The Bradenton Herald

TEXAS: Death case tests jury racial makeup;U.S. Supreme Court

A Texas death row defendant argues blacks were unfairly kept off his jury

Thomas Joe Miller-El is black. Only one member of the Dallas County, Texas, jury that sentenced him to die in 1986 was black.

 On Wednesday, the Supreme Court will hear arguments over whether prosecutors improperly used race to disqualify jurors at Miller-El's 1986 murder trial. The court's decision could have repercussions in a wide spectrum of criminal cases.

 Some lower courts have failed to adhere to an 18-year-old Supreme Court ruling that race alone cannot be used to exclude jurors, said George Kendall, assistant counsel for the NAACP Legal Defense and Education Fund, which filed a friend-of-the-court brief supporting Miller-El.

 "This is not a small problem, it's a large problem," Kendall said.

 Miller-El's is the first capital punishment case since the court issued two important death penalty rulings in its last term. One struck down the execution of the mentally retarded as "cruel and unusual punishment." The other said juries, not judges, must decide sentencing issues in capital cases.

 The Miller-El appeal is 1 of 4 death penalty cases the court has on its docket so far this term.

 Experts say those cases, while important, deal less with sweeping constitutional issues and more with mechanical questions of how the death penalty was imposed.

 "This court seems willing to let things happen in the states and say that in the meantime we're going to watch and see that the procedures are fair," said Richard Dieter, executive director the Washington-based Death Penalty Information Center, which opposes capital punishment.

 In the Miller-El case, lawyers say that while they want a new trial for their client, the legal questions revolve around the use of race in jury selection.

 Miller-El was convicted of shooting two clerks at the Irving, Texas, Holiday Inn with a 9 mm machine gun during a robbery. One clerk died. The other was rendered a paraplegic and testified against Miller-El at trial.

 The pool of 108 jurors for his trial included 20 African Americans. 9 were dismissed for a specific cause, such as bias, or by a joint agreement between the defense and the prosecution. Texas prosecutors used peremptory challenges to remove 10 of the 11 remaining blacks. 

All told, prosecutors used 14 peremptory challenges, in which no explanation is needed to remove a potential juror.

 The lone black juror, Troy Woods, aggressively supported the death penalty, telling lawyers during jury selection that lethal injection was too quick because "they don't feel the pain."

 "What I call punishment is back to the old Indian days. . . . Pour some honey on them and stake them out over an ant bed," Woods said, according to court documents.

 Even before the trial had ended, Miller-El's lawyers argued the jury's makeup was unfair. A Supreme Court ruling, Batson v. Kentucky, handed down shortly before Miller-El's conviction, bolstered their argument.

 It held that if the defense could show the prosecution appeared to be using the peremptory "strikes" to remove minorities, the prosecution had to provide the trial judge with a race-neutral reason why the jurors were being dismissed.

 The Miller-El case was being appealed when the high court handed down the Batson ruling, so it applied retroactively. State and federal courts in Texas denied Miller-El's Batson appeal, however, on grounds that there was no intentional racial bias in the jury selection.

High court revisits racial bias in jury selection

 In a case heard Wednesday, justices consider whether a Texas prosecutor erred in screening out black jurors.

 The Sixth Amendment to the US Constitution guarantees in all criminal cases trial by an impartial jury. That means a group of individuals comprised of a cross section of the community willing and able to judge the evidence without affording special consideration to either the prosecutor or the defendant.

 But what happens when race enters the equation?

 In some jurisdictions in the US, prosecutors long followed a secret policy of excluding as many African-Americans as possible from a jury whenever the defendant was black. They did so because they believed that African-American jurors would be more likely than other jurors to acquit black defendants regardless of the evidence presented at trial.

 The US Supreme Court ruled in 1986 that such jury-selection tactics are unconstitutional in a case called Batson v. Kentucky. But the issue of jurors and race remains an Achilles heel of the American system of justice.

 Wednesday, the US Supreme Court is examining the selection of a jury in Dallas County, Texas, that took place 2 months before the court's 1986 Batson decision. At issue is whether Texas death-row inmate Thomas Joe Miller-El was denied a fair trial when prosecutors excluded 10 of 11 qualified African-Americans from his jury.

 A closely watched case

 Aside from the obvious importance to Mr. Miller-El, the case is significant because it may offer judges, prosecutors, and defense counsel nationwide firm guidance on how to handle claims of racial discrimination in jury selection.

 But the case could also represent something of a crossroads for the court.

 On one side, a majority of justices have recently shown a heightened concern about the fairness of procedures used in death-penalty cases. On the other hand, a majority of justices have also upheld Congressional efforts to short-circuit the use of federal habeas petitions - like Miller-El's - to challenge death sentences.

 Legal analysts will be watching closely during Wednesday's oral argument for clues about how the justices view the case. They'll be paying particular attention to the centrist, swing judge, Anthony Kennedy.

 "This case comes to this court from a dark chapter of blatant and open racial discrimination in jury selection," writes Jim Marcus of Texas Defender Service in Houston in his brief to the court on behalf of Miller-El.

 "If the blatant discrimination patent in this record is not condemned, then the subtler forms of unconstitutional race discrimination that sometimes, regrettably, occur in jury selection in our own era are much more likely to go undetected," Mr. Marcus says.

 Controversial Winnowing decision

 Officials with the Texas Attorney General's Office say the Dallas County prosecutors acted properly during jury selection in Miller-El's case. The prosecutors removed those jurors who expressed unfavorable views about the death penalty, regardless of their race, says Gena Bunn, chief of the Capital Litigation Division of the Texas Attorney General's Office, in her brief.

 "The vast majority of nonminority panelists favored the death penalty and were willing to impose it, while the vast majority of African-American panelists were either opposed to the death penalty or were unwilling to impose it," Ms. Bunn says.

 "Thus, to the extent that a greater percentage of African-Americans were [excluded from the jury], those percentages mirror divergent views on the death penalty of minority and nonminority [prospective jurors]," she says.

 The panel that sentenced Miller-El to death was comprised of 1African- American, 9 whites, a Latino, and a Filipino-American.

 When confronted with the jury discrimination issue in the wake of the 1986 Supreme Court decision, Miller-El's trial judge ruled that the Dallas County prosecutors were entitled to exclude the prospective black jurors. The judge said that there was no evidence of specific discriminatory intent by the prosecutors.

 Lawyers for Miller-El counter that the trial judge did not give enough weight to evidence that the Dallas County District Attorney's office maintained a longtime pattern and practice of using race in jury selection to help secure convictions.

 A 'how to' manual on discrimination

 In the 1960s and 1970s, they say, the office offered formal training in discriminatory jury-selection tactics and even printed a manual to help clarify the issue for new prosecutors. "Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated.... [T]hey will not do on juries," says a 1963 Dallas County training manual quoted by Miller-El's lawyers.

 Elisabeth Semel of the Death Penalty Clinic of the University of California School of Law in Berkeley says the judge at Miller-El's trial failed to give proper weight to the long history of jury selection discrimination in Dallas County. That history, combined with the fact that prosecutors excluded 10 of 11 African-American prospective jurors should define a constitutional violation under the Batson decision, she says.

 George Kendall of the NAACP Legal Defense and Educational Fund agrees. He says the Supreme Court should require trial judges to consider all the facts relevant to allegations of racial discrimination in jury selection.

 "Unless the case is before a very conscientious judge, Batson is not worth the paper it is printed on," Mr. Kendall says.

 Which judge should judge?

 But lawyers for Texas counter that the trial judge in Miller-El's case made the necessary determinations in accord with the Batson decision. They say Miller-El is simply looking for an appeals court judge willing to agree with him.

 The trial judge is in a better position than appeals-court judges to determine whether prosecutors acted properly, lawyers for Texas say. "The trial judge is essentially a witness to the very conduct alleged to be discriminatory," Ms. Bunn says in her brief. She says factual determinations by trial courts in such cases should be accorded "great deference."

 Ms. Semel says the issue is much broader: "It really has to do with whether or not we are going to have a criminal justice system in which we vigorously protect the right of all citizens to participate in the jury system."