for Bates and Shelby, a biracial teenager named Jeremey Lake, who identified as black, was shot and killed by an off-duty Tulsa Police Department officer named Shannon Kepler. Lake was dating Kepler’s daughter, and one night the off-duty officer drove to the house where Lake lived, confronted him and killed him.

Kepler argued that Lake had threatened him and the shooting was in self defense. No weapon was ever found on or near Lake, and prosecutors filed a first-degree murder charge against Kepler.

It still took four jury trials before Kepler was convicted, not of murder but of manslaughter. He was sentenced to 15 years in prison, rather than the life sentence he would have faced under a murder conviction.

Following the second mistrial, one of the jurors wrote a lengthy post on Facebook, saying the jury was deadlocked “because two people could not look past their own prejudice towards black people.”

Only one of the 12 jurors during Kepler’s first and second trial was black, according to the Tulsa World. During the fourth trial, in which Kepler was convicted, there was again only one black juror. During jury selection for the fourth trial, prosecutors argued that defense attorneys were attempting to exclude black people from the jury.

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Kunzweiler has been a prosecutor for nearly three decades and, some might argue he has a prosecutor mindset more rooted in the 1990s than the 2010s.

“He came up like I did, 25 years ago,” former US Attorney Danny Williams told The Frontier. “Back then they told you your goal as a prosecutor was to put people in jail. It’s changed now and we recognize we can’t incarcerate our way out of a higher crime rate … I think he’s slow to that maybe, but I haven’t seen any decision come out of his office that was based on race.

“I told Steve that I don’t always agree with his decisions as a prosecutor or as DA, but I said your decisions have never been based on race,” Williams said. Williams, who is black, has known Kunzweiler for decades, he said, and spoke about their relationship at Kunzweiler’s behest.

Williams pointed to the Kepler trials as an example.

“He tried that case four times,” Williams said. “I said it’s amazing how many times he tried this. Most prosecutors would have tried it twice and said ‘We’re not doing this anymore, not going to spend any more resources on this.’ But he tried it four times, not because the victim was black or the suspect was white, but because he wanted justice.”

“Everyone can look at the cases I have been involved in, The Good Friday Murders, Bob Bates, Shannon Kepler, Betty Shelby … those are the cases I want people to pay attention to if you’re trying to figure out ‘where does this guy stand,’” Kunzweiler said. “I’m going to stand on the side of justice and do what the job requires me to do.”