Gene McKissic, a former deputy prosecutor and an attorney in private practice in Pine Bluff, testified that while he was a prosecutor, it was the practice of the office to use their strikes to exclude African-Americans from a jury, but it was common to select at least one African-American whom the prosecutors knew would vote a certain way.
A deeply divided Arkansas Supreme Court on Thursday sent the case of a Pine Bluff man who was convicted of murder in 1993 back to Jefferson County court to determine if prejudice in the jury selection process affected the conviction and sentence.
Attorneys for Kenneth Reams had contended that he did not get a fair trial because his attorney failed to pursue a fair cross selection process during jury selection. They also said his court-appointed attorney failed to offer testimony that would contradict the theory that Reams was the shooter.
Reams, now 43, was charged as an accomplice in the May 5, 1993, murder of Gary Turner, who was shot when he pulled up to an ATM in Pine Bluff. At trial, Reams testified that the co-defendant, Alford Goodwin, had planned to commit a robbery and that he and Goodwin, who was armed with a .32-caliber pistol, went to an ATM and waited for someone to drive up.
He said Goodwin shot Turner. Prior to Reams' trial, Goodwin entered a plea of guilty to capital murder and was sentenced to life in prison without parole.
Reams went to trial 14 days later and was sentenced to death after being convicted of capital murder. Goodwin was not called as a witness, nor was Phillip Curry, a friend of Goodwin's who later said Goodwin had admitted being the one who shot Turner.
Four years after the conviction, attorneys for Reams filed a series of motions alleging ineffective assistance of counsel, and a series of hearings on those allegations began in 2007 and continued until 2015.
During one of those hearings, Gene McKissic, a former deputy prosecutor and an attorney in private practice in Pine Bluff, testified that while he was a prosecutor, it was the practice of the office to use their strikes to exclude African-Americans from a jury, but it was common to select at least one African-American whom the prosecutors knew would vote a certain way.
Another Jefferson County attorney and former circuit court judge, Jesse Kearney, testified that in the courtroom of the two Caucasian judges with white bailiffs, African-Americans were underrepresented, while in the courtroom of the only African-American judge with an African-American bailiff, the jury pool more closely represented a fair cross-section of Jefferson County's population.
Goodwin also testified at one of the hearings that he shot Turner and said he was not asked to testify for the defense but that if he had been, he would have. He also said, “I was a different person back then…I couldn't honestly just sit here and tell you what I would have said because of the type person I was then.”
Writing for the court's majority, Associate Justice Karen Baker said, “Here, in addressing Reams argument regarding the composition of his jury, we hold that a 12-member jury is meant to include 12 members who represent a fair cross-section of the community.”
Baker went on to say that the circuit court erred by requiring Reams to prove that he was prejudiced by his attorney's failure to pursue a fair cross-selection process.
During one of those hearings, the court determined that attorneys for Reams had shown that his original trial attorney was ineffective because he did not seek testimony that could have cast doubt on Reams' guilt. The Supreme Court said that those doubts could have caused at least one juror to contend that Reams should not be sentenced to death, even though he was involved in the crime.
Circuit Judge John Cole, who was sitting as a special judge to hear the case, threw out the death penalty and ordered that a new trial be held if prosecutors wanted any sentence besides life in prison without parole.
Associate Justice Josephine Linker-Hart wrote that she agreed with the majority that Reams should get a new penalty phase trial but disagreed with the court's treatment of his claims about jury composition. Citing testimony from both McKissic and Kearney, she wrote that the testimony “would have supported the averment from Reams that there existed a custom and practice of racial discrimination in jury selection by Jefferson County prosecutors at the time of his trial.”
She went on to write that “Due process requires corrective procedures to protect Mr. Reams's liberty and life interests, which means that the state must comport with principles of 'fundamental fairness.'”