Successful Batson Challenge Reveals Racial Discrimination in Harris County Jury Selection

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair


Assistant District Attorneys Mark Donnelly and Rifian Newaz are considered seasoned, professional prosecutors by their colleagues in the Harris County District Attorney’s Office. Many Harris County defense attorneys also hold the prosecutors in high professional esteem. In fact, we recently paid tribute to ADA Donnelly for his recent professional efforts to undo the tragic wrong done to Ricardo Rachell who was wrongfully convicted and who spent six years in prison for the aggravated sexual assault of a child.


But this level of professional respect did not spare the two prosecutors from the reform rod of newly-elected District Attorney Pat Lykos. Determined to remove the District Attorney’s Office from the ugly specter of corruption, mismanagement, and racism that characterized the prosecutor’s office under her predecessor, Charles “Chuck” Rosenthal, DA Lykos took the recent extraordinary action of publicly chastising and reprimanding Donnelly and Newaz for their handling of jury selection in the case of Ricky Whitfield, a black defendant charged with murder.


The two prosecutors used seven of their 10 jury strikes to remove seven blacks from the jury pool. The end result was an all-white jury. This jury result did not set well—and rightly so—with Whitfield’s attorneys, Jacquelyn Carpenter and Eric Davis. They promptly filed a Batson motion under the Supreme Court decision in Batson v. Kentucky that imposed a three-step evaluation test on a trial judge to be utilized in determining whether a prosecutor’s use of jury strikes constitutes intentional racial discrimination.


According to the Houston Chronicle (March 27, 2009), Donnelly and Newaz responded to the Batson motion by telling District Judge Jeannine Barr that the black prospective jurors were eliminated because they were “indecisive about whether the criminal justice system should punish or rehabilitate [and] they didn’t want indecision in the jury room,” reported the Chronicle.

Judge Barr did not like smell of that fish. She granted the Batson motion, dismissed the selected jury, and reset the Whitfield’s trial for June 2009.


This turn of events did not set well with DA Lykos. She instructed Terrance Windham, the division chief charged with the responsibility of overseeing prosecutors in the county’s 22 criminal courts, to investigate the matter. The Chronicle reported that Windham, who is black, concluded that Donnelly and Newaz hadn’t intended to select a jury of 10 whites, two Hispanics, and a white alternate.


“They were shocked when the 12 people were called from the panel to the jury box,” Windham told the Chronicle. “They were shocked that they didn’t see any African-Americans. That’s when they realized they had stricken all the African-Americans from the jury.”


Former President Bill Clinton once said that “you can put wings on a pig, but you don’t make it an eagle.” Defense attorney Carter knows that a pig is a pig no matter how much lipstick you slap on it. She told the Chronicle that the prosecutors had relied on the traditional prosecutorial notion—fueled by racial stereotyping—that whites are more conservative and blacks are more liberal.


“I’m not excluding them from having some sort of racial motivating factor, but I’m not calling them racists,” she told the newspaper. “I don’t think they’re part of the Ku Klux Klan, running around in white sheets.”

Co-counsel Eric Davis agreed with Carter. “You can strike a juror for any reason, but there is a law that says you can’t do it on the basis of race, and the judge agreed and sustained [our] objection,” he told the Chronicle. “The judge said it didn’t look good, and she sustained the objection, the Batson challenge.”


Whatever the reasons that led to the all-white jury being selected, Lykos was apparently not pleased with that result. Saying both Donnelly and Newaz were negligent and incompetent for allowing such a result to occur, she docked their pay and removed them from trial work.


“I assume full responsibility for the incompetence of these two prosecutors,” the district attorney told the Chronicle. “There is not invidious racism involved here, but negligence or incompetence, if you will. If I thought for a moment that there were racial motives, they would have been fired.”


Although former ADA Paul Doyle and others criticized Lykos’ decision, Mark Bennett, president of the Harris County Criminal Lawyers Association, defended the district attorney.


“I can’t think of a case under previous administrations where prosecutors were disciplined for doing something that hurt or could have hurt the rights of the accused,” he told the Chronicle. “It’s an encouraging sign that (Lykos) is interested in trying to make things right and trying to make the system work fairly for all of the citizens of Harris County, not just the rich, white ones.”


DA Lykos has legitimate reasons for concern about how juries are selected in Harris County. The Fifth Circuit Court of Appeals recently reversed the conviction and death sentence of a black defendant, Anthony Cardell Haynes, who was convicted for the capital murder of a peace officer acting in the lawful discharge of his official duties.


Unlike the Whitfield case that involved impermissible prosecutorial tactics, the Haynes case involved the unacceptable manner in which two criminal district court judges handled the jury selection process. The Fifth Circuit reported “Judge Wallace presided at the beginning of the jury selection process when the jurors were addressed and questioned as a group; Judge Harper presided during the next stage in which attorneys questioned the prospective jurors individually; and Judge Wallace presided again during the final stage in which peremptory challenges were exercised and when Batson challenges were made, considered, and ruled upon.”


On direct appeal to the Texas Court of Criminal Appeals Haynes’ defense attorneys complained that since Judge Wallace had not observed the questioning of prospective jurors—their demeanor, body language, responses, attitudes, and characteristics—he could not adequately assess the veracity of the prosecutor’s explanations for striking four prospective black jurors. The defense attorney’s argument was premised on the fundamental requirement of Batson that the trial judge must directly evaluate the challenged juror’s statements, responses and demeanor in order to make a fair Batson determination.


The Fifth Circuit held that because Judge Wallace had made his Batson ruling from a “cold paper record” and not from a personal “demeanor-based observation” his ruling was not entitled to federal court deference. The appeals court ordered Lykos’ office retry Haynes within 180 days from its ruling or release him from custody.


The U.S. Supreme Court has held for decades that a criminal defendant is entitled to a jury that represents a “fair cross-section of the community.” Even if African-Americans as a group are generally considered more “liberal” in their thinking on crime and punishment than their more “conservative” white counterparts, a prejudice that will most likely backfire if blindly relied upon in a real trial setting, prosecutors and judges must come to grips with the inescapable reality that they cannot exclude that any group for racially motivated reasons; that the constitutional right of brown, black and white defendants to a jury that represents a fair cross-section of the community trumps their “conservative” political agenda.  Not to mention the rights of the potential jurors, who have often waited half a day to serve their civic duty, to be judge on the content of their character not just the color of their skin.


While most prosecutors and many judges would prefer seating Rush Limbaugh-listening white jurors, the law of even conservative federal appellate courts like the Fifth Circuit and the demographics of Harris County that influenced Lykos’ decision-making have made this “old” preference a fixture of past sins. Chuck Rosenthal and Johnny Holmes are no longer district attorneys in Harris County. They have been put out to pasture where old cows go to chew the cud and old cowboys go to regret before they die.


Perhaps the Harris County criminal justice system now has “hope” it can “truly believe in.” For those of us like Mark Bennett who believe in a fair and equitable justice system, the Whitfield and Haynes decisions have given some cautious optimism in what remains a very difficult environment to try a criminal case.




Batson v. Kentucky, 476 U.S.  79 (1986)
Haynes v. Quarterman, 2009 U.S.App. LEXIS 5563 (5th Cir. March 10, 2009).

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair