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Aug. 13, 2005, 10:59PM High court decision forces Dallas to give black inmate retrialRacial makeup of jury that convicted Miller-El renews concerns about discriminationBy MATT CURRYAssociated Press
DALLAS - A Supreme Court decision citing racial discrimination during trial provided Thomas Miller-El, convicted or murder, an opportunity to leave Texas' death row after 20 years, but Dallas prosecutors will try to prevent that by retrying him. Dallas District Attorney Bill Hill says the high court's decision in June doesn't question the guilt of Miller-El, a black defendant accused of killing a white hotel clerk and wounding another during a robbery. His office says the state will again seek the death penalty. Prosecutors have until late November to set a new trial date for Miller-El or risk his release, a federal appeals court ruled in July.
One black jury memberMiller-El's attorney Jim Marcus said his client retains the presumption of innocence "until proven guilty in a constitutionally fair trial."Miller-El was sentenced to death row in 1986 by a 12-member jury that included one black. Prosecutors struck 10 of the 11 blacks eligible to serve. The Supreme Court overturned Miller-El's conviction, citing a manual written in 1969 by Jon Sparling, a top assistant to longtime Dallas District Attorney Henry Wade, and used until at least 1980. It instructed prosecutors on how to exclude minorities from Texas juries. Supreme Court Justice David Souter called racial discrimination in Dallas County's jury selection 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."
Batson v. KentuckyThough racial discrimination in selecting jurors has long been federally prohibited, it was harder to prove before the 1986 Batson v. Kentucky ruling, which was bolstered by Miller-El. Before Batson, no reasons had to be provided for using peremptory strikes.The ruling was not retroactive, so it could not have been used to appeal earlier cases of three black Dallas County defendants sentenced to death while the manual was in circulation. All won appeals over other issues, were convicted in subsequent retrials and executed. Another black Dallas County inmate on death row, Ronald C. Chambers, got his conviction overturned in 1989 by the Texas Court of Criminal Appeals, which cited issues similar to those in Miller-El's trial. In his third trial, Chambers was re-convicted in the 1975 shooting and beating death of a white man. He's now the longest-serving inmate on Texas death row. Sparling, now retired, did not return a phone call from the Associated Press seeking comment on the manual. He told the New York Times in 2002 that he wrote the instructions informally and quickly, without being careful of his words. Wade, whose name is on the landmark Roe v. Wade abortion case, died in 2001. Hill, who took office in 1999, declined to be interviewed by the Associated Press. He said in an earlier statement that his office does not tolerate illegal discrimination from prosecutors or opposing jurors. "His guilt of this heinous crime is not in question," Hill said. Miller-El was convicted of murdering Holiday Inn clerk Douglas Walker during a robbery. Walker and co-worker Donald Ray Hall were bound, gagged and shot. Hall, who was paralyzed in the shooting, identified Miller-El as the gunman.
Questioned beforeFormer Assistant District Attorney Paul Macaluso, who helped prosecute both Chambers and Miller-El, said he never practiced racial discrimination in jury selection. Macaluso, now a Dallas federal prosecutor, said he was aware of the manual before he joined Wade's office in 1973, but no one instructed the staff to follow it.Concerns about the manual are not new. A Time magazine article about the guidelines in 1973 appeared under the headline: "Women, Gimps, Blacks, Hippies Need Not Apply." Excerpts were placed under a cartoon depicting a jury of hooded Klansmen, according to Miller-El's clemency appeal.
Studying selection processIn 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 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 and his assistants 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 from 1976-78, when he worked for the district attorney's office — the only black prosecutor 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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