August 21
TEXAS:
Efforts to halt execution surge----She would be the first black woman
Texas put to death since Civil War era
As protesters take to the streets and attorneys launch late-in-the-day
efforts to save her from the executioner's needle, Frances Newton's
capital murder case promises to pack an emotional punch rarely felt in
Texas, a state that leads the nation in putting killers to death.
Newton, 40, is scheduled to die Sept. 14 for fatally shooting her husband
and two young children in April 1987 to claim $100,000 in death benefits.
She would be the third woman - and the 1st black woman - to be executed in
the state since the Civil War. Her execution would be the 349th since
Texas executions resumed in 1982.
Newton and her supporters consistently have proclaimed her innocence, but
state and federal courts have on at least 10 occasions rejected motions
filed on the Harris County woman's behalf.
"This is like a Pandora's box," said Marcia Hale, a street minister
associated with the Committee to Free Frances Newton.
"If this woman is executed, she's going to be like a poster child to open
the door for other females of all races to be murdered," Hale said.
Newton's mother, Jewel Nelms, argued that her daughter, who has been on
death row since 1988, always had been a good mother.
"It breaks my heart that they want to kill my daughter, and she's
innocent," she said.
As Sept. 14 approaches, protesters are mobilizing to create a groundswell
of opposition to the execution. On Monday, a vigil to "pray the walls of
injustice down" is planned for 11 a.m. at the Harris County Criminal
Justice Center, 1201 Franklin. A march through downtown Austin to the
governor's mansion is scheduled for Saturday.
State Rep. Garnet Coleman, D-Houston, who has called for a moratorium on
executions in Texas, warned last week that Newton's execution might bode
ill for Gov. Rick Perry, who has been a staunch advocate for capital
punishment.
The case also has drawn the attention of death-penalty supporters.
"We will be following and watching," vowed Dianne Clements, president of
Justice for All, a Houston victims' advocacy group. "She is guilty of
capital murder. ... Clearly, there was serious consideration given to her
claims.
"Why prolong the process any longer than it should be?"
Writ of habeas corpus
As the exchanges intensify, with the potential to reach the frenzy of
those in February 1998 when pickax killer Karla Faye Tucker became the 1st
woman to be executed in Texas in modern times, Newton's best chance to
escape death may lie with a writ of habeas corpus and motion for stay of
execution filed by lawyers from the Texas Innocence Network.
In those filings, attorneys David Dow and Jared Tyler of the University of
Houston Law Center contended that authorities recovered a cheap pistol -
identical to the supposed murder weapon linked to Newton - from the
family's apartment on the night of the shootings.
Although Newton's original attorney, Ron Mock, questioned an investigator
about the possibility of a second pistol during the trial, the weapon's
existence was confirmed only after the trial had concluded. Dow and Tyler
claimed in the writ that they possess television videotape in which a
prosecutor acknowledges a second gun had been found.
Prosecutors improperly withheld that information from defense counsel,
they charged, and elicited false testimony from a witness who told jurors
only one weapon had been found.
Bullets matched
Last year, Perry issued a rare 120-day reprieve on Newton's then-scheduled
execution date, Dec. 1, to provide for additional ballistics testing on a
.25-caliber Raven Arms pistol that Newton had hidden in an abandoned house
the night of the shootings. Bullets test-fired from that gun matched those
removed from the victims.
"Very little information is currently known about the second recovered
weapon," Newton's lawyers wrote in an Aug. 10 filing. "Subsequent
proceedings in the district court, including discovery, are necessary to
determine a description of the firearm that was recovered, whether the two
firearms could have been mistakenly switched and what impact the
disclosure of the discovery of such a 2nd weapon at the crime scene would
have had on the jury."
The issue of the second pistol was a high point of the latest defense
habeas corpus actions that began with a 58-page writ filed in late July.
Among other claims, Newton's lawyers charged that Mock provided a shoddy
defense, failing to consult with his client or interview witnesses.
Prosecution tests of nitrite stains on the dress Newton wore the night of
the murders destroyed the evidence, making later defense efforts to
determine whether the stains resulted from gunpowder or fertilizer futile,
they contended.
And state testimony suggesting Newton's hands were free of gunpowder
residue because she possibly washed them was misleading. Such stains could
not easily be washed away, they said. Her hands were free of residue, Dow
and Tyler argued, because she had not fired a gun.
The attorneys also attacked the prosecution's theory of why Newton killed
her husband, Adrian Newton, 23, and their children, 7-year-old Alton and
Farrah, 21 months. Testimony in the trial showed that Newton had purchased
$50,000 life insurance policies for herself, her husband and their younger
child just three weeks before the killings.
Life insurance policies
But defense attorneys argued in their writ that Newton had purchased life
insurance polices through her employer a year earlier, then let them lapse
because she no longer could afford the premiums. She bought the new
policies, her lawyers said, only after being urged to do so by her father
and a persuasive insurance agent.
Shortly before buying the policies, three of her cousins had died in a
house fire. The family, Newton's lawyers said, lacked the money to pay for
burial.
"Newton loved her husband and children," defense lawyers claimed. "The
state put on no evidence at trial - nor has any since developed - denying
that she was a caring and loving mother. Instead, the state was able to
insinuate that Newton went out and purchased life insurance coverage in
anticipation of killing her family to collect the proceeds. The truth is
rather different."
Prosecutors responded that the state is not required to establish motive
in capital murder cases.
Further, they noted that both state and federal courts found Mock had
provided adequate counsel in a tough case. Mock's controversial and
troubled career reached a low point in February when the State Bar of
Texas suspended him for 35 months.
Claims offer nothing new
Newton's latest try for a stay, prosecutors said, offered nothing new.
"Ms. Newton's capital murder conviction has received extensive appellate
review," Assistant District Attorney Roe Wilson said via e-mail. "Since
her 1988 conviction, the trial court, Court of Criminal Appeals, federal
district court, the 5th U.S. Circuit Court of Appeals and the U.S. Supreme
Court have reviewed and rejected various claims challenging her
conviction. Many of these courts have reviewed claims attacking Newton's
conviction more than once.
"Newton's latest claims are no more than a reworking of claims that were
previously rejected during Newton's lengthy appeals process."
According to court testimony, Newton and her husband had a rocky marriage.
Both Newton, who became pregnant with her first child at 14, and her
husband engaged in extramarital affairs. Newton had lost a job at a local
department store for stealing and later had been convicted of forgery. Her
husband used and sold illegal drugs.
Discussed marital problems
On April 7, 1987, Newton and her children arrived at the family's
apartment about 4:30 p.m. About an hour later, Newton's brother-in-law,
Sterling Newton, who had been living with the couple, arrived. Newton and
her husband asked him to leave so they could discuss their marital
problems. Newton later testified that she had heard the men discussing
possible trouble, presumably related to drug transactions, and decided to
remove a pistol from the house.
During their conversation, Newton and her husband pledged to abandon their
affairs. Later that afternoon, Adrian Newton received a telephone call
from Ramona Bell, his lover of 4 or 5 days, during which he told her he
planned to go to sleep - but only after his wife, whom he viewed as
untrustworthy, left.
Newton testified she left her apartment about 6 p.m. to pay an
auto-insurance premium but discovered the office had moved. Testimony
showed she arrived at the home of her cousin, Sondra Nelms, between 7 p.m.
and 7:30 p.m. After visiting, the women decided to return to the Newton
apartment. Before they departed, Newton deposited a blue bag containing
the pistol and other items in a nearby abandoned house.
Bought gift for husband
According to a sworn affidavit Nelms gave defense attorneys, the women
discussed the couple's problems while en route to the Newton apartment.
Newton told her cousin she loved her husband and interrupted their trip to
buy him a small gift.
When the women reached Newton's home, they found the front door ajar.
Adrian Newton lay dead on the sofa; the children, sprawled lifeless
elsewhere in the house. Newton began screaming frantically.
Newton's reaction doesn't exclude her from being the killer, her attorneys
acknowledged. "But it is unlikely it was a performance," they said in
their writ.
"Newton's grief and surprise were so genuine that Nelms, who knew her
well, concluded: 'I know in my heart that after watching the reaction of
Frances upon discovering her husband and children, there is absolutely no
way she had any involvement in their deaths.'"
(source: Houston Chronicle)
*******************************
Do court trends show need for an overhaul?
The nature of the justice system is changing profoundly.
That was made clear in a report by editorial writer Gloria Padilla in last
Sunday's Insight section.
The most startling fact: While 11 judges handled almost 200 civil trials
in fiscal year 1994-95, 13 elected civil judges handled 48 jury trials
last fiscal year. That's less than 1 trial per week.
Meanwhile, as the number of civil jury trials is drastically shrinking,
Bexar County is handling a steady increase in family law. That includes
divorce cases and issues affecting the parent-child relationship, such as
custody or visitation.
Unfortunately, the county also has an abundance of child abuse and neglect
cases.
Yet, as Padilla pointed out, most civil judges have not been trained to
handle these areas of burgeoning concern. And, in fact, unelected
associate judges handle many of these difficult cases.
For example, Associate Judge Peter Sakai handles the bulk of child abuse
and neglect cases, now aided by Associate Judge Richard Garcia. The judges
hired them, and County Commissioners pay them. Associate Judges Jim Rausch
and Juan Chavira handle child support cases and are paid by the state.
This research should call to mind an earlier study by Padilla, which found
that district judges were accountable to no one and some often were absent
from the courthouse during working hours.
Given these facts, taxpayers deserve answers to these questions:
Why are 13 judges needed to handle 1/4 the number of trials that 11 judges
once oversaw?
While judges will respond that they conduct hearings, is the volume so
great that it requires the number of judges we now elect?
Are 4 associate judges needed to handle the difficult areas of child
neglect and abuse and child support?
And, finally, who can answer these questions and seek remedies if
necessary?
Any remedy would come from the Legislature, which creates state district
courts.
Lawmakers should look at the situation in Bexar County and statewide. If
similar changes are taking place throughout Texas, the cash-strapped state
might want to overhaul the court system.
Lawmakers should investigate whether trends such as mediation and tort
reform should lead to other changes at the courthouse.
(source: Editorial, San Antonio Express-News)
*****************************
A process of juror elimination----Dallas prosecutors say they don't
discriminate, but analysis shows they are more likely to reject black
jurors.
Racial discrimination was once so raw in Dallas County that a black
college president who tried to serve on a jury was flung headfirst down
the courthouse steps while sheriff's deputies watched.
The all-white jury - that enduring image of Jim Crow justice - is a fading
sight around the Frank Crowley Courts Building. But while times, laws and
leaders have changed, race still matters.
Prosecutors excluded eligible blacks from juries at more than twice the
rate they rejected eligible whites, The Dallas Morning News found. In
fact, being black was the most important personal trait affecting which
jurors prosecutors rejected, according to the newspaper's statistical
analysis. Jurors' attitudes toward criminal justice issues also played an
important role, but even when blacks and whites answered key questions the
same way, blacks were rejected at higher rates.
District Attorney Bill Hill denied that his prosecutors exclude, or
strike, jurors on the basis of race.
"The statistics may show we strike more blacks, but it's not because
they're black," he said. "It's because for one reason or another, they
[prosecutors] don't think they are going to be fair and impartial."
But the son of Dallas County's most famous district attorney said
prosecutors continue to pick juries based on race, albeit in less obvious
ways.
"I think it's institutional," said state District Judge Henry Wade Jr.,
whose father's office was cited repeatedly for race discrimination in jury
selection.
Supervisors may no longer preach racial stereotyping, and some try to
combat it, Judge Wade said, but it remains a part of the office's culture.
"I think informally prosecutors talk and say, you know, 'What can we do to
get minorities off the jury panel?'"
The News' study showed that blacks served on Dallas juries in proportion
to their population - because prosecutors did not eliminate all blacks and
defense attorneys excluded white jurors at 3 times the rate they rejected
blacks.
The dueling tactics of prosecution and defense have produced only an
illusion of equal rights, and one that flouts the intent of several U.S.
Supreme Court rulings, legal experts said.
"We're talking about the court of law, and there is blatant disregard and
violation of the law going on," said law professor David Baldus, a
nationally recognized expert on race bias in jury selection. "If one
doesn't care about the Constitution, then one won't be fazed by it."
The president of the Dallas Criminal Defense Lawyers Association said the
newspaper's findings confirmed his courtroom experiences.
"It's shocking that race continues to play a significant role in the
dynamics of the jury system in Dallas County," Peter Barrett said.
"Justice should not be motivated by partisanship or race or any other
factor which is prohibited by equal protection of the Constitution."
As part of its 2-year investigation, The News examined 108 non-capital
felony cases tried in 2002. Reporters interviewed prosecutors, defense
lawyers, jurors, judges and scholars. They reviewed more than 6,500 juror
information cards, read transcripts of juror questioning and analyzed
lawyers' strike patterns.
Several experts said the newspaper's analysis was the most thorough to
document race bias in jury selection, the last vestiges of which the
Supreme Court sought to abolish in its 1986 landmark decision, Batson vs.
Kentucky.
That ruling made it illegal to exclude even one black juror because of
race and said it could be grounds for a new trial. The court later ruled
that race discrimination also violated jurors' constitutional rights.
In June, the high court overturned a 19-year-old death penalty case,
declaring former District Attorney Henry Wade's office a symbol of race
discrimination in jury selection. It was the 3rd time in 2 decades the
high court had highlighted racism in the Wade administration.
No one disputes race is an issue in the criminal justice system, but none
of Mr. Hill's prosecutors said it was a problem in jury selection.
But Phillip Hayes, who was a prosecutor under Mr. Hill for 5 years, said
he learned from supervisors and more experienced peers to be wary of
blacks.
"No one ever came out and said it aloud - or put it in writing - but the
pervasive side was that many didn't think that African-Americans made good
jurors for the state," said Mr. Hayes, who left the district attorney's
office last year under disputed circumstances. He is now a defense
attorney.
Jeanine Howard, who worked until the 1990s for Mr. Hill's immediate
predecessor, said her supervisors taught her to make up excuses that would
allow strikes against blacks to stand.
As a defense attorney, she now sees Mr. Hill's staff offering the same
explanations.
"Having been on both sides, I know what they're doing," Ms. Howard said.
"They know there are techniques you can use."
Juan Sanchez, another former prosecutor-turned-defense attorney, said he
saw disturbing patterns. "When I represent black clients, the black people
get struck [from the jury pool]. I think it's more than a coincidence."
In trials examined by The News, prosecutors sometimes cited fashions or
physical traits associated with black culture, such as gold teeth, to
justify their rejection of black jurors.
Mr. Hill said that his prosecutors don't make up excuses to strike jurors
and that the newspaper's analysis was "unfair and biased." He agreed,
however, with the newspaper's findings that defense attorneys strike a
disproportionate number of whites.
A former track star with a country twang, Mr. Hill became district
attorney in 1999 after 25 years as a criminal defense lawyer. Early in his
career, he spent six years as an assistant to Mr. Wade, the district
attorney from 1951 through 1986 best known for the prosecution of Jack
Ruby and the abortion-rights case Roe vs. Wade.
Mr. Hill, 63, considers the late Mr. Wade a role model and has a large
portrait of him hanging in his office. Still, he and his staff have tried
to distance their office from any racial discrimination of the Wade era.
It was under Mr. Wade that the Dallas County district attorney's office
was first embarrassed in 1973 by the disclosure of a stereotype-laced
training paper on jury selection that instructed prosecutors on how to use
their peremptory strikes. "You are not looking for any member of a
minority group which may subject him to oppression - they almost always
empathize with the accused."
Peremptories are 1 of 3 tools lawyers use to reduce jury pools to 12
jurors. In Texas, lawyers on each side can use their peremptory strikes to
exclude up to 10 jurors for any reason, as long as it is not based on race
or gender. 12 other states allow lawyers at least 10 peremptories.
Lawyers also can excuse for cause those who cannot fulfill their legal
duties, or can reach agreements with opposing counsel to excuse those
jurors whom both sides prefer to avoid.
But the peremptory is by far the most controversial jury selection tactic.
One Colorado judge has called it "the last best tool of Jim Crow," and 2
Supreme Court justices have wondered publicly about its abolition.
In 1986, The News revealed that Dallas prosecutors were using their
peremptory strikes to exclude nearly all blacks from juries. Since then,
strike rates of blacks have dropped from almost 90 percent to less than 60
%. And training papers urging exclusion have been replaced by an official
policy of racial equality.
"If I felt like I was dealing with lawyers who were holding on to those
biases and prejudices from years ago, quite frankly, I don't think I'd be
district attorney, or they wouldn't be working for me," Mr. Hill said.
QUESTIONS & ANSWERS
'It's what you say to me or what you don't say to me ... that matters'
When the Supreme Court this summer overturned the conviction of Thomas Joe
Miller-El, it cited "a selection process replete with evidence that the
prosecutors were selecting and rejecting potential jurors because of
race."
The justices found prosecutors' explanations for striking blacks
implausible. They noted the history of race discrimination in Dallas
County juries, the reordering of jury panels to try to move blacks to the
rear, and the different standards of questioning applied to black jurors
and white jurors.
The court highlighted instances during Mr. Miller-El's 1986 trial of
prosecutors rejecting blacks even when their answers to jury selection
questions were similar to those of whites who were seated as jurors.
2 decades later, The News found that felony prosecutors were still using
some jury selection tactics condemned by the Supreme Court.
Prosecutors maintain that it's how prospective jurors answer their
questions, not race, that determines who gets selected and rejected.
"I don't care who you are," said Rick Jackson, a chief felony prosecutor.
"It's what you say to me or what you don't say to me in answering the
question that matters in whether or not you get struck."
Prosecutors say certain questions play a fundamental role in their
screening of prospective jurors. For instance, Toby Shook, one of Mr.
Hill's top assistants, said felony prosecutors don't want jurors who
believe that rehabilitation, instead of punishment, is the main goal of
sentencing.
"They are nice people. I want them to be my neighbors. I don't want them
on my jury because they are going to give a guy a break, whatever race
they are," he said.
Mr. Hill said his prosecutors seek jurors who have had positive encounters
with authorities.
"A disproportionate number of minorities are struck by the prosecution not
because of the color of their skin, but because their own negative
experience with law enforcement, or that of a close friend or family
member, may have tainted their view of the system as a whole," he said in
a statement.
But the newspaper's analysis found that prosecutors treated the responses
of blacks and whites to key questions differently. A review of transcripts
of juror questioning, available in 59 of the 108 cases studied by The
News, showed that:
- Juror views on rehabilitation were the most important factor in
determining who was excluded, but prosecutors rejected 79 % of the blacks
who favored rehabilitation over punishment or deterrence, compared with 55
% of the whites who gave the same answer.
- Prosecutors excluded 78 % of the blacks who acknowledged that they or
someone close to them had had contact with the criminal justice system,
compared with only 39 % of whites.
- About 2 % of all jurors in the study said they or someone close to them
had had a bad experience with police or the courts. Prosecutors rejected
every black who gave that answer, compared with 39 % of the whites.
"If a prosecutor's proffered reason for striking a black panelist applies
just as well to a white panelist allowed to serve, that is evidence
tending to prove purposeful discrimination," the Supreme Court ruled in
its Miller-El decision.
Nineteen years ago in its Batson ruling, the court said purposeful
discrimination was proof that a juror had been wrongfully excluded.
The justices also said prosecutors must be able to offer "race-neutral"
reasons for excluding jurors. As a result, critics contend, prosecutors
today use questions about jurors' contact with the legal system or their
views on punishment as a subtle way to exclude blacks.
"I believe that prosecutors ask questions so that they can strike persons
who can compromise their ability to win their case," said the Rev. L.
Charles Stovall, who leads a group that monitors alleged police brutality
and racial profiling.
Judge Wade said that when prosecutors ask jurors whether punishment,
deterrence or rehabilitation is the main purpose of sentencing, the
question is calculated to try to get blacks off juries.
"That's just a taught question," he said. "A lot of the minorities are
going to say rehabilitation, so you strike everybody who says
rehabilitation and you're covered under Batson. I think that's the only
reason they ask it."
WEIGHING ALL FACTORS
Analysis of prosecutors' decisions considers all available factors For its
analysis, The News used logistic regression, a statistical tool that
computes the relationship between variables such as a potential juror's
race and whether the juror was struck by the prosecution.
While it's not possible to know everything that influenced a prosecutor's
strike, the newspaper analyzed all factors in the public record, such as
age, race, education, occupation, socioeconomic status and answers to
questions that prosecutors say help them spot a good or bad juror.
Even after accounting for all available reasons that a potential juror
might be struck, the newspaper's analysis showed that prosecutors rejected
black jurors at higher rates than whites.
If the difference in strike rates between blacks and whites could have
been explained by some other factor, the strength of race would have been
greatly reduced when those factors were added to the analysis. But no
factor reduced the importance of race.
Had race played a minor role, the analysis would have found no difference
in the strike rates for blacks and whites with similar characteristics.
But there were differences. Within each income group, for example, blacks
were struck at about twice the rate of whites.
The News asked the nation's leading experts on jury selection to review
its findings and give their opinions.
"Proof like this would make a prima facie case of systemic
discrimination," Mr. Baldus said.
"I think you can say they are intentionally violating the law," he added.
Mary Rose, an assistant professor of sociology and law at the University
of Texas at Austin, agreed that the study showed a clear pattern of
exclusion. But that does not prove prosecutors intentionally
discriminated, she said.
"It's hard for me to say that they are in their head going, 'Here comes a
black person; no way in hell are they going to be on my jury,'" Ms. Rose
said. "I just know the end result. And it doesn't look good."
Mr. Hill consulted two criminologists about The News' findings. Both
praised the thoroughness of the analysis, but said it did not prove
prosecutors were intentionally excluding blacks because of race.
"You see hardworking prosecutors who are trying to get the best jury they
can to get a person convicted of a crime," said Robert Taylor, chairman of
the Department of Criminal Justice at the University of North Texas.
He theorized that race and socioeconomic status were so intertwined that
prosecutors disproportionately struck minority jurors because they are
poor and have greater contact with the criminal justice system.
The district attorney hired Mr. Taylor to review his office's operations
after a fake-drug scandal in 2001 in which prosecutors sought drug
convictions against Hispanics who had been framed by police. Based on his
experience, Mr. Taylor said, he was convinced that racism was not an issue
in Mr. Hill's office.
DEMEANOR
Prosecutors say they can tell a lot from jurors' behavior
Mr. Hill said The News' study failed to account for one important variable
that could not be found in court transcripts: a juror's demeanor - how he
looked and acted, how he reacted to defense attorneys and prosecutors.
"When we see a juror who looks like they want to wring our neck or spit in
our face things that don't show up [in the record] - we're going to
strike that person," he said.
Courts have upheld demeanor as a legitimate reason to exclude a
prospective juror. But the disparity in strike rates found by The News is
too wide to be explained by demeanor alone, said Ms. Rose.
"It would be shocking to me if there were that many African-Americans
making faces and not whites, because I've been to jury service, and no
one's happy to be there," said Ms. Rose, whose study of peremptory
challenges in North Carolina found similar strike patterns.
In the trials examined by The News, some judges allowed prosecutors to
strike jurors for failing to make eye contact with the lawyer, smiling at
the defense attorney or allegedly sleeping.
When attorneys suspect a juror has been rejected because of race, they can
request what's known as a Batson hearing. In a review of all Batson
transcripts available in cases studied by The News, prosecutors cited
demeanor only seven times to justify their 51 strikes of minorities.
"It's a feeling you get from people. A guy with tattoos and a bandanna is
probably not a guy that likes authority," said Nancy Mulder, a chief
felony prosecutor.
On the other hand, she said, someone who has "been attentive ... smiled at
me, nodded at things I've said - we're not going to have a problem."
The late Supreme Court Justice Thurgood Marshall worried that strikes for
demeanor could become a cover for prosecutors whose perceptions are warped
by their prejudices.
"A prosecutor's own conscious or unconscious racism may lead him easily to
the conclusion that a prospective black juror is 'sullen' or 'distant,' a
characterization that would not have come to his mind if a white juror had
acted identically," he wrote in the Batson case.
For at least one member of the high court, those concerns have not
diminished with time. In a concurring opinion to the Miller-El decision,
Justice Stephen Breyer noted that in Dallas and elsewhere, "The use of
race- and gender-based stereotypes in the jury selection process seems
better organized and more systematized than ever before."
FUTILE CHALLENGES
Critics say DA's perfect record demonstrates weaknesses of Batson
In the six years Mr. Hill has been in office, none of the thousands of
cases brought to trial has been reversed on a Batson challenge.
Batson objections were found in only 16 cases reviewed by The News. None
was sustained by the trial judge, and only five made it to appeals courts.
Prosecutors say that proves they're following the law.
"I think we're doing it right," said Lori Ordiway, chief of the district
attorney's appellate section. "There is nothing from which to make a
claim."
Critics, however, say the lack of successful appeals merely proves how
weak the Batson protections are.
"Very frankly, any attorney worth his salt can make up something to get
over a Batson challenge," said Mike Byck, an assistant public defender in
Dallas County. "And, literally, they do make it up. We do."
Although the Batson decision was meant to end racial discrimination in
jury selection, the Supreme Court's ruling left open the question of what
constituted a race-neutral strike.
In subsequent rulings, the high court made enforcing Batson more
difficult, essentially declaring that judges should accept all but the
most obviously racial reasons for a strike.
As a result, Texas appeals courts have allowed prospective jurors to be
rejected for "body English"; gum chewing; wearing a pink hat, snakeskin
belt or sunglasses; or having unkempt hair, mustaches or beards.
Ms. Howard, the former prosecutor, said her supervisors in the district
attorney's office taught her how to get around Batson.
"Always say they're sleeping," said Ms. Howard, who now specializes in
appeals. "I was told that."
The newspaper also found that when defense attorneys question whether race
is the reason behind a prosecutor's strike, the lawyers often handle it
informally and it is not made part of the trial record. Defense and
prosecution also regularly agree off the record, sometimes with the
judge's participation, about which jurors to excuse.
The reluctance to make a formal Batson challenge is not just the result of
vague legal guidance, but a reflection of how unwilling most lawyers are
to accuse colleagues of racism.
"Nobody likes to be accused of something as horrible as that," said Robert
Hirschhorn, a nationally known jury consultant who is based in Lewisville
and works mostly with the defense.
Prosecutors, judges and many defense attorneys have worked together for
years, and collegiality is a hallmark of the Dallas County courthouse.
But Stephen Cooper, a Dallas appellate attorney, denounced such informal
measures as an end-run around Batson that precludes the issue of race
discrimination ever being raised on appeal.
Mr. Miller-El's attorneys set the foundation for a successful appeal of
his death-penalty conviction by making their allegations of race bias in
jury selection a part of the trial record.
TRACKING VIOLATIONS
Formal monitoring unnecessary, district attorney says
Mr. Hill said he does not track Batson challenges. If a prosecutor were
found to have violated Batson, it would come up in the evaluation process
or he would hear about it on the courthouse grapevine, Mr. Hill added.
A felony court prosecutor had acknowledged to state District Judge Faith
Johnson that stereotypes guided at least one of her strikes.
In response to a Batson challenge from the defense, Kerri New told the
judge that she had rejected a 22-year-old black man because he had missing
teeth and looked disheveled.
"It fits him into a socioeconomic stereotype, which the state feels is a
group that's detrimental to the state," said Ms. New, who used nine of her
strikes to exclude potential black jurors.
The judge had the young man brought back into court and asked him to show
his teeth.
She disallowed the prosecutor's strike and put the man on the jury, which
later convicted 2 young black men of robbery.
In May, Ms. New quit the district attorney's office. She declined in an
interview to discuss the reasons for her departure but insisted she had
mistaken the young man for an older black man seated in front of him.
Mr. Hill acknowledged that he demoted Ms. New, the first time in his 6
years in office that he has disciplined a prosecutor for a Batson-related
issue. He said he disagreed with her philosophy on jurors.
"It doesn't make a difference how much money you have," he said.
The News also found 2 cases last year in which a judge ruled that another
of Mr. Hill's prosecutors had violated Batson.
That prosecutor, Lara Peirce, rejected a black truck driver whom she
described as "liberal" because he was wearing a gold chain with what she
incorrectly described as a theater mask medallion. She also rejected a
black secretary who she wrongly said was skeptical of police.
Ms. Peirce said that she alerted Mr. Hill to the incidents, had valid
race-neutral reasons for excluding the jurors and did not understand why
the judge found them unacceptable. "There's no problem with why I struck
these people," she said in an interview.
Mr. Hill blamed the Batson rulings on a personality conflict between the
state district judge and Ms. Peirce.
The judge, Mary E. Miller, disagreed. "It had absolutely nothing to do
with personality conflict, and it had everything to do with following the
law," Judge Miller said. "You have to look at whether it [the strike] is
race-neutral, but you also have to look behind it and make sure they're
not just making something up."
Six months after the second Batson ruling, Mr. Hill commended Ms. Peirce's
performance in another case.
The district attorney said he does not necessarily make Batson violations
part of employees' personnel files.
"We look at each individual case to determine whether there is some kind
of deception or ill motive or something where there's an intentional or
perceived intentional violation of Batson," Mr. Hill said. "We get
objections sustained every day that we don't think are right."
STEREOTYPES
Does pressure to win cause prosecutors to fall back on them?
Mr. Hill strongly objected to any suggestion that he or his staff engage
in racist behavior, and on the surface, his felony prosecutors seem a
different breed from the Wade era.
Fourteen of the 93 felony court prosecutors are minorities. All but seven
earned their law degrees after the 1986 Batson ruling.
New prosecutors in Mr. Hill's office receive a 45-page training paper
devoted to jury selection, which instructs them to follow the law. All are
instructed to follow a written policy prohibiting jury selection based on
race.
"The kids now, they're being raised in a different culture," state
District Judge Keith Dean said. "They don't have to consciously reject the
lies that some of us were exposed to when we were younger."
State District Judge John Creuzot, one of only two black felony court
judges in Dallas County, said he was surprised by The News' findings.
"They seem to be doing a very good job, from my perspective, of handling
the cases in a fair and impartial manner," he said.
But several legal analysts said they believed that prosecutors
unconsciously engage in unfair stereotyping because they are under immense
pressure to win and often must rely on superficial information.
"Your job as a prosecutor is to get a conviction, just as your job as a
defense attorney is to get an acquittal," said Marc Mauer, assistant
director of The Sentencing Project, a reform organization based in
Washington, D.C. "In your personal life, you may have very good
relationships with African-Americans and other groups, but your number
crunching tells you that your goal needs to be to get as many blacks off
the jury as you possibly can.
"Racist or not, the end result is certainly a racist one."
There is also an entrenched belief among prosecutors and defense attorneys
that racial stereotypes are still valid indicators of what makes a "good"
juror, said Mr. Baldus, a death penalty opponent and a professor at the
University of Iowa whom many academics regard as the nation's leading
researcher on jury selection bias.
"Maybe they aren't aware that they are indulging in these stereotypes when
it comes to race," he said. "[But] if it isn't conscious, it's based on
perceptions that are highly correlated with race and race alone."
Prosecutors worry that blacks will empathize with defendants because
research shows that blacks are more likely to have bad experiences with
the legal system, such as racial profiling by police.
Mr. Hayes said that when he worked in Mr. Hill's office, the stereotypical
profile of a black juror was someone who supported rehabilitation of
criminals, favored lighter prison terms and had a higher rate of bad
experiences with law enforcement and the justice system.
"Everybody with experience seemed to have a story of how a jury hung up
when a black juror wouldn't put another black person in jail," he said.
Studies show that while black jurors may alter the tenor of deliberations
and improve the thoroughness with which evidence is examined, their
presence usually does not change a trial's outcome. There is a greater
chance that black jurors will be more lenient in sentencing.
However, the amount of influence blacks can have on a verdict depends on
their numbers in the jury, scholars say.
"The research shows that if you only have 1, 2 or 3 blacks [on a jury] or
as many as 4, they don't have any real influence on the system," Mr.
Baldus said.
In the 108 trials examined by The News, 101 had 4 or fewer black members.
Ten juries contained no black members. Only 1 jury had a majority of black
members; the defendant in that case was white. Blacks made up 56 % of the
defendants.
All-white juries have tended to be harsher on black defendants, said
Phoebe Ellsworth, a professor of law and psychology at the University of
Michigan.
"White people worry about being racist when they're reminded of it," she
said. "But when it's all white people, it just doesn't occur to them to
remember their egalitarian values."
Prosecutor Ada Brown, whose mother is white and father is black, believes
it's best to talk to prospective jurors about race rather than have it
surface later in deliberations.
"I have an 80-year-old grandfather who thinks everybody brown is of
Satan," said Ms. Brown, the only one of 13 felony prosecutors interviewed
by The News who acknowledged raising race during jury selection.
She has black relatives who distrust the state too much to be fair jurors,
she added.
"I use those 2 extremes to try to get people discussing the topic that
nobody wants to discuss - and that is, that race sometimes matters," Ms.
Brown said.
CONSIDERING SOLUTIONS
Some judges and scholars say it's time to eliminate peremptory challenges
The Supreme Court has grappled with jury discrimination since the first
decade after adoption of the Civil War Amendments to the Constitution,
which guaranteed blacks the rights of full citizenship, including jury
service.
Batson in 1986 was the first court ruling to put limits on how lawyers
could use their discretionary strikes.
But Justice Marshall, the court's 1st black member, predicted that would
not be enough and called for the abolition of peremptory strikes.
He had seen up close the consequences of race discrimination in jury
selection. In 1938, as counsel to the NAACP, he came to Dallas to
investigate an attack on George Porter, the president of Wiley Junior
College who was thrown down the courthouse steps after refusing to be
excused from jury service.
"Even if all parties approach the court's mandate with the best of
conscious intentions," Justice Marshall wrote almost 50 years after that
incident, "that mandate requires them to confront and overcome their own
racism on all levels - a challenge I doubt all of them can meet."
2 decades later, writing in the Miller-El case, Justice Breyer recalled
Justice Marshall's warning and said it was time "to reconsider Batson's
test and the peremptory challenge system as a whole."
Some judges and legal scholars believe that the only way to eliminate
discrimination in jury selection is to do away with peremptory strikes -
or at least limit them. Having 10 strikes per side, they say, gives
lawyers too much leeway.
Beyond the constitutional debate over peremptory challenges, community
leaders say race discrimination in jury selection tells an entire group of
people that it's unfit to serve and undermines the foundation of the
justice system.
"The end results are that you exclude a category of people," said Hank
Lawson, chairman of the South Dallas Weed and Seed Committee, which works
with police to prevent crime. "You can't get around that."
***********************************
Secret database used in weeding out jurors----Some call ratings unfair,
but state backs use of details on prior service
If you've ever acquitted a defendant while serving on a Dallas County
jury, the district attorney's office considers you a "bad" juror and is
not likely to seat you again.
Prosecutors consult a confidential, taxpayer-funded database as they
decide which people to accept or reject for service.
Appeals courts and the Texas attorney general have upheld prosecutors'
right to do so and ruled that defense lawyers and the public - including
former jurors - have no right to see the database.
District Attorney Bill Hill denied a request by The Dallas Morning News
for access to the database and refused to allow the newspaper even to
photograph an investigator using it.
So what is known about the database is based on prosecutors' descriptions.
Prosecutors rate jurors as "good," "bad" or "fair" based on whether they
voted to convict or gave a stiff sentence. For decades, names, addresses
and ratings were the only information on jurors included in the database.
In recent years, the database has been expanded to include prosecutors'
brief comments about what jurors said of the trial and during jury
selection. The expanded database also includes the names of people who
were rejected during jury selection.
The database's origins date to the 1940s, when former Dallas County
District Attorney Henry Wade was a young prosecutor and kept notes on
jurors in cases he tried. In the early 1950s, the list was expanded to
include all criminal case jurors, and in the 1970s, it was computerized.
The database now contains 1 million to 2 million names, Mr. Hill said.
Originally, prosecutors said, the goal was to red-flag "nuts" to be
avoided as jurors.
Today, there is no office policy requiring prosecutors to eliminate jurors
based on the database. Several prosecutors said they don't automatically
try to strike jurors flagged as "bad," because they also consider the
circumstances of the previous trial.
Others said they routinely exclude people who have been identified as
"bad."
"If it's a felony [case], and they found someone not guilty, that's
usually enough information that you'd be able to exercise a strike right
then and there," said one of Mr. Hill's top assistants, Toby Shook, who
supervises felony prosecutors in several courts.
But prosecutor Livia Liu said she rarely relies on the database "because I
don't think it's fair or an accurate gauge."
Defense lawyers complain the system ignores the possibilities of a
wrongful charge or a weak state case and could be susceptible to racial
profiling.
"Why does that make them a bad juror because they followed the law?" asked
defense lawyer Kevin Brooks.
Judges instruct jurors to weigh the facts, to convict only if the state
proves its case beyond a reasonable doubt, and to remember that defendants
are presumed innocent until proven guilty.
Defense lawyer Anthony Lyons said the ratings are unfair because no one
has access to secret jury deliberations.
"They could have been the most pro-state juror who held out for four days
and decided to cave in," he said.
Prosecutors argue that the database is a useful tool.
"We're here to make sure the community gets a fair trial," said Rick
Jackson, a prosecutor for 15 years. "The people we're red-flagging are the
people that aren't going to be fair to us, fair to the community."
The accuracy of the database depends on prosecutors' honesty, but because
prosecutors usually pair up to try cases, Mr. Shook said, there is always
someone to catch a lie. And anyone caught doing that, he added, would be
fired.
The 5th District Court of Appeals in Dallas has routinely supported
prosecutors' right to use the database. But the court has also cautioned
that it doesn't condone the use of a rating list without criteria or
explanations.
"The use of this type of list too easily allows the possibility by an
unscrupulous prosecutor wishing to circumvent" laws against race-based
jury selection, the court ruled in 1999.
Defense lawyer Russell Wilson II has already lost one request for access
to the database under the state's open-records laws, but plans to try
again. He believes the database might reveal certain trends, such as
whether "there are segments of the community being struck at higher
rates."
Besides, he added, "If your DA thinks you're a bad juror, then you ought
to know."
**********************
'Your teeth are not missing?' 'They're all there. Thank you.' -- When the
judge looked, she found no reason to keep the man off the jury
Jury duty sounded like fun to the 22-year-old Dallas man.
A prosecutor said she wanted this man removed because he was missing his
front teeth. The judge denied the strike, and the prosecutor later said
she had mistaken the juror for an older black man in front of him.
"I thought it would be pretty cool," he said. "It would be something new.
I'd never done it before."
After arriving at the Frank Crowley Courts Building, the boyish young man
with a shy manner was told to report to state District Judge Faith
Johnson's court. The case involved 2 black men who were charged with
robbing an elderly Hispanic man.
J, who asked that his identity not be revealed, was one of 20 blacks on
the panel of 65 prospective jurors. In answer to a group question, he said
he believed the primary purpose of sentencing should be punishment. He
said he was never asked a direct question.
But when Assistant District Attorney Kerri New presented her list of
potential jurors whom she wanted to strike, J's name was on it. So were
the names of 8 other blacks.
Defense attorney Clark Birdsall accused Ms. New of striking blacks for
racial reasons, without asking some of them a single question, and
requested a Batson hearing.
"Some of these jurors, I don't think, said a cotton-picking thing," he
said.
In response, Ms. New said four people had doubts about assessing a life
sentence. Another was "a bad juror on a murder case." One had a
misdemeanor conviction. One sported a "liberal lifestyle." One had a
"disturbing" attitude.
She said she struck J because he was missing his front teeth, which she
called an indication of a "socioeconomic stereotype" unfavorable to the
state.
"Judge, it may not be popular," Ms. New said, "but it's the truth. We have
a lot of problems with people who come down here and want to view the
police as bad people because of where they live. That is allowed. It is a
race-neutral reason."
Mr. Birdsall was outraged. "I can't believe my ears," he said. He likened
Ms. New's rationale to "knitting a parachute out of thin air."
Judge Johnson had J brought back into the courtroom and called him to her
bench. She said she noticed he had some college credits. He said he was
the manager of a small family business. Then she asked whether his front
teeth were missing.
"Missing?" he replied. "No. I got my tongue pierced."
"But your teeth are not missing?" the judge persisted.
"They're all there. Thank you," J replied.
"Open your mouth; let me see," the judge instructed.
The judge had seen enough. The state's strike was denied, and J was seated
on the jury. Later, he voted with the 11 other jurors to convict the two
defendants. He said some jurors at first had doubted their guilt, but he
never did.
In an interview with The Dallas Morning News, J said he thought the
request to see his teeth was "weird," but it didn't bother him. When he
was told Ms. New's reasons for striking him, he suggested that maybe she
had seen that his teeth were crooked and had gotten confused.
"Maybe it was just something she assumed," he said. "I do live in Oak
Cliff. But I'm not poor or anything."
Ms. New, who had once helped train young Dallas County prosecutors, told
Judge Johnson she had confused J with an older black man seated in front
of him.
She apologized and insisted she would never strike someone because of
race.
In a later interview, Ms. New repeated that it was a case of mistaken
identity.
"He had no regard for himself," she said of the older man. "If that person
had walked in any courtroom in that state - white or black - any
prosecutor would have struck him."
In early May, after several inquiries by the newspaper, Ms. New was
demoted and quit the district attorney's office.
**************************************
Prosecutor tackles race issue head-on ---- Black member of DA's staff
considers it crucial to recognize biases among potential jurors
Prosecutor Ada Brown believes she has a unique ability to discuss race in
jury selection.
Ada Brown, 1 of 4 black prosecutors handling felony jury trials in Dallas
County, said she believes prosecutors strive for diverse juries because
'your verdicts look truer when they come from a cross-section of the
community.'
"If you belong to the race, you can talk about it," said Ms. Brown, 1 of 4
black prosecutors who handle felony jury trials in Dallas County.
"That's why it's important to have minority prosecutors. I can deal with
issues that only members of our club can talk about."
When a defendant is a minority, Ms. Brown uses her family and
self-deprecating wit to look for biases that jurors might otherwise
suppress.
"As a black person, I want my verdicts to be based on the law and
evidence. I don't want anybody convicted because of, in any part, race,"
she said.
Ms. Brown said she believed that prosecutors try to seat diverse juries
because "your verdicts look truer when they come from a cross-section of
the community," but she said race does play a role in jury selection
because jurors think about it.
She was unaware, though, of the tactics revealed by The Dallas Morning
News' investigation, such as prosecutors striking jurors for having gold
teeth or because they appeared to be poor.
"I have found frequently the poorest people in society see things most
black and white," she said. "My grandmother is my hero, and I would hate
to think that just because she's not well educated and not wealthy that
she can't judge evidence."
As for gold teeth, Ms. Brown said: "That's an identifier of black culture.
That'd be like saying 'I'm striking him because he had an Afro, but not
because he's black.'"
Eric Mountin, a senior felony prosecutor who supervises Ms. Brown in the
organized-crime division, lauds her uncommon approach to jury selection.
"White prosecutors are afraid to even address the issue because they think
they won't handle it appropriately or it might backfire," he said. "Ada
confronts it straightforward."
Ms. Brown said a few incidents in her happy, middle-class Oklahoma
upbringing made her realize that racism still exists.
After she won a high school homecoming pageant in 1992, she said, the
traditional winner's walk was canceled and reinstated the next year, when
a white student won.
Ms. Brown earned top honors as valedictorian, but a white student's photo
ran instead in the yearbook, she said. A boyfriend driving a BMW from his
father's dealership was stopped blocks from her house and wrongly accused
of stealing the car.
"If stuff like that didn't happen," Ms. Brown said, "then maybe you could
come into the DA's office and believe that race didn't matter."
(source for all: Dallas Morning News)
**********************************
Analysis shows Dallas prosecutors more likely to exclude blacks
Dallas County prosecutors excluded eligible blacks from juries at more
than twice the rate they turned down whites, according to a newspaper
investigation. Being black was the most important personal trait affecting
which jurors prosecutors rejected, according to a statistical analysis by
The Dallas Morning News, which published the 1st part of a 3-part series
on jury selection Sunday.
Jurors' attitudes toward criminal justice issues also played an important
role, but even when blacks and whites answered key questions the same way,
blacks were rejected at higher rates, the newspaper said.
District Attorney Bill Hill said his prosecutors don't exclude jurors on
the basis of race.
"The statistics may show we strike more blacks, but it's not because
they're black," he said. "It's because for one reason or another, they
(prosecutors) don't think they are going to be fair and impartial."
The newspaper examined 108 noncapital felony cases tried in 2002.
Reporters interviewed prosecutors, defense lawyers, jurors, judges and
scholars. They reviewed more than 6,500 juror information cards, read
transcripts of juror questioning and analyzed lawyers' strike patterns.
The analysis found that prosecutors treated the responses of blacks and
whites to key questions differently. A review of transcripts of juror
questioning, available in 59 of the 108 cases studied by The News, showed
that:
-Juror views on rehabilitation were the most important factor in
determining whom prosecutors rejected, but they excluded 79 % of blacks
who favored rehabilitation over punishment or deterrence, compared with 55
% of whites who gave the same answer.
-Prosecutors excluded 78 % of blacks who acknowledged that they or someone
close to them had had contact with the criminal justice system, compared
with only 39 % of whites.
-About 2 % of all jurors in the study said they or someone close to them
had had a bad experience with police or the courts. Prosecutors rejected
every black who gave that answer, compared with 39 % of whites.
The president of the Dallas Criminal Defense Lawyers Association said the
newspaper findings confirm his experiences in the courtroom.
"It's shocking that race continues to play a significant role in the
dynamics of the jury system in Dallas County," Peter Barrett said.
"Justice should not be motivated by partisanship or race or any other
factor which is prohibited by equal protection of the Constitution."
The study showed that blacks served on Dallas juries in proportion to
their population because prosecutors did not eliminate all blacks, and
defense attorneys excluded white jurors at three times the rate they
rejected blacks.
Those dueling prosecution and defense tactics produce only an illusion of
equal rights that flouts the intent of several U.S. Supreme Court rulings,
according to legal experts.
"We're talking about the court of law, and there is blatant disregard and
violation of the law going on," said law professor David Baldus, a death
penalty opponent and a professor at the University of Iowa who is a
leading researcher on jury selection bias.
The U.S. Supreme Court in June cited racial discrimination in overturning
the death sentence of murder convict Thomas Miller-El, but Dallas
prosecutors will retry him.
Miller-El was sentenced to death row in 1986 by a 12-member jury that
included 1 black. Prosecutors struck 10 of the 11 blacks eligible to
serve.
The high court overturned Miller-El's conviction, citing a manual, written
in 1969 and used until at least 1980, that instructed prosecutors on how
to exclude minorities from Texas juries. Supreme Court Justice David H.
Souter called racial discrimination in Dallas County's jury selection
process unquestionable.
"If anything more is needed for an undeniable explanation of what was
going on, history supplies it," Souter wrote in the 6-3 decision. "The
prosecutors took their cues from a 20-year-old manual of tips on jury
selection, as shown by their notes of the race of each potential juror."
The manual was written by Jon Sparling, a top assistant to longtime Dallas
District Attorney Henry Wade.
In 1986, The Dallas Morning News reported that it found that county
prosecutors routinely manipulated the racial makeup of juries through
legal challenges, excluding up to 90 % of qualified black candidates from
felony juries.
Wade said then that the newspaper's study, based on computer analysis of
court records of 100 randomly selected felony jury trials in 1983 and
1984, did not convince him that prosecutors engaged in systematic
exclusion of blacks.
(source: Associated Press)
