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Harris County D.A.’s Office Dropped Theft Case After Defense Attorney Alleged Race-Based Jury Selection

A Texas judge approved a Batson motion, then overruled it. But a transcript shows that a Black man was struck unfairly, the attorney said.

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In early 2018, employees at a Prada store in The Galleria shopping mall in Houston alleged that Joshua Ford, a Black man who uses a wheelchair, stole jewelry worth $750 from a display case. Police issued a warrant for Ford’s arrest, and on March 27, the Harris County district attorney’s office filed a misdemeanor theft charge against him. Ford, who has no prior criminal history in the county, pleaded not guilty.

The DA’s office chose to take the case to trial, though some retail theft cases can be diverted if it is a person’s first offense. But as jury selection began this month, the proceedings were halted by an allegation of racial bias.

Murray Newman, Ford’s lawyer, made a Batson challenge—a trial motion that alleges the other party’s elimination of potential jurors is based on the person’s race, ethnicity, sex, or religion—after Assistant District Attorney Mark Goldberg used a peremptory strike to exclude a Black man from serving on the jury. A peremptory strike allows a prosecutor to exclude a potential juror without stating a reason for doing so.

The challenge prompted Harris County Criminal Court Judge Genesis Draper to ask Goldberg to explain his reasoning. “He was looking away,” Goldberg said, according to transcript excerpts that Newman shared with The Appeal. “Looked like he didn’t want to answer. … I didn’t think his response was, you know, honest responses.” 

Draper said Goldberg had not articulated a race-neutral reason for excluding the man and ruled in favor of the Batson motion. But she shortly reversed herself after Goldberg said the man had given a response during preliminary questioning, or voir dire, that could reasonably disqualify him from serving on the jury. 

He recalled that the man had answered “rehabilitation” when asked whether cases like Ford’s were “for punishment or rehabilitation.” However, according to the voir dire transcript, the man had said “both”—the same answer as some other seated jurors. 

“I do believe that Mr. Goldberg believed his answer was rehabilitation and that he had a race-neutral strategy in striking him,” Draper said.

Jury selection resumed, but Newman, a former Harris County prosecutor and a vocal critic of District Attorney Kim Ogg, said he later confirmed with the court reporter that the man’s answer was indeed “both” and shared that information with Goldberg in a private meeting. He said he informed him of his intent to reintroduce the Batson challenge if Ford was found guilty. 

“Whether you made a mistake or whether you did it intentionally,” Newman recounted he told the prosecution, “y’all just stated a mistruth on the record that caused the judge to reverse herself.”

Later that day, the prosecution filed a motion to dismiss the case. The DA’s office marked case cannot be proven beyond a reasonable doubt at this time” on a standardized form it filed with the court.

In an email, Michael Kolenc, a spokesperson for the Harris County DA’s office, wrote, “Mark is a long-time public servant who is widely respected and his reputation beyond reproach.”

In its 1986 Batson v. Kentucky decision, the U.S. Supreme Court ruled that peremptory strikes during jury selection cannot be used to eliminate potential jurors on the basis of race. However, Batson challenges during criminal trials are rare. Such a serious claim of misconduct against a prosecutor can cost a lawyer their credibility if the claim is unsuccessful, said Amanda Marzullo, former executive director of Texas Defender Services in Austin.

“It’s different than other constitutional claims—you’re saying, my counterpart is engaging in racist conduct,” Marzullo said in a phone interview. But unchecked bias, she added, can “damage the relationship between the court and the community if only certain members are seated on a jury.”

Last year, a Texas appeals court halted a scheduled execution, based on evidence of racially biased jury selection during a trial that occurred nearly 30 years earlier. In 2016, Nathan Wood, an assistant prosecutor in the Wharton County district attorney’s office, accused DA Ross Kurtz of pressuring him to exclude Black residents from juries so that they could increase the number of criminal convictions. The Texas State Bar Association dismissed a complaint against him, but Kurtz resigned that year.

The U.S. first outlawed racial discrimination in jury selection with passage of the federal Civil Rights Act of 1875. But nearly 145 years later, illegal exclusion of nonwhite jurors remains a systemic problem. According to a 2010 report by the Equal Justice Initiative—which studied jury selection in Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Tennessee—there were “no adverse consequences for state officials” where courts found that prosecutors illegally excluded people of color from jury service.

Scholars and those with experience trying cases in courtrooms often agree that juror discrimination continues because Black people and white people perceive fairness differently in the criminal legal system. According to a 2013 Pew Research Center survey, Black people were much more likely to say that they face unfair treatment from police or in the courts.

Newman told The Appeal that the state’s case against Ford was particularly weak. The store’s asset protection officer said in an affidavit that he observed Ford on surveillance video “stealing jewelry items from a display case and concealing them in his wheel chair [sic].” But the officer said he remembered Ford “by name and sight from a previous theft,” according to an affidavit. Ford has never been charged in connection with another theft in Harris County, Newman said.

But Ford had been in the Prada store months earlier—as a customer. “He wanted to buy a pair of shoes from them in December of 2017, but they weren’t in stock,” Newman said. Ford had placed an order for the shoes, leaving his name and contact number on file with a store sales associate, according to Newman.