5th Circuit Court Of Appeals Orders New Trial For TX Inmate Cecil Keith Hayes

[heidi salazar]

Federal appeals court orders new trial for black suspect

Dallas County's long history of racial discrimination in jury selection added a chapter from a new era this week.

The 5th U.S. Circuit Court of Appeals has ordered a new trial for Cecil Keith Hayes, a black man from Mesquite who was convicted of armed robbery and sentenced to 70 years in prison by a nearly all-white Dallas jury in 2002.

A three-judge panel concluded that prosecutors illegally struck two qualified black prospective jurors during jury selection and then tried to disguise their intentions to seat an all-white jury.

Unlike previous court findings of jury discrimination in Dallas County, Tuesday's ruling focuses on a case decided almost two decades after a landmark Supreme Court decision that prohibited biased practices.

In the Hayes case, prosecutors initially struck all eight black prospective jurors. One was impaneled after the trial judge rejected the prosecutor's explanation that the woman had been sleeping in court and was "too grandmotherly."

The trial judge accepted explanations that another black juror appeared "hostile" during questioning and that a second one gave inconsistent answers about whether she would require the state to produce the firearm allegedly used in the crime.

The appeals court deemed those explanations not credible, and it criticized the trial judge, Thomas Thorpe, for accepting the prosecutor's statements.

"Hayes has shown that the state's reasons for striking ... were implausible or invalid, and therefore were pretexts for discrimination," stated the decision written by Judge Catharina Haynes, a former civil court judge in Dallas.

Hill years

The case was prosecuted during the term of District Attorney Bill Hill, a disciple of legendary District Attorney Henry Wade, who served from 1950 until 1986.

Hill, who could not be reached for comment Wednesday, has insisted that he did not tolerate discrimination by his prosecutors. He strongly disagreed with the results of a 2005 investigation by The Dallas Morning News that found prosecutors excluded blacks from juries at twice the rate they excluded whites.

Hill's successor, Craig Watkins, said Wednesday that he believed discrimination was a problem when he took office in January 2007. Watkins, who is black, said he instituted a policy last summer that any prosecutor who intentionally engages in jury discrimination faces automatic termination.

Watkins said he did not plan to appeal the reversal of the Hayes conviction.

"My first inclination would be to agree that he needs a new trial, retry the case, do it right and get the conviction," Watkins said.

The decision marked the second time in 13 months that the appeals court has overturned a case from Dallas County because of jury discrimination. Last January, the court reversed the 1979 death penalty conviction of Jonathan Bruce Reed.

Those rulings followed a 2005 Supreme Court decision that reversed a Dallas County conviction from 1986 because of overt racial discrimination by prosecutors.

Both cases were reversed for violating the Supreme Court's ban on jury discrimination expressed in a 1986 decision, Batson vs. Kentucky. A concurring opinion cited an investigation of jury selection by The News as evidence that discrimination continued to be a problem in the criminal justice system.

Jordan Steiker, a law professor at the University of Texas, said the Hayes decision shows that courts remain wary of prosecutors' explanations for excluding nonwhites from jury service.

"It shows that race discrimination is still a worrisome part of prosecutions in Dallas County," he said in an e-mail, "and we cannot comfortably assume that such discrimination is simply a relic of an earlier era."

Hayes was a 31-year-old with a history of theft-related arrests when he was picked up by Garland police in October 2001 and charged with a series of armed robberies attributed to a man nicknamed the "Jump Start Robber." The robber's ploy had been to approach victims with a plea for help in starting his car.

Hayes was convicted in one robbery in June 2002. In jury selection, prosecutors removed all but two blacks. The jury imposed a 10-year prison sentence.

Second trial

At his second trial, in September 2002, prosecutor Valerie Tabor used her strikes to remove all eight eligible blacks. After the defense attorney objected, Thorpe disallowed one strike and placed a black woman on the jury.

Tabor, who now works as an assistant for the Dallas County public defender, could not be reached for comment Wednesday.

Adrienne Dunn, the attorney who handled Hayes' federal appeal, said she did not know whether the prosecutor acted out of bias. But she said prosecutors were probably unhappy with the 10-year sentence that the earlier, racially diverse jury had imposed.

Dunn and her co-counsel focused their appeal on two of the excluded jurors. Their argument was that prosecutors seated white jurors who possessed the same characteristics that the state's attorneys found objectionable with the excluded blacks.

She said she hopes the reversal demonstrates a sea change in judicial attitudes toward the bar on jury discrimination.

"It's time to start taking Batson seriously again," she said.

http://www.dallasnews.com/sharedcontent/dws/news/localnews/tv/stories/DN-fifthcircuit_21pro.ART.Central.Edition1.4bb9eeb.htmll

Opinion  Here:

http://www.ca5.uscourts.gov/opinions%5Cunpub%5C08/08-10057.0.wpd.pdf

[Moh]

Some legal commentators have opined that, in the wake of the perpetual uncertainty and confusion caused by the Batson decision, perhaps peremptory strikes should be done away with altogether, while preserving only strikes for cause.