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.