Lawyers for Orlando Hall Seek to Stay His Execution Based Upon Systemic and Case-Specific Evidence of Racial Discrimination

Lawyers for fed­er­al death-row pris­on­er Orlando Hall (pic­tured), who is sched­uled to be exe­cut­ed on November 19, 2020, have filed a motion to stay his exe­cu­tion based upon evi­dence that his death sen­tence was a prod­uct of per­va­sive racial discrimination. 

In plead­ings filed in the U.S. District Court for the Southern District of Indiana on November 12, Hall, who is Black, argues that his con­vic­tion and death sen­tence are the uncon­sti­tu­tion­al prod­uct of sys­temic racial dis­crim­i­na­tion in the appli­ca­tion of the fed­er­al death penal­ty in Texas and case-spe­cif­ic dis­crim­i­na­tion in the selec­tion of jurors in his case. Defendants in fed­er­al cap­i­tal tri­als in Texas are 16 times more like­ly to be sen­tenced to death if they are Black, his lawyers say. In addi­tion, Hall was tried and con­demned by an all-white jury that was empan­eled by a pros­e­cu­tor who uncon­sti­tu­tion­al­ly removed African-American jurors in two oth­er cas­es in which Black defen­dants were sen­tenced to death. Update: Orlando Hall was exe­cut­ed on November 19. The dis­trict court denied Hall’s stay motion on November 17. The U.S. Court of Appeals for the Seventh Circuit upheld that rul­ing and the U.S. Supreme Court denied Hall a stay of exe­cu­tion on November 19.]

Systemic Racial Discrimination in Texas Federal Death-Penalty Cases

Hall’s motion to stay his exe­cu­tion was filed in con­nec­tion with a peti­tion for writ of habeas cor­pus seek­ing to over­turn his con­vic­tion and death sen­tence. His peti­tion argues that ​“the autho­riza­tion process by which the Department of Justice (DOJ) selects which defen­dants will face the death penal­ty, and sub­se­quent gov­ern­ment deci­sion-mak­ing that shapes the ulti­mate pool of those con­demned to die, are imper­mis­si­bly influ­enced by race, in vio­la­tion of equal pro­tec­tion, the Eighth Amendment, and the Federal Death Penalty Act.” 

The peti­tion presents evi­dence that, nation­wide, DOJ dis­pro­por­tion­ate­ly seeks and obtains the death penal­ty against defen­dants of col­or, and that the dis­crim­i­na­tion is even greater in the use of the fed­er­al death penal­ty in Texas. The DOJ has autho­rized or direct­ed local author­i­ties to seek the death penal­ty against 537 defen­dants between 1988 and 2020, the peti­tion states. Only 147 (27%) of those defen­dants were white, while 390 (73%) were defen­dants of col­or. Just under half of cap­i­tal­ly charged defen­dants (263, or 49%) were Black. Overall, DOJ autho­rized cap­i­tal pros­e­cu­tions more than 2.7 times as often against defen­dants of col­or than against white defen­dants, and near­ly twice as often (1.8 times) against Black defen­dants than white defendants.

New data that Hall’s lawyers say was not avail­able to them until August 2020 pro­vides even stark­er evi­dence of racial­ly dis­crim­i­na­to­ry use of the fed­er­al death penal­ty in Texas. According to the mem­o­ran­dum of law filed in sup­port of Hall’s stay peti­tion ​“A sta­tis­ti­cal analy­sis of all crim­i­nal defen­dants eli­gi­ble for the fed­er­al death penal­ty in Texas between 1988 (when the fed­er­al death penal­ty was rein­stat­ed) and 2010” found that ​“fed­er­al pros­e­cu­tors in Texas were near­ly six times more like­ly to request autho­riza­tion to seek the death penal­ty against a Black defen­dant than a non-Black defen­dant. Authorization was near­ly eight times more like­ly to be grant­ed in cas­es with a Black defen­dant than a non-Black defen­dant. And a death ver­dict was near­ly six­teen times more like­ly to be ren­dered in a case with a Black defen­dant than a non-Black defendant.”

Hall’s lawyers said they were unaware of this sta­tis­ti­cal study until August 12, 2020 when the InterAmerican Commission on Human Rights cit­ed it in a deci­sion involv­ing anoth­er Texas fed­er­al death-row prisoner.

Discriminatory Jury Selection

Hall’s habeas peti­tion and stay appli­ca­tion also allege that he was tried before an all-white jury from which Black prospec­tive jurors had been uncon­sti­tu­tion­al­ly exclud­ed because of their race. Paul Macaluso, a fed­er­al pros­e­cu­tor who has twice been found to have engaged in racial­ly biased jury selec­tion, joined the pros­e­cu­tion team in Hall’s case exclu­sive­ly to con­duct jury selec­tion. After ini­tial jury ques­tion­ing, only five Black prospec­tive jurors remained in the jury pool. The pros­e­cu­tion struck four, leav­ing only one Black juror whose death-penal­ty views, Hall’s lawyers say, were so extreme pros­e­cu­tors knew he would be struck by the defense. 

In 2005, the United States Supreme Court ruled in Miller-El v. Dretke that Macaluso had uncon­sti­tu­tion­al­ly struck Black jurors based on race and then offered pre­tex­tu­al rea­sons to jus­ti­fy his strikes. Four years lat­er, in 2009, the U.S. Court of Appeals also found that Macaluso uncon­sti­tu­tion­al­ly struck Black jurors. Hall’s lawyers argue that his pri­or coun­sel was not aware of this his­to­ry of adverse adju­di­ca­tions and that Macaluso’s pat­tern of jury selec­tion abus­es is crit­i­cal to under­stand­ing the pre­tex­tu­al nature of the prosecution’s attempt to pro­vide race-neu­tral rea­sons for his removal of Black jurors. The pre­tex­tu­al expla­na­tions offered by the pros­e­cu­tion, the defense alleges, include that Macaluso removed a Black woman from the jury because she had pre­vi­ous­ly served in a case in which the jury vot­ed to acquit the defen­dant of rob­bery. However, the peti­tion states, Macaluso had no trou­ble accept­ing a white juror who had vot­ed to acquit a defen­dant of mur­der dur­ing pre­vi­ous jury service. 

The peti­tion fur­ther alleges that, after the tri­al, the defense learned that Macaluso had trained in a pros­e­cu­tion office that used a racist man­u­al that open­ly advo­cat­ed exclud­ing minori­ties from jury ser­vice. It advised pros­e­cu­tors to strike poten­tial jurors who were Black, Jewish, or female, stat­ing, ​“You are not look­ing for any mem­ber of a minor­i­ty group which may sub­ject him to oppres­sion — they almost always empathize with the accused.” A 1963 cir­cu­lar pro­duced by the same office instruct­ed, ​“Do not take Jews, Negroes, Dagos, Mexicans or a mem­ber of any minor­i­ty race on a jury, no mat­ter how rich or how well edu­cat­ed.” Because Macaluso was not found to have vio­lat­ed Batson until years after Hall’s tri­al, the peti­tion says, this evi­dence was unavail­able when Hall ini­tial­ly chal­lenged Macaluso’s jury selec­tion prac­tices in the case.