Texas Federal Appeals Court Refuses to Consider Suppressed Evidence of Dallas Prosecutors’ Race-Based Jury Selection Practices, Upholds Conviction and Death Sentence

A fed­er­al appeals court has per­mit­ted a Texas dis­trict court to dis­miss a death-row prisoner’s claim that Dallas pros­e­cu­tors uncon­sti­tu­tion­al­ly struck Black jurors in his case with­out con­sid­er­ing evi­dence of racial dis­crim­i­na­tion that pros­e­cu­tors had with­held from the defense dur­ing state court lit­i­ga­tion on the issue. 

The February 8, 2021 rul­ing of the U.S. Court of Appeals for the Fifth Circuit upholds the con­vic­tion and death sen­tence imposed on James Broadnax for his par­tic­i­pa­tion in the mur­der of two men dur­ing a 2008 rob­bery. Broadnax, who was 19 years old, was high on PCP at the time of the crime. 

The deci­sion is the lat­est in a string of more than 150 Texas cap­i­tal habeas cor­pus cas­es in which the appeals court has ruled against death-row pris­on­ers. It has over­turned only one death sen­tence imposed this cen­tu­ry in Texas.

The pros­e­cu­tors in Broadnax’s case attempt­ed to strike every prospec­tive Black or Latinx juror. Broadnax chal­lenged those strikes, argu­ing that they vio­lat­ed the U.S. Supreme Court’s deci­sion in Batson v. Kentucky, which pro­hibits remov­ing jurors from ser­vice because of their race. The tri­al judge grant­ed Broadnax’s final Batson chal­lenge, cit­ing ​“the fact that there are no African-American jurors on this jury and there was a dis­pro­por­tion­ate num­ber of African-Americans who were struck.” The jury that con­vict­ed Broadnax and sen­tenced him to death was com­prised of 11 white jurors and the one reseat­ed Black juror.

Unknown to the defense, Broadnax’s pros­e­cu­tors had cre­at­ed a spread­sheet of poten­tial jurors to aid in jury selec­tion. That spread­sheet, pre­pared before jury selec­tion began, bold­ed the names of prospec­tive Black jurors, but not jurors who were White or Latinx. Prosecutors did not dis­close the exis­tence of the spread­sheet at tri­al or dur­ing state post-con­vic­tion lit­i­ga­tion on the issue. 

Dallas pros­e­cu­tors have had a long his­to­ry of dis­crim­i­na­to­ri­ly exclud­ing African Americans from jury ser­vice. Dallas District Attorney Henry Wade, whose tenure in office spanned the years 1951 to 1987, once told an assis­tant pros­e­cu­tor, ​“If you ever put anoth­er n****r on a jury, you’re fired.” A train­ing man­u­al first writ­ten in 1963 instruct­ed coun­ty 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.” A two-year inves­ti­ga­tion by the Dallas Morning News into jury selec­tion prac­tices in Dallas County, pub­lished in 2005, revealed that pros­e­cu­tors exclud­ed African Americans from juries at more than twice the rate they chal­lenged white jurors, and that race was the most impor­tant per­son­al trait affect­ing which jurors prosecutors rejected.

In 2003, the U.S. Supreme Court reversed the Fifth Circuit’s refusal to grant Texas death-row pris­on­er Thomas Joe Miller-El per­mis­sion to appeal the denial of a claim of jury dis­crim­i­na­tion in which pros­e­cu­tors had removed 10 of 11 Black poten­tial jurors in his case. In an 8 – 1 deci­sion, Justice Anthony Kennedy wrote for the Court that the Dallas prosecutor’s office exhib­it­ed a ​“cul­ture of dis­crim­i­na­tion” that was ​“suf­fused with bias against African-Americans.” On remand, the Fifth Circuit again denied Miller-El’s jury dis­crim­i­na­tion claim. The Supreme Court reversed the cir­cuit court again in 2005, grant­i­ng relief to Miller-El and not­ing that ​“The final body of evi­dence con­firm­ing the con­clu­sion here is that the Dallas County District Attorney’s Office had, for decades, fol­lowed a spe­cif­ic pol­i­cy of sys­tem­at­i­cal­ly exclud­ing blacks from juries.”

Prosecutors did not dis­close the jury selec­tion spread­sheet until Broadnax’s case reached fed­er­al court. He sought an evi­den­tiary hear­ing on his jury dis­crim­i­na­tion claim, argu­ing that the spread­sheet con­sti­tut­ed new evi­dence that estab­lished the race-con­scious­ness of the prosecution’s jury selec­tion prac­tices. He fur­ther argued that the spread­sheet pro­vid­ed cir­cum­stan­tial evi­dence that pros­e­cu­tors had uncon­sti­tu­tion­al­ly exer­cised their dis­cre­tionary jury strikes to remove Black jurors because of their race. After with­hold­ing the spread­sheet until state post-con­vic­tion lit­i­ga­tion in the case had been com­plet­ed, the Texas Attorney General’s office then suc­cess­ful­ly argued that fed­er­al law lim­it­ed the fed­er­al court to con­sid­er­ing only the evi­dence that had pre­vi­ous­ly been pre­sent­ed to the state court. 

The District Court assert­ed that, in light of the Miller-El deci­sions, ​“it would have been pro­fes­sion­al­ly irre­spon­si­ble for the Dallas County District Attorney’s Office (in 2009) to have failed to iden­ti­fy the mem­bers of the remain­ing jury venire who were mem­bers of a pro­tect­ed class and against whom it might have been prepar­ing to exer­cise a peremp­to­ry chal­lenge.” The Fifth Circuit ruled that Broadnax was pro­ce­du­ral­ly barred from pre­sent­ing the spread­sheet because it had not been part of the evi­dence before the state courts and in ​“no way” fun­da­men­tal­ly altered Broadnax’s claim. Quoting the dis­trict court, the Fifth Circuit pan­el assert­ed that ​“the spread­sheet ​‘does noth­ing more than indi­cate that the Dallas County District Attorney’s Office made a point of memo­ri­al­iz­ing the eth­nic­i­ty and gen­der of the remain­ing mem­bers of the jury venire pri­or to the exer­cise of its peremptory challenges.’” 

The pros­e­cu­to­r­i­al account­abil­i­ty web­site, The Open File, wrote that ​“even a ​‘smok­ing gun’ spread­sheet of Black jurors can’t make the Fifth Circuit hold pros­e­cu­tors account­able for racial dis­crim­i­na­tion in jury selec­tion.” In a February 17 blog­post, the site’s authors observed: ​“This is a case where the prosecution’s own doc­u­ments prove they were track­ing the race of poten­tial jurors and where the state used its peremp­to­ry strikes in its quest to elim­i­nate all poten­tial jurors of col­or. It just doesn’t get much more absurd or rep­re­sen­ta­tive of the bro­ken sys­tem than that.”