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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.

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"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.

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"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 one African-American, nine 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."

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