Court Remands EJI Death Penalty Case After Showing of Racial Discrimination


The Alabama Court of Criminal Appeals on October 1, 2010, remanded the case of death row prisoner Donald Whatley because there was evidence that the prosecutor at his trial illegally excluded African Americans from jury service on the basis of race.

At trial, the prosecutor excluded 17 of the 22 qualified African Americans from Mr. Whatley’s jury. The African Americans who were excluded shared similarities with whites who were permitted to serve on the jury. And the Mobile County District Attorney’s Association has a long history of racial discrimination in jury selection.

On appeal to the Court of Criminal Appeals, EJI lawyers argued that this evidence established an inference of racial discrimination by the prosecutor. The law requires that, where the evidence shows an inference of discrimination, the prosecutor must provide race-neutral reasons for excluding African Americans from jury service. If those reasons are mere pretext for excluding jurors on the basis of race, then a new trial is required.

The Court of Criminal Appeals agreed that the evidence of racial discrimination in Mr. Whatley’s case requires the prosecutor to explain why she excluded so many African Americans from Mr. Whatley’s jury. It sent the case back to the trial court for the prosecutor to give reasons for her strikes. “If the prosecution cannot provide race-neutral reasons for its use of peremptory challenges against Black veniremembers,” the court ruled, “Whatley shall be entitled to a new trial.”

Challenging racially biased exclusion of African Americans from juries in death penalty cases like Mr. Whatley’s case is one part of EJI’s work to eradicate racial discrimination in jury selection.