Most don't push the issue unless lawyers raise it first

02:25 PM CDT on Tuesday, August 23, 2005

By HOLLY BECKA, STEVE McGONIGLE, TIM WYATT and JENNIFER LaFLEUR / The Dallas Morning News

Last of three parts

Judges are the guardians of justice, yet in their courtrooms, laws meant to stop racial discrimination against jurors are seldom invoked.

Most Dallas County judges rarely object – or even notice – when prosecutors reject disproportionate numbers of blacks from juries and defense lawyers do the same with whites.

But a two-year Dallas Morning News investigation determined that race is an unspoken yet overwhelming factor in deciding who sits on juries. The newspaper found that:

•Many Dallas County felony judges take a hands-off approach, saying it is up to prosecutors and defense attorneys to raise discrimination claims against each other.

But because lawyers don't often make such claims, judges rarely review their reasons for targeting certain jurors.

•If questions of bias arise, attorneys routinely handle them informally – without the judges' objection – which means there is no record that can be used in a later appeal.

•Because the U.S. Supreme Court and other appeals courts have been vague about what constitutes bias, there is wide variation in reasons that judges will accept for removing jurors. For instance, some Dallas judges will not let prosecutors remove jurors because they have gold teeth and jewelry; at least one will.

"I really feel that there's not a judge in this courthouse that would not restore a juror who had been stricken for racial reasons," said state District Judge John Nelms, a 13-year veteran of the felony bench.

"But there's not many judges that can always detect if that is the reason."

Whether done by the prosecution or the defense, racial discrimination in jury selection is illegal; the Supreme Court has said so in numerous decisions dating to 1880.

A 1986 landmark decision, Batson vs. Kentucky, made it illegal to exclude even one prospective juror based on race. It also provided a way for lawyers who suspect racial bias to challenge their adversaries' peremptory – or discretionary – strikes. A judge holds a hearing to determine whether a lawyer's reason for removing a juror is "race neutral." If the judge determines the reason is not "race neutral," the juror is seated.

But lawyers know how the courthouse works. They have learned, over time, what reasons a judge will accept. And the clever ones know to offer reasons that won't raise suspicion.

"If they have any experience, they're going to be smart enough to figure out how to cover their tracks," said Adam Seidel, a Dallas criminal defense and appellate lawyer. "It really boils down to whether the lawyer is willing to compromise their ethics and strike based on race."

Defense lawyer Juan Sanchez said he's long been frustrated about some judges' unwillingness to press prosecutors about their rejections of minorities.

"It's almost fruitless sometimes because a lot of the judges accept the DA's explanation – it's almost like it could be any explanation," said Mr. Sanchez, a former prosecutor. "I think their thinking is, 'How can we disprove that's not the real reason?' "

The News found that jurors had been excluded for their demeanor – looking bored or angry, for instance – and appearance, excuses that many legal scholars and jury researchers say can be thinly veiled covers for race. In such cases, the newspaper found, prosecutors usually also cited a secondary reason to exclude the juror.

"For a judge to tolerate that, that's just unbelievable. It's unacceptable," said George Kendall, a former staff attorney with the NAACP Legal Defense and Education Fund who has represented Texas death row inmates.

Often judges and the lawyers appearing in their courts have known each other for years. And all of the judges came to the bench after years working as either a prosecutor or a defense attorney.

Short of stopping blatant discrimination, several judges said they were reluctant to intervene in jury selection because that would be crossing a line into advocacy.

"Unless someone brings it to my attention in the form of a motion, I'm not going to engage in a discussion with them," said state District Judge John Creuzot, the presiding felony court judge. "It's generally not the judge's position to raise objections to things during the trial. That doesn't mean I can't. But generally speaking, that's not our position."

Some of Dallas County's female judges and those newest to the felony bench are among the most vigilant about preventing jury bias. And they have made it clear that they will not tolerate jury discrimination in their courts.

State District Judge Lana McDaniel, for example, determined that a prosecutor had violated at least the spirit of Batson during a 1999 murder trial. The defense lawyer had accused the prosecutor of failing to remove a white juror in order to stop a black juror, the next in line, from being seated. In a heated hearing, Judge McDaniel pointedly questioned the prosecutor.

"I was just so offended by what had happened," Judge McDaniel said.

The district attorney's office defended the prosecutor at the time, saying she had not violated Batson. But another prosecutor later told the judge that the lawyer had admitted wanting to keep the black juror off the panel.

District Attorney Bill Hill said recently that while he publicly supported his prosecutor, he privately told his employees that he didn't approve of such actions. "Although it didn't amount to a Batson violation, I thought it got real close to it. The spirit of it bothered me."

Since that 1999 incident, Judge McDaniel said: "I've just had really good prosecutors. ... Lawyers know I'm not going to put up with that."

On occasion, the judge also has privately warned lawyers that she was suspicious of their motives for excluding jurors. In those instances, Judge McDaniel didn't wait for a Batson challenge before telling a lawyer to rethink his strikes. She made her point by threatening to admonish the lawyer on the record.

In the last year, state District Judge Mary E. Miller twice ruled against prosecutors' discretionary removals and once against a defense lawyer's. In one case, a prosecutor wanted to remove a black juror because of his gold chain and pendant. The prosecutor didn't ask the juror any questions.

"I'm not going to accept any reason given," said Judge Miller, who was elected to the felony bench in November 2002 after 15 years as a prosecutor. "It is part of my job to make sure that they know what the law is if I see something being violated."

Eight years after he left the bench, former state District Judge Larry Baraka is still cited around the courthouse as one of the judges who most aggressively enforced Batson.

Mr. Baraka, now a defense lawyer, summed up his philosophy: The Constitution trumps the vague guidance offered by appeals courts on Batson.

"So in my court, you better damn well have a reason why you are striking this person," Mr. Baraka said.

The fact is, allegations of racial bias in jury selection don't even come up for a formal discussion in most trials. In a sample of cases from 2002 reviewed by The News, only 16 hearings about allegations of jury bias were found. None of the judges in those cases ruled that discrimination occurred.

Several judges said the numbers are low because discrimination is not happening.

But an analysis by The News of jury selection in a sample of 108 felony trials found that Dallas County prosecutors were twice as likely to exclude blacks from juries as they were to cut whites. Defense lawyers, in turn, removed whites at more than three times the rate they struck blacks.

State District Judges Miller, Don Adams, Vickers Cunningham and Susan Hawk were not on the bench during the time frame of the cases analyzed by The News.

When The News shared its findings with judges, several were stunned.

Richard Michael Pruitt/DMN

"I look at who's on the jury," state District Judge John Creuzot said. "And it has appeared to me that who's on the jury is fairly representative of the community."

"I look at who's on the jury," said Judge Creuzot, who was instrumental in helping the newspaper gain access to juror records. "And it has appeared to me that who's on the jury is fairly representative of the community."

He said he would act if he noticed a pattern of discrimination. "If I look up [and] in three weeks I've got all white jurors on every case, I'm not going to sit there and just say nothing," Judge Creuzot said.

Several judges said they believed that lawyers strike jurors perceived to be "liberal" or "conservative." All of them said they hadn't noticed a pattern of racial exclusion in their courts.

The only judge who said he believed lawyers still try to discriminate is state District Judge Henry Wade Jr., son of the legendary Dallas district attorney whose tenure from 1951 through 1986 became synonymous with racially charged jury selection.

Judge Wade said that while he believed the district attorney's office works to "de-institutionalize" discrimination, it remains an institutional problem. "They don't teach it like they used to in some DAs' administrations," but he added, "I think it's still there."

In a Batson hearing, the judge is looking for "sham" or "pretext" reasons, as the excuses for racial strikes have been legally termed.

"There's a lot of pretext strikes, I can tell you," Judge Wade said. "That's part of what a judge has to do, is find out if that [reason cited by a lawyer] is true."

Discrepancies in enforcing Batson occur because the judges bring to the bench varying backgrounds and life experiences. What might raise a red flag to one judge might go unnoticed by another.

"The law is subjective because humans are subjective," said former state District Judge Cliff Stricklin, now a Dallas attorney. "This is not a machine. This whole system works or doesn't work based upon how well people perform in it."

Each case comes down to a judgment call by the trial judge, and no one wants to accuse anyone else – particularly someone they know and respect – of being racist.

There's a "stigmatization that's associated with overt racism; it's just not accepted any longer," said David Baldus, a nationally recognized expert on jury selection and a law professor at the University of Iowa. "That is what greatly inhibits the enforcement of Batson."

Many Dallas judges let lawyers have informal Batson hearings – where the opposing attorneys compare notes about their strikes – that are not part of the trial record.

But handling a challenge informally eliminates any chance that allegations of biased jury selection can be raised during an appeal. Some legal scholars and appellate attorneys were appalled to learn of the practice.

"I believe the judge, as an umpire, at some level has to be concerned with the integrity of the process," said Brian Wice, a defense appellate specialist from Houston who has worked on Dallas cases.

State District Judge Keith Dean defended the informal discussions, saying they are an effective way to enforce Batson because the lawyers often know and trust each other.

"The courthouse, it's a small community. ... If you live in a big city, you cut people off in traffic; if you live in a small town, you don't," he said. "We know each other and we're going to see each other tomorrow."

Some trial judges complain that the U.S. Supreme Court and Texas appellate courts have given them little useful guidance for policing racial bias in jury selection.

In the Batson decision, the Supreme Court set a standard for proving bias that was left open to interpretation. Since then, appellate courts have declared as "race neutral" – and therefore allowable – a wide range of excuses for removing prospective jurors, including "grooming," "a 1970s hairdo," "long, unkempt hair and a goatee," a "nose ring," being "very pretty" and being "obese."

Charles Baird, a former judge on the Texas Court of Criminal Appeals, said a series of decisions from his old court and the U.S. Supreme Court have rendered Batson nearly meaningless.

Mr. Baird said he believes the majority of the blame lies with the U.S. Supreme Court.

"That's one thing [Batson's failures] that you've got to place squarely at their feet," he said. "If they don't have the wherewithal to follow their own rule of law and precedence, then nobody else is going to follow it. They lead by example."

In June, Supreme Court Justice Stephen Breyer acknowledged that the case of a Texas death row inmate illustrated the difficulty in applying Batson. The court reversed Thomas Joe Miller-El's 1986 conviction, ruling that the jury selection process by Dallas prosecutors was replete with discrimination.

"Batson asks judges to engage in the awkward, sometimes hopeless, task of second-guessing a prosecutor's instinctive judgment – the underlying basis for which may be invisible even to the prosecutor exercising the challenge," Justice Breyer wrote in a concurring opinion.

"It may be impossible for trial courts to discern if a 'seat-of-the-pants' peremptory challenge reflects a 'seat-of-the-pants' racial stereotype," he said, calling for a re-examination of Batson.

The Supreme Court has placed the burden of proving racial bias on the challenger. The nation's highest court and various Texas appellate courts have also declared:

•A prosecutor's reason for removing a juror is race neutral unless "discriminatory intent is inherent in the prosecutor's explanation."

•A defendant must prove that the state's explanations "were a sham or pretext."

•Appellate courts considering claims of bias raised by defendants must "examine the record in the light most favorable to the trial judge's ruling."

The appeals courts rarely reverse convictions based on Batson violations.

Since 1989, the Dallas appellate court has reversed only 23 convictions for Batson violations, and 20 of those occurred before 1993, according to statistics compiled from the court's Web site.

The Court of Criminal Appeals in Austin, the state's highest criminal appeals court, issued 14 decisions in Dallas County cases between 1988 and 2002 involving Batson issues, according to opinions posted to the legal database Lexis. Three of the cases were reversed.

"The court of appeals [in Austin] has watered down Batson to the extent that it's almost nonexistent," said Dallas defense lawyer Kenneth Weatherspoon. "That's the real problem."

Legal scholars say the numbers probably are low because appellate justices, who rely on written transcripts to reconstruct what happened in the courtroom, tend to defer to the trial judges.

"One of the reasons why the court of appeals are very, very deferential to the judge's trial rulings [is] because a lot of it has to do with body language and inflection of voices and looks and things like this," said Fred Moss, a criminal law professor at Southern Methodist University and a former federal prosecutor. "It's hard to make a very solid Batson objection stick on appeal because it's hard to establish."

Linda Thomas, chief justice of the Dallas appeals court, rejected the idea that poor guidance from appellate courts has tied judges' hands.

"I think that we still very carefully scrutinize those," she said. "But again, not being in the courtroom at the time this is going on makes the job more difficult."

Some critics say trial judges and appellate justices are inclined to accept prosecutors' reasons for their strikes because many of them used to be prosecutors.

"I think there is a kind of general deference that is accorded the prosecutors," said Dallas defense lawyer Cheryl Wattley, a former federal prosecutor.

Judge Nelms, who has 42 years of legal experience as judge, prosecutor and defense lawyer, said Batson is ineffective. Yet he was the only judge interviewed who tracks the number of minority jurors struck and asks lawyers on the record if they have a Batson challenge.

"I do it so we can have a hearing," Judge Nelms said. "Maybe a half-dozen times over the years they [were] unable to satisfy me for their reasons, and normally, that's because of [their] negligence."

But every lawyer knows not to mention race. And that, says Judge Nelms, is why judges have a tough time enforcing Batson.

"In the absence of some overt statement or something like a confession from a prosecutor, like, 'I'm sorry, I just don't like blacks,' " he asked, "what are you going to do?"

Among felony court judges, there's wide variation in the reasons they'll allow lawyers to give for removing prospective jurors. Some examples:

Judge Mary E. Miller won't accept sleeping or inattention as a reason unless someone else, such as a bailiff, backs up the lawyer's claim.

Judge Henry Wade Jr. won't allow removals based solely on how a juror looks.

Judge Robert Francis will let lawyers cut jurors who wear T-shirts containing slurs about the police, or T-shirts promoting drug use.

Judge Vickers Cunningham won't allow lawyers to exclude men for wearing earrings, or to remove people for gold jewelry or gold teeth. He will let them cut people with ostentatious tattoos and multiple body piercings. "Dennis Rodman is not going to make my jury," he said.

Judge Keith Dean won't allow lawyers to remove someone just because he rolled his eyes at the lawyers.

Judge John Nelms has let prosecutors remove a black juror for gold teeth and jewelry. "That sounds like somebody who's streetwise, who hangs out in the bars and dives," he explained. But the judge drew the line at removing a juror with cornrows, saying that's a popular hairstyle.