February 16

Race Is Key in Death Penalty Appeal

By APRIL CASTRO,

 HOUSTON  - No one disputes the existence of a memo that once advised Dallas County prosecutors to eliminate minority jurors ``no matter how rich or how well educated.''

 At issue is whether a killer convicted while it was in circulation should be put to death next week.

 The U.S. Supreme Court  agreed Friday to review the case of condemned inmate Thomas Miller-El, who is scheduled for lethal injection on Thursday.

Miller-El's lawyer, in a petition to the high court, contended his client's trial was unfair because of a long-standing discriminatory policy in the Dallas County district attorney's office.

 ``The statistics overwhelmingly demonstrate that Dallas County was still heeding a long-standing policy of excluding African-American jurors up until Miller-El's trial,'' said Jim Marcus, executive director of the Texas Defender Service, a group that opposes capital punishment.

 Prosecutors who have worked in the office have acknowledged the existence of the memo, which urged prosecutors not to select ``Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated.''

 The Constitution forbids race discrimination in jury selection, but until 1986 defendants faced high legal hurdles when trying to prove discrimination affected their case. The Supreme Court lowered the standard in a ruling that year.

 Texas Attorney General John Cornyn has filed a petition opposing Miller-El's request for review by the Supreme Court.

 ``There is absolutely no basis to his claims,'' said Lori Ordiway, chief appellate officer for the Dallas prosecutor's office. ``We adamantly deny racial discrimination in his case or in any case at any time.''

 Miller-El, 50, was condemned for the 1985 shooting death of Douglas Walker, 25, during an armed robbery at an Irving hotel. He contends he is innocent, but says he accepts death as a favorable alternative to imprisonment.

 ``To me, the only thing I feel would devastate me after the execution, is that I wake up back at the Allan B. Polunsky Unit,'' Miller-El told The Associated Press, referring to the Texas prison that houses death row.

 ``This is the bottom of the pits.''

 Prosecutors in his 1986 trial used peremptory challenges - legal objections that allow lawyers to dismiss prospective jurors without explanation - to reject 10 of 11 blacks qualified to serve on the jury.

 Seated on the jury were nine whites, one Filipino, one Hispanic and one black.

 A former lawyer in the district attorney's office says he recalls that racial bias was commonly used in the selection of juries.

 ``It was understood that it was going on and to do it,'' said Larry Baraka, an assistant prosecutor from 1976 to 1978. ``As you're watching and interacting, you know what the feelings and thoughts are. Everybody did it and it was OK. It was the culture.''

 Baraka said the memo, which was written in the 1960s, was later incorporated into a training manual that was distributed to prosecutors.

 Paul Macaluso, one of the prosecutors who helped select Miller-El's jury, said although the memo existed, it never was acknowledged by prosecutors.

 ``I saw it over 30 years ago - I didn't buy it then and I don't buy it now,'' said Macaluso, who worked in the office from 1973 to 1988. ``It was never impressed on anybody and was never indoctrinated. It's nonsense.''

 Marcus' petition also cited a 1986 report by The Dallas Morning News that found Dallas County prosecutors used peremptory challenges to remove 90 percent of the blacks eligible to serve on the juries in 15 death penalty cases from 1980 to 1986, including Miller-El's.

Associated Press Writer Michael Graczyk contributed to this report

Supreme Court to Hear Texas Racist Jury Claims

Feb 16

By Marcus Kabel

 DALLAS  - The U.S. Supreme Court  will hear the case of a Texas death row inmate due to die next week who argues Dallas prosecutors used racist guidelines to stack the jury against him, a court official said on Saturday.

 The Supreme Court agreed late on Friday to review the case of Thomas Miller-El, 50, convicted of shooting one hotel clerk to death and crippling another in a 1985 armed robbery near Dallas, said court spokeswoman Kathy Arberg.

 Miller-El was scheduled to die by lethal injection on Thursday. The high court's decision made it likely that date will be postponed, although no order to stay the execution was issued immediately and a date for hearing the case was not set.

 Appeals lawyers have asked the Supreme Court to look at whether Miller-El's sentencing by a Dallas jury was corrupted by racism.

 They argue the Dallas district attorney's office had a documented history of keeping blacks and other minorities off juries at the time of Miller-El's 1986 conviction.

 Prosecutor deny racism was a factor in jury selection and said two state courts and two federal courts have so far rejected those claims.

 One African-American man served on the jury in Miller-El's trial with nine whites, one Hispanic and one Filipino. But defense lawyers say 10 other prospective black jurors were struck from the list because prosecutors believed they would automatically empathize with the accused, who is black.

 In a state that leads the nation in executions, Miller-El's case has drawn attention from civil rights and anti-death penalty groups.

 Miller-El is also asking the Texas pardons board to commute his death sentence to a life term.

 The appeal does not contest Miller-El's guilt in the November 1985 armed robbery of a Holiday Inn in the Dallas suburb of Irving or the shooting of two clerks.

 Instead, Miller-El's lead attorney, Jim Marcus, alleges Dallas County prosecutors violated constitutional standards by using race as the basis for removing potential jurors by peremptory strike, a right granted to both prosecutions and defense to exclude potential jurors without explanation.