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Legal sides divided on Texas jury ruling

Author(s): PENNY BROWN ROBERTS Date: June 14, 2005 Section: News

Baton Rouge defense lawyer Thomas Damico thinks a Supreme Court ruling in a Texas death-penalty case could change the way judges look at jury selection in Louisiana.

Bast Baton Rouge Parish District Attorney Doug Moreau isn't convinced that's the case.

Such was the range of reaction Monday to a Supreme Court decision overturning the conviction of a black death-row inmate who contended Texas prosecutors unfairly stacked his jury with white people.

The 5th U.S. Circuit Court of Appeals in New Orleans had upheld the conviction.

In the 6-3 opinion, Justice David H. Souter said black jurors were questioned more aggressively about the death penalty, and the pool was "shuffled" at least twice by prosecutors, apparently to increase the chances that white people would be selected.

Damico said he believes the decision breathes new life into the Batson hearing, a legal proceeding in which a lawyer can challenge an opposing lawyer's decision to strike a juror if he suspects the strike was based on race or sex. By law, jurors cannot be excluded from serving on a jury based solely on race or gender. "In recent times, everybody has looked at Batson as something that was almost dead," Damico said.

"The Supreme Court has been saying in the past you could give almost any reason as a non-biased reason for a periphery challenge. Maybe now all courts will start taking a much closer look at those challenges."

Damico said he's posed such challenges in the past, but the court typically defers to lawyer strategies in selecting jurors as long as they can "articulate some valid reason for striking a juror other than racial makeup."

The Supreme Court ruling, Damico said, addresses instances when there is "a clear systematic exclusion of black after black after black," in which a prejudice against jurors based on race is more evident.

"It does go on, so I think this ruling is great if it means the courts are going to look more closely at it," Damico said. "Obviously, it's still something that's very, very lough to prove." Defense lawyer Kevin Monahan said that more frequently, he sees black people excluding themselves from juries in Baton Rouge by expressing their opposition to the death penalty. "A lot of times the racial makeup of juries become imbalanced because, notoriously, African Americans say they can't vote for the death penalty and won't vote for the death penalty and strongly

state that" during jury selection, Monahan said. "Sometimes I think they believe they're helping the defendant by making those comments in court, but before you know it, it takes off. Once jurors see them excused for that reason, they voice the same concerns." Moreau said he hasn't read Monday's ruling but has been following the case.

He said race and gender have become "prominent issues" injury selection in the last five or six years.

He added he thinks the ruling specifically addresses the way the Texas case was handled but doesn't change the law or any legal principles concerning jury selection.

State District Judge Bonnie Jackson presided over the most-recent first-degree murder case in Baton Rouge.

She sentenced James "Mitch" McCray to life in prison last week after the jury could not reach a unanimous death-sentence verdict following six hours of deliberations.

Jurors convicted the 43-year-old McCray of two counts of first-degree murder in the June 13, 2001, shooting deaths of Michael Floyd Stevens and Carlton Michael Pevey at Mike's Hair Expressions on Hooper Road.

Jackson declined to comment on the Supreme Court case.

The judge did say, however, of the McCray case that she recalls "We excused an awful lot of people on the basis of their inability to vote for the death penalty, but I cannot say in this case there was an unusually high number of African Americans excused for that reason. It was probably less than we typically do."

Copyright 2005 Capital City Press, Baton Rouge, La.

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