Jury selection bias found in inmate's '86 murder trial

High court: Prosecution followed suggestions to keep blacks off juries

The Texas Department of Criminal Justice provided this photo of death row inmate Thomas Miller-El.

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DALLAS, Texas (AP) -- The U.S. Supreme Court decision that overturned the murder conviction of a black man accused of killing a white hotel clerk during a robbery cited a manual that instructed prosecutors on how to exclude minorities from Texas juries.

But the county prosecutor says that ruling didn't call into question the guilt of the inmate, Thomas Miller-El, and the state plans to seek the death penalty again in a new trial.

"His guilt of this heinous crime is not in question," Dallas District Attorney Bill Hill said. Prosecutors have until late November to set a new trial date or Miller-El could be released.

Miller-El's attorney Jim Marcus said his client retains the presumption of innocence "until proven guilty in a constitutionally fair trial."

The Supreme Court overturned Miller-El's conviction in June, citing a manual written in 1969 that instructed prosecutors on how to exclude minority jurors. In Miller-El's case, the racial discrimination in the jury selection process was unquestionable, Supreme Court Justice David H. Souter wrote in the 6-3 decision.

The 12-member jury that sentenced Miller-El to death row in 1986 included one African American. Prosecutors had struck 10 of the 11 blacks eligible to serve.

"If anything more is needed for an undeniable explanation of what was going on, history supplies it," Souter wrote. "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."

1969 manual's suggestions

The manual was written by Jon Sparling, a top assistant to longtime Dallas District Attorney Henry Wade, and included such instructions as:

"You are not looking for any member of a minority group which may subject him to oppression -- they almost always empathize with the accused."

"Look for physical afflictions. These people usually sympathize with the accused."

"Extremely overweight people, especially women and young women, indicate a lack of self-discipline and often times instability. I like the lean and hungry look."

Sparling, now retired, did not return a phone call seeking comment, but he told The New York Times in 2002 that he wrote the instructions informally and quickly, without being careful of his words.

Hill has said his written statements that his office does not tolerate illegal discrimination from prosecutors.

One former assistant district attorney involved in prosecuting Miller-El, Paul Macaluso, said he never practiced racial discrimination in jury selection. He said he was aware of the manual before he joined Wade's office in 1973, but no one instructed the staff to follow it.

Miller-El was charged with murder after a co-worker of slain Holiday Inn clerk Douglas Walker who survived the shooting identified Miller-El as the triggerman.

Concerns about the exclusion of minorities from Dallas juries are not new.

In 1986, The Dallas Morning News reported that county prosecutors routinely manipulated the racial makeup of juries through legal challenges, excluding up to 90 percent 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.

Wade, who died in 2001, and his assistants had maintained at the time that Sparling's recommendations never were followed blindly and that most prosecutors had not read the manual.

But Larry Baraka, a former state district judge, said it was routine to keep blacks off the jury when he worked for the district attorney's office from 1976-78 -- the only black prosecutor during most of that period.

"I didn't like it at the time, and I had a few run-ins about it because I instructed the prosecutor picking my juries that I didn't want them striking black folk," Baraka said.

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