Petition For A Recommendation Of A Reprieve of Execution and ... http://www.thomasmillerel.com/clemency.html
BEFORE THE TEXAS BOARD OF PARDONS AND PAROLES
Inre
THOMAS JOE MILLER-EL,
Petitioner.
PETITION FOR A RECOMMENDATION OF A REPRIEVE OF EXECUTION
AND
COMMUTATION OF DEATH SENTENCE
Gary L. Bledsoe, Exq. Luis R. Vera, Jr., Esq.
President, Texas NAACP LULAC Texas Legal Counsel
316 West 12th. Street 105 S. St. Mary's Street, Suite 2100
Austin, Texas 78701 San Antonio, Texas 78205
TEL: (512) 322-9992 TEL: (210) 225-3300
Jim Marcus*
Elizabeth Detweiler
Texas Defender Service
412 Main Street
Suite 1150
Houston, Texas 77002
TEL: (713) 222-7788
FAX: (713) 222-0260
*Counsel of record for Petitioner Thomas Joe Miller-El
PREFACE
Mr. Gary L. Bledsoe, Esq., is the President of the Texas National Association for the
Advancement of Colored People (NAACP), and appears on behalf of the Texas NAACP.
The Texas NAACP's mission is as follows:
The NAACP insures the political, educational, social and economic equality
of minority groups and citizens; achieves equality of rights and eliminates race
prejudice among the citizens of the United States; removes all barriers. of
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racial discrimination, through the democratic processes; seeks to enact and
enforce federal, state and local laws securing civil rights; informs the public of
the adverse effects of racial discrimination and seeks its elimination; educates
persons as to their constitutional rights and to take all lawful action in
furtherance of these principles.
Mr. Luis R. Vera, Jr., Esq., appears in his capacity as the Legal Counsel for the Texas
League of United Latin American Citizens (LULAC). Texas LULAC's aims and purposes
are, in part, as follows:
To exert our united efforts to uphold the rights guaranteed to every individual
by our state and national laws and to assure justice and equal treatment under
these laws;
To combat with every means at our command all un-American tendencies and
actions that deprive American citizens of their rights in educational
institutions, in economic pursuits and in social, civic and political activities.
In 2001, Texas LULAC and Texas NAACP ratified an agreement of cooperation and
understanding between the two civil rights organizations, and pledged to "consult and
cooperate with each other openly in reference to matters of common interest including but
not limited to . . . fairness in the criminal justice system."
Mr. Miller-El's death sentence was secured in a judicial proceeding corrupted by the
exclusion of African-American citizens, based on a stereotype that black citizens cannot be
fair jurors because they automatically empathize with the accused. The invocation and
approbation of this offensive stereotype denigrates the integrity and fairness of Mr.
Miller-El's death sentence and stigmatizes an entire race of people.
Mr. Bledsoe and Mr. Vera, in their official capacities, join Mr. Miller-El's counsel in
urging that the Board of Pardons and Paroles and the Governor of Texas commute Mr.
Miller-El's death sentence in order to remove the taint of discrimination that permeates
this case. Although the offense for which Mr. Miller-El was sentenced to death was a
tragic and reprehensible act of violence, proceeding with his execution under these
circumstances will condone the use of race stereotypes in the process of determining who
deserves to die in the State of Texas. As described herein, Dallas County has a
dishonorable yet well-documented legacy when it comes to the exclusion of its citizens
from participation in the criminal justice system based on their race, religion and gender.
There is simply no question that Dallas County's shameful policies of the past reached as
far as 1986, and corrupted the proceedings against Mr. Miller-El.
A commutation is necessary to affirm that the Texas criminal justice system has evolved
beyond its ignoble past, in which "Jews, Negroes, Dagos, Mexicans or a member of any
minority race on a jury, no matter how rich or how well educated," were denied their
fundamental right to participate in the system based on the deplorable racial and ethnic
prejudices held by those who controlled access to the administration of justice. As the
pes ass oe United States Supreme Court has recognized, acceptance of the racial stereotypes invoked
in Mr. Miller-El's case will both impede our progress as a society and cause continued
injury to the citizens of Dallas County:
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[I]f race stereotypes are the price for acceptance of a jury panel as fair, the
price is too high to meet the standard of the Constitution. Other means exist
for litigants to satisfy themselves of a jury's impartiality without using skin
color as a test. If our society is to continue to progress as a multiracial
democracy, it must recognize that the automatic invocation of race
stereotypes retards that progress and causes continued hurt and injury.
Edmonson v. Leesville Concrete Co., 500 U.S. 614, 630-31 (1991).
The "hurt and injury" caused by "automatic invocation of race stereotypes" is concrete in
Mr. Miller-El's case. Carrol Boggess, an African-American woman who was stricken
peremptorily from Mr. Miller-El's jury by the prosecution, states on camera, "It really
upsets me that they think like that, that they think that they can't trust me, not even
knowing who I am." She is angry, she says, that the prosecutors "would discriminate
against me . . . and not look at me as a person, as an individual, but as a color." Exhibit 1
(Videotape).
REQUEST FOR COMMUTATION OR REPRIEVE
We request that the Board recommend that the Governor commute Mr. Miller-El's
sentence to life imprisonment, and that he effect the Board's recommendation. ‘) In the
alternative, we urge the granting of a reprieve to permit a more reasoned and thorough
consideration of this case. We also request a hearing before the Board where witnesses
may be called to attest to the facts asserted herein.
Unlike a pardon, commutation does not “cancel” the defendant's guilt, nor does it imply
forgiveness. Thus, if the Board and the Governor choose to commute Mr. Miller-El's
sentence, he will still stand convicted of the most serious offense known under Texas
law. Commutation may be granted for a variety of reasons, including a determination
that the original sentence was excessive, for reasons relating to the the rehabilitation of
the prisoner, "for any reason that the commuting authority deems adequate," or as an act
of mercy. National Governor's Association, A Guide to Executive Clemency Among
the American States, 5 (1988).
The executive clemency power in capital cases derives from the recognition by the
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framers of the Texas Constitution that in imposing the ultimate punishment — the taking of
a human life — no legal process, however complex, lengthy, or ingenious, is sufficient in
all cases to ensure that a just and reliable result is reached.
I. The Offense for Which Mr. Miller-El Has Been Sentenced to Death.
Mr. Miller-El was convicted of the November 16, 1985, shooting death of Douglas
Walker during an armed robbery at the Holiday Inn in Irving, Texas. Mr. Walker and
Donald Ray Hail, Jr., both of whom were employees of the hotel, were taken to the
bellman's closet where they were robbed, bound and gagged, and shot. Mr. Walker
was killed; Mr. Hall was rendered a quadriplegic.
IL. Victim Impact Statement.
On the night that he was shot and killed, Douglas Walker was working at the Holiday
Inn with Donald Ray Hall, Jr. Mr. Hall had recently been promoted to the position of
Chief Night Auditor, and was supervising the hotel's night staff and training Mr. Walker
to work with the hotel's ledger. When he heard someone at the hotel desk, he went out
to attend to the person. At that point, the man at the counter pulled a gun on him and
instructed him to get Mr. Walker. After Mr. Hall complied, he and Mr. Walker were
bound, gagged and shot.
At trial, a pathologist testified that Mr. Walker's death was caused by two shots to his
back. He stated that it appeared that his hands were tied behind him when he was shot,
and that he had been lying face-down on a tile floor. Mr. Hall's doctor testified that Mr.
Hall had a spinal cord lesion causing permanent paralysis, as well as problems controlling
bladder and stool. He further stated that Mr. Hall would never be able to father
children, and that his life expectancy had been shortened by his injuries. Mr. Hall also
testified at the trial, in a wheelchair. He stated that, while he had hope that he some day
would walk again, his doctors had not offered him any such hope.
IIL. The Appellate History of Mr. Miller-El's Case and the Legal Issues Raised in
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Judicial Proceedings.
Mr. Miller-El developed and presented, to both the state and federal courts, copious
and multifaceted evidence demonstrating that the Dallas County District Attorney's
Office had a policy of systematically discriminating against African-Americans through
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the use of State's peremptory challenges, 2) and that this practice was deployed at his trial
when the prosecutors used their peremptory challenges to strike 10 of 11, or 91%, of
the qualified African-American jurors.
All of the following facts — which are discussed in detail throughout this Petition — remain
uncontested by the State of Texas, except for the last two:
* In 1963, a treatise on jury selection, prepared by a top aide to Dallas
County District Attorney Henry Wade, advised prosecutors in no uncertain
terms to prevent "Jews, Negroes, Dagos, Mexicans, or [] member[s] of any
minority race [from sitting] on a jury."
* In 1969, another treatise, written by Assistant District Attorney Jon
Sparling, explicitly advised Dallas County prosecutors to remove all
minorities from juries with peremptory challenges, because they “empathize
with the accused." This jury-selection memorandum was incorporated into a
training manual given to all new Dallas County prosecutors, and its teachings
were often the basis of live presentations by its author. The jury-selection
memo remained, with its discriminatory advice intact, in a manual for new
prosecutors at least until the early 1980s.
© The prosecutor in charge of the jury selection in Mr. Miller-El's case, Paul
Macaluso — a self-proclaimed "jury selection specialist"— joined the Dallas
County District Attorney's Office in 1973 and was trained at a time when the
office actively taught the racially discriminatory jury-selection advice in the
manual.
® Statistical studies of Dallas County jury selection practices performed
shortly before Mr. Miller-E!'s trial indicated that the Dallas County District
Attorney's Office persistently struck the overwhelming majority — 86% — of
the qualified African-American jurors.
® Judges and lawyers from Dallas testified that it was common knowledge in
the Dallas County legal community that the Dallas County assistant district
attorneys routinely excluded African-Americans from jury service in the
mid-1980s.
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° The pattern of exclusion in capital murder cases was even starker: the
prosecution removed 90% of the eligible black jurors in 15 death penalty
cases tried between 1980 and 1986. The prosecutor in charge of jury
selection in Mr. Miller-El's case was responsible for picking the jury in at least
five of these cases.
® This same prosecutor was found to have engaged in intentional racial
discrimination in a 1985 death penalty case involving, as this one does, an
African-American defendant charged with killing white victims. During the
hearings in that case, the courts found the prosecutor's testimony concerning
his reasons for striking the African-American jurors not credible.
* The other prosecutor in Mr. Miller-El's case was lead counsel in the trial of
Mr. Miller-El's wife, which was held in the same court at nearly the same time
as Mr. Miller-El's trial. Her conviction was overturned because of intentional
racial discrimination in the jury selection process.
* During Mr. Miller-El's trial, the prosecution attempted to manipulate the
jury-shuffle process, which "shuffles" a panel of fifty potential jurors and thus
changes the order in which they are interviewed by the lawyers, to ensure that
fewer black persons would be considered for service on the jury.
© The jury cards filled out by prospective jurors in Mr. Miller-El's trial did not
provide a blank for the jurors’ races. Nevertheless, the prosecutors explicitly
noted the race of every juror on the cards. They also kept racially coded lists
of all selected jurors, and all jurors struck by either side with peremptories.
® The prosecution struck 10 of 11 — or 91% — of the qualified
African-American jurors. Only one African-American was allowed to serve on
Mr. Miller-E!'s jury.
° During Mr. Miller-El's trial, the prosecution singled out black jurors and
subjected them to blatantly disparate questioning regarding their ability to
assess the minimum punishment for non-capital murder, using manipulative
questioning techniques which were almost never used against white jurors.
The disparate questioning clearly was an attempt to manufacture a basis to
exercise a "challenge for cause" against the black jurors.
* During Mr. Miller-E!'s trial, the court required the prosecution to provide
reasons for its multiple peremptory challenges against black jurors. The
reasons offered by the prosecution were clearly a pretext to mask the
presence of racial discrimination, because the reasons applied with equal or
greater force to white jurors who were not challenged by the State.
Mr. Miller-El was convicted of capital murder and sentenced to death.on
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March 24, 1986. During jury selection for his trial, Mr. Miller-E!'s counsel
filed a motion challenging the prosecution's racially discriminatory jury
selection practices, but the court denied the motion. On appeal, in response
to arguments from Mr. Miller-El's counsel, the Texas Court of Criminal
Appeals ("CCA") sent Mr. Miller-El's case back to the trial court. The
CCA ordered the trial court to conduct a "Batson hearing," under the law
announced by the United States Supreme Court in Batson v. Kentucky, 486
U.S. 79 (1986), regarding the allegation that the prosecutors had used their
peremptory strikes to discriminate against African-Americans. Miller-El v.
State, 748 S.W.2d 459 (Tex. Crim. App. 1988). Following the Batson
hearing, the CCA affirmed Mr. Miller-El's conviction and death sentence in
a unpublished opinion. 3) The CCA denied rehearing on January 20, 1993,
and the United States Supreme Court denied Mr. Miller-El's petition for a
writ of certiorari on October 4, 1993. Miller-El v. Texas, 510 U.S. 1004
(1993).
In state post-conviction proceedings, Mr. Miller-El sought relief based on
his incompetence to stand trial and the trial court's failure to conduct a
hearing regarding Mr. Miller-El's competency to stand trial.4) Mr.
Miller-El had been arrested for capital murder in Houston, Texas, after
S.W.A.T. officers shot him with an exploding round of ammunition that
caused extensive internal injuries. After spending two months in a Houston
hospital, Mr. Miller-El ag transferred to Dallas County, where he was tried
for capital murder. During his trial, Mr. Miller-El experienced serious
Medical complications and was transported to the hospital on three
occasions. The trial court requested medical evaluations of Mr. Miller-E] on
three occasions. The third request — which followed the onset of medical
complications that interrupted the punishment phase proceedings and
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resulted in Mr. Miller-El's third hospitalization — was for the express purpose
of ascertaining Mr. Miller-El's fitness to attend court. Yet, despite its
repeated questions about Mr. Miller-E!'s condition, the court never
convened a hearing to determine whether Mr. Miller-El was competent to
stand trial, in violation of the law.
The state courts denied Mr. Miller-El's repeated requests for an evidentiary
hearing during post-conviction proceedings. Instead, the convicting court
simply adopted a proposed order drafted by the district attorney, which had
been submitted to the court without any notice to Mr. Miller-El, without
providing him with the opportunity to object to — or even to review — the
proposed order. Mr. Miller-El requested relief from the CCA but, on June
17, 1996, the CCA denied his application for a writ of habeas corpus. The
CCA adopted the findings of the convicting court which had been drafted by
the district attorney.
Mr. Miller-El presented his Batson and competency-to-stand-trial claims in
his federal habeas corpus petition.5) The Magistrate Judge
recommended that Mr. Miller-El's petition be denied, and the district court
adopted the magistrate's recommendation on June 5, 2000. On appeal, the
Fifth Circuit affirmed the district court, and subsequently denied his timely
requests for rehearing. Mr. Miller-El's petition for a writ of certiorari, in
which he seeks a remedy for the racial discrimination and relief from the
lower federal courts' erroneous interpretation of the Anti-Terrorism Act, is
currently pending before the United States Supreme Court.
IV. The Proceeding that Resulted in Mr. Miller-El's Conviction and Death Sentence
was Corrupted by Overt Racial Discrimination that Undermines the Integrity of
Texas' Criminal Justice System.
A. Dallas County's history of systemic racial discrimination in the
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selection of juries is well-documented and undisputed.
1. The Dallas County District Attorney's Office promulgated
explicit, written policies instructing prosecutors to use
peremptory challenges to prevent minorities from sitting on
juries.
Between 1942 and 1950, the United States Supreme Court was called upon to redress
intentional racial discrimination in the selection of Dallas County grand juries on three
occasions.6) The highest Court in the nation unambiguously condemned the racial
discrimination in Dallas County's trial process and specifically instructed that "Jurymen
should be selected as individuals, on the basis of individual qualifications, and not as
members of a race." 7) Yet, prosecutors in Dallas County defiantly turned a deaf ear
to the Court.
In 1963, not long after the Court admonished Dallas County for excluding its citizens on
the basis of race from participation in the criminal justice system, a treatise on jury
selection in criminal cases was written by one of Henry Wade's top aides, Bill
of any minority race on a jury, no matter how rich or how well educated." Exhibit 3
&4.
Alexander, advising: "Do not take Jews, Negroes, Dagos, Mexicans or a member
(Steve McGonigle & Ed Timms, Race Bias Pervades Jury Selection. Prosecutors
Routinely Bar Blacks, Study Finds, DALLAS MORNING NEWS, Mar. 9, 1986, at
Al). After the Alexander memo was written, then-Assistant District Attorney Jon
Sparling wrote the now-infamous Sparling Memorandum. Sparling advises prosecutors
! that "[w]ho you select, and what you will qualify the panel on will depend on the type of
crime, the age, color and sex of the defendant, the personality of the defense attorney,
and your own individual style and judgement." Exhibit 5 (Jon Sparling, Jury Selection
in a Criminal Case). The manual specifically advises, "You are not looking for any
ees member of a minority group which may subject him to oppression — they almost
always empathize with the accused." It further states, "Look for physical afflictions.
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These people usually sympathize with the accused," and, "I don't like women jurors
a because I can't trust them." “It is impossible to keep women off your jury," Sparling
notes, "but try to keep the ratio at least seven to five in favor of men." After directing
prosecutors to ask venirepersons, or potential jurors, about their religious preference,
Sparling declares: "Jewish veniremen generally make poor State's jurors. Jews have a
history of oppression and generally empathize with the accused." In 1973, Sparling's
memorandum was incorporated into a larger manual to be handed out to all Dallas
County District Attorney's Office personnel.
In 1973, the Texas Observer published an article about the Dallas County District
Attorney's Office. Exhibit 6 (J.D. Arnold, Wretched Excess in Dallas, TEXAS
OBSERVER, May 11, 1973, at 9). The Observer had obtained a copy of the
Sparling Memo, and featured sakes Samars hare Greate abies Poe tank ene dteeaper wae ot
tmnt hr new prgmiang seannap in ts ase Tau melon oe eater our if
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attorneys in this state." The Observer article apparently caught the eye of Time
magazine, for it also excerpted Sparling's memo in its June 4, 1973 issue. Exhibit 7
eee . (Women, Gimps, Blacks, Hippies Need Not Apply, TIME, June 4, 1973, at 67); see
Fig. 2 (next page). In Time, the Sparling memo excerpts appeared underneath a
cartoon depicting a jury of hooded Klansmen in the background. In the foreground, a
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Observer Article May, 11, 1973
The following is an except from a book titled Prosecution Course put out by the
Dallas County District Attorney's office. The book was developed as part of a
course for new prosecuting attorneys in this state. The section we quote is out of
D.A. in Dallas. Sparling was the first Dallas prosecutor to get a 1,000-year
sentence for a convicted felon; he is also known for his prosecution in the
Guzman-Lopez case involving the killers of two Dallas County sheriffs deputies.
...Who you select for the jury is, at best, a calculated risk.
Instincts about veniremen may be developed by experience, but even the young
prosecutor may improve the odds by the use of certain guidelines - if you know
what to look for.
The following outline contains very little substantive law because | presume that
any prosecutor is as able to look it up as |. The outline does, however, contain
one prosecutor's ideas on some things that need to be said to the panel, and
some things to look for in a juror...
A. Attitudes.
1. You are not looking for a fair juror, but rather a strong, biased and sometimes
hypocritical individual who believes that Defendants are different from them
kind, rather than degree.
2. You are not looking for any member of a minority group which may subject
him to oppression - they almost alwayws empatihize with the accused.
3. You are not looking for the free thinkers and flower children.
B. Observation is worthwhile.
1. Look at the panel out in the hall before they are seated. You can often spot
the showoffs and the liberals by how and to whom they are talking.
2. Observe the veniremen as they walk into the courtroom.
a. You can tell almost as much about a man by how he walks, as how he talks.
b. Look for physical afflications. These people usually sympathize with the
accused.
3. Dress.
a. Conservatively, well dressed people are generally stable and good for the
State.
b. In many counties, the jury summons states that the appropriate dress is coat
and tie. One who does not wear a coat and tie is often a non-conformist and
therefore a bad State juror.
4. Women.
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a. | don't like women jurors because | can't trust them.
b. They do, however, make the best jurors in cases involving crimes against
children.
c. It is possible that their "women's intuition" can help you if you can't win your
case with the facts.
d. Young women too often sympathize with the Defendant; old women wearing
too much make-up are usually unstable, and therefore are bad State jurors.
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defense attorney whispered to his client: "I don't like the look of this at all." Time
described the memo as containing "astonishingly frank assessments of what a prosecutor
should look for" in order to obtain "vengeance-minded jurors." Time then provided
The excerpts include Sparling's bi hatioa ters entiation, he
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remarks indicating a troubling attitude toward justice: "It is possible that their 'woman
intuition’ can help you if you can't win your case with the facts." Id.
The national scrutiny devoted to the jury-selection practices of the Dallas County DA's
office, however, apparently made little impact. At some time during the 1970s, the
Sparling memo was revised. The memo that Mr. Miller-El's lawyers entered into
evidence during his 1986 trial evidently differs from that circulating in 1973, when the
Texas Observer and Time articles were written. It is particularly illuminating to
compare the two versions of the memorandum and determine which parts were “cleaned
up" and which parts were not. In 1973, subsection II.A.1. of the memo, entitled "What
to look for in a juror: Attitude," read as follows: "You are not looking for a fair juror, but
rather a strong, biased, and sometimes hypocritical individual who believes that
Defendants are different from them [sic] in kind, rather than degree." The same section
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loft
Women, Gimps,
Blacks, Hippies
Need Not Apply
In Dallas there is much that is larger than
life -- particularly prison sentences. In April
a jury imposed 5,005 years on each of the
two convicted kidnappers of Socialite
Amanda Mayhew Dealey. Of course,
defense attorneys pull out every stop and
follow every stereotype to get a
sympathetic jury. But one hint of how
prosecutors manage to select
vengeance-minded jurors came out
recently in the liberal Texas Observer. It
obtained a copy of a syllabus put out by the
Dallas County district attorney's Office. The
chapter on "Jury Selection in a Criminal
Case," was written by Jon Sparling, the
assistant D.A. who got the first 1,000-year
sentence in the city in 1970, contained
some astonishingly frank assessments of
what a prosecutor should look for in a
prospective juror.
ATTITUDES. You are not looking for a fair
juror, but rather a strong, biased and
sometimes hypocricital individual who
believes that defendants are different in
kind, rather than degree. You are not
looking for any member of a minority group
- they almost always empathize with the
accused. You are not looking for the
freethinkers and flower children.
OBSERVATION. Look at the panel out in
the hall. You can often spot the show-offs
and the liberals by how and to whom they
are talking. You can tell almost as much
about a man by how he walks as how he
talks. Look for physical afflications. These
people usually empathize with the
accused.
TIME, JUNE 4, 1973
WOMEN. | don't like women jurors
because | can't trust them. They do,
however, make the best jurors in cases
involving crimes against children. It is
possible that their "women intuition" can
help you if you can't win your case with the
facts. Young women too often sympathize
with the defendant; old women wearing too
much makeup are usually unstable and
threfore are bad state's jurors.
DRESS. In many counties, the jury
summons states that the appropriate dress
is coat and tie. One who does not wear a
coat and tie is often a nonconformist and
therefore a bad state's juror.
Conservatively well-dressed people are
generally stable and good for the state.
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in the version of the memo introduced in 1986 reads: "You are looking for a strong,
stable, [sic] individual who believes that Defendants are different from them [sic] in kind,
rather than degree." However, the very next section of the memo — the controversial
racial-exclusion section exposed to nationwide publicity in the 1973 Time article —
remained unchanged. Other controversial sections dealing with race and gender
selection remained the same as well.
The Dallas County District Attorney's Office, ‘despite receiving national attention for its
race- and gender-based discriminatory policy, distributed the manual until at least the
early 1980s.
2. Statistical studies demonstrate that at the time of Mr.
Miller-El's trial, the Dallas County District Attorney's Office
struck 90.3% of qualified black jurors in capital murder
cases.
In 1986, the year Mr. Miller-El was prosecuted, the Dallas Morning News studied one
hundred trials selected at random from the 1,036 felony jury trials held in Dallas County
in 1983. The reporters analyzed court records relating to 4,434 prospective jurors in
order to determine the race of the jurors, whether they were excluded from jury service,
how, and by whom. The study concluded that although blacks comprised 18% of
Dallas County's population, less than 4% of jurors were black. The chance of a
qualified black serving on a jury was one-in-ten, compared to a one-in-two chance for a
qualified white. Eighty-six percent (405 out of 467) of otherwise-qualified
African-American jurors were struck with peremptory challenges by the State.
Exhibits 3 & 4.
The pattern of exclusion in capital murder cases was even starker. In December 1986,
the Dallas Morning News published another article examining the fifteen capital murder
cases tried in Dallas County between 1980 and December 1986. Exhibit 8 & 9 (Ed
Timms & Steve McGonigle, A Pattern of Exclusion: Blacks Rejected from Juries in
Capital Cases, DALLAS MORNING NEWS, Dec. 21, 1986, at A1). In these fifteen
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capital cases, the prosecution used peremptory challenges to remove 90.3% (56
out of 62) of the qualified African-American jurors. Out of 180 jurors in the fifteen
trials, only five, or 2.8%, were black.
3. Dallas judges and lawyers testified that the Dallas County
prosecutors routinely excluded African-Americans from
criminal juries in the 1980s.
At Mr. Miller-El's pre-trial hearing, judges and lawyers from Dallas testified that it was
common knowledge in the Dallas County legal community that Dallas County assistant
district attorneys routinely excluded all African-Americans from jury service in the
mid-1980s. Dallas County criminal district court judges provided specific examples of
the prosecutors’ racially discriminatory selection procedures. One judge testified that
a prosecutor had admitted that a jury shuffle had been requested in order to reduce the
number of blacks on the jury, and another testified that he had excluded a prosecutor
from his court in 1985 because of discriminatory selection procedures. At a hearing held
in connection with x Parte Haliburton, 755 S.W.2d 131 (Tex. Crim. App. 1988),
numerous defense attorneys testified that Dallas County prosecutors so consistently used
their peremptory challenges against black jurors that the defense attorneys did not
"waste" strikes on pro-State black jurors.
This evidence in the court record is confirmed by the videotape prepared for this
Petition, which features interviews with four men who formerly were Assistant District
Attorneys in Dallas County. See Exhibit 1. "The policy in a nutshell," states former
Judge Larry W. Baraka, "was try to get an all-white jury of all white men.” Others echo
Judge Baraka's belief. Balon B. Bradley recalls, "When I was in the District Attorney's
Office, I felt like there was an unofficial policy to exclude black jurors from jury service."
Julius E. Whittier confirms that "blacks were routinely excluded . . . from capital murder
jury selection." A fourth former district attorney, E.X. Martin, remembers being trained
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by Jon Sparling and reading his memorandum, which is attached as Exhibit 5. Black
people were struck from juries, he says, because it was assumed that "they would
empathize with the defendant." Looking back on the training sessions for prosecutors,
he states:
I heard Jon Sparling give . . . his infamous talk or speech pertaining to jury
selection for prosecutors. . . . I remember Jon giving his talk. I also had a
copy of the manual. I can remember him talking about, just simply put,
striking blacks off the juries. There was no . . . outrage, and certainly
nobody got up and walked out after Jon made these comments. And I suspect
that was because it was just so much common knowledge. It was just the
way business was conducted at the time. Strike the blacks off the jury
and roll on.
Id. According to Judge Baraka, "that policy was so strong that, even to this day, it has
not thoroughly left the mentality of the D.A.'s Office." Id.
4, Mr. Miller-El's prosecutors were trained to employ
racially discriminatory tactics and were found to have
engaged in intentional racial discrimination in cases tried
immediately before and after Mr. Miller-EI's.
Paul Macaluso was the prosecutor in charge of the jury selection in Mr. Miller-El's case,
and was a self-proclaimed "jury selection specialist." He joined the Dallas County
District Attorney's Office in 1973 and was trained at a time when the office actively
taught the racially-discriminatory methods in the jury selection manual. Mr. Macaluso
selected the jurors in several of the fifteen capital cases identified in the Dallas Morning
News study discussed above, in which 90.3% of qualified African-American jurors were
removed by State peremptory strikes.
Ina case tried just before Mr. Miller-El's trial, Mr. Macaluso picked the jury and was
later found by the Texas courts to have engaged in racially discriminatory selection
procedures. In the case, the defendant argued that Mr. Macaluso had used his
peremptory strikes to remove potential African-American jurors on the basis of their
race, and Mr. Macaluso then was required to provide the court with an explanation for
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his actions. Although he put forth purportedly race-neutral explanations for his strikes,
the state appellate court "specifically" considered the reasons proffered by Mr.
Macaluso and concluded that his testimony regarding his reasons for striking
African-American jurors was not credible. Chambers v. State, 784 S.W.2d 29 (Tex.
Crim. App. 1989). The court's opinion provides a revealing and critical look at Mr.
Macaluso's strategy of manipulating the minimum punishment issue to disqualify
African-American jurors:
In addition to the black potential jurors stricken by the State peremptorily, the
State successfully challenged two black potential jurors (Thomas Johnson &
Sharon E. Curtis) and unsuccessfully attempted to challenge a third potential
black juror (Loretta Rooks) on the basis that they would not consider the
minimum punishment in the event Appellant was convicted of the lesser
included offense of murder. The State made no corresponding effort to
challenge potential white jurors on the basis of their willingness to consider
the minimum punishment for a lesser included offense.
Chambers, 784 S.W.2d at 31. This pattern of disparate questioning on the minimum
punishment issue was also followed in Mr. Miller-El's case, as discussed later in this
Petition. The trial court in Chambers recognized that the State's peculiar and persistent
attempts to disqualify only African-American jurors on the ground that they may be
too favorable to the State's position was compelling inferential evidence of
discrimination. Mr. Chambers’ conviction was reversed.
Another prosecutor in Mr. Miller-El's case, James Nelson, was lead counsel in the trial
of Mr. Miller-El's wife. Dorothy Miller-El was tried for murder and attempted capital
murder only months after her husband was convicted, in the same court and before the
same judge. Of the seven African-American potential jurors called for her trial, two
were removed for cause by the defense. The prosecutor working under Mr. Nelson
then used five of its strikes to remove all of the remaining African-American persons
from the jury panel. The defense demanded a Batson hearing, alleging racial
discrimination. The Texas courts held that the prosecutor's purported race-neutral
reasons were a pretext for intentional racial discrimination, and Ms. Miller-El's
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conviction was overturned.
B. The prosecutors who tried Mr. Miller-El adhered to the racially
discriminatory jury selection practices of the Dallas County District
Attorney's Office.
1. The prosecutors in this case used strikes to eliminate 91%
of the qualified African-American jurors on the panel.
The prosecution struck ten of eleven — or 91% — of the qualified African-American
jurors. Three of the stricken jurors were interviewed on camera for purposes of this
Petition. See Exhibit 1 (Videotape). Only one African-American, Troy Woods, was
allowed to serve on Mr, Miller-El's jury. Mr. Woods was also the only juror of any
race to volunteer an opinion that people who commit murder should be slowly tortured
to death, stating "[execution is] too quick. They don't feel the pain. That's the way I feel
about it .. . . Well, what I call punishment is back to the old Indian days. Pour some
honey on them and stake them out over an ant bed. That's the way I feel about it.
That's what I call punishment."
2. The prosecutors race-coded their jury selection materials.
The juror information cards filled out by prospective jurors in Mr. Miller-El's trial did not
provide a blank for a juror's race. Nevertheless, the race and gender of every juror is
coded on each card, in the prosecutors' handwriting. The prosecutors also kept
racially-coded lists of all selected jurors, and all jurors struck by either side with
peremptories.
3. The prosecutors attempted to manipulate the "jury
shuffle" process in order to effectively eliminate
African-American jurors.
At the time of Mr. Miller-El's trial, both the defendant and the State had the absolute
tight to one jury shuffle, which "shuffles" a panel of fifty potential jurors and thus changes
the order in which they are interviewed by the lawyers. In capital cases in Dallas
County, jury shuffles were particularly important, since only the first few members of any
of the fifty-member venire panels called each week were likely to be interviewed, and
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the jurors not reached in a specific week would be discharged from service. The
likelihood that the jurors at the back of the panel would be needed was so small that the
judge routinely dismissed the last fifteen jurors in the panel before even asking them to fill
out questionnaires, as it did in this case.
At the beginning of the second week of jury selection in Mr. Miller-El's case, a panel of
jurors was brought down and the State requested a shuffle. The defense asked "Could
we ask the reason for the shuffle?” "No," the State responded. The defense then made
its concerns clear:
For purposes of the record, I would like the record to indicate that within the
first ten jurors, prospective jurors, four are black. Within the second set of ten
prospective jurors, three are black and within the third set of prospective
jurors, two are black and the fourth set of prospective jurors, one is black.
When the third panel of jurors was originally seated in the courtroom, jurors number 1,
2, 3, 4, 8, and 15 were African-Americans. The State again requested, and performed,
a shuffle. After the State's shuffle, the six African-American jurors' positions had
changed: they were now at positions 19, 26, 36, 37, 38, and 39. The defense then
exercised its prerogative to shuffle the jurors. After this, the African-American jurors
were located at positions 1, 2, 3, 4, 7 and 14.
The twice-shuffled panel was then seated, and the last sixteen jurors excused. The
prosecutor then asserted, for the first time in the jury selection process, that the jurors
“were not shuffled as thoroughly as they should have been." Moreover, despite the fact
that both sides had exercised their shuffles in the central jury room on the previous two
occasions without objection from either side, the State announced that it wanted a
re-shuffle of the jurors because the defense's shuffle had not been performed inside the
courtroom, as the law required.
Mr. Miiler-El objected, pointing out the State was merely manipulating the position of
black jurors. The court rejected the State's request, ordered that all further shuffles take
piace in the courtroom, and observed that this was the first time in his twenty-five years
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practicing law and sitting on the bench in Dallas County that someone had raised an
objection in his presence to the routine practice of shuffling in the central jury room.
The prosecutors’ efforts to shuffle and reshuffle the potential jurors took place before
they knew anything about the jurors other than how they looked, because the jurors had
yet to fill out the jury questionnaires or be placed on a panel for interviews.
4, African-American jurors were subjected to blatantly
disparate questioning.
The prosecutors at Mr. Miller-El's trial engaged in glaringly disparate questioning of
prospective jurors based on race. For example, the prosecutors singled out black jurors
and questioned them about their ability to assess the minimum punishment for non-capital
murder, in a manner almost never employed with white jurors. The form and substance
of the questions to potential jurors were clearly designed to eliminate African-Americans
by setting them up to be challenged for cause. When the prosecutors questioned white
jurors, they generally informed the juror of the range of punishment first, and then asked
whether he or she could impose the minimum sentence of five years, if appropriate to the
facts of the case. In sharp contrast, African-American jurors consistently were asked
whether he or she could impose the minimum sentence of five years, if appropriate to the
facts of the case. 8) In sharp contrast, African-American jurors consistently were
asked open-ended questions that forced them to speculate as to what the minimum
punishment for non-capital murder should be, without any information about the actual
range of punishment, The prosecutors subsequently used the number named by the juror
-- often much higher than five years -- to argue that the juror would be unwilling to
consider the actual minimum sentence. 9) As noted above, the Chambers Court
specifically cited this practice as evidence of Mr. Macaluso's discriminatory intent when
reversing Mr. Chambers' conviction.
Similarly, the State was quite solicitous of the scheduling conflicts of African-American
jurors, while insisting that white jurors who had vacation plans or employment
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commitments be compelled to serve. When questioning African-American jurors Fields
and Bozeman, the State initiated inquiries into whether the juror had upcoming vacation
_ time, or work or family obligations. In one instance, the prosecutor asked the juror,
"[alny problems at work or anything like that, family schedule?"; in another, he stated,
"We have an indication, Judge, that this juror has what they denominate as an annual
leave coming up in the next couple of weeks and we thought that was a situation that the
Court ought to check into before a decision is made as to the qualification of this juror."
By contrast, a white juror requested that she be released from service because of a
mandatory work-related training program and a previously scheduled vacation, toward
which she already had paid a non-refundable $650.00 down payment. She informed the
court that she would be very angry and distracted if she had to serve despite these
conflicts and that this state of mind could affect her jury service. Although the defense
agreed to excuse the juror, the State emphasized that vacations or work training were
not adequate excuses and argued, albeit unsuccessfully, that the juror be compelled to
serve or that, in the alternative, the court contact her employer to determine whether
alternate plans could be made for the training.
5. The prosecutors’ proffered reasons for their peremptory
challenges of black jurors were a pretext for race
discrimination, in that they applied with equal or greater
force to white jurors who were not challenged.
In the courtroom, [Dallas County] prosecutors commonly
exercise peremptory challenges against blacks who voice views
and appear to possess qualifications similar to those of the whites
selected for the jury. 7)
During Mr. Miller-El's trial, when asked about its numerous peremptory strikes
7) Exhibits 3 & 4 | RETURN |
against African-American jurors, the prosecution offered reasons which were clearly
pretextual because they applied with equal or greater force to white jurors who were not
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challenged by the State. One of the most common reasons proffered by the prosecutors
was the black jurors' alleged "hesitancy" to apply the death penalty. Hesitancy about the
death penalty is a facially race-neutral reason for a peremptory challenge. However, in
Mr. Miller-El's case it was selectively applied only against African-American jurors.
Numerous African-American jurors were struck from the jury panel, purportedly
because of their reservations about the death penalty, despite their clear statements that
they could serve on a capital jury and vote for a death sentence if appropriate. Three of
these jurors -- Carrol Boggess, Billy Jean Fields, and Wayman Kennedy -- are
interviewed on the videotape. See Exhibit 1. Each juror states, and each stated during
jury selection for Mr. Miller-El's trial, that he or she supports the death penalty and
would have been willing to impose it if warranted by the evidence. Ms. Boggess states
that she is “concerned about crime in [her] community," and that "[i]f someone commits a
crime, then they should pay the consequences." Id. She further states that, "If I had felt
... that he was guilty and indeed deserved the death penalty, then I could have given
him that sentence." Id. Mr. Kennedy states, just as he did during jury selection, "I could
vote for the death penalty." /d. s) Mr. Fields states, "I would be able to render the
death penalty." Like other African-American potential jurors, Mr. Fields had testified
during jury selection that he strongly believed in the death penalty, 2) so enthusiastically
that he expected that the defense would strike him. On camera, he states, "I was
expecting to be possibly rejected by the defense, because of some of the questions that
had been asked." Exhibit 1. Apparently the trial judge, after listening to his testimony,
had the same expectation. Mr. Fields remarks that, “after everything was over, the
judge called me up and commented that he was surprised that the prosecution had
stricken me." /d. Nevertheless, all three of these jurors were struck peremptorily by the
prosecution, and for each the State cited the juror’s alleged hesitancy to vote for a death
sentence.
Comparisons between black and white jurors further illustrate the State's discriminatory
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treatment. For example, African-American juror Joe Warren was struck peremptorily by
the State, despite testimony that was remarkably similar to that of white persons who
were seated on the jury. When asked why he had struck Mr. Warren, the prosecutor
stated that he had done so because of Mr. Warren's "misgivings" and "mixed feelings"
about the death penalty, and because he had indicated he did not agree with the death
penalty in all cases. In fact, the trial record makes clear that Joe Warren was an
excellent State's juror. He was a married, middle-aged veteran; he had three children;
he volunteered for the PTA; he was a member of Crime Stoppers and other
crimefighting programs; and he had managed the meat section at a Kroger supermarket
for 19 and a half years. He repeatedly affirmed that he believed in the death penalty and
that he could serve on a capital jury and impose death in an appropriate case. Mr.
Warren stated that he had "mixed feelings" because “sometimes you feel that it might help
to deter crime and then you feel that the person is not really suffering. You're taking
the suffering away from him. So it's like I said, sometimes you have mixed feelings about
whether or not this is punishment or, you know, you're relieving personal punishment.”
The prosecutor then asked further questions:
Q. In other words, you feel under certain circumstances the death penalty
would be bad, but being locked up in a cage would be a whole lot worse and
be more punishment; is that what you're saying?
A. Yes. In some cases you feel like maybe if the person were to suffer in
some other way maybe. Nevertheless, the Texas court and the federal
magistrate judge both upheld the State's peremptory strike against Mr.
Warren based on his "misgivings" and "mixed feelings" about the death
penalty.
Clearly, to the extent that Mr. Warren had any "misgivings" about the death penalty, his
sole concern was that the death penalty might be teo humane for murderers.
Nevertheless, the State struck him from the jury.
By contrast, when white juror Kevin Duke expressed "misgivings" similar to those of Mr.
Warren, he was not challenged by the State -- and, in fact, was seated as Juror Number
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7. During jury selection, Mr. Duke had stated:
I think you have to have the death penalty. I think sometimes it should be up
to the person who is convicted because, if he's sentenced to life imprisonment,
sometimes death would be better to me than — being in prison would be like
dying every day and, if you were in prison for life with no hope of parole, I
just [sic] as soon have it over with than be in prison for the rest of your life. If
he's committed a crime like this that maybe he should be convicted of and put
away, if he's not put away for life, that's — if he has no chance for parole, then
I don't see the difference between death and life imprisonment. If there's a
chance for parole, that's a different story, but I think you might as well go
ahead and give the death sentence instead of life in prison because it's the
same thing to me.
White juror Sandra Jenkins voiced similar sentiments, stating during the State's
questioning, "J think that a harsher treatment [than the death penalty] is life imprisonment
with no parole." The prosecutor failed to follow up on this remark, and voiced no
objection to Ms. Jenkins serving on the jury. Clearly, the prosecution's stated concern
about jurors’ hesitations regarding capital punishment was reserved for
African-American jurors only. 10)
The use of the African-American jurors’ alleged hesitancy to impose a death sentence
was only one of the pretextual explanations offered by the State. As another example,
the State stated that it struck some black jurors, such as Mr. Fields, for the purported
reason that they had relatives with legal troubles. While this is a facially race-neutral
reason, it is patently pretextual, since several comparable pro-death penalty white jurors
were not challenged by the State. Mr. Fields testified that his brother had been arrested
and convicted for possession of a controlled substance, and had served time. A white
juror, Noad Vickery, testified that his sister had been arrested and had served time in the
penitentiary. Both men affirmed that they did not know many details. Both men affirmed
that the experience with their family members would not affect their judgment in Mr.
Miller-El's case. However, the State, after hearing Mr. Vickery's account, accepted
Mr. Vickery as a juror. After hearing Mr. Fields’ virtually identical account, the State
seized upon it as one reason to strike him. 11)
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In short, Mr. Miller-El presented compelling evidence that the prosecutors manipulated
the jury selection process in an effort to exclude African-Americans from his jury. These
efforts commenced with the jury shuffles before the lawyers had any information about
the prospective jurors other than their physical appearance. These efforts persisted, in
the form of disparate questioning and peremptory challenges, even after the prosecutors
learned that many of the African-American venirepersons were very State-oriented
jurors.
V. Action by this Board Is Necessary to Ensure the Integrity of, and Confidence In,
Texas' Criminal Justice System, and to Prevent the Unseemly Spectacle of a
Prisoner Being Executed After a Trial So Obviously Contaminated by Intentional
Racial Discrimination.
True peace is not merely the absence of tension and conflict;
it is the presence of justice.
Dr. Martin Luther King
This Board plays a critical role in the administration of capital punishment in Texas, and it
must decide whether it will place Texas' seal of approval on the racial discrimination
described above, or whether it will send a clear message that a shameful,
well-documented, widely-publicized chapter in the history of Texas’ criminal justice
system will be closed. “[R]acial discrimination in the selection of jurors casts doubt on
the integrity of the judicial process and places the fairness of a criminal proceeding in
doubt. 12) If Thomas Miller-El is executed despite the racially discriminatory
proceedings that resulted in his death sentence, his execution will send a:clear signal to
Texans, and the rest of the nation, that Texas' criminal justice system openly condones
the derogatory stereotype that African-Americans are not fit to serve on criminal juries
because they automatically empathize with the accused. "The willingness of the courts to
tolerate racial discrimination in order to carry out the death penalty has a corrupting
effect not just on capital cases, but throughout the criminal justice system. 13)
This Board must act to prevent the erosion of confidence of Texas' criminal justice
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system. In a recent speech, United States Supreme Court Justice O'Connor observed:
The jury system is not only central to our trial process, but it is also the
primary link between the courts and the community. The impressions that
jurors receive during their jury service have a significant impact on public
perceptions of the justice system. . . . The time jurors spend in jury service is
perhaps our best opportunity to instill in them a sense of trust in the fairness
and competence of the justice system. 14)
In her remarks, Justice O'Connor described a 1999 survey conducted by the National
Center for State Courts, which examined public attitudes toward the judicial system and
found African-Americans and Hispanics were more likely than white people to agree
that "[m]ost juries are not representative of the community. 15) Justice O'Connor
firmly concluded: "The perception that African-Americans are not accorded equality
before the law is pervasive and it requires us to take action at every level of our legal
system."
In Mr. Miller-El's case, there is not merely a perception of unequal treatment, but an
extensive and undisputed record. “It’s not right for the justice system to be biased like
this, but it's no surprise,” observes stricken juror Billy Jean Fields. Exhibit 1.
Discrimination against potential jurors such as Mr. Fields, as the Supreme Court has
tuled, "retards" our "progress [as a society] and causes continued hurt and injury," and
impugns the integrity of the criminal justice system. It further "has a very negative impact
on the criminal justice system," states Judge Baraka, because it “isolates a significant
portion of the community, be they women, men, black, white . . . ." Exhibit 1. It is
clear that Dalias County's “racial discrimination in the selection of jurors [has] cast[]
doubt on the integrity of the judicial process and place[d] the fairness of [Mr. Miller-EI's]
criminal proceeding in doubt. 16) In the videotape, Pastor Zan W. Holmes, Jr.,
| states:
If you're not participating in the system . . . that in itself. . . makes you less
trustful of a system. And you also question whether or not you can really get
a fair trial. It troubles me that there are people who have been sentenced,
convicted by juries that were selected on the basis of [the criteria in the Dallas
County prosecutors’ manual].
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Id. Dallas County's discriminatory policy, in the words of potential juror Carrol
Boggess, "certainly . . . brings things home, and it makes you not trust, not be as
trusting." Id.
The concrete harm caused by Dallas County's racial discrimination is reflected in the
words of potential jurors Carrol Boggess, Wayman Kennedy, and Billy Jean Fields.
See Exhibit 1. As Pastor Holmes succinctly put it:
To.assume that one group of people . . . are more capable of judging a person
as to whether or not they are guilty or not . . . is racist at the very core. And
to assume that black people will excuse people and will not be faithful in
exercising their responsibilities is an insult.
Exhibit 1. Jury service is both a fundamental right and, for many, the only opportunity to
participate in the administration of criminal justice. As Mr. Fields states, “It is a very
important right that African-Americans be selected to serve on juries and participate in
the justice system, because we are affected by crime as much as anyone else." Exhibit 1.
Former district attorney Julius Whittier states the obvious: "Black people have just as
much stake in the success of their community as white folks have in theirs." /d.
As the U.S. Supreme Court explained in the case of Ex Parte Grossman, 267 US. 87,
120-121 (1925):
Executive clemency exists to afford relief from undue harshness or evident
mistake in the operation or enforcement of the criminal law. The
administration of justice by the courts is not always wise or certainly
considerate of circumstances which may properly mitigate guilt. To afford a
remedy it has always been thought essential in popular governments, as well
as in monarchies, to vest in some other authority than the courts the power to
ameliorate or avoid particular criminal judgments. It is a check entrusted to
the executive for special cases.
This is such a "special case." This petition documents Dallas County's shameful racial
discrimination, and the State has never contested most of this overwhelming evidence.
Mr. Miller-El's execution in the face of such evidence would signal this Board's
acquiescence to the idea that African-American people, "no matter how rich or how well
educated," simply cannot be trusted to ascertain guilt and assess an appropriate
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punishment in a serious criminal case. Because such a result is intolerable, Mr. Miller-El
respectfully requests that the Board of Pardons and Paroles recommend a commutation
of his sentence of death. In the alternative, Mr. Miller-El asks this Board to grant a 60
day reprieve so that evidence regarding the above issues can be presented in a public
hearing.
Respectfully submitted,
Gary L. Bledsoe, Exq. Luis R. Vera, Jr., Esq.
President, Texas NAACP LULAC Texas Legal Counsel
316 West 12th. Street 105 S. St. Mary's Street, Suite 2100
Austin, Texas 78701 San Antonio, Texas 78205
TEL: (512) 322-9992 TEL: (210) 225-3300
Jim Marcus*
Elizabeth Detweiler
Texas Defender Service
412 Main Street
Suite 1150
Houston, Texas 77002
TEL: (713) 222-7788
FAX: (713) 222-0260
By: Jim Marcus
*Counsel of record for Petitioner Thomas Joe Miller-El
Footnotes:
8) During jury selection, Ms. Boggess expressed the same views. She testified that she believed in the death penalty
and could serve on a capital jury, even knowing her vote "would result in the execution of this. defendant." She
tepeatedly affirmed that there was "no doubt in [her] mind at all" about her ability to serve on a capital jury and
sentence the defendant to death.
| RETURN |
9) During jury selection, Mr. Fields testified, *[ T]he way | personally believe, . . . God's word, you know, provides for
the State to serve in his {sic] behalf. According to the Old Testament, people were killed if they violated His law. In
its extended service, the State represents Him if the crime has been committed and death is warranted." | RETURN |
1) The documents required by Tex. Admin. Code tit. 37 §§143.42-3 are submitted as
Exhibit 2. | RETURN |
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2) A "peremptory challenge," or "peremptory strike," is a tool used in jury selection by
both the State and the defense. Each party is allotted a specific number of peremptory
strikes, and may use them to remove from the jury panel persons that it does not want to
serve on the jury. The party does not have to provide any reason for the strike, and
indeed, peremptory strikes may be exercised for any reason — except that no potential
juror may be struck because of race or gender. By contrast, each side may use an
unlimited number of challenges for cause, which allow a potential juror to be struck
because the person somehow is unfit to serve on the jury. If, for example, a potential juror
‘was a friend of the victim of the crime, they would be subject to a challenge for cause. |
RETURN |
3) In addition to Dallas County's racially discriminatory jury selection practices, Mr.
Miller-El's appeal to the CCA had raised the following issues: The trial court erred in
refusing to grant Mr. Miller-El's request to excuse ten potential jurors for cause, even
though each was unwilling to consider the full range of punishment and/or was
demonstrably biased against Mr. Miller-El, forcing Mr. Miller-El to use nine of his
peremptory challenges to ensure that these persons would not serve on the jury and, after
his peremptory challenges were exhausted, allowing a person objectionable to Mr.
Miller-E] to be seated on the jury; the trial court erred in refusing to grant Mr. Miller-El
additional peremptory challenges after his challenges had been exhausted on the potential
jurors discussed above; the trial court erroneously denied "transactional immunity" to two
witnesses who were crucial to defense, but on the stand invoked their Fifth Amendment
right against self-incrimination and refused to answer questions from Mr. Miller-El's
counsel; the trial court erred when it refused to allow Mr. Miller-El have testimony by his
wife Dorothy Jean Miller-El, given in an hearing out of the presence of the jury, read to
the jury by a court reporter; the trial court erred in admitting into evidence 23 color
photographs of the victim and the crime scene, since the photographs were highly
inflammatory and prejudicial; the trial court erred in admitting any evidence recovered as a
result of Mr. Miller-El's arrest and the subsequent search of his automobile, since both the
arrest and the search were unlawful; the trial court erred because its instructions to Mr.
Miller-El's jury failed to properly restrict the jury's consideration of extraneous offenses;
and, the trial court erred in granting the State's request to excuse four potential jurors on
the basis of their expressed conscientious or religious scruples against the death penalty,
since these potential jurors’ scruples did not prevent them from considering the death
penalty when warranted by the evidence. | RETURN |
4) Mr. Miller-El also sought relief based on the following: The trial court violated Mr.
Miller-El's right to due process of law when it prevented him from presenting an alibi
defense by refusing his request for a continuance; the trial court permitted the State, over
defense objection, to inflame and prejudice the jurors against Mr. Miller-El on religious
and racial grounds by injecting unnecessary references to Mr. Miller-El's affiliation with
the Moorish Science Temple, an Eastern religion associated with African-American
activism; and, both Mr. Miller-El's trial counsel and his counsel on direct appeal rendered
ineffective assistance of counsel. | RETURN |
5) Mr. Miller-El also raised the following issues: the trial court violated Mr. Miller-E!'s
constitutional rights when it granted the State's request to excuse a prospective juror who
expressed some reluctance to impose the death penalty, since the juror repeatedly declared
that she could vote for the death penalty when the State had proven its case against the
defendant; the State raised Mr. Miller-El's membership in the Moorish Science Temple at
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sentencing, without any evidentiary basis to do so, and, further, insulted his beliefs by
referring to them as a "so-called" religion, in violation of Mr. Miller-El's First and
Fourteenth Amendment rights to freedom of association.
| RETURN |
6) Hill v. Texas, 316 U.S. 400 (1942); Akins v. Texas, 325 U.S. 398, (1945); Cassell v.
Texas, 339 U.S. 282, (1950). | RETURN |
7) Cassell v. Texas, 339 U.S. 282, 286 (1950). | RETURN |
8) The questioning of Mary I. Sumrow is a typical example. Before asking her about her
attitude toward the minimum punishment.in a murder case, the prosecutor twice explained
the full range of punishment for murder. He then explained that the range was wide
because "there are several of [sic] a multitude of circumstances under which one person
could knowingly or intentionally cause the death of another individual." He continued in
this vein:
Now, in order for you to be able to be qualified to serve as a juror, you have
to tell us that you would be able to consider the entire range of punishment
for murder . . . . At the other end, you have to be able to tell us that, if you
feel that the facts and circumstances, as you find them to be, justify a sentence
of five years, you can give that or twenty years or forty-five years, anything in
between. As you're sitting there right now, Ms. Sumrow, you don't even have
to be able to verbalize to us the facts and circumstances that would justify five
years or that would justify life or something in between. You do have to tell
us that, if the facts and circumstances justified that in your mind, whatever
that may take, you would assess a five year sentence if you felt it was justified
or a ninety-nine or life sentence if you felt that was justified.
Ms. Sumrow answered that she could consider the minimum sentence and was accepted
for jury service, but was later excused due to medical hardship because of her pregnancy.
Other strong pro-State jurors were handled in a similar manner.
| RETURN |
9) For example, when questioning Roderick Bozeman, Mr. Macaluso talked to him
extensively about a hypothetical non-capital murder. Mr. Macaluso emphasized that the
killing was "without any legal excuse or any legal justification whatsoever," that it was not
in self-defense, that it was not an accident, that the defendant was not insane, and that the
defendant had not acted in the heat of passion. Then, without having informed Mr.
Bozeman of the actual range of punishment, Mr. Macaluso stated, “Let's divorce our
thinking from those sorts of things and let's talk about a situation where one person
knowingly or intentionally causes the death of another. . . . Let me ask you: What do you
personally feel ought to be the minimum punishment for somebody committing a murder,
sit?" When the juror eventually answered, "I would say twenty years, I guess," the
prosecutor asked him to confirm that twenty years would be his minimum sentence, then
asked if he was stating that a sentence of five years could never be proper. Despite the
prosecutor's manipulative questioning, Mr. Bozeman eventually stated that he could
consider a five-year sentence for murder if appropriate to the facts and circumstances of
the case. This pattern of manipulative questioning on the minimum punishment issue
repeated with African-American jurors Joe Warren, Edwin Rand, and Wayman Kennedy.
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10) Other white jurors who expressed reluctance to impose a death sentence also were not
challenged by the prosecution. For example, Sandra Hearn repeatedly affirmed that she
could not give the death penalty for a first offender in an ordinary capital murder case,
| "[rJegardless of what the facts are, regardless of what the circumstances are[.]" The
prosecutor attempted to rehabilitate Ms. Hearn. She initially stated, "I do not think anyone
should be sentenced to a death penalty on [a] first offense.” The prosecutor replied that he
"gather[ed}" from what Ms. Hearn was saying that she would require “a continuing course
of criminal conduct" before voting for death. She agreed. The prosecutor then asked if the
prior offenses could be something less than murder. When the juror responded that it
would “be according to the situation," he suggested that she would "look at each
individual case and each individual defendant" in order to render a decision. Ms. Hearn
agreed, "Right." However, upon further questioning, Ms. Hearn repeated her view that
she could not give the death penalty for a first offense. Nevertheless, she was seated as
Juror Number 12. The prosecution also accepted white jurors Noad Vickery and
Gwendolyn Smale, although each had expressed reluctance to impose the death penalty. |
RETURN | :
11) This pattern repeats. Chatta J. Nix, a white woman, indicated that her brother was
currently on trial as part of the I-30 construction scandal. Moreover, Ms. Nix revealed
that she herself had been "charged in a conspiracy case" relating to the I-30 scandal.
However, without even questioning her about this information, the State accepted her as a
juror. Similarly, Cheryl A. Davis's husband was convicted of theft in 1976, and received
seven years' probation, which had ended in 1983. | RETURN |
12) Powers v. Ohio, 499 U.S. 400, 411 (1991). | RETURN |
13) Stephen B. Bright, Discrimination, Death, and Denial: The Tolerance of Racial
Discrimination in Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433, 475
(1995). | RETURN |
14) The Hon. Sandra Day O'Connor, Luncheon Address at the National Conference on
Public Trust and Confidence in the Justice System (May 15, 1999), at
http://www.ncsc.dni.us/pte/trans/oconnor.htm. Justice O'Connor also discussed a survey
conducted by the American Bar Association (ABA), which "showed almost 70% of those
surveyed consider the jury the most important component of the justice system." /d. |
RETURN |
15) National Center for State Courts, How the Public Views the State Courts 7, 29 (1999)
at http://www.nesc.dni.us/pte/results/results.pdf. | RETURN |
16) Powers v. Ohio, 499 U.S. 400, 411 (1991) | RETURN |
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