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 two 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 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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