Stay Granted by U.S. Supreme Court

February 8, 2002

BY FAX: 512-467-0945

Mr. Gerald Garrett
Chairman, Texas Board of Pardons and Paroles
Price Daniel, Sr. Building
209 W. 14th Street, Suite 500
Austin, Texas 78701

Re: Thomas Miller-El

Dear Chairman Garrett:

On behalf of the American Civil Liberties Union, we urge you to stay the execution of Thomas Miller-El, currently scheduled for February 21, 2002 and to commute his death sentence to life imprisonment without parole. Such relief is merited by the circumstances of Mr. Miller-El's case. There were two major problems concerning the fairness of Mr. Miller-El's trial. First, the prosecution employed racially discriminatory practices in selecting the jury. Second, Mr. Miller-El was not competent to stand trial and assist his attorneys at the time of trial.

Mr. Miller-El's jury consisted of eleven white and one black juror. This racial composition was typical of criminal jury trials in Dallas County in the 1980s. At the time of Mr. Miller-El's trial, the Dallas County District Attorney's office routinely practiced a method of racial discrimination when selecting potential jurors. The Dallas County prosecutors circulated a treatise on this practice until at least the early 1980s. The treatise discouraged prosecutors from selecting jurors that might empathize with the accused and explicitly instructed prosecutors to prevent "Jews, Negroes, Dagos, Mexicans, or a member of any minority race [from sitting] on a jury." The pattern of intentional racial discrimination continued throughout the 1980s.

A 1986 study conducted by the Dallas Morning News revealed the statistical manifestation of these discriminatory teachings. The study showed that although African-Americans comprised 18 % of Dallas County's population, less than 4 % of jurors in felony jury trials were African-American. The chance of a qualified African-American serving on a jury was one-in-ten, compared to a one-in-two chance for a qualified white. Eighty-six percent of otherwise qualified African-American jurors were struck by peremptory challenges alone.

The prosecutors who tried Mr. Miller-El adhered to the racially discriminatory jury selection practices. Paul Macaluso, the Assistant District Attorney who supervised the selection of Mr. Miller-El's jury, struck ten of eleven qualified African-American jurors. The only African-American that Mr. Macaluso did not strike made clear his support of the death penalty and his desire to have criminals tortured if found guilty. In a case tried just before Mr. Miller -El's trial Mr. Macaluso picked the jury and was later found by the Texas Courts to have engaged in racially discriminatory selection procedures. See Chambers v. State, 784 S.W 2d 29, Tex.Crim. App. (1988).

In addition to the intentional racial discrimination in selecting the jury, Mr. Miller-El was also hampered by his poor medical condition at the time of trial. Mr. Miller-El was suffering from the effects of a gunshot wound when the trial began. As a result, Mr. Miller-El had difficulty communicating with his attorneys throughout the trial. There were three separate requests for medical evaluations of Mr. Miller-El during the trial. The third request, which was explicitly for the purpose of evaluating Mr. Miller-El's fitness to attend court, resulted in an abrupt halt of the punishment phase of the proceedings because Mr. Miller-El was hospitalized for the third time during the trial. Despite Mr. Miller-El's condition, the appellate court concluded that "the record supports the fact that there was no 'bona fide doubt' as to applicant's competence to stand trial."

This conclusion contradicted Mr. Miller-El's medical history at the trial and the expert testimony of Dr. Ari Kiev. Dr. Kiev, who is both a doctor and a lawyer, reviewed Mr. Miller-El's medical records and concluded that he was incompetent to stand trial according to the correct legal standard.

The ACLU opposes capital punishment in all cases as a barbarous anachronism and in violation of the Constitution. Mr. Miller-El's case particularly merits clemency. Given the irrevocable consequences of a death sentence, we submit that Texas should afford Mr. Miller-El full consideration for his plea to commute his sentence to life in prison without parole.

Sincerely,

Diann Rust-Tierney
ACLU Capital Punishment Project

Will Harrell
ACLU of Texas

Bart T. East*
Pro Bono Counsel
Squire, Sanders & Dempsey L.L.P.
1201 Pennsylvania Ave., N.W.
Washington, D.C. 20004

* Admitted to practice in New York. Admittance to the District of Columbia Bar pending