Dallas Morning News

TEXAS  - High court asked to call off execution of Miller-El --Inmate set to die Feb. 21 says racial bias affected jury selection

When Texas death row inmate Thomas Miller-El was tried in the killing of an Irving hotel clerk, his attorneys contended that prosecutors excluded some potential jurors because of their race.

 And now, as his execution date approaches nearly 16 years later, the U.S. Supreme Court has been asked to review his case and consider that issue.

 "It seems pretty clear that there was racial discrimination in this case," said Jim Marcus, an attorney with the Texas Defender Service who is representing Mr. Miller-El in his appeal. "It was part of a pattern and practice in Dallas County."

 Lori Ordiway, who oversees the appellate division of the Dallas County district attorney's office, said jury selection in Mr. Miller-El's trial has been "thoroughly, meticulously and exhaustively reviewed."

"There was no racially discriminatory practice at all used in selecting Miller-El's jury," she said.

 Mr. Miller-El's case has attracted national attention from civil rights groups and death penalty opponents, including the NAACP and the National Coalition to Abolish the Death Penalty.

 The Supreme Court will decide Feb. 15 whether it will accept Mr. Miller-El's case. Its decision may not be made public until Feb. 19, 2 days before he is scheduled to die by injection.

 Mr. Miller-El was convicted of murder in the death of Douglas Walker, 25, who was shot in the back as he lay bound and gagged on the floor of the Holiday Inn-South near Dallas/Fort Worth International Airport.

 A second clerk, Donald Ray Hall, was wounded and permanently paralyzed from the chest down during the Nov. 16, 1985, robbery. He identified Mr. Miller-El as his attacker at trial.

 As part of the effort to prevent Mr. Miller-El's execution, his attorneys have produced a 13-minute videotape. It features former Dallas County prosecutors who acknowledge that race was a factor in jury selection and black Dallas County residents who supported the death penalty but were blocked from serving on his jury.

 A petition of clemency on Mr. Miller-El's behalf filed Wednesday with the Texas Board of Pardons and Paroles asserts that prosecutors used "peremptory challenges" - legal objections that allow lawyers to dismiss prospective jurors without explanation - to reject 10 of 11 blacks qualified to serve on Mr. Miller-El's jury.

 One black person was seated on the jury. During the jury selection process, he indicated that he thought the death penalty was too lenient, and he said a more appropriate punishment might be staking defendants on ant beds and pouring honey on them.

 Ms. Ordiway said one of the jurors in Mr. Miller-El's trial was Hispanic and another was of Filipino ancestry.

 Court documents filed on Mr. Miller-El's behalf cite a 1986 analysis by The Dallas Morning News. That study found that prosecutors used peremptory challenges to remove 90 % of the blacks eligible to serve on the juries in 15 death penalty cases from 1980 to 1986.

 Filings also describe a 1969 memorandum used to train prosecutors. The memo, written by a senior Dallas Country prosecutor, advised: "You are not looking for any member of a minority group which may subject him to oppression - they almost always empathize with the accused."

 A 1963 treatise by another Dallas County prosecutor warned against permitting "Jews, Negroes, Dagos and Mexicans" on a jury.

 Mr. Marcus asserted that the philosophies expressed in those documents were still prevalent when Mr. Miller-El went to trial in 1986.

 "To me, that's all hearsay. I have never seen them," Ms. Ordiway said. "If anything like that existed, it was eliminated, abolished, long before this trial and certainly was not used."

 Mr. Miller-El's conviction and sentence came one month before the Supreme Court handed down a landmark decision, Batson vs. Kentucky, that sought to eliminate racial discrimination in jury selection.

 An earlier court ruling, Swain vs. Alabama, required that defense attorneys document a pattern of exclusion. The Batson ruling described the standard set in Swain as a "crippling burden of proof."

 "Under Swain, you'd have to establish a systematic practice," said Jordan Steiker, a law professor at the University of Texas at Austin. "In many of the cases that prevailed under Swain, you'd literally have counties where no minority had served on a jury in 10 or 15 years. ... It was much harder to establish in cases where a sprinkling of minorities had served."

 Mr. Miller-El's attorneys contend that their client was not afforded the kind of a jury selection process ordered by the Batson decision. Even though Mr. Miller-El's trial concluded before the Batson ruling was handed down, Mr. Marcus said it should apply because his client's appeals were still under way.

 Over the years, lower courts have examined whether prosecutors rejected blacks as jurors in Mr. Miller-El's case for inappropriate reasons, and the courts rejected claims on his behalf.

 A brief filed by the Texas attorney general's office with the Supreme Court last month disputed allegations that race was a factor when prosecutors in the 1986 trial used their peremptory challenges. The state attorneys wrote that the judge who presided over Mr. Miller-El's trial "found that there was no evidence presented that indicted any systematic exclusion of blacks as a matter of policy by the district attorney's office."

 Comments by former Dallas Country prosecutors and blacks who were called to jury duty in Mr. Miller-El's case, which are featured in the defense team's videotape, suggest otherwise.

 "I do believe that blacks were routinely excluded for various reasons," said Julius Whittier, a candidate for the Texas Court of Criminal Appeals who served in the Dallas County district attorney's office from 1981 to 1989.

 Balon B. Bradley, a prosecutor from 1978 to 1981, said he recalled "an unofficial policy" to exclude blacks.

 "The policy in a nutshell was, try to get an all-white jury of old white men," said Larry Baraka, a veteran Dallas County prosecutor and former state district judge. Even today, he says, that mentality has not "thoroughly left ... the DA's office."

 Three black people called for jury selection in Mr. Miller-El's case whom prosecutors blocked from serving with peremptory challenges also were interviewed. They all indicated they would be willing to impose a death sentence in the appropriate circumstances.

 "I was eager and willing to serve and be an impartial juror," said Carrol Boggess, an occupational therapist. "If someone commits a crime, then they should face the consequences. ... I could have given him that sentence."

 Some Dallas county defense attorneys say that excluding minorities from jury service no longer is common.

 "I think it would be unfair to say there is any systematic discrimination when it comes to jury selection based on race in Dallas County," said Barry J. Sorrels, a veteran defense lawyer who is co-chairman of the Dallas Bar Association's criminal justice committee. "... There have been dramatic changes."

 Houston Chronicle

Condemned man: Jury makeup unfair ---Petition claims blacks were kept off panel

No one is arguing that Thomas Miller-El did not shoot 2 employees while robbing a hotel, killing one and crippling the other.

The crime earned Miller-El, 50, of Dallas, a death sentence that is scheduled to be carried out later this month.

The argument is over the jury that reached the decision.

In a petition filed Wednesday with the Texas Board of Pardons and Paroles and a legal brief filed with the U.S. Supreme Court, Miller-El contends Dallas County prosecutors went out of their way to keep blacks off his jury.

It is a charge the Dallas County prosecutors office denies.

"It always bothers me when someone ... at the 11th hour just before the execution raises something that in our opinion has nothing to do with the facts or the law in this case ," said Lori Ordaway, chief of the Dallas County District Attorney's office appellate division.

 To support their case, defense attorneys are dragging back into the spotlight issues the Dallas County District Attorney's office would probably prefer to leave in the dark.

 There was a time when Dallas County prosecutors made no secret about their desire to keep blacks and other minorities off criminal juries. The 1st recorded reference of it appeared in 1963, when an assistant district attorney wrote a primer on jury selection that included the advice "don't take Jews, Negroes, Dagos and Mexicans," the Dallas Morning News reported.

 In Miller-El's case, 18 of the 108 jurors in the pool were black. The defense and the prosecution agreed to dismiss 6 of them and the judge dismissed a s7th. Only 1 of the remaining 11 blacks was selected for the jury.

 Defense attorney Jim Marcus said the juror cards show Dallas County prosecutors were making notes about the race and gender of prospective jurors. He also contends black jurors were questioned differently from whites.

 Marcus, executive director of the Texas Defender Service, which opposes the death penalty, said the racial makeup of the jury is important, regardless of whether Miller-El was guilty of the murder. Since verdicts must be unanimous, one juror can be the difference between a sentence of death or life in prison.

 Billy Fields, a postal worker and Army veteran, was one of the 10 blacks excluded from Miller-El's jury. Fields was troubled to learn the Dallas County District Attorney's office had a policy advocating the exclusion of minorities from criminal juries. "White Protestant Americans are the only ones that have the right to serve in this country and to even live in this country," he said.

 Miller-El's case has caught the attention of many people outside the criminal justice system.

 The Texas chapter of the NAACP and the League of United Latin American Citizens support Miller-El's petition for clemency. Marcus is hopeful the Supreme Court will agree to hear Miller-El's case, given the charges he's raised. The court will announce its decision on Feb. 15. Marcus knows the odds are against him.

 The high court takes up only one of every 700 petitions it receives, he said. The chances that the Texas Board of Pardons and Paroles will act are even more remote. Since 1990, the board has granted clemency only twice.

 If neither intervene, Miller-El will be executed Feb. 21.

 Both Texas Attorney General John Cornyn's office and the Dallas County District Attorney's office have challenged Miller-El's petitions for relief.

 Ordaway said the case against Miller-El was strong. He was convicted of robbing a Holiday Inn in the Dallas suburb of Arlington and shooting the 2 clerks who worked the night of Nov. 15, 1985. One man died; the other was paralyzed from the chest down.

 Miller-El's wife worked at the hotel, and he was identified by the surviving employee. Miller-El also was implicated by co-defendant Kennard Flowers, 39, and police said Miller-El had the murder weapon and a victim's watch when he was arrested in Houston several days later.

 As for the jurors who were struck, Ordaway said prosecutors had good reasons that had nothing to do with race. She said those reasons were explained to the trial judge, who rejected Miller-El's first appeal, and upheld by the Texas Court of Criminal Appeals, a federal district court and the U.S. District Court of Appeals.

8 de febrero de 2002, 9h59

 Concentraci�n contra la pena de muerte en EE.UU.

El grupo que apoya al condenado a muerte Thomas Miller convoca una concentraci�n frente a la Embajada de los Estados Unidos en Madrid. El objetivo es entregar las firmas recolectadas para exigir la paralizaci�n de la ejecuci�n y un nuevo juicio para Miller. Este grupo de apoyo lo conforma la productora de la pel�cula "La espalda del mundo".