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A recent U.S. Supreme Court decision has forced Atlanta’s federal appeals court to revisit a 17-year-old murder conviction and death sentence — and what one judge called “a shameful history” of an Ocmulgee Circuit prosecutor who excluded black citizens from jury pools.In Miller-El v. Dretke, No. 03-9659, the justices last month ruled 6-3 that Texas prosecutors intentionally used their peremptory strikes to remove blacks from the jury that convicted Thomas Joe Miller-El of murder. The decision reaffirmed the high court’s three-prong test — outlined in the 1986 decision Batson v. Kentucky, 476 U.S. 79 — that determines if lawyers used race to choose jury members.A week after the Supreme Court issued its Miller-El decision, it told the 11th U.S Circuit Court of Appeals to use the new ruling to reconsider Hightower v. Schofield, 365 F.3d 1008. In that case, the appeals court had upheld a death sentence recommended by a jury that found John Washington Hightower guilty of the 1987 murders of his wife and two daughters.The high court’s action occurred because the Miller-El and Hightower cases were similar: Both involved claims that prosecutors from an office with a record of deliberately excluding blacks from juries had done exactly that in these matters, too. “We married up very closely with those facts, and that was the basis for this ruling,” said Mark L. Whitaker, a Washington attorney with the Howrey firm who represented Hightower pro bono in his Supreme Court appeal. Hightower was prosecuted by former Ocmulgee Circuit District Attorney Joseph Briley, who was rapped by the 11th Circuit in 1991 for using racial discrimination in striking jury members. In that case, Horton v. Zant, 941 F.2d 1449, Briley admitted to the 11th Circuit that he had penned a memo directing a clerk to exclude blacks and women from the master jury lists. The court in that case also recognized statistics showing “that in capital cases in eight Georgia counties involving black defendants over several years, Briley used 89.9 percent of his strikes against black venire members.”In the Hightower case, the panel of Judges Gerald B. Tjoflat, R. Lanier Anderson III and Charles R. Wilson concluded that Hightower, who is black, failed to prove that prosecutors unfairly stacked his jury with whites. In a concurring opinion, however, Wilson wrote that he was “concerned with the manner in which the state courts have applied Batson.”The Batson test requires that defendants first establish a prima facie case of discrimination in a prosecutor’s use of a peremptory juror strike. The prosecutor then has the opportunity to defend the strike by proffering a race-neutral explanation. The third prong requires the court to determine if the defendant has made a legitimate case that the prosecutor engaged in intentional discrimination.In his concurrence, Wilson questioned whether the Georgia high court completed that third step.”The Georgia Supreme Court appears to have been evaluating not whether Hightower had met his burden of establishing purposeful discrimination, but merely whether the prosecution’s proffered reasons for the strikes were race-neutral,” Wilson wrote. “An entire additional step, in which the strength of Hightower’s case was weighed against the persuasiveness of the state’s proffered reasons for the strikes, appears to be missing from this case.”We now know quite well of Briley’s shameful history of discriminatory conduct, and I question what a better defense could have exposed in this case,” wrote Wilson.Neither Briley, who is in private practice in Gray, Ga., nor the current Ocmulgee DA, Fred Bright, could be reached to discuss the Hightower case. A representative of Attorney General Thurbert Baker also could not be reached. A STRONG MESSAGE Whitaker, Hightower’s lawyer, is hopeful his client can get a new trial — or at least a new sentencing phase — as a result of the Supreme Court-ordered reconsideration by the 11th Circuit.Whitaker said Hightower’s case and Miller-El’s case have similar facts and legal issues.The lower courts “really just applied two prongs [in Hightower's case], and this is the essence of the Miller-El decision,” he said. Whitaker said the Supreme Court decision in Miller-El sends a strong message: “No prosecutor, including Briley, should use race as a determining factor to assist them in a trial or in sentencing.”Richard A. Malone, executive director of the Prosecuting Attorneys’ Council of Georgia, said the recent Miller-El decision won’t likely cause prosecutors or defense attorneys to give pause during voir dire because the decision just reaffirms that the courts must administer all three prongs of the Batson test.However, the decision does tiptoe into new territory, which may be crucial to how the 11th Circuit decides Hightower on remand.”You can look at how a prosecutor historically used peremptory challenges,” Malone said. “That’s a little departure. It’s not new, but new to the Supreme Court.” STRIKE PEREMPTORY STRIKES?Over the years, the notion has been bandied about that peremptory strikes in themselves are unconstitutional. In the 1965 Supreme Court decision, Swain v. Alabama, 380 U.S. 202, which required a showing of discrimination in all of a prosecutor’s cases (the pre- Batson standard), Justice Arthur J. Goldberg suggested that peremptory strikes should be abolished. Justice Thurgood Marshall echoed that sentiment in Batson, and Justice Stephen G. Breyer alluded to it in his concurring Miller-El opinion.In the 1992 case Georgia v. McCollum, 505 U.S. 42, the Supreme Court ruled — just like Batson determined for prosecutors — that defendants could not strike potential jurors based on race. In his seemingly reluctant concurring opinion, Justice Clarence Thomas wrote that he was disappointed with the high court’s “continuing attempts to use the Constitution to regulate peremptory challenges.”"I doubt that this departure will produce favorable consequences. On the contrary, I am certain that black criminal defendants will rue the day that this court ventured down this road that inexorably will lead to the elimination of peremptory strikes,” Thomas wrote.Malone said he concurs with Marshall and Goldberg that peremptory strikes should be abolished, but not because of constitutional reasons. The practice is outdated, he said.Before Batson, no one kept up with the racial makeup of a prosecutor’s peremptory strikes, and before McCollum, the same was true for defense attorneys, he said. “Both sides were striking people along racial lines,” Malone said. “To make that wrong or illegal all of a sudden changed reality in many ways.”One change was that voir dire became more scientific and less reliant on stereotypes about how a certain race or gender feels about a certain issue. For instance, prosecutors now know that jurors may say they’re for the death penalty in a poll or on the street, but they often change their minds in the jury box when they realize it is their votes that will send a defendant to death row, Malone said.”You don’t want them to have a particular opinion; you just want to know what it is,” he said. “It has nothing to do with race whatsoever. Fifty-five-year-old black females aren’t just alike. That’s poor law practice. The racial stereotypes, they don’t work. They’re stupid. Plus those assumptions are just wrong.”Wrong they may be, but that isn’t stopping some prosecutors from adhering to them and hoping their influence can sway a jury’s decision, said Stephen B. Bright, director for the Southern Center for Human Rights. Quoting an Illinois appellate judge, Bright said the second requirement of Batson — that prosecutors state race-neutral reasons for striking jurors — is a “charade.” Bright, who co-chairs the death penalty committee of the National Association of Criminal Defense Lawyers, added that the use of peremptory strikes to dismiss blacks from juries “unfortunately has not abated very much since the court’s decision in Batson.“Bright cited a 1996 opinion by Illinois appellate Judge Alan J. Greiman who noted in People v. Randall, 671 N.E.2d 60, that prosecutors often give judges “pat” race-neutral reasons for striking jurors. “Surely, new prosecutors are given a manual, probably entitled, ‘Handy Race-Neutral Explanations’ or ’20 Time-Tested Race-Neutral Explanations,’” Greiman wrote.Greiman’s examples of reasons given for striking jurors include the following: too old, too young, single, divorced, unkempt hair, overeducated, unemployed, unemployed spouse, aunt receiving psychiatric care, employment as a part-time barber or failure to remove a hat. USED TO DISCRIMINATE In the Miller-El decision in June, Breyer suggested that the court reconsider its stance on peremptory challenges, citing reasons similar to Greiman’s. Despite the high court’s ban on ethnic jury packing, Breyer wrote that attorneys seem “better organized and more systematized than ever before” during jury selection.”If used to express stereotypical judgments about race, gender, religion or national origin,” Breyer wrote, “peremptory challenges betray the jury’s democratic origins and undermine its representative function.” Miller-El likely will rekindle the debate over peremptory challenges, Bright said, adding, “That is good because to deal with racial discrimination in the criminal justice system, we must acknowledge it and talk about how to deal with it.”However, Bright warns that opponents of the peremptory challenge should not get their hopes up that the system will be abolished. Breyer is the only justice to question the Batson test recently, but it’s possible the court could discard the Batson test as it did the Swain standard, Bright said.”I would not plan a funeral for the peremptory challenge any time soon,” Bright said. “It is conceivable, although not likely in my opinion, that if the peremptory strike continues to be used to discriminate despite all the admonitions from the court, the court would find it unconstitutional.” To that, Malone replied, “As long as you’ve got peremptory challenges, you’re going to have abuses.”In a long-sought win for prosecutors, the Georgia Legislature this year changed the law regarding peremptory strikes. Defendants used to receive twice as many peremptory strikes as prosecutors, but House Bill 170 evened the score. The two sides now each receive nine jury strikes for felony cases and 15 for death penalty cases.

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