FEBRUARY 15, 2002

TEXAS: Court to Clarify Jury Picking Rules

The Supreme Court agreed Friday to hear the case of a Texas death row inmate who contends prosecutors kept blacks off his jury.

The justices could use the case to clarify rules for claiming racial discrimination in the selection of a jury.

Thomas J. Miller-El is scheduled to die Feb. 21 for the 1985 murder of a hotel clerk, but the court's action makes it likely he will be granted a reprieve.

Prosecutors used their power to challenge specific jurors as a way to eliminate 10 out of 11 potential black jurors before Miller-El's trial, his lawyers claim. Miller-El is black. The only black juror chosen told prosecutors he regarded execution as "too quick" and painless a method of punishment. "Pour some honey on them and stake them out over an ant bed," the man said.

Miller-El was convicted and sentenced to death for killing Douglas Walker, 25. Walker was shot in the back as he lay bound and gagged on the floor of a Holiday Inn near the Dallas-Fort Worth International Airport.

A 2nd clerk, Donald Ray Hall, was wounded and permanently paralyzed from the chest down. He identified Miller-El as his attacker at trial.

Miller-El raised the question of the racial makeup of his jury during an unsuccessful federal court challenge.

At issue for the Supreme Court are rules for what evidence a court can consider when reviewing a claim that a jury was racially stacked.

Among other things, Miller-El's lawyers wanted to raise historical data and statistics showing what they call a long pattern of organized discrimination among prosecutors. Courts ignored some of the information, and were too quick to accept the state's "race-neutral" explanations for why jurors were excluded, Miller-El's lawyers claim.

"I think it's rare that you have a case in which there is such compelling evidence of a pattern and practice of race discrimination in selection of jurors," Miller-El lawyer Jim Marcus said Friday. "It's very well documented in this case."

Prosecutors questioned black potential jurors differently than whites in an attempt to elicit answers that could then be used as the basis to exclude them from the jury, Miller-El's Supreme Court appeal said.

Texas authorities say there was no discrimination, and much of the historical data Miller-El cited is out of date or irrelevant.

As part of the effort to prevent Miller-El's execution, his attorneys produced a videotape featuring former Dallas County prosecutors who acknowledge that race was a factor in jury selection. The tape also includes interviews with blacks who say they supported the death penalty but were blocked from serving on the Miller-El jury.

His lawyers also 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. Miller-El's lawyers say that way of thinking was still prevalent when Miller-El went to trial in 1986.

The Constitution forbids race discrimination in jury selection, but until 1986 defendants faced a high legal hurdle to proving discrimination affected their case. The Supreme Court lowered the standard that year in a ruling that made it easier to challenge suspected racial bias during jury selection.

Inmate facing execution may get a reprieve

The U.S. Supreme Court on Friday agreed to hear the appeal of a Dallas man who contends blacks were improperly excluded from his jury.

Thomas Miller-El, 50, who is black, was scheduled to be executed on Thursday for the 1985 murder of an Irving hotel clerk. A second clerk was shot during the robbery and survived. He identified Miller-El as the assailant.

The Supreme Court's decision likely means Miller-El will be granted a reprieve.

Miller-El contends Dallas County prosecutors went out of their way to keep blacks off his jury. There was one black man on the jury that sent Miller-El to death row, an Hispanic and an Asian.

Dallas County prosecutors struck from the jury pool 10 potential black jurors. The district attorney's office insists the jurors were struck for race-neutral reasons.

In Miller-El's appeal, defense attorney Jim Marcus made the case that the Dallas County District Attorney's office had a policy of excluding minorities from juries.

Texas Prepares for Execution Despite Claims of Racial Discrimination

 (Late Note, 2/15/02: The U.S. Supreme Court has agreed to hear this case; a stay of execution is likely)

    Thomas Miller-El, a black man convicted of the murder of a white man, is scheduled to be executed in Texas on February 21. Miller-El is petitioning the Texas Board of Pardon and Paroles for clemency and appealing to the U.S. Supreme Court.  In his appeal, Miller-El is presenting evidence that at the time of his trial, Dallas County prosecutors engaged in unconstitutional, race-based jury selection tactics in an effort to exclude African-American jurors. 

     In his clemency petition, Miller-El cited a 1986 Dallas Morning News investigation that examined the 15 Dallas County capital murder trials from 1980 through 1986, including that of Mr. Miller-El.  The investigation found that prosecutors excluded 90 percent of blacks who qualified for jury selection.  In Miller-El's case, prosecutors struck 10 of 11 black prospective jurors.   Miller-El's attorneys say his case highlights the continuing exclusion of minorities from juries.  "What's at stake in this case is the fundamental right of citizens of all races to participate in the justice system," said his lawyer, Jim Marcus, the executive director of the Texas Defender Service.  (New York Times, 2/13/02)