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With a document in evidence that instructed Dallas prosecutors to keep minorities off juries and a command by the U.S. Supreme Court to review his case, it appeared that Thomas Miller-El’s death row habeas writ was the most viable Batson appeal in years. Nevertheless, the 5th U.S. Circuit Court of Appeals recently conducted a detailed look at the voir dire in Miller-El’s 1986 capital murder trial and, in its Feb. 26 opinion in Miller-El v. Dretke, found no evidence of racial discrimination. Three experts believe Miller-El reaffirms how difficult it is for criminal-defense attorneys to prove there was racial bias in a jury selection process � even with evidence that a memo from the Dallas DA’s office advocated keeping minorities of jury panels and that 91 percent of African-American venire members were kept off Miller-El’s jury panel at his trial. Even though prosecutors used peremptory strikes to exclude 10 of the 11 blacks eligible to serve on the panel for Miller-El’s trial, the 5th Circuit found that Miller-El failed to show by clear and convincing evidence that prosecutors used “purposeful” discrimination in eliminating potential jurors, the standard of proof required by the U.S. Supreme Court’s landmark opinion in Batson v. Kentucky (1986), which prohibits racial discrimination in jury selection. Miller-El was convicted for the 1985 robbery and murder of an Irving hotel clerk. He has contended for years that biased prosecutors used peremptory strikes to keep African-Americans off his jury panel without cause; courts have rejected his habeas writs four separate times, says Lori Ordiway, chief of the appellate division of the Dallas County District Attorney’s Office. After the 5th Circuit denied his certificate of appealability, Miller-El appealed to the U.S. Supreme Court. Miller-El’s appeal garnered support from numerous former federal prosecutors and judges -� including William Sessions, a former FBI director and a former U.S. district judge for the Western District of Texas �- who filed an amicus brief supporting Miller-El’s appeal at the Supreme Court. On Sept. 25, 2003, the high court ordered the 5th Circuit to reconsider Miller-El’s Batson claim to determine whether he “can demonstrate that [the] state court’s finding of the absence of purposeful discrimination was incorrect by clear and convincing evidence and that the corresponding factual determination was “objectively unreasonable’ in light of the record before the court.” Miller-El’s attorneys argued in briefs to the 5th Circuit that historical evidence and peremptory strikes prosecutors used against black jurors prejudiced Miller-El’s right to a fair trial. Miller-El is black. His attorneys also argued that prosecutors improperly called for jury shuffles and that nonminority venire members who had relatives with criminal backgrounds were not struck by prosecutors, according to the 5th Circuit opinion. But 5th Circuit Judge Harold R. DeMoss Jr. disagreed, finding that Dallas County Criminal District Court No. 5 had correctly rejected Miller-El’s habeas petition, which included Batson claims of racial discrimination during jury selection at his trial. “In summary, none of the four areas of evidence Miller-El based his appeal on indicate, either collectively or separately, by clear and convincing evidence that the state court erred,” DeMoss wrote in an opinion joined by Judges Edith Jones and Eugene Davis. “Therefore, the district court correctly denied Miller-El habeas relief.” The 5th Circuit’s decision stuns one of Miller-El’s appellate attorneys. “If a case like this doesn’t win,” says Jim Marcus, executive director of the Texas Defender Service, “it’s hard to imagine how you could prove a Batson violation.” Marcus has not decided if he’ll ask for a rehearing at the 5th Circuit or appeal again to the U.S. Supreme Court. But the decision does not surprise Ordiway, who says the 5th Circuit is far from alone in concluding that no racial discrimination occurred during jury selection in Miller-El’s trial. “We felt like the claim had been thoroughly reviewed,” Ordiway says. “And once the 5th Circuit looked at it, we felt that they would come out the same way.” Disturbing Memo One of the most inflammatory pieces of evidence the 5th Circuit examined was a 1963 “circular” from the Dallas District Attorney’s Office that instructed prosecutors to exercise their peremptory strikes against minorities. Henry Wade was the Dallas district attorney from 1950 to 1986. The circular was later adopted in a 1968 training manual titled “Jury Selection in a Criminal Case” that was still in use by the district attorney’s office as late as 1976, according to the U.S. Supreme Court opinion. The original 1963 circular provided the following instruction to prosecutors: “Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or well educated,” according to the Supreme Court’s opinion in Miller-El. Marcus alleges in an interview that Paul Macaluso, one of the prosecutors involved with Miller-El’s trial, followed the instructions in the DA’s office training manual. “Do I have any doubt that Macaluso was following the manual?” Marcus asks. “I don’t have any doubt at all.” Macaluso, who was a Dallas County assistant district attorney from 1973 until 1988, says he read the manual on jury selection before joining the DA’s office and “was disgusted with it.” “It was nonsense,” says Macaluso, now an assistant U.S. attorney in Dallas. “It was not indoctrinated.” Royce West, a partner in Dallas’ West & Gooden who defended Miller-El at trial and now is a state senator, did not return two telephone calls seeking comment before presstime on March 4. “The people I worked with on death-penalty cases -� Batson or no Batson �- we were looking for the best jurors regardless of color,” Macaluso says. While the 5th Circuit found the circular disturbing, the judges concluded that the Dallas prosecutors had race-neutral reasons for striking African-American jurors. “We also note that the apparent culture of discrimination that existed in the past in the Dallas County District Attorney’s Office and the individual discriminatory practices that may have been practiced during the time of Miller-El’s jury selection by some prosecutors are deplorable,” DeMoss wrote. “Here, however . . . the race-neutral reasons [for striking black venire members] are solidly supported by the record in accordance with the prosecutor’s legitimate efforts to get a jury of individuals open to imposing the death penalty,” DeMoss wrote. The 5th Circuit examined all of the reasons prosecutors gave for striking black venire members. Several of the venire members stated they would not impose the death penalty if they felt the defendant could be rehabilitated. Some were ambivalent about the death penalty and stated that they had “mixed feelings” about capital punishment. And some felt that the death penalty should not be assessed if it were the defendant’s first criminal offense. According to the 5th Circuit opinion, Miller-El claimed that prosecutors asked different questions of black venire members than of white venire members during jury selection, including using a “graphic script” -� during which they described the execution process in detail. Prosecutors used the script to ferret out jurors who had reservations about imposing the death penalty. But the 5th Circuit found that black and white jurors were treated the same by prosecutors, regardless of the script. “The prosecution treated the black venire members no differently,” according to the opinion, which noted that black venire members who answered “yes” when asked if they supported the death penalty on a questionnaire were not read the graphic script. “The black venire members who were given the graphic formulation, by contrast, gave ambiguous answers on their juror questionnaires expressing a combination of uncertainty and philosophical opposition to the death penalty,” according to the opinion. Not Strong Three criminal law experts believe that Miller-El contains the strongest Batson claims the 5th Circuit has heard in years. Even so, the case illustrates how hard it is to prove racial discrimination in jury selection. “Batson is sort of not the really major problem that everybody thought it was going to be when it first came up,” says Fred Moss, a criminal law professor at Southern Methodist University Dedman School of Law. “It seems that just about any colorable argument will get past a Batson challenge.” William Delmore, chief of the legal services bureau of the Harris County District Attorney’s Office, welcomes Miller-El. “The defense did a good job of making the argument that the challenges were [pretexts]. But they were legitimate,” Delmore says. “And speaking just for the prosecutors in this office, we don’t have any incentive to remove black jurors,” Delmore says. “And we understand the black jurors are often victims of crime, they’re fine citizens, and there is no reason to exclude them from juries.” Philip Wischkaemper, who serves as the capital assistance attorney for the Criminal Defense Lawyers Association, says Miller-El shows that Batson claims are not the strongest issues to bring up in habeas writs. “Just almost anything will do for challenging somebody pre-emptively as long as it’s not related to race,” Wischkaemper says. “It’s like harmless error. It’s so hard for many of these defendants to articulate harm.” Still, Wischkaemper says he’ll keep advising habeas attorneys to file Batson claims on behalf of their clients if the facts warrant it. “I’m certainly not going to discourage anyone from pursing a Batson claim,” Wischkaemper says. “You never know.”

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