© Copyright 2002 The New York Times Company
Carol Boggess says she was "eager and willing to serve" on the jury in the 1986 capital murder trial of Thomas Miller-El in Dallas. When questioned by prosecutors, Ms. Boggess, an occupational therapist, said she strongly supported capital punishment and "had no doubt at all" that she could sentence a person to death.
Wayman Kennedy, a Sunday school teacher and church deacon, also wanted to be on the jury and told prosecutors he felt confident of his ability to impose a death penalty. So did Billy Jean Fields, a postal worker.
Mr. Miller-El is black. He was charged with shooting two white hotel clerks, one of them fatally, during a robbery in November 1985.
Ms. Fields, Mr. Kennedy and Ms. Boggess are also black. All were excluded from the jury panel by Dallas County prosecutors, as were seven of eight other blacks interviewed as prospective jurors.
The jury the prosecutors accepted was composed of nine whites, one Filipino, one Hispanic and one black man who told prosecutors that he thought that execution was too easy, and that the appropriate punishment for murderers was to "pour some honey on them and stake them out over an ant bed."
Mr. Miller-El, 50, is scheduled to be executed by the state of Texas on Feb. 21, but his lawyers say the jury that convicted him was selected according to longstanding racially discriminatory standards of the Dallas County district attorney's office.
His lawyers have asked the Texas Board of Pardons and Paroles to commute Mr. Miller-El's sentence and have appealed his case to the United States Supreme Court. The court decides this week whether to take the case. Mr. Miller-El's lawyers say his case highlights the continuing exclusion of minorities from juries across the country.
"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.
The Dallas County district attorney's office has contested the plea for clemency and opposes review by the Supreme Court. "There's no evidence showing that there was any racial discrimination," said Lori Ordiway, chief of the appellate division of the district attorney's office. Ms. Ordiway said the blacks had been struck for "race-neutral reasons."
The federal Constitution has long prohibited race discrimination in the selection of juries, but until 1986 the standard that a defendant had to meet to prove such discrimination was extremely high, requiring that a pattern of discrimination be proved.
The Supreme Court recognized this when it lowered the standard, in its landmark 1986 ruling in Batson v. Kentucky. Before Batson, neither the prosecution nor the defense had to provide reasons for its use of peremptory strikes in excluding prospective jurors.
Batson held that if the defense was able to show that it appeared the prosecution was using its strikes to exclude minorities, the trial judge would require the prosecutor to explain the peremptory strikes. Moreover, the reasons could not be based on race. The Batson ruling is relied upon by defense lawyers across the country during jury selection.
Mr. Miller-El was convicted and sentenced one month before the Batson ruling came down. Because his case was still on appeal when Batson was decided, however, the decision applied to his case retroactively. Even so, state and federal courts have upheld Mr. Miller-El's death sentence, finding that no intentional racial discrimination occurred during jury selection.
Mr. Miller-El's lawyers contend that the appeals courts have failed to apply the Batson ruling correctly. They argue that the courts looked only at the number of prosecutorial strikes — 10 of 11 black prospective jurors — and accepted the explanations given by the prosecution as nonracial. And they say the courts failed to consider historical evidence that Dallas County prosecutors had systematically excluded blacks from juries for years.
"The case is important not as an historic artifact, but as an ongoing problem that demands the court's attention," said Elisabeth Semel, director of the death penalty clinic at the Hastings School of Law at the University of California at Berkeley, and one of the lawyers who wrote an amicus brief in support of Mr. Miller- El's Supreme Court petition.
Mr. Miller-El's clemency petition contains testimony from four former prosecutors whose time in the Dallas County office collectively covered the period from 1977 to 1989. The four said the office had an unofficial policy to exclude blacks from juries.
One of the four, Larry Baraka, who was a prosecutor in the late 1970's and who became a trial judge in 1981, said: "The policy in a nutshell was to try to get an all-white jury of old white men." Mr. Baraka is black.
Statements from several black prospective jurors who were struck from the Miller-El trial are included in the clemency petition, along with a 1986 article in The Dallas Morning News citing a 1963 internal memo in the district attorney's office advising prosecutors who were picking juries: "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."
That language was later dropped, but in the early 1970's the office used a training manual that included a memo from a Dallas County prosecutor, Jon Sparling, containing advice on jury selection: "You are not looking for any member of a minority group which may subject him to oppression — they almost always empathize with the accused."
Mr. Sparling, 60, has since retired. "It's not something I'd want the world to see," Mr.Sparling said in an interview, referring to his memo, which he said he was asked to write informally for other prosecutors. "I wrote it very quickly. I wasn't careful with my words. I'm not making any excuses for it."
"Everything has changed since then," he added.
The training manual was in use at least until 1980, Mr. Marcus said, and the practices it recommended were routinely followed by prosecutors when Mr. Miller-El was tried.
Ms. Ordiway of the dirtict attorney's office said she was neither authorized nor qualified "to talk about what happened in the 1960's," but she said that there was no racial discrimination in jury selection in the 1980's, or since.
In 1986, The Dallas Morning News examined the 15 Dallas County capital murder trials from 1980 through 1986, including that of Mr. Miller-El, and found that prosecutors excluded 90 percent of blacks who qualified for jury selection. The newspaper concluded that in capital murder cases during that period "prosecutors got what they wanted: the death penalty, and overwhelmingly white juries."
Paul Macaluso, the assistant district attorney who picked the jury in Mr. Miller-El's case, said he had struck the 10 black jurors for reasons that had nothing to do with race. He said that he was trying to assemble the best possible jury and that some of them seemed to waffle on imposing the death penalty. His former office had not had a policy of racial discrimination in the selection of jurors, he said.
"Things don't operate that way," said Mr. Macaluso, 59, who is now a federal prosecutor in Dallas. "I wouldn't put up with it."
Mr. Macaluso was one of two prosecutors who selected the jury in the 1985 trial of Ronald Curtis Chambers, a black whose murder victim was white, and who was sentenced to death. In 1989, the Texas Court of Criminal Appeals reversed Mr. Chambers' conviction after finding that the state had engaged in racial discrimination in its use of peremptory challenges.
Mr. Macaluso said that the appellate court had been wrong in the Chambers case and that he had never engaged in racial discrimination in selecting jurors.