The Texas Court of Criminal Appeals has stayed the exe­cu­tion of Mark Robertson (pic­tured), a Dallas death-row pris­on­er whom Texas had sched­uled for exe­cu­tion on April 11, 2019. The court’s April 8 stay order did not spec­i­fy the rea­son it halt­ed the exe­cu­tion, but Robertson’s lawyers had filed an appeal seek­ing review of their claim that his court-appoint­ed tri­al lawyer, Michael Byck, had ​“engaged in pur­pose­ful dis­crim­i­na­tion” by delib­er­ate­ly exclud­ing African Americans from serv­ing on his jury. In 1997, Byck tes­ti­fied in a hear­ing in the case that he had been ​“more than hap­py to vio­late any­body else’s rights” in pick­ing a jury and that he had inten­tion­al­ly struck prospec­tive black jurors. He also tes­ti­fied that he had told pros­e­cu­tors pri­or to the tri­al that he ​“did­n’t want to have any blacks on the jury” because he believed they would not be sym­pa­thet­ic to Robertson, a white defen­dant. The Dallas County District Attorney’s office had a long his­to­ry of racial­ly dis­crim­i­na­to­ry jury selec­tion prac­tices, and Byck tes­ti­fied that he and the pros­e­cu­tors had agreed to ​“indulge each oth­er” in their ​“prej­u­dices.”

Race dis­crim­i­na­tion in death-penal­ty jury selec­tion has been an issue for decades. In 1965, the U.S. Supreme Court in Swain v. Alabama, upheld a death sen­tence imposed by an all-white Alabama jury on a black defen­dant charged with rape, impos­ing on the defen­dant the bur­den of prov­ing that the pros­e­cu­tor in a coun­ty had sys­tem­at­i­cal­ly removed all black jurors in ​“case after case … with the result that no Negroes ever serve on petit juries.” In Dallas County, a 1963 office man­u­al instruct­ed pros­e­cu­tors not to ​“take Jews, Negroes, Dagos, Mexicans or a mem­ber of any minor­i­ty race on a jury, no mat­ter how rich or how well edu­cat­ed.” In 1986, the Supreme Court ruled in Batson v. Kentucky that Swain had erect­ed an insur­mount­able evi­den­tiary bur­den and declared that the removal of even a sin­gle prospec­tive juror on the basis of race was uncon­sti­tu­tion­al. Dallas pros­e­cu­tors nonethe­less con­tin­ued to dis­crim­i­na­to­ri­ly strike black jurors, and District Attorney Henry Wade – the coun­ty D.A. from 1951 to 1987 – once threat­ened an assis­tant pros­e­cu­tor, ​“If you ever put anoth­er n****r on a jury, you’re fired.” In 2005, in the case of death-row pris­on­er Thomas Joe Miller-El, the U.S. Supreme Court found that the Dallas D.A.’s office had a ​“cul­ture of dis­crim­i­na­tion” that was ​“suf­fused with bias against African-Americans.” It twice reversed low­er court deci­sions that had denied Miller-El relief for the racial dis­crim­i­na­tion in his case and grant­ed Miller-El a new trial.

Jeremy Schepers, one of Robertson’s attor­neys, unequiv­o­cal­ly con­demned Byck’s dis­crim­i­na­to­ry actions. ​“Mr. Robertson’s tri­al attor­ney tes­ti­fied under oath that it was his ​‘con­scious desire’ to keep African Americans off the jury,” Schepers told the Houston Chronicle. ​“And, through a vari­ety of meth­ods he suc­ceed­ed in doing just that. By now there should be no con­fu­sion on this mat­ter – racial dis­crim­i­na­tion in the admin­is­tra­tion of jus­tice is intol­er­a­ble. The courts should not hes­i­tate to denounce this unac­cept­able behav­ior.” In a motion filed in Robertson’s case, attor­ney Lydia Brandt urged the court to inter­cede, rather than allow a death sen­tence taint­ed by dis­crim­i­na­tion to stand. ​“In the end, Mr. Byck suc­ceed­ed in his dis­crim­i­na­to­ry plan – Mr. Robertson was tried by an all-white jury,” she wrote. ​“At best, the State turned a blind eye towards Mr. Byck’s dis­crim­i­na­tion; at worst, they were a willing co-conspirator.”

Robertson has been on death row for 28 years. He is the sec­ond Texas pris­on­er to receive a stay of exe­cu­tion in the last month. On March 28, the U.S. Supreme Court issued a last-minute stay of exe­cu­tion for Patrick Murphy, a Buddhist pris­on­er who claimed that his right to reli­gious free­dom was vio­lat­ed because Texas refused to allow his Buddhist spir­i­tu­al advi­sor in the exe­cu­tion cham­ber, though it allowed Christian and Muslim chap­lains. Texas respond­ed to the Court’s deci­sion by announc­ing that it will no longer allow any reli­gious advi­sors to be present in the execution chamber.

(Keri Blakinger, Dallas death row pris­on­er files appeal over tri­al attorney’s ​‘racist ide­ol­o­gy,’ Houston Chronicle, April 2, 2019; Keri Blakinger, Appeals court stays Texas man’s exe­cu­tion over claims of defense lawyer’s ​‘racist ide­ol­o­gy,’ Houston Chronicle, April 8, 2019; Jolie McCullough, Texas court stops exe­cu­tion of Mark Robertson after claims of racist jury selec­tion, Texas Tribune, April 8, 2019.) See Race and Upcoming Executions.

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