Race, Race, Race
Wait a minute. Before it slips beneath the waves forever, I would like to take a quick second look at the recent Dallas Morning News series, "Striking Differences," in which the newspaper accused the Dallas County prosecutor of racism.
Race is a tough issue in town. Everything in Dallas is about racism. Again. I don't know how it could be otherwise. The entire conservative wing of black leadership in the city is under FBI scrutiny in a massive corruption probe. No white elected official has been named yet. How can you have a deal like that going on and people not talk about race?
That's why I thought the Morning News series on jury selection in Dallas County criminal district courts was potentially volatile. In a racially charged atmosphere, the city's only daily newspaper publishes a huge two-years-long study accusing Dallas County District Attorney Bill Hill of running a racist department.
And nothing. No volatility. As far as I can tell, the whole series--26 copyrighted stories, by my count--sank beneath the surface without making a ripple. It was like watching the Titanic disappear into a goldfish pond.
No other media picked it up. There was no brouhaha. I've been calling lawyers and law professors about it all week: The most common reaction was that they'd have to go back and read it before they could comment.
How can that be, in a town where almost everybody black is shouting racism and almost everybody white is shouting not-racism? Here's a case of alleged racism in a very important public office. Everybody shrugs.
I think I know why. This is really a story about journalism more than racism. This story didn't get any traction because the Morning News failed to make its case. And that happened because of the way they went after it.
By the way, I don't normally earn my rent money defending prosecutors. I figure most prosecutors can damn well defend themselves. But under these circumstances in the city, this issue seems important to me for what it says about accusations of racism and how careful we all have to be about making them.
The main ammunition the newspaper offered against Hill was an arcane statistical study that they said found racism in the techniques used by assistant district attorneys to strike black people from juries. The Morning News has been drifting toward this sort of thing in the last couple years, using social science techniques rather than old-fashioned reporting and, in some instances ("Dallas at the Tipping Point"), even hiring commercial consultants to do their reporting for them.
In this case, the newspaper offered the results of a "logistic regression analysis model" to prove Hill and his staff are racists. The paper said the model showed that all of the explanations offered by prosecutors for their peremptory strikes keeping members of the jury pool off juries were smokescreens. The real aim, the paper said, is to get blacks off juries.
The model works like this: You take all the documented factors that could explain a strike--age, race, income, prior experience with law enforcement and so on--and pour them in. The model whirs and chunks along for a while like an electric martini mixer. You open the lid, and what do you find?
In fact, logistic regression is probably only arcane to me. It's used commonly in all kinds of social research and has been around for a long time. It can be tweaked and tuned to do a pretty good job of analyzing social outcomes.
Or a pretty bad job. Depending. Kind of like a hunting rifle with a high-powered scope. You still have to know cows from deer.
Or, as the social scientists say, "Garbage in, garbage out." The accuracy of the model's predictions depends entirely on the design of the model, the variables fed into it and the values assigned to those variables. You could have a model that gets it wrong most of the time.
In 1986--the year the Supreme Court decided Batson v. Kentucky, ruling against purely racial striking of jurors--the Morning News published an important series of stories exposing flagrant racism in jury selection by Dallas County prosecutors. The point was that hardly any black members of a jury pool ever got picked for a jury.
The strangest thing about this recent series of Morning News stories is that when you read down, the facts presented by the News' reporters seem to contradict the sensational headlines. The first story starts out, "Key Findings--Dallas County prosecutors excluded black jurors at more than twice the rate they rejected whites."
But when you read on, you find that the racial makeup of juries today in Dallas County almost exactly matches the makeup of the jury pools. The percentage of the original pool that is black is the same as the black percentage of the picked juries.
So how does the Morning News figure blacks are being unfairly knocked off juries during the picking process?
Bill Hill told me: "I think what happened is that it took them two years to gather all this information and develop these models and crunch all these numbers. I think they were probably disappointed when they came to the conclusion that the number of minorities on the panel ended up that same percentage on the jury.
"That's what I told them. I said, listen, to me, that's the story. We get 20 percent African-Americans on our jury panel, and lo and behold, we have 20 percent African-Americans on that particular jury. I think once they reached that conclusion, then they had to start manipulating the thing a little bit to make a story out of it."
This is where we get into the statistical model and the really convoluted arguments. The News says in its stories that the juries come out the same ratios as the jury pools more or less by accident. The paper reports that prosecutors reject blacks at twice the rate they reject whites, but the ratios come out the same because defense attorneys reject whites at three times the rate they reject blacks.
See if you get this: One form of discrimination balances the other one out. But what's against the law is discriminating against black people, and the prosecutors are still wicked because they're still doing it, no matter where the ratios wind up.
So hold on here. I know this is turning into a head-buster already, which is part of the problem. But I'm afraid I have to toss in another wrinkle. Frederick C. Moss, an associate professor in the Dedman School of Law at SMU, explained to me that the Batson doctrine has evolved to apply to defense lawyers as well as prosecutors and to all jurors of all races.
"When the first Batson came out, everybody thought it was just going to apply in effect to prosecutors," Moss said. "But when subsequent cases came down, they made it clear that they weren't just protecting the 6th Amendment rights of criminal defendants. What they really were protecting was the right of jurors to sit as jurors and not be thrown off of juries because of their race or ethnicity.
"Transforming it to the rights of the individual juror expanded the Batson protections to all jurors in every case. So now it outlaws discriminatory strikes by defense attorneys in criminal cases as well as attorneys in civil cases."
So...bear with me here...according to the News' own findings, defense lawyers are striking whites at three times the rate they strike blacks. So the News could have stuck a headline on this sucker saying: "WHITE PEOPLE UNFAIRLY KNOCKED OFF JURIES BY RACIST DEFENSE LAWYERS."
Time for the martini mixer. The News argues in its stories that its logistic regression analysis measured all of the factors involved in jury strikes and found that a person's racial status as an African-American was the most important one.
But before the stories were published, Hill hired his own experts and asked them to look at the News' findings. Eric Fritsch, an assistant professor of criminal justice at the University of North Texas, told me that in order to know anything about the News' findings, he needed to examine the inner workings of the statistical model.
The News refused. The newspaper told Fritsch that the model itself and all supporting data were confidential information on a par with the contents of a reporter's notebook. And they never turn over notebooks.
Fritsch says that's not even remotely kosher. He told me he is the editor of a journal. People submit articles to him all the time with findings based on this kind of model. He always asks for back-up information in order to know if their model is any good.
If the model's no good, the rest of the series of articles is garbage. The News presented a number of comparisons that seemed to show racism, especially where blacks were struck from juries more often than whites who answered the same question the same way. But you don't know if it's racism until you know what other factors were in play. Maybe they answered the question about punishment the same way, but more of the blacks who answered that question also had previous bad experiences with law enforcement.
The only thing that weaves all of that together properly is the model. And you can't tell if the model is any good if you can't see the typical measurements statisticians use to judge effectiveness. That's what Fritsch asked to see.
In particular, he asked for the "hit ratios"--a measurement of how often the model accurately predicts outcomes. The News wouldn't even tell him that.
"In my field, I say, 'I need to know what the hit ratio is,' and anybody could blurt that off the top of their head," Fritsch said.
"It's not something that should be hidden. If the model is hanging around 50 percent, it's not any better than flipping a coin."
I asked him what would happen if somebody submitted an article to his journal but declined to provide details about the model used.
"They'd get a rejection letter," he said. "Quickly. It would get the red rejection stamp."
I talked about all of this with people at the Morning News, on and off the record. At first they defended their refusal to provide Hill with details on the model, because they said they and Hill had an adversarial relationship on the story. They didn't see why they should provide Hill with ammo he would use to shoot them down or even sue them.
At the end of last week, George Rodrigue, vice president and managing editor of the News, called me to say the paper had decided to provide some of the details of the model but not to Hill. Rodrigue said the paper will publish information about its model at a later date in an article for an academic or trade journalism journal.
In the recent series of stories, the News talked about the 36-year term of former Dallas County prosecutor Henry Wade, "when prosecutors followed a stereotype-ridden manual in rejecting black jurors." The paper, describing 63-year-old Bill Hill as "a track star with a country twang," presented his side of the story by saying, "District Attorney Bill Hill, who was an assistant to hard-nosed former DA Henry Wade, called the analysis of his office's jury selection practices 'unfair and biased.'"
That's all code. It's clear enough. You know what it means. Wade, Hill. Old white guys. Same-same.
But the News didn't have any bullets in its gun. Not really. And publishing the details of the model at a later date in an obscure journal--what the hell is that? If there's anything to say about the model, it needed to be said in the same story that said Hill and his prosecutors were racists.
I did a little reality check on this and asked a couple liberal defense lawyers what they thought of the series. One, whom I will not name, paused a beat and then said, "Oh, yeah, you mean that series the News did trying to make Bill Hill look good."
I said, "No. They said Hill and his staff are racists."
He said, "Well, I didn't read it that carefully. I just got to the part where they said there are as many blacks on juries now as there are in the pool. That seemed like real progress to me. Maybe I've just been around too long."
These are strange times in Dallas. Racism is a brutal charge anytime, especially if it's not true. It's surprising, isn't it, who tosses it around. And how. And why.
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