After 17 years here on Texas's death row, Thomas Miller-El is waiting for the U.S. Supreme Court to decide whether the Dallas district attorney used racial profiling in the selection of his jury in 1986. Now 51, Miller-El says the Supreme Court, which hears the case this fall, is the end of the road.
"That's it. That's it. If the Supreme Court don't decide to grant me a new trial, a reversal, if they decide to deny me relief, then 30 days after they deny relief then I'll be executed," says Mill-El. "If they decide to send my case to the Fifth Circuit Court, then I'm dead."
The New Orleans-based Fifth Circuit is famous for its rejection of appeals by death row inmates.
Miller-El insists he's innocent, but no court has bought that claim. He was sentenced to die for shooting Douglas Walker two times in the back during an armed robbery at a Holiday Inn in Irving Texas. Walker died of his wounds. Another hotel employee, Donald Ray Hall, Jr., was found bound and gagged in a bellman's closet next to Walker. Hall was also shot in the back and rendered a quadriplegic.
Miller-El says blacks were systematically excluded from his jurythat the one black seated at his trial testified that murderers should be tortured to death.
"They asked him, well what do you think about executions," recalled Miller-El. "And he said, 'I don't think the death penalty is good enough. I think they should be staked down like the Indians used to do 'em and have honey poured over 'em in the ants' bed, and let 'em be ate up by ants.'"
Wayman Kennedy is planting a vegetable garden for his wife beside his new home 40 miles south of Dallas. In 1986, when he was called as a juror in the Miller-El case, Mr. Kennedy was a full-time employee at IBM. He recalls telling the court that he supported the death penalty. But Kennedy was rejected as a juror.
"I was thinking that I was mainly being stricken by the defendant's side who didn't want the death penalty for their client and not from the prosecutors side and I later found out it was the prosecutors side. And I was in favor of the death penalty but I was still stricken," says Kennedy.
Kennedy later learned that he was one of ten black death penalty supporters who were rejected by the prosecution.
The fact that the prosecutor kept cards noting the race of each prospective juror convinced Kennedy that he was struck solely because he is black.
"If, in fact, you're going to put on the cards what the race of that particular person is, the gender, so you would know what that person is for your selection process, then that is racist. Because if it didn't matter, why would you put it on there?"
What Kennedy didn't know was that during the six years leading up to and including Miller-El's trial, the DA's office used its peremptory strike powers that is, its authority to remove jurors without stating a reasonto strike 90% of black jurors.
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Peremptory Strike Power
During jury selection, an opportunity for either the prosecution or the defense to dismiss or excuse a potential juror without having to give a valid reason, as would be the case when a juror is challenged for cause. Depending on court rules, each party typically gets to make from five to 15 peremptory challenges. Although parties may generally use their peremptory challenges as they see fit, the U.S. Constitution has been interpreted to prohibit their use to eliminate all jurors of a particular race or gender from a jury.
Larry Baraka, a former state criminal court judge runs a small, private law practice from an elegantly restored downtown Dallas office building. When he worked for the DA in the late 1970s, Baraka says the office kept a manual that explained to prosecutors how to discriminate in jury selection.
"In that manual, recalls Baraka, "it would tell you certain people that you should not select for various reasons: blacks, Jews, women particularly, Hispanic, college educated. Different types of things."
"You are not looking for a fair juror," the manual states, "but rather a strong, biased and sometimes hypocritical individual who believes that defendants are different from them in kind, rather than degree."
The current Dallas District attorney insists racial profiling in his office is ancient history, that the Supreme Court's 1986 Batson decision, which prohibited discrimination in jury selection, effectively put an end to it. Judge Baraka says the Batson decision merely forced prosecutors to come up with "race neutral" reasons for eliminating blacks.
"Have you ever had any problems with the police?" quotes Baraka. "Have you ever been stopped or arrested or anything? No never been arrested. Have you ever gotten a ticket? Yes. Did ya think it was fair? Well, probably not. Have you ever been locked up - a cousin, somebody arrested? Well, hell... So, of course, if you've got a relative who's arrested or prosecuted, do you think they were treated fairly? Well, man, trust me on this one. You're gonna find a significant bunch of black people who been in the criminal justice system that did not think it's fair. Cause it's not."
"So when they answered that question, hell they're doomed anyway. You understand what I'm saying. So they ask those kinds of questions so when the lawyer makes the objection. Well, give me a race neutral. Well he didn't think he was treated fairly. OK, you're excused."
Recent court records are replete with cases in which prosecutors allegedly used all their peremptory challenges to strike African-American jurors. In the Miller-El case, black jurors who had relatives in trouble with the law were struck; whites in the same situation were seated. Whether race is a factor in jury selection is, in the end, a call made by a judge. In some cases, bias may be difficult to detect. In others, judges may not be looking for it or simply choose not to see it.
Sitting in a closed room, shut off from any outside scrutiny, 12 individuals more or less rationally discuss extinguishing the life of another human being.
Today, most legal authorities agree this truly awesome responsibility is best given to jurors rather than judgesthe only obvious alternative. Yet we know that juries not only make mistakes, but that they are often confused by much of what goes on in the courtroom and that they sometimes fail to discharge their responsibilities according to the law.
When the government concluded its obstruction of justice case against the accounting firm Arthur Anderson for destroying documents related to Enron, it quickly became clear that many jurors simply didn't understand the government's arguments. The issues and the law in death penalty cases are no less complex. Unlike the case of the besieged accounting firm, however, in a capital murder case when jurors fail to comprehend the facts or the law or they don't get answers from a judge, someone may pay with his life.