Defense lawyer predicted all-white jury

08:41 AM CDT on Sunday, August 21, 2005

By STEVE MCGONIGLE and ED TIMMS / The Dallas Morning News

Editor's Note: This story first appeared in The Dallas Morning News on March 10, 1986.

HOUSTON -- When Andrew Jefferson learned he would be defending a black teen-ager accused of sexually assaulting a white woman, he made a prediction he considered a sure bet -- no black would end up on the jury.

In a Harris County courtroom, over the objections of the prosecutor, Jefferson urged the 40 men and women summoned for jury service to look around and take note of the blacks among them.

In anticipation of ending up with an all-white jury, Jefferson asked them: "If you are on the jury with eleven other whites, can you be trusted to be fair and impartial?"

When jurors eventually were seated to hear the case of Wesley Eric Harris -- a 19-year-old junior deacon at Mount Puriam Baptist Church and a onetime class favorite at Worthing High School -- Jefferson's prediction had become reality. All the jurors were white.

Prosecutors struck from the jury eight blacks, including a retired Army sergeant and a teacher related to a police officer, as well as two Hispanics. The minority potential jurors fell victim to "peremptory challenges," a legal tool in felony trials that allows both prosecutor and defense attorney to each eliminate 10 prospective jurors from consideration without having to give an explanation.

After a trial that lasted more than a week, the jury convicted Harris and, on Oct. 25, 1979, sentenced him to 12 years in the Texas Department of Corrections.

For Jefferson, a former state district judge once nominated by President Jimmy Carter to serve on the Fifth U.S. Circuit Court of Appeals, the case represents a tragic failure, a negation of the rights of equality and a jury of one's peers guaranteed by the U.S. Constitution.

"If this is still the United States of America, and we believe in our fundamental document (the Constitution), we should not have a ... criminal justice system where a black defendant is tried by an all-white jury because the state has excluded all the blacks," Jefferson said recently.

Richard F. Callaway, Harris' prosecutor and now a Houston civil lawyer, said there was no systematic exclusion of minority jurors in Harris' case.

"Under U.S. Supreme Court decisions, you're allowed to use challenges, peremptory challenges or strikes, any way you want to -- unless you show a systematic exclusion of a minority, or something like that," Callaway said.

"But no one has ever shown a systematic exclusion."

Because of Jefferson's allegations that blacks were methodically barred from the jury , Callaway said, he continued to follow Harris' case through five years of appeals, ultimately ending in the U.S. Supreme Court.

While the nation's highest court denied Harris' request for a new trial, Justices Thurgood Marshall and William Brennan nonetheless noted that jury selection in the Harris trial was "a prima facie violation of the Sixth and Fourteenth amendments." The Sixth Amendment guarantees the right to a fair trial by an impartial jury , and the Fourteenth Amendment ensures due process and equal protection under the law.

Callaway said statements by Harris and allegations voiced by Jefferson in his request for a new trial imply Callaway is "a bigot and a racist."

"That's just not the case," the former prosecutor said. "I resent that. He (Harris) got a fair trial under all the laws. Nobody ever found any error in it, and it didn't take the jury long to convict him."

Callaway, who had been an assistant district attorney about 2 1/2 years at the time of the trial, said he "put lots of blacks on juries ' while a prosecutor.

Harris, now 26, serves his sentence in the Corrections Department's Wynne Unit on the outskirts of Huntsville, and hopes to be paroled in August. Sitting behind a heavy metal screen that separates him from visitors, Harris acknowledges that an inmate's professing his innocence is nothing new.

But Harris questions why, if the state of Texas was so certain of his guilt, prosecutors were so unwilling to let even one black sit as a juror in judgment of him.

"Some people look at a human being and see nothing but color," Harris said. "For some people, nothing else makes any difference. You're no good. Some are just unfair due to lack of understanding.

"If they could prove I was guilty, somebody black wouldn't let me off just because I was black," he said. "Why be afraid to let anybody black get on?"

The chain of events that sent Harris to prison began on May 29, 1979, when he and Marilyn L. met for the first time. There would be no witnesses and little evidence to support either's recollections of that night.

By Harris' account, he was walking out of a convenience store when he accidentally struck her with a swinging door, triggering an exchange of obscenities and racial slurs. According to Harris, Marilyn L., then a 20-year-old hotel reservations clerk, must have been so angry that she called police as soon as she got home to report an imaginary sexual assault.

There was no chance meeting or confrontation at a convenience store, according to Marilyn L. In testimony, she said her first encounter with the black teen-ager occurred outside her Southwest Houston apartment complex just before midnight.

Marilyn L. testified she got off work at a downtown Houston hotel about 11:30 p.m. and began a 20-minute non-stop drive to her apartment. After arriving, she said, she waited in her car for a few minutes before getting out because she heard another vehicle "approach rapidly."

As she walked toward her apartment, she said, Harris walked up from behind, put his hand over her mouth, then told her: "Be quiet and I won't hurt you." Her testimony described an assault that lasted about 10 minutes on the lawn inside the courtyard of her apartment complex.

Marilyn L. told police and later testified that she followed Harris back to the apartment parking lot to get a description of his car and license plate number.

Nude from the waist down, she then ran to her apartment, she said, chanting the license plate number so she wouldn't forget it. On a Dunkin' Donuts box top she wrote the license plate number, she said, phoned her husband at work, then called police.

James Powell, the Houston police officer dispatched to the woman's apartment that night, testified that he found an emotional Marilyn L., whose clothes were "disarranged and disarrayed' and whose hair was "messed up."

Powell said he wrote down Marilyn L."s description of the car, license plate and assailant. The officer said he searched for evidence about five minutes and found nothing that could be fingerprinted; he did not try to contact any of the apartment residents who testified during the trial that they were at home that night, within a few feet of the crime scene.

Harris, meanwhile, swore he never went near Marilyn L."s apartment complex.

In a prison interview, Harris said he had spent May 29 fishing with his family and girlfriend. They returned to the Harris home southwest of the Astrodome, exhausted but with a string of crappie and catfish.

Harris said he took his girlfriend, Mary Weston, to her house, visited a short time, and then left for work early because he was afraid of falling asleep if he stayed any longer.

He testified he stopped for a package of cigarettes at a U-Totem convenience store, which is where he said he ran into his accuser.

"I hit her with the door," he said. "I didn't know it until she started shouting racial slurs at me, and I shouted back and I cursed her. I didn't pay a lot of attention to it -- I never thought I would have any reason to."

Harris clocked in at a Houston food preparation plant at 12:34 a.m., worked his shift and went home.

On June 1, 1979, Harris was arrested near his home. Marilyn L. later would identify him in a police lineup.

Both Callaway and Jefferson agree that the case primarily pitted Harris' story about what happened the night of May 29 against that of his accuser.

"I went in ... not seeing that Judge Jefferson was going to try to make it the classic confrontation rape case between a young black and a young white," Callaway recalled.

"I thought he did such a wonderful job that I thought I could well lose ... But then Eric Harris ... got on the stand and he . . . told the jury that she made this story up and had no reason for it -- it didn't happen -- but she made it up because he had bumped her slightly with a door going out of a (convenience store) that's near her apartment complex," the former prosecutor said.

"And he just said, "She's a bigot and a racist and she hates black people ... she's brought these charges against me, and she's going through ... grueling cross-examination just because she's a bigot." '

Callaway said the story was "incredible," and the jury simply didn't buy it.

Lee Duggan, a state appeals court justice who was the district judge who presided over the case, said some evidence presented by Jefferson may have been detrimental to the defense.

"He brought out the fact that Harris was living with this other girl and certainly all his sexual passions and sexual appetite were being satisfied with her, so what did he need to be raping this girl for?" Duggan said.

"Your average upper-middle-class, white, Protestant, Republican, country club ... juror doesn't react favorably to that," the judge said. "Neither does your blue-collar redneck."

Duggan said he also "cringed' when Jefferson lapsed into a heavy black accent during some of his arguments.

"I thought some of the jurors were a little bit embarrassed that he did it, and tried to ignore it. ... If a white attorney had made the same argument," Duggan said, "he would have been a bigot."

Jefferson contends Harris' day in court was a travesty because the jury selection process deprived Harris of the opportunity to be tried by even one peer.

Michael Maness, who served as Harris' lawyer on appeals, said he believed there simply was not sufficient evidence for a conviction.

"It was basically her word against his," Maness said. "There was no physical evidence."

But David Lloyd Ward, 42, a foreman for Houston Power & Light, who served on the jury , said Harris was found guilty because of the evidence -- not race.

"When they picked me on the jury , they asked me if I was racist, and I said, "Well ... everybody is." We are, to a certain point, on anything. It don't need to be the color of people, it could be my neighbor or anything. And I was honest about it.

"I've got some black friends; I've got some Mexican-American friends. They're as good as anybody."

By the time of Harris' trial, Veronica E. Morgan had served as an assistant district attorney four years. Ms. Morgan, a black, was called as a defense witness when Jefferson asked for a new trial, claiming the prosecution had systematically barred blacks from Harris' jury.

Over an objection by one of her colleagues, Ms. Morgan, now a Harris County juvenile services referee, was asked whether she had observed other prosecutors "uniformly strike blacks' in cases involving a black defendant accused by a white female.

"I can say that in those kind of cases I have observed the ultimate result is an all-white jury panel," she replied.

Ken Sparks, a white assistant district attorney, testified that during a training session, he described a listing of "general categories of unfavorable jurors."

"One of the categories," Sparks said, "mentions anyone with a persecution complex due to race, religion, handicap status or that of an underdog."

Sparks also testified that he had struck more blacks than members of any other racial group.

Jefferson also called as witnesses Miron Anderson Love, a district judge in Harris County, and state Sen. Craig Washington, who is also a lawyer. Both testified that prosecutors overwhelmingly used their strikes to remove blacks from juries.

Prosecutors countered with Thomas H. Routt, a black who presides over the 208th District Court in Harris County. Routt said he had presided over cases in which blacks served on the jury on "many' occasions; additionally, Routt said, he had not been able to detect any pattern of systematic exclusion by the Harris County district attorney's office.

Under cross-examination by Jefferson, Routt testified he was the only black district judge in Harris County.

The Texas Court of Criminal Appeals rejected the motion for a new trial. Harris' case ultimately was reviewed by the U.S. Supreme Court, which, on June 25, 1984, ruled against a new trial. Justices Marshall and Brennan dissented.

Harris' defense, Marshall wrote, "rested entirely on the jury 's assessment of the credibility of two witnesses, one Negro and one white."

"Under these circumstances, when the prosecution challenges every Negro member ... the inescapable implication is that the prosecutor proceeded on the assumption that Negro jurors would be more likely than white jurors to believe a Negro defendant's version of the facts."