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

By ED TIMMS / The Dallas Morning News

Editor's Note: This story first appeared in The Dallas Morning News on May 20, 1986.

The Texas Court of Criminal Appeals on Monday granted a stay of execution for a Dallas man scheduled to die by lethal injection Wednesday after his attorneys argued he was denied a fair trial because blacks were prevented from serving on his jury.

Larry Smith, 30, who is black, was convicted by an all-white jury of capital murder for the Feb. 2, 1978, robbery-murder of a Dallas convenience store clerk.

A prosecution witness testified that the victim, Michael Dean Mason, was shot by Smith when he couldn't open the store's safe.

Attorneys for Smith said Monday that the stay could result in a court hearing to determine whether prosecutors used peremptory strikes -- legal objections that allow lawyers to dismiss prospective jurors without explanation -- to systematically exclude blacks from the jury.

Defense lawyer Mike Barclay of Alpine and Dallas defense lawyer Wayne Huff asked for a stay of execution May 13 before state District Judge Jack Hampton. Hampton presided over Smith's 1982 trial in Dallas.

Hampton denied the motion, which was then appealed to the criminal appeals court. If the Austin court rules that an evidentiary hearing should be held, it will be conducted in Hampton's court. At that time, Smith's attorneys would have the opportunity to present evidence supporting their claim.

Barclay said his decision to file the motion followed an April 30 U.S. Supreme Court ruling that prosecutors cannot exclude potential jurors because they are the same race as a defendant. Barclay said his decision to appeal the execution also was influenced by a series in The Dallas Morning News, which showed Dallas County prosecutors routinely excluded almost nine out of 10 blacks qualified to serve as jurors.

In Batson vs. Kentucky, the Supreme Court overturned a 21-year-old opinion -- Swain vs. Alabama -- that allowed prosecutors using peremptory strikes to exclude qualified blacks from juries without explanation.

The News analysis published in March was based on 100 randomly selected cases in Dallas County in 1983 and 1984. The analysis revealed that a qualified black had a 1-in-10 chance of serving on a jury , but whites had a 1-in-2 chance.

In Smith's trial, peremptory strikes by the prosecution resulted in the all-white jury , Barclay said.

"There were blacks on the panel," he said. "But no blacks on the jury ."

Huff said he is waiting to see if the criminal appeals court will use Smith's case as an opportunity to align itself with the Supreme Court's Batson ruling. Previously, he said, the Texas court's rulings were always governed by the Swain case.

Smith also was scheduled to die Aug. 13, 1985. His attorneys asked for a stay, alleging that he had been denied a fair trial because individuals who had reservations about the death penalty were not considered as jurors. The criminal appeals court later denied the stay and the execution date for Wednesday was set.