JOHN T. FLOYD LAW FIRM
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Comments on Current Events In Criminal Law
April 28, 2008
DALLAS JUSTICE GIVEN TO THOMAS JOE MILLER-EL
Houston Criminal Attorney John T. Floyd discusses the Saga of Miller-El and the Historical Practice of Racism in the Jury Selection Process Background and Plea
It was a brutal crime. According to public records, Dorothy Miller-El set it up on November 16, 1985. She had previously worked at the Holiday Inn near the Dallas/Fort Worth International Airport. She provided her husband Thomas Joe Miller-El and Kennard Sonny Flowers with inside information about the motel. The two men entered the motel in the early morning hours where they robbed, bound and gagged two employees: 25-year-old Douglas Walker and 29-year-old Donald Ray Hall. Miller-El asked Flowers if he was going to shoot the two men. When Flowers hesitated, Miller-El shot Walker in the back of the head twice, killing him instantly, and then shot Hall in the side, leaving him paralyzed from the chest down.
Six days later Thomas Miller-El was arrested in Houston, Texas following a shootout with the police. Miller-El was wounded. The Houston police seized several weapons, including the murder weapon. Dorothy Miller-El and Flowers are arrested together a few weeks later. In March 1986 Thomas Miller-El was convicted of capital murder and sentenced to death by an all-white Dallas County jury. His wife received two life sentences, both of which were later reduced to two concurrent 15 year-terms by an appeals court. She was paroled in 1992. Flowers received a life term after he agreed to testify against Miller-El.
The Miller-El case morphed into one of the most controversial, and highly publicized, capital cases in Texas. It gained international media attention because his appeals focused on the sordid history of racism in the jury selection process by the Dallas County district attorney’s office which was disclosed in a Dallas Morning News series in 1986. The Morning News series was highlighted by the United States Supreme Court in two Miller-El rulings with the second one resulting in a reversal of the condemned man’s conviction in 2005.
On March 20, 2008 the Miller-El case was brought to an abrupt conclusion when the accused killer pleaded guilty to a life sentence for the murder of Walker and a 20-year consecutive term for aggravated robbery.
The parents of Douglas Walker were not pleased about the plea bargain. It has been their long-held belief that Miller-El “should have been executed a long time ago.”
“Now he’s scammed the justice system again,” Tony Walker, Douglas’ father, told the Morning News following the plea. “My son just got murdered again in 2008. Now, I got to make sure he doesn’t get out. It’s another stab in the back.”
Special prosecutor Mike Heiskell, a prominent Fort Worth attorney assigned to the Miller-El case, defended the plea deal. He said plea brings closure to a case that had occupied the courts for more than two decades, originating during the tenure of District Attorney Henry Wade.
“[The plea deal] was the most advantageous way to end this case,” Heiskell said. He pointed out that while he believed a jury would have convicted Miller-El, he was not certain it would return the death penalty because of Miller-El’s good disciplinary record during the twenty-years he spent on death row. Miller-El’s good disciplinary record would have made it difficult for the prosecution to carry the requisite burden of demonstrating “future dangerousness” to warrant a death penalty verdict.
“It means he won’t have a death sentence hanging over his head like he’s had for 20 years and 14 execution dates,” said Doug Parks, Miller-El’s attorney. “It’s hard to say you feel good pleading a case out to life and 20. But we feel good about this. I think it was a good result for the state and it was a good result for Thomas.”
Miller-El did not have much to say about the plea bargain. “Death row is like a cemetery ... compatible with having lived in hell and enduring hell’s fire and hell’s torment,” he told the Morning News the day after the plea, often referring to himself as “we” or “us” during the interview. “After being on death row for so long and having the thought on my mind that I will be executed, it will probably take us three years for us to get adjusted. The process has really traumatized us in many ways. We never saw ourselves as being on death row. We saw ourselves as being on life row."
Those remarks were incendiary fuel for the bitter of Renee Brinks, Douglas Walker’s sister. Like her father, she was angered by the plea deal. She said the deal had been reached and signed before the family was told anything about it.
“We have been the victims, yet he is the one who is looked at as the victim in all the news,” Brinks told the Morning News. “We have been just livid with this plea bargain. All they considered was that he was black. That's it. We feel the state of Texas and the Supreme Court, they all dropped the ball. They smoothed it over so it wouldn't go on any longer."
Heiskell conceded that while the district attorney’s office did not notify the Walker family until after the plea documents had been signed, they were notified prior to the court proceedings that made the plea deal official.
In a strange coincidence, the Miller-El’s guilty plea came on the same day the U.S. Supreme Court reversed a Louisiana death penalty conviction in the case of Allen Snyder. The Snyder court relied upon its 2005 Miller-El ruling to reach its 7-2 decision that a Louisiana prosecutor employed racial discrimination in excluding a black juror from jury duty in the Snyder case.
“It’s ironic that [Miller-El’s plea] happened today,” Heiskell noted after being told about the Snyder decision. “[Both cases] will serve the whole bar in realizing … to be mindful and extremely careful in how a jury is selected.”
Miller-El 1
The first Miller-El decision was handed down by the U.S. Supreme Court on February 25, 2003. See: Miller-El v. Cockrell, 537 U.S. 322 (2003). The issue before the court was whether Miller-El’s Fourteen Amendment right to equal protection had been violated because Dallas County prosecutors had used peremptory strikes to exclude 10 of 11 African-Americans eligible to serve on the jury during his March 1986 trial. Id., at 326.
Several weeks after Miller-El’s conviction the U.S. Supreme Court handed down Batson v. Kentucky, 476 U.S. 79 (1986), a ruling that created a new standard for determining whether a prosecutor’s use of peremptory strikes against African-Americans in the jury selection process was influenced by racial discrimination. Prior to Batson, the Supreme Court had pronounced a standard that a prosecutor’s strikes would be presumed legitimate unless the defendant could show a longstanding pattern of discrimination in the jury selection process by the prosecutor. See: Swain v. Alabama, 380 U.S. 202, 220 (1965). The Swain test effectively required a defendant to show that “in case after case, whatever the circumstances,” the prosecutor did not allow blacks to serve on juries, and, therefore, “giving even the widest leeway to the operation of irrational but trial-related suspicions and antagonisms, it would appear that the purposes of the peremptory challenge [were] being perverted.” Id., at 223-224.
The Swain burden of having to demonstrate continuous discrimination over a long period of time proved virtually impossible. The Batson court characterized the burden as “crippling.” Id., 476 U.S. at 92-93. The Batson court then set forth a three-part process for evaluating a defendant’s claim that a prosecutor used peremptory strikes in a racially discriminatory manner:
The defendant must make a prima facie showing that a peremptory strike was exercised on the basis of race. Id., at 96-97.
If the defendant makes that showing, the prosecutor must offer a race-neutral reason for striking a juror. Id., at 97-98.
After both defense counsel and the prosecutor have offered their submissions, the trial court must determine whether the defendant has demonstrated purpose discrimination. Id., at 98.
The essential difference between Swain and Batson is that a defendant can challenge a prosecutor’s strikes without having to demonstrate the historical pattern of discrimination. Under Batson, a defendant can make a specific challenge to a prosecutorial strike, and even if a prosecutor offers a facially race neutral reason sufficient to counter the challenge, the defendant can still rely on “all relevant circumstances” to create an inference of “purposeful discrimination” by presenting evidence to the trial court beyond his own case, such as the same tactics by the prosecutor in other cases. Id., at 96-97.
That’s precisely what Miller-El’s attorney did at a post-trial evidentiary hearing ordered on his Batson claim. Evidence from a pretrial Swain hearing disclosing the historical policy of the Dallas County District Attorney’s office to exclude African-Americans from jury duty was presented at the Batson hearing. Examining the evidence presented at both hearing, the Supreme Court found a prima facie showing of purposeful discrimination in the Miller-El case:
“A comparative analysis of the venire members demonstrates that African-Americans were excluded from petitioner's jury in a ratio significantly higher than Caucasians were. Of the 108 possible jurors reviewed by the prosecution and defense, 20 were African-American. Nine of them were excused for cause or by agreement of the parties. Of the 11 African-American jurors remaining, however, all but 1 were excluded by peremptory strikes exercised by the prosecutors. On this basis 91% of the eligible black jurors were removed by peremptory strikes. In contrast the prosecutors used their peremptory strikes against just 13% (4 out of 31) of the eligible nonblack prospective jurors qualified to serve on petitioner's jury.” Id., 537 U.S. at 331.
53% of the African-Americans were given a detailed description of an execution in Texas. “Only then were these African-American venire members asked whether they could render a decision leading to a sentence of death. Very few prospective white jurors (6%, or 3 out of 49) were given this preface prior to being asked for their views on capital punishment. Rather, all but three were questioned in vague terms: ‘Would you share with us . . . your personal feelings, if you could, in your own words how you do feel about the death penalty and capital punishment and secondly, do you feel you could serve on this type of a jury and actually render a decision that would result in the death of the Defendant in this case based on the evidence?’” Id., at 332.
“There was an even more pronounced difference, on the apparent basis of race, in the manner the prosecutors questioned members of the venire about their willingness to impose the minimum sentence for murder. Under Texas law at the time of petitioner's trial, an unwillingness to do so warranted removal for cause. This strategy normally is used by the defense to weed out pro-state members of the venire, but, ironically, the prosecution employed it here. The prosecutors first identified the statutory minimum sentence of five years' imprisonment to 34 out of 36 (94%) white venire members, and only then asked: ‘If you hear a case, to your way of thinking [that] calls for and warrants and justifies five years, you'll give it?’ In contrast, only 1 out of 8 (12.5%) African-American prospective jurors were informed of the statutory minimum before being asked what minimum sentence they would impose.” Id., at 332-33.
“ … petitioner points to the prosecution's use of a Texas criminal procedure practice known as jury shuffling. This practice permits parties to rearrange the order in which members of the venire are examined so as to increase the likelihood that visually preferable venire members will be moved forward and empanelled. With no information about the prospective jurors other than their appearance, the party requesting the procedure literally shuffles the juror cards, and the venire members are then reseated in the new order. Tex. Code Crim. Proc. Ann., Art. 35.11 (Vernon Supp. 2003). Shuffling affects jury composition because any prospective jurors not questioned during voir dire are dismissed at the end of the week, and a new panel of jurors appears the following week. So jurors who are shuffled to the back of the panel are less likely to be questioned or to serve…On at least two occasions the prosecution requested shuffles when there were a predominate number of African-Americans in the front of the panel. On yet another occasion the prosecutors complained about the purported inadequacy of the card shuffle by a defense lawyer but lodged a formal objection only after the postshuffle panel composition revealed that African-American prospective jurors had been moved forward.” Id., at 333-34.
Drawing on evidence presented at the pretrial Swain hearing, the Supreme Court considered that: “Petitioner subpoenaed a number of current and former Dallas County assistant district attorneys, judges, and others who had observed firsthand the prosecution's conduct during jury selection over a number of years. Although most of the witnesses denied the existence of a systematic policy to exclude African-Americans, others disagreed. A Dallas County district judge testified that, when he had served in the District Attorney's Office from the late-1950's to early-1960's, his superior warned him that he would be fired if he permitted any African-Americans to serve on a jury. Similarly, another Dallas County district judge and former assistant district attorney from 1976 to 1978 testified that he believed the office had a systematic policy of excluding African-Americans from juries.” Id., at 334.
The Court said that of even greater importance was the fact that “the defense presented evidence that the District Attorney's Office had adopted a formal policy to exclude minorities from jury service. A 1963 circular by the District Attorney's Office instructed its prosecutors to exercise peremptory strikes against minorities: ‘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.’ A manual entitled ‘Jury Selection in a Criminal Case’ was distributed to prosecutors. It contained an article authored by a former prosecutor (and later a judge) under the direction of his superiors in the District Attorney's Office, outlining the reasoning for excluding minorities from jury service. Although the manual was written in 1968, it remained in circulation until 1976, if not later, and was available at least to one of the prosecutors in Miller-El's trial.” Id., at 334-35.
The Supreme Court cast a doubtful eye on the prosecution’s claim that the foregoing practices had been discontinued before Miller-El’s trial, citing: “For example, a judge testified that, in 1985, he had to exclude a prosecutor from trying cases in his courtroom for race-based discrimination in jury selection. Other testimony indicated that the State, by its own admission, once requested a jury shuffle in order to reduce the number of African-Americans in the venire. Concerns over the exclusion of African-Americans by the District Attorney's Office were echoed by Dallas County's Chief Public Defender.” Id., at 335.
Against the backdrop, the Supreme Court found it relatively easy to conclude that Miller-El had made a prima facie showing of purposeful discrimination by the Dallas County district attorney’s office. The Court, therefore, vacated the order by the Fifth Circuit Court of Appeals that Miller-El had failed to make a sufficient showing to warrant a certificate of appealability which would have allowed the Batson issue to be heard by the appeals court. The case was remanded to the Fifth Circuit for further proceedings. Id., at 348.
MILLER-EL 2
On remand, the Fifth Circuit granted Miller-El a certificate of appealability, and, based on the state court record, reviewed and rejected his Batson claim. See: Miller El v. Dretke, 361 F.3d 849 (5th Cir. 2004). Once again the Supreme Court was not satisfied with the Fifth Circuit’s handling of the Batson issue. It granted Miller-El a second certiorari review. See: Miller-El v. Dretke, 542 U.S. 936 (2004). In a direct slap at the Fifth Circuit’s judgment, the Supreme Court on June 13, 2005 reversed Miller-El’s conviction, finding that the same state record examined by the appeals court demonstrated the condemned man had indeed established an irrefutable Batson violation. See: Miller-El v. Dretke, 545 U.S. 231 (2005).
Before undertaking its analysis of Miller-El’s Batson claim, the Court briefly pointed out the historical harm caused by racial discrimination in the jury selection process:
“’It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny persons of those classes the full enjoyment of [equal] protection which others enjoy.’” Id., at 237.
Racial discrimination in the jury selection process compromises a defendant’s right to trial by an impartial jury. Id.
Racial minorities are “harmed more generally, for prosecutors drawing racial lines in picking juries establish ‘state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.’” Id., at 237-38.
When the government elects to taint the jury selection process with racial bias, that “’overt wrong … casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial …’” Id., at 238.
The Supreme Court noted that the traditional “rub has been the practical difficulty of ferreting out discrimination in selections discretionary by nature, and choices subject to myriad legitimate influences, whatever the race of the individuals on the panel from which jurors are selected.” Id., at 238. This rub was made even more difficult in Miller-El’s case because the Texas courts had determined that the prosecution presented race neutral explanations for its peremptory strikes. Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), that determination was entitled to a “presumption of correctness” unless Miller-El could refute it “by clear and convincing evidence.” See: 28 U.S.C. § 2254(e)(1). While acknowledging that this AEDPA standard is demanding, the Court said it’s “not insatiable” and that deference under the “presumption of correctness” rule does not by definition preclude relief. Id., at 240.
The Supreme Court launched its Batson analysis by comparing at length the general reasons given by the prosecution for striking African-Americans while accepting white jurors. The Court was not impressed by the race neutral explanations given by the prosecution for its peremptory strikes against African-American jurors. Id., at 253. The court then examined these race neutral explanations against the prosecution’s shuffling of the venire panel to reduce the prospect of African-Americans from being selected, its inquiry into the views of African-American jurors on the death penalty which was markedly different than the inquiry to white jurors, its questioning of African-American jurors about minimum acceptable sentences in a manner normally utilized by defense attorneys, and the historical practice of district attorney’s office of excluding blacks from jury duty. All these practices and tactics combined were sufficient for the Court to conclude that the decisions by the prosecution to strike all African-American jurors were “probably based on race.” Id. The Court buttressed this conclusion with the following observation:
“The first clue to the prosecutors' intentions, distinct from the peremptory challenges themselves, is their resort during voir dire to a procedure known in Texas as the jury shuffle. In the State's criminal practice, either side may literally reshuffle the cards bearing panel members' names, thus rearranging the order in which members of a venire panel are seated and reached for questioning. 12 Once the order is established, the panel members seated at the back are likely to escape voir dire altogether, for those not questioned by the end of the week are dismissed.
“In this case, the prosecution and then the defense shuffled the cards at the beginning of the first week of voir dire; the record does not reflect the changes in order. At the beginning of the second week, when a number of black members were seated at the front of the panel, the prosecution shuffled. At the beginning of the third week, the first four panel members were black. The prosecution shuffled, and these black panel members ended up at the back. Then the defense shuffled, and the black panel members again appeared at the front. The prosecution requested another shuffle, but the trial court refused. Finally, the defense shuffled at the beginning of the fourth and fifth weeks of voir dire; the record does not reflect the panel's racial composition before or after those shuffles.” Id., at 254.
Having concluded there was “probably” racial bias in Miller-El’s jury selection process, the Supreme Court had to decide whether this conclusion was constitutionally sufficient to find that the Fifth Circuit Court of Appeals erred when it concluded that Miller-El had failed to show by clear and convincing evidence that the state courts’ findings were wrong. On this point, the nation’s high court didn’t mince its words:
‘We find [the Fifth Circuit] conclusion as unsupportable as the ‘dismissive and strained interpretation’ of his evidence that we disapproved when we decided Miller-El was entitled to a certificate of appealability. It is true, of course, that at some points the significance of Miller-El's evidence is open to judgment calls, but when this evidence on the issues raised is viewed cumulatively its direction is too powerful to conclude anything but discrimination.
”In the course of drawing a jury to try a black defendant, 10 of the 11 qualified black venire panel members were peremptorily struck. At least two of them, Fields and Warren, were ostensibly acceptable to prosecutors seeking a death verdict, and Fields was ideal. The prosecutors' chosen race-neutral reasons for the strikes do not hold up and are so far at odds with the evidence that pretext is the fair conclusion, indicating the very discrimination the explanations were meant to deny.
”The strikes that drew these incredible explanations occurred in a selection process replete with evidence that the prosecutors were selecting and rejecting potential jurors because of race. At least two of the jury shuffles conducted by the State make no sense except as efforts to delay consideration of black jury panelists to the end of the week, when they might not even be reached. The State has in fact never offered any other explanation. Nor has the State denied that disparate lines of questioning were pursued: 53% of black panelists but only 3% of nonblacks were questioned with a graphic script meant to induce qualms about applying the death penalty (and thus explain a strike), and 100% of blacks but only 27% of nonblacks were subjected to a trick question about the minimum acceptable penalty for murder, meant to induce a disqualifying answer. The State's attempts to explain the prosecutors' questioning of particular witnesses on nonracial grounds fit the evidence less well than the racially discriminatory hypothesis.
”If anything more is needed for an undeniable explanation of what was going on, history supplies it. 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. By the time a jury was chosen, the State had peremptorily challenged 12% of qualified nonblack panel members, but eliminated 91% of the black ones.
”It blinks reality to deny that the State struck Fields and Warren, included in that 91%, because they were black. The strikes correlate with no fact as well as they correlate with race, and they occurred during a selection infected by shuffling and disparate questioning that race explains better than any race-neutral reason advanced by the State. The State's pretextual positions confirm Miller-El's claim, and the prosecutors' own notes proclaim that the Sparling Manual's emphasis on race was on their minds when they considered every potential juror.” Id., at 265-66.
Despite this pointed reversal by the Supreme Court, the Fifth Circuit continues to have a problem finding “purposeful discrimination” in cases raising Batson claims, as evidenced by the Supreme Court’s most recent reversal of the appeals court in Snyder v. Louisiana, 552 U.S. _____ (March 22, 2008).
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