Sterling v. Dretke Brief Amicus Curiae

    No. 04-9337

In The

Supreme Court of tfje {Hmteb States!

Gary Sterling,

v.
Petitioner,

D oug Dretke, D irector,
Texas D epartment of Criminal Justice, 

Correctional Institutions D ivision,

Respondent.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals for the Fifth Circuit

BRIEF FOR THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC. AS 

AMICUS CURIAE IN SUPPORT OF PETITIONER

Audrey J. Anderson 
Catherine E. Stetson* 
Mary L. Johnson 
Christopher R. Zaetta 
James S. Black, II 
Hogan & Hartson L.L.P. 
555 Thirteenth Street, N.W. 
Washington, D.C. 20004 
(202) 637-5491

* Counsel of Record Counsel for Amicus Curiae

W ilson-Epes Printing Co ., Inc. -  (202)789-0096 -  Washington, d . C. 20001



TABLE OF AUTHORITIES............................................................. ii

STATEMENT OF INTEREST OF AMICUS CURIAE................1

SUMMARY OF THE ARGUMENT................................................ 1

ARGUMENT........................................................................................4

I. PETITIONER’S COUNSEL’S DECISION TO 
PLACE A “PROBABLfE]” RACIST ON A 
DEATH PENALTY JURY WAS NOT A 
DEFENSIBLE STRATEGIC CHOICE
UNDER ANY STANDARD...............................................4

II. JUROR WALTHER’S VIEWS OF BLACK 
CRIMINALITY NECESSARILY INFECTED 
THIS INTERRACIAL DEATH PENALTY
CASE.......................................................................................8

A. “Nigger” Is Historically And Inextricably
Linked To Racial Prejudice......................................... 9

B. Stereotyped Perceptions Of African- 
American Criminality Are Entrenched In
Our Society.................................................................... 13

C. Racially Biased Perceptions Of Blacks’
Propensity Toward Violence Can Taint
Jury Decisionmaking................................................... 15

D. A Known Risk Of Racial Bias By A 
Prospective Juror In A Capital Case 
Warrants Investigation By Defense
Counsel...........................................................................18

CONCLUSION.................................................................................. 20

TABLE OF CONTENTS
Page

(i)



11

Cases:
Alexander v. Louisiana, 405 U.S. 625 (1972)....................1
Batson v. Kentucky, 476 U.S. 79 (1986).....................  1, 2, 5
Brown v. East Miss. Elec. Power,

989 F.2d 858 (5th Cir. 1993)......................................... 12
California v. Ramos, 463 U.S. 992 (1983)......................... 6
Carter v. Jury Comm., 396 U.S. 320 (1970).......................1
Duncan v. Louisiana, 391 U.S. 145 (1968)........................ 5
Edmonson v. Leesville Concrete Co.,

500 U.S. 614(1991)........................................................ 1
Ex Parte Guzmon, 730 S.W.2d 724

(Tex. Crim. App. 1987).................................................  11
Georgia v. McCollum, 505 U.S. 42 (1992).....................  1, 5
Glasserv. United States, 315 U.S. 60 (1942).....................5
Ham v. South Carolina, 409 U.S. 524 (1973).....................1
Hughes v. United States, 258 F.3d 453

(6th Cir. 2001)...................................................................7
Hull v. Cuyahoga Valley Joint Vocational Sch.

Dist. Bd. ofEduc., 926 F.2d 505 (6th Cir.),
cert, denied sub nom. Hull v. Shuck, 501
U.S. 1261 (1991)...........................................................  12

Hunter v. Underwood, 471 U.S. 222 (1985)..................... 14
Johnson v. California, 540 U .S.___,

125 S. Ct. 1141 (2005)......................................................1
Kendall v. Block, 821 F.2d 1142 (5th Cir. 1987).............. 13
McCleskey v. Kemp, 481 U.S. 279 (1987).......................... 5
McGinest v. GTE Serv. Corp.,

360 F.3d 1103 (9th Cir. 2004)......................................  12
Miller-El v. Cockrell, 537 U.S. 322 (2003)........................1

TABLE OF AUTHORITIES
Page



Ill

M u'Min v. Virginia, 500 U.S. 415 (1991)......................6, 7
Powers v. Ohio, 499 U.S. 400 (1991)................................. 5
Rodgers v. Western-Southern Life Ins. Co.,

12 F.3d 668 (7th Cir. 1993)..........................................  12
Rosales-Lopez v. United States,

451 U.S. 182 (1981) ................................................... 5,6
Strauderv. West Virginia, 100 U.S. 303 (1879).............2, 5
Strickland v. Washington, 466 U.S. 668 (1984).................2
Swain v. Alabama, 380 U.S. 202 (1965)............................. 1
Turner v. Fouche, 396 U.S. 346 (1970).............................. 1
Turner v. Murray, 476 U.S. 28 (1986)...................... passim
United States v. Brown, 539 F.2d 467

(5th Cir. 1976)...............................................................  11
United States ex rel. Goldsby v. Harpole, 263 F.2d 71 

(5th Cir.), cert, denied, 361 U.S. 838 (1959)..................6
United States v. Heller, 785 F.2d 1524

(11th Cir. 1986).............................................................  11

Constitutional Provisions:
U.S. Const, amend. 6........................................................4, 5
U.S. Const, amend. 14........................................................... 6

Rule:
Sup. Ct. R. 37.6......................................................................1

Other Authorities:
Steven E. Barkan & Steven F. Cohn, Racial Prejudice 

and Support for the Death Penalty by Whites, 31 
J. Res. Crime & Delinquency 202 (1994)..................... 15

TABLE OF AUTHORITIES—Continued
Page



IV

William J. Bowers, The Capital Jury Project: Rationale, 
Design, and Preview o f Early Findings, 70 Ind.
L.J. 1043 (1995).......................................................  16,17

William J. Bowers, et al., Crossing Racial Boundaries:
A Closer Look at the Roots o f Racial Bias in 
Capital Sentencing When the Defendant is Black 
and the Victim is White, 53 DePaul L. Rev.

TABLE OF AUTHORITIES—Continued
Page

1497 (2004).................................................................... 17
William J. Bowers, et al., Death Sentencing In Black 

and White: An Empirical Analysis o f the Role o f 
Jurors ’ Race and Jury Racial Composition,
3 U. Pa. J. Const. L. 171 (2001).............................  14, 16

Capital Jury Project Website, at http://www.cjp.neu.edu 
(April 19, 2005).............................................................  16

Steven F. Cohn, et al., Punitive Attitudes Toward 
Criminals: Racial Consensus or Racial Conflict?,
38 J. Soc.Probs. 287(1991).......................................... 15

Donna Coker, Foreword: Addressing the Real World 
o f Racial Injustice in the Criminal Justice System,
93 J. Crim. L. & Criminology 827 (2003).................... 13

Patricia G. Devine, Stereotypes and Prejudice: Their 
Automatic and Controlled Components, 56 
J. Personality & Soc. Psychol. 5 (1989)...................... 14

Patricia G. Devine & Andrew J. Elliot, Are Racial 
Stereotypes Really Fading? The Princeton Trilogy 
Revisited, 21 Personality & Soc. Psych. Bull.
1139 (1995).................................................................... 14

George M. Frederickson, The Black Image in the White 
Mind: The Debate on Afro-American Character 
and Destiny, 1817-1914(1971)..................................... 10

Michele Goodwin, Nigger and the Construction o f
Citizenship, 76 Temp. L. Rev. 129 (2003)...................  10



V

A. Leon Higginbotham, Jr., In the Matter o f Color:
Race and the American Legal Process, The 
Colonial Period (1978)................ ................................. 10

Jon Hurwitz & Mark Peffley, Public Perceptions o f 
Race and Crime: The Role o f Racial Stereotypes,
41 Am. J. Pol. Sci. 375 (1997).....................................  15

Sherri Lynn Johnson, Racial Imagery in Criminal
Cases, 67 Tul. L. Rev. 1739 (1993)............................... 8

Winthrop D. Jordan, White Over Black: American
Attitudes Toward the Negro, 1550-1812 (1968).........  10

Randall L. Kennedy, Race, Crime, and the Law
(1997)................................................................  13, 14, 15

Randall L. Kennedy, Nigger: The Strange Career
o f a Troublesome Word (2003)......................................  9

National Jury Project, Jurywork (2004)......................  18, 19
Mark Peffley & Jon Hurwitz, The Racial Components 

o f “Race-Neutral” Crime Policy Attitudes, U.
Ky., Department Pol. Sci, Lexington (reprint)
(2002) .................................................................................................................... 15

Lincoln Quillian & Devah Pager, Black Neighbors,
Higher Crime? The Role o f Racial Stereotypes in 
Evaluations o f Neighborhood Crime, 107 Am.
J. Soc. 717(2001)..........................................................  14

Samuel R. Sommers & Phoebe C. Ellsworth, How 
Much Do We Really Know About Race And Juries?
A Review O f Social Science Theory And
Research, 78 Chi.-Kent L. Rev. 997
(2003)................................................................  14, 16, 18

Samuel R. Sommers & Phoebe C. Ellsworth, White Juror 
Bias, An Investigation o f Prejudice Against Black 
Defendants in the American Courtroom, 1 
Psych., Pub. Pol’y, & L. 201 (2001)............................  18

TABLE OF AUTHORITIES—Continued
Page



VI

Laura T. Sweeney & Craig Haney, The Influence o f 
Race on Sentencing: A Meta-Analytic Review o f 
Experimental Studies, 10 Behav. Sci. & L. 179 
(1992).............................................................................  16

Mark Twain, The Adventures o f Huckleberry Finn
(1885).............................................................................  10

James M. Washington, ed., A Testament o f Hope:
The Essential Writings and Speeches o f Martin 
Luther King, Jr. 293 (1986).........................................  10

Forrest G. Wood, Black Scare: The Racist Response
to Emancipation and Reconstruction (1970)..............9-10

TABLE OF AUTHORITIES—Continued
Page



STATEMENT OF INTEREST OF AMICUS CURIAE

The NAACP Legal Defense and Educational Fund, Inc. 
(LDF) is a non-profit corporation formed to assist African 
Americans in securing their rights by the prosecution of 
lawsuits. Its purposes include rendering legal aid without 
cost to African Americans suffering injustice by reason of 
race who are unable, on account of poverty, to employ legal 
counsel on their own. For many years, its attorneys have 
represented parties and it has participated as amicus curiae in 
this Court, in the lower federal courts, and in state courts.1

The LDF has a long-standing concern with the influence of 
racial discrimination on the criminal justice system in 
general, and on jury selection in particular. LDF represented 
the defendants in, inter alia, Swain v. Alabama, 380 U.S. 202 
(1965), Alexander v. Louisiana, 405 U.S. 625 (1972), and 
Ham v. South Carolina, 409 U.S. 524 (1973); pioneered in 
the affirmative use of civil actions to end jury discrimination, 
Carter v. Jury Commission, 396 U.S. 320 (1970), Turner v. 
Fouche, 396 U.S. 346 (1970); and appeared as amicus curiae
in Johnson v. California, 540 U.S. __, 125 S. Ct. 1141
(2005), Miller-El v. Cockrell, 537 U.S. 322 (2003), Georgia 
v. McCollum, 505 U.S. 42 (1992), Edmonson v. Leesville 
Concrete Co., 500 U.S. 614 (1991), and Batson v. Kentucky, 
476 U.S. 79(1986).

SUMMARY OF THE ARGUMENT

“Sometimes those niggers will start hollering and cursing. 
And pretty soon they’ll start shooting. One of them stays in

1 Pursuant to Supreme Court Rule 37.6, amicus states that no 
counsel for a party authored this brief in whole or in part and no 
person, other than amicus or its counsel, made a monetary contri­
bution to the preparation or submission of the brief. This brief is 
submitted with the consent of all parties, whose letters of consent 
have been lodged with the Clerk.



2

jail all the time.”2 These are the words of Victor Walther, 
who sat in judgment of Petitioner—an African American—in 
his capital case in Navarro County, Texas, on an all-white 
jury that ultimately sentenced him to death. Petitioner’s trial 
counsel knew during jury voir dire that Walther was “proba­
bly * * * racially prejudiced,”3 but nevertheless allowed 
Walther to sit on the jury without inquiry as to whether 
Walther could fairly determine Petitioner’s sentence. The 
history of racial stereotypes in this country tracing back to 
the days of slavery, and the special vigilance afforded by the 
courts to issues of racial bias, dictate that Petitioner’s coun­
sel’s failure to question Walther on his known racial preju­
dices could not have been “sound trial strategy” under 
Strickland v. Washington, 466 U.S. 668 (1984).

The Court has time and again recognized that juries are the 
primary means by which to protect our citizenry from the 
State’s misuse of its awesome powers to confine or execute 
its citizens. Batson, 476 U.S. at 86 (“The petit jury has 
occupied a central position in our system of justice by 
safeguarding a person accused of crime against the arbitrary 
exercise of power by prosecutor or judge.”). The jury also 
serves as the defendant’s primary protection against the 
invidious influence of race in deciding whether a defendant 
lives or dies. Strauder v. West Virginia, 100 U.S. 303, 309 
(1879). In light of the critical function of the jury in capital 
cases and the “unique opportunity for racial prejudice to 
operate but remain undetected,” in the jury box, the Court 
has recognized the importance of ferreting out racial preju­
dice during the voir dire process in capital cases involving 
African-American defendants. Turner v. Murray, 476 U.S. 
28, 35-36 (1986). The concerns that have led the Court to 
afford this special vigilance in capital cases involving 
African Americans are heightened in cases such as this one,

2 Pet. App. 8 at 2.

3 Pet. App. 10 at 215.



3

where Petitioner’s attorney knew that the prospective juror 
potentially harbored racial prejudice.

It is within this legal framework that Walther’s use of the 
epithet “nigger” cannot—as the State has attempted to do in 
this case—be dismissed simply as an unpleasant but harmless 
slur. The word embodies a long history of racial oppression. 
Studies on the epithet have found that its use is closely 
associated with perceptions of lawlessness and hostility in 
African Americans, particularly African-American men. 
These perceptions can become reality in the minds of racially 
biased individuals like Victor Walther who link the epithet 
(“niggers”) to violence (“pretty soon they’ll start shooting”).

Such stereotypes are rooted in our history and are perpetu­
ated in modem culture, and neither the law nor any mini­
mally adequate defense counsel can assume that the Victor 
Walthers of the world simply cast those stereotypes aside 
when they step into the jury box. Indeed, mock juror studies 
for example indicate that white jurors mete out harsher 
punishments to African-American defendants and suggest 
that stereotypes of black criminality and racial prejudice 
influence those judgments.

The Petition filed in this case demonstrates that the lower 
court’s decision is inconsistent with this Court’s rulings 
directed at minimizing the threat of racial bias in the court­
room in capital cases. As Amicus describes herein, the 
protections that flow from these rulings—and their relevance 
to this case—are best understood in the context of the history 
of racial prejudice underlying the malicious epithet “nigger” 
and the resultant stereotypes linking African-American men 
to crime. Amicus urges the Court to consider these factors 
and grant review of the lower court’s ruling or, in the alterna­
tive, summarily reverse the judgment below.



4

ARGUMENT

I. PETITIONER’S COUNSEL’S DECISION TO 
PLACE A “PROBABL[E]” RACIST ON A DEATH 
PENALTY JURY WAS NOT A DEFENSIBLE 
STRATEGIC CHOICE UNDER ANY STANDARD.

Juror Walther freely used the racial epithet “nigger”—a 
word freighted with more harsh racial animus than any other 
in our language. Walther equally freely offered observations 
about his “nigger” neighbors and their purportedly criminal 
bent. Petitioner’s trial counsel had known Walther for 
decades, and he knew Walther “probably” was a racist. Pet. 
App. 10 at 215. Yet he stood by while Walther was impan­
eled on an all-white jury that ultimately sentenced Petitioner 
to die. That was not a constitutionally defensible strategic 
choice.

As we discuss in this section, cases implicating race and 
racial animus carry a certain fundamental import; and cases 
implicating the death penalty are also subject to the most 
exacting scrutiny. These two features—race and death—are 
particularly relevant in determining the constitutionality of a 
court or counsel’s decisions in the context of voir dire, when 
the defendant’s Sixth Amendment rights are at risk. This 
Court’s precedents reveal three factors that generally deter­
mine the degree of duty charged (and deference given) to 
counsel in conducting voir dire: (1) the presence of a racial 
issue in the case; (2) the threatened punishment; and (3) the 
indicia of prejudice or potential bias present at the time of 
questioning. As these often-interrelated factors increase in 
magnitude, the power of court or counsel to unilaterally 
decide what to ask prospective jurors should—and does— 
diminish.

This case implicates all three factors at their zenith. It 
involves the murder of a white man by a black man; the 
attendant punishment of death; and his lawyer’s personal 
knowledge that Walther was “probably” racially prejudiced.



5

Petitioner’s attorney was under a constitutional obligation to 
inquire more deeply into Walther’s prejudices rather than 
brushing off the issue.

This Court has long recognized that “it is the jury that is a 
criminal defendant’s fundamental ‘protection of life and 
liberty against race or color prejudice.’” McCleskey v. Kemp, 
481 U.S. 279, 310 (1987) (quoting Strauder, 100 U.S. at 
309). The Court has stated that “[o]ne of the goals of our 
jury system is ‘to impress upon the criminal defendant and 
the community * * * that a verdict * * * is given in accor­
dance with the law by persons who are fair.’ * * * The need 
for public confidence is especially high in cases involving 
race-related crimes.” McCollum, 505 U.S. at 49 (quoting 
Powers v. Ohio, 499 U.S. 400, 413 (1991)). Consequently, 
“a defendant has the right to an impartial jury that can view 
him without racial animus, which so long has distorted our 
system of criminal justice.” McCollum, 505 U.S. at 58. If a 
jury is to fulfill its duty as a “prized shield against oppres­
sion,” Glasserw. United States, 315 U.S. 60, 84 (1942), and 
the defendant is to reap the benefit of its “common-sense 
judgment,” Duncan v. Louisiana, 391 U.S. 145, 156 (1968), 
it must be untainted by bias. “We have, accordingly, held 
that there should be a mechanism for removing those on the 
venire whom the defendant has specific reason to believe 
would be incapable of confronting and suppressing their 
racism.” McCollum, 505 U.S. at 58.

Peremptory challenges are one such mechanism. See, e.g., 
Batson v. Kentucky, A16 U.S. 79 (1986). Voir dire is an­
other; it plays a critical function in ensuring that a defen­
dant’s Sixth Amendment right to an impartial jury will be 
honored. “Without an adequate voir dire the trial judge’s 
responsibility to remove prospective jurors who will not be 
able impartially to follow the court’s instructions and evalu­
ate the evidence cannot be fulfilled.” Rosales-Lopez v. 
United States, 451 U.S. 182, 188 (1981) (italics omitted). 
“[Ljack of adequate voir dire impairs the defendant’s right to



6

exercise peremptory challenges where provided by statute or 
rule, as it is in the federal courts.” Id.

Traditionally, the Court has permitted both courts and 
counsel to exercise wide latitude over the questions asked 
during voir dire. See Mu ’Min v. Virginia, 500 U.S. 415, 424 
(1991). This latitude begins to narrow when a case is infused 
with racial issues. Id. (“[T]he possibility of racial prejudice 
against a black defendant charged with a violent crime 
against a white person is sufficiently real that the Fourteenth 
Amendment requires that inquiry be made into racial preju­
dice”). Where the defendant is charged with a capital crime 
against a person of a different race, the Court has explicitly 
recognized the need for questioning of potential jurors on the 
issue of racial prejudice. See Turner v. Murray, 476 U.S. at 
33-35.

The death penalty demands a rigorous approach to jury 
selection as well. A criminal defendant’s constitutional 
rights take on greater significance as punishment increases in 
magnitude. Cf. United States ex rel. Goldsby v. Harpole, 263 
F.2d 71, 83 (5th Cir. 1959) (“When not merely the client’s 
property but his life is at stake, it is all the more essential that 
an attorney should advise with his client before waiving 
objections to a trial jury unconstitutionally and discriminato- 
rily constituted.”). And this Court has repeatedly observed 
that death penalty cases demand additional safeguards. 
California v. Ramos, 463 U.S. 992, 998-999 (1983) (“The 
Court * * * has recognized that the qualitative difference of 
death from all other punishments requires a correspondingly 
greater degree of scrutiny of the capital sentencing determi­
nation.”).

Perhaps the most important factor in determining the obli­
gations incumbent upon the court and counsel during voir 
dire is the strength of any inference or evidence that a juror 
may harbor prejudice. This Court has recognized in a variety 
of contexts that more may be required of a court and counsel



7

where circumstances point to a greater possibility of bias. 
See, e.g., Mu'Min, 400 U.S. at 429 (noting that pretrial 
publicity may result in an inference that a prospective juror’s 
comments that he could be impartial should not be believed); 
see also Hughes v. United States, 258 F.3d 453, 458-459 (6th 
Cir. 2001) (faulting court and counsel’s failure to “conduct 
the most rudimentary inquiry” of a potential juror “to inquire 
further into her statement that she could not be fair”). Such 
case law suggests that when a lawyer is on notice of a juror’s 
actual or potential bias—when direct or circumstantial 
evidence suggests that a juror’s ability to judge impartially 
may be suspect—counsel must take the next step and inquire 
into that prejudice.

If bias is presumed where the prospective juror has been 
exposed merely to certain information about a crime prior to 
the trial—no matter how strongly that person insists he can 
be impartial—there should be little reason to doubt that 
similar circumstances warrant a presumption of bias in the 
context of known racial prejudice. This conclusion is par­
ticularly true given the virulence of racial prejudice and its 
pernicious history in this country.

This case accordingly represents a unique confluence of 
three circumstances that trigger enhanced duties on the part 
of court and counsel to ensure that the defendant’s rights are 
preserved: A violent crime committed by a member of one 
race against another and for which a sentence of death was 
imposed, and the presence of direct knowledge by defense 
counsel of the probable racial prejudice of a prospective 
juror.

The Turner Court was concerned with the unacceptable 
risk of prejudice infecting the jury’s deliberations based on 
the “conjunction” of similar factors: “the fact that the crime 
charged involved interracial violence, the broad discretion 
given the jury at the death-penalty hearing, and the special 
seriousness of the risk of improper sentencing in a capital



8

case.” 476 U.S. at 37. The Court concluded in Turner that 
the trial court had erred in not permitting questioning on the 
topic of racial prejudice. What sets this case apart from 
Turner—indeed, it makes Turner look mild—is the final 
factor present here: Petitioner’s attorney knew Walther
“probably” was a racist. Where, as here, a known risk exists 
of bias, there is cause to engage in a close examination aimed 
at the source of this prejudice. And there is simply no 
strategic justification for impaneling a prejudiced juror in an 
interracial death penalty case without questioning him on the 
subject of race. Petitioner’s constitutional right to an impar­
tial jury demands more than that.

II. JUROR WALTHER’S VIEWS OF BLACK CRIMI­
NALITY NECESSARILY INFECTED THIS IN­
TERRACIAL DEATH PENALTY CASE.

In an affidavit submitted during habeas proceedings, 
Walther stated:

There are some niggers who live [a] couple blocks over. 
They deal crack over there. Sometimes those niggers will 
start hollering and cursing. And pretty soon they’ll start 
shooting. One of them stays in jail all the time. He’ll be 
in jail a few days and then he’ll be right back out. A 
couple of ‘em shot each other last June Teenth over a 
card game. [Pet. App. 8 at 2.]

Walther’s statement connects in just a few words “some 
niggers” to drug dealing, violence, and general criminality. 
As discussed in greater detail below, such stereotypes have a 
long history in American race relations and criminal justice. 
See Sherri Lynn Johnson, Racial Imagery in Criminal Cases, 
67 Tul. L. Rev. 1739, 1750-60 (1993) (discussing prosecuto­
rial use of race-based stereotypes of blacks as more violent or 
involved in the drug trade). Thus, Juror Walther closely 
associated the venomous epithet he regularly used to describe 
individuals of Petitioner’s race with stereotypes of black 
criminality and propensity for violence having dark historical



9

roots in American life. Walther’s presence on the jury 
plainly begs the question whether he could possibly evaluate 
Gary Sterling’s guilt or innocence—and whether to spare his 
life or put him to death—apart from Sterling’s status as 
“some nigger.”

A. “Nigger” Is Historically and Inextricably Linked 
To Racial Prejudice.

The State of Texas contended below that the word “nigger” 
does not signal racial animus, and that Petitioner was operat­
ing under “the mistaken premise that mere use of the word 
‘nigger’ makes one a racist.” State’s Appeal Br. 8. The 
State’s contention that Walther’s reference to blacks as 
“niggers” was perhaps “ugly,” id. at 16, but not racist, is 
fundamentally inconsistent with the history of that epithet 
and with the significance juror Walther attached to it.

“Nigger’” s history is inexorably connected with America’s 
own history of racial oppression and exclusion, because its 
use was and is so often connected to efforts to deny political 
and social equality to blacks in American life.4 “Nigger”

4 Whites and other non-blacks who have joined blacks’ struggle 
for equal rights have long been scorned in American history as 
“nigger lovers.” Randall L. Kennedy, Nigger: The Strange Career 
o f a Troublesome Word 21 (2002). After President Theodore 
Roosevelt invited civil rights leader Booker T. Washington to the 
White House for dinner, Senator Benjamin Tillman of South 
Carolina is reported to have said, “The action of President Roose­
velt in entertaining that nigger will necessitate our killing a 
thousand niggers in the South before they will learn their place 
again.” Id. at 8. And Abraham Lincoln’s political opponents 
crafted a “Black Republican Prayer” which ended with the follow­
ing benediction:

May the blessings of Emancipation extend throughout our un­
happy land, and the illustrious, sweet-scented Sambo nestle in 
the bosom of every Abolition woman * * * and the distinction 
of color be forever consigned to oblivion, and that we may live 
in bonds of fraternal love, union, and equality with the Al-



10

conjures up the exclusion of blacks from the family of 
mankind, as sharply rendered by Mark Twain, and the denial 
of full participation in American democratic, social, and 
economic life, as chronicled by Martin Luther King.5 See 
Michele Goodwin, Nigger and the Construction o f Citizen­
ship, 76 Temp. L. Rev. 129 (2003) (arguing that “nigger” 
affected America’s creation of citizenship). In short, “nig­
ger” marks blacks as “other,” outside the American political 
and social community. It is powerful verbal shorthand for a 
history of exclusion and degradation, not long ago sanctioned 
by law, that has attended the black American experience. See 
A. Leon Higginbotham, Jr., In the Matter o f Color: Race and 
the American Legal Process, The Colonial Period (1978); 
George M. Frederickson, The Black Image in the White 
Mind: The Debate on Afro-American Character and Destiny, 
1817-1914 (1971); Winthrop D. Jordan, White Over Black: 
American Attitudes Toward the Negro, 1550-1812 (1968). 
“Nigger”’s use as a signifier of the political, social, and

mighty Nigger, henceforth, now and forever. Amen. [Forrest 
G. Wood, Black Scare: The Racist Response to Emancipation 
and Reconstruction 84 (1970).]

5 The Adventures o f Huckleberry Finn contains a scene in which 
Tom’s Aunt Sally learns of a steamboat explosion. She exclaims, 
“Good gracious! Anybody hurt?” Tom replies, “N o’m. Killed a 
nigger.” Aunt Sally responds, “Well, it’s lucky, because some­
times people do get hurt.” In his damning critique o f American 
race prejudice, the “Letter from Birmingham City Jail,” Martin 
Luther King, Jr. writes: “[W]hen you are humiliated day in and 
day out by nagging signs that read ‘white’ and ‘colored’; when 
your first name becomes ‘nigger,’ your middle name becomes 
‘boy’ (however old you are) and your last name becomes ‘John’;
* * * * when you are forever fighting a degenerating sense of 
‘nobodiness’; then you will understand why we feel it difficult to 
wait.” James M. Washington, ed., A Testament o f  Hope: The 
Essential Writings and Speeches o f Martin Luther King, Jr. 293 
(1986).



physical exclusion of blacks cannot be denied by those who 
use it or hear it.

In light of the foul history of the epithet “nigger,” courts 
have carefully protected the integrity of the judicial process 
against racial animus springing from that and similarly 
pejorative words. For example, in United States v. Brown, 
539 F.2d 467, 468 (5th Cir. 1976), the Fifth Circuit vacated 
the conviction of H. Rap Brown after it surfaced that prior to 
trial, an attorney had overheard the trial judge say “that he 
was ‘going to get that nigger.’” Id. The court of appeals 
explained: “Impartiality finds no room for bias or prejudice. 
It countenances no unfairness and upholds no miscarriage of 
justice. Bias and prejudice can deflect the course of justice 
and affect the measure of its judgments.” Id. at 469.

Analogously, in United States v. Heller, 785 F.2d 1524 
(11th Cir. 1986), the Eleventh Circuit reversed the conviction 
of a Jewish defendant after allegations of jury misconduct 
surfaced. Several jurors had made ethnic slurs and jokes 
during the defendant’s trial. In reversing, the court stated 
that “prejudice in a judicial context * * * prevents the impar­
tial decision-making that both the Sixth Amendment and 
fundamental fair play require.” Id. at 1527-28.

State courts also have guarded the fairness of trial proceed­
ings from the effects of racial and ethnic bias in the unusual 
circumstance where such bias has been introduced by the 
defendant’s counsel against the defendant himself. In Ex 
parte Guzmon, 730 S.W.2d 724 (Tex. Crim. App. 1987), a 
death penalty appeal, the court considered an ineffective- 
assistance claim where the defense attorney had repeatedly 
referred to his client as a “wetback.” The court stated that 
the epithet “was no doubt particularly harmful when ad­
dressed to these jurors, some of whom had expressed doubts 
that such an illegal alien was entitled to all the protections 
United States citizens are afforded.” Id. at 733. The defense 
counsel found to have rendered ineffective assistance in that

11



case was none other than Robert Dunn—Petitioner’s trial 
counsel.

In addition to finding that the use of racial epithets by 
actors in the trial process undermines the fairness of the 
process, courts have pointed out more particularly the 
connection of the epithet “nigger” to racist practices, and 
have determined that its use is evidence of discriminatory 
animus. In Brown v. East Mississippi Electric Power, 989 
F.2d 858 (5th Cir. 1993), for example, the Fifth Circuit 
addressed a black plaintiffs claim that he had been fired 
from his job on the basis of race. Plaintiff had produced 
uncontradicted evidence that his supervisor had used the term 
“nigger” on several occasions to refer to him and to blacks in 
general. The court rejected the defendant’s argument that the 
use of the word “nigger” was an innocuous habit:

[T]he term ‘nigger’ is a universally recognized oppro­
brium, stigmatizing African Americans because of their 
race. That [the defendant] usually was circumspect in 
using the term in the presence of African Americans un­
derscores that he knew it was insulting. Nonetheless, he 
persisted in demeaning African Americans by using it 
among whites. This is racism.” [Id. at 861 (emphasis 
added).]

See also McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116 
(9th Cir. 2004) (reversing summary judgment against a 
plaintiff who had alleged use of the epithet in the workplace, 
and noting that “[i]t is beyond question that the use of the 
word ‘nigger’ is highly offensive and demeaning, evoking a 
history of racial violence, brutality, and subordination. This 
word is perhaps the most offensive and inflammatory racial 
slur in English, a word expressive of racial hatred and 
bigotry”) (internal quotations and citation omitted).6

12

6 See also Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 
668, 675 (7th Cir. 1993) ( “Perhaps no single act can more quickly



13

B. Stereotyped Perceptions of African-American 
Criminality are Entrenched In Our Society.

The stereotype of African Americans as violence-prone is 
prevalent in our culture. There is a widespread and stubborn 
belief that most crime in the United States is committed by 
African Americans. See, e.g., Donna Coker, Foreword: 
Addressing the Real World o f Racial Injustice in the Crimi­
nal Justice System, 93 J. Crim. L. & Criminology 827, 864 
(2003). This misperception of black criminality has exten­
sive historical roots; and in modem American society, the 
stereotype is perpetuated and reinforced in more subtle ways.

The perception that African Americans have a propensity 
toward criminal behavior can be traced back to slavery: 
“Some defenders of slavery pointed to blacks’ alleged racial 
propensity to engage in crime as a justification for enslaving 
them.” Randall Kennedy, Race, Crime, and the Law 13 
(1997). Criminal laws reinforced the perception by prohibit­
ing slaves from engaging in certain activities and by impos­
ing harsher criminal penalties on black slaves than on white 
persons. Id. at 76-77? 7

alter the conditions o f employment and create an abusive working 
environment than the use of an unambiguously racial epithet such 
as ‘nigger’ by a supervisor in the presence o f his subordinates.”); 
Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. o f  Educ., 
926 F.2d 505, 513-514 (6th Cir. 1991) (the epithet, “even in jest, 
could be evidence of racial antipathy”) (citations omitted); Kendall 
v. Block, 821 F.2d 1142 (5th Cir. 1987) (evidence that supervisor 
called black employee “nigger” was, if credible, direct evidence of 
discriminatory motivation).

7 “Slaves * * * were subjected to capital punishment for a wider 
range o f crimes than any other sector of the population. Virginia, 
for instance, defined seventy-three capital crimes applicable to 
slaves but only one— first-degree murder— applicable to whites.” 
Randall Kennedy, Race, Crime, and the Law at 77.



14

The view of African Americans as predisposed to crime 
continued through the post-Civil War period, borne out by 
discriminatory laws and enforcement geared toward disen­
franchising blacks. For example, some Southern states 
enacted laws specifically intended to preclude blacks from 
the voting rolls; the provisions were facially neutral as to 
race, but made crimes of offenses that lawmakers believed 
blacks were more likely to commit. Id. at 87; see also 
Hunter v. Underwood, 471 U.S. 222 (1985). During segre­
gation, criminal laws were used “to impose a stigmatizing 
code of conduct upon Negroes, one that demanded exhibi­
tions of servility and the open disavowal of any desire for 
equality.” Kennedy, Race, Crime, and the Law at 88. One 
net effect of these discriminatory practices was the perpetua­
tion of a link between blacks and criminal behavior.

Modem day stereotypes of black criminality persist. A 
number of studies evidence the stereotyped perception of 
African Americans as hostile, violent, and prone to criminal­
ity. See, e.g., Lincoln Quillian & Devah Pager, Black 
Neighbors, Higher Crime ? The Role o f Racial Stereotypes in 
Evaluations o f Neighborhood Crime, 107 Am. J. Soc. 717, 
721-722 (2001) (citations omitted); Patricia G. Devine & 
Andrew J. Elliot, Are Racial Stereotypes Really Fading? The 
Princeton Trilogy Revisited, 21 Personality & Soc. Psychol. 
Bull. 1139, 1146 (1995); Patricia G. Devine, Stereotypes and 
Prejudice: Their Automatic and Controlled Components, 56 
J. Personality & Soc. Psychol. 5, 8, 15 (1989). Researchers 
also have found that white jurors stereotype white criminals 
as engaging in white collar crimes (e.g., embezzlement) and 
stereotype black criminals as engaging in more violent 
crimes (e.g., assault and robbery). Samuel R. Sommers & 
Phoebe C. Ellsworth, How Much Do We Really Know About 
Race And Juries? A Review O f Social Science Theory And 
Research, 78 Chi.-Kent L. Rev. 997, 1007-08 (2003) (dis­
cussing studies by other researchers); see also William J. 
Bowers, et al., Death Sentencing in Black and White: An



15

Empirical Analysis o f the Role o f Jurors' Race and Jury 
Racial Composition, 3 U. Pa. J. Const. L. 171, 179 (2001) 
(citing research supporting the conclusion that “whites view 
certain violent offenses—muggings and assaults—as ‘black 
crimes.’”).

The link between race and crime likewise is reinforced in 
the media and in politics. See, e.g., Mark Peffley and Jon 
Hurwitz, The Racial Components o f ‘Race-Neutral’ Crime 
Policy Attitudes, U. Ky. Department Pol. Sci, Lexington 
(REPRINT) (2002) at 4, 13 (citing the media’s overrepresen­
tation of African Americans as perpetrators of violent crime 
and of racially “coded” political rhetoric); Randall Kennedy, 
Race, Crime, and the Law at 13. African Americans are 
“more likely than whites to be portrayed as criminal suspects 
in news stories about violent crime * * * [and] more likely to 
be depicted as physically threatening.” Jon Hurwitz and 
Mark Peffley, Public Perceptions o f Race and Crime: The 
Role o f Racial Stereotypes, 41 Am. J. Pol. Sci. 375, 376-377 
(1997).

The perception of black criminality remains strong in our 
society, fueled by deeply rooted stereotypes and reinforced 
through societal stimuli. Such racial biases can infect the 
judgment of jurors in interracial capital cases.

C. Racially Biased Perceptions Of Blacks’ Propensity 
Toward Violence Can Taint Jury Decisionmaking.

Racially biased views of African-American criminality can 
infect juror decisionmaking and undermine a defendant’s 
right to an impartial jury. Research of punitive attitudes 
towards criminals, for example, indicates that white support 
for harsher punishments, including capital punishment, of 
African-American defendants is influenced by racial preju­
dice. See, e.g., Steven E. Barkan & Steven F. Cohn, Racial 
Prejudice and Support for the Death Penalty by Whites, 31 J. 
Res. Crime & Delinquency 202, 202-203 (1994); Steven F. 
Cohn, et al., Punitive Attitudes Toward Criminals: Racial



Consensus or Racial Conflict?, 38 J. Soc. Probs. 287, 294 
(1991).

Several mock jury studies underscore the pervasive threat 
of racial bias. See, e.g., Hurwitz & Peffley, Public Percep­
tions o f Race and Crime, 41 Am. J. Pol. Sci. at 379; Som­
mers & Ellsworth, How Much Do We Really Know About 
Race And Juries? A Review o f Social Science Theory and 
Research, 78 Chi.-Kent L. Rev. at 1006-08 (discussing 
studies by other researchers). For example, one analysis of 
mock jury decisions revealed that racial bias “exerted an 
overall significant effect on the sentencing decisions of mock 
jurors. That is, Black defendants were punished significantly 
more harshly than their white counterparts.” Laura T. 
Sweeney & Craig Haney, The Influence o f Race on Sentenc­
ing: A Meta-Analytic Review o f Experimental Studies, 10 
Behav. Sci. & L. 179, 190 (1992). The research “suggests 
that racially discriminatory sentencing is quite specific and 
focused; * * * [and] appears to result from a specific punitive 
reaction to crimes committed by members of another race 
against persons from one’s own.” Id. at 191-192. Moreover, 
mock jury studies of capital sentencing generally indicate 
that “white mock jurors have the strongest tendency to 
impose death as punishment in cases where the defendant is 
black and the victim is white.” Bowers, et al., Death Sen­
tencing in Black and White, 3 U. Pa. J. Const. L. at 184.

Mock jury trials likewise indicate that black defendants are 
seen as more likely to commit violent crimes in the future. 
Hurwitz & Peffley, Public Perceptions o f Race and Crime, 
41 Am. J. Pol. Sci. at 379. To this point, data from the 
Capital Jury Project’s8 interviews with former jurors in 
capital cases revealed:

16

8 The Capital Jury Project (CJP) is an ongoing research program 
examining capital juror decisionmaking, including the risk of 
arbitrariness in exercising capital sentencing discretion. The 
project is based on research by a consortium o f university-based



17

[W]hite jurors were more likely than their black counter­
parts to see the defendant as dangerous in the interracial 
[capital] cases. * * * [W]hite jurors believed that, in the 
absence of a death sentence, such defendants will usually 
be back on the streets far sooner than do black jurors. 
This may, in part, explain why they were especially likely 
to stress the defendant’s dangerousness as a reason for 
the death penalty.

William J. Bowers, et al., Crossing Racial Boundaries: A 
Closer Look at the Roots o f Racial Bias in Capital Sentenc­
ing When the Defendant is Black and the Victim is White, 53 
DePaul L. R. 1497, 1503 (2004).

Such findings are particularly relevant in Petitioner’s case, 
given that Texas criminal procedure rules require capital 
jurors to consider a defendant’s future dangerousness in their 
sentencing deliberations. One of the special issues put to the 
jury at the conclusion of Petitioner’s trial was: “Do you find 
from the evidence, beyond a reasonable doubt that there is a 
reasonable probability that the Defendant would commit 
criminal acts of violence that would constitute a continuing 
threat to society.” State’s Appeal Br. 30. As this result 
suggests, Juror Walther’s biased perception of African 
Americans as violence-prone almost certainly influenced 
Walther’s judgment that Petitioner presented a future dan­
ger—a factor directly bearing on Walther’s sentencing 
recommendation.

investigators with support from the National Science Foundation. 
Findings derive from interviews with former capital jurors and 
involve questions about the former jurors’ reasoning and influ­
ences in sentencing decisions. See Capital Jury Project website, at 
http://www.cjp.neu.edu (Apr. 19, 2005); see also William J. 
Bowers, The Capital Jury Project: Rationale, Design, and Preview 
o f Early Findings, 70 Ind. L. J. 1043, 1077-85 (1995) (describing 
objectives and design of the CJP).

http://www.cjp.neu.edu


18

Finally, even in the absence of overt prejudice, social sci­
ence evidence supports the view that subtle forms of racial 
bias nevertheless may impact social behavior. “[EJven 
Whites who sincerely believe themselves to be nonprejudiced 
often harbor anti-Black sentiment that influences their 
behavior.” Sommers & Ellsworth, How Much Do We Really 
Know About Race And Juries?, 78 Chi.-Kent L. Rev. at 1012 
(discussing studies by other researchers); see also National 
Jury Project, Jurywork § 2.6, at 2-11 (2004) (some “white 
prospective jurors who honestly believe that they can be fair 
in a case involving a black defendant * * * still will be 
influenced by the racially prejudiced assumption that blacks 
are more violent than whites.”). Consequently, even (/"juror 
Walther sincerely thought himself “nonprejudiced,”9 his 
underlying perceptions of African Americans—as evidenced 
by his use of what he acknowledged to be a racial slur 
“highly resented” by African Americans and his remarks 
about the criminal behavior of African Americans in his 
neighborhood—undoubtedly influenced his judgment.

D. A Known Risk Of Racial Bias By A Prospective 
Juror In A Capital Case Warrants Investigation 
By Defense Counsel.

Investigating a potential juror’s racial attitudes in voir dire 
may mitigate white juror bias. See, e.g., Samuel R. Sommers 
& Phoebe C. Ellsworth, While Juror Bias, An Investigation 
o f Prejudice Against Black Defendants in the American 
Courtroom, 7 Psychol., Pub. Pol’y, & L. 201, 222 (2001). At 
the same time, identifying a juror’s potential racial bias 
during voir dire requires careful questioning to the extent 
possible. A general question as to whether a juror has

9 During voir dire, “Walther stated that he could be fair to both 
sides” and “and denied that he was biased because of anything he 
knew about the case.” Pet. 3. In post-trial proceedings, Walther 
“denied that he was a racist, and stated that he thought skin color 
made no difference.” Id. at 5.



19

prejudices against African Americans that would affect the 
juror’s ability to be impartial is unlikely to be sufficient to 
prompt disclosure of the bias. One reason is the propensity 
of people to adopt behavior that portrays them in a positive 
light. See National Jury Project, Jurywork § 2.3, at 2-7 
(2004) (noting that prospective jurors generally “portray 
themselves as fair rather than unfair, honest rather than 
dishonest, and so on. In the context of the voir dire, fairness 
and impartiality are the most positive or socially desirable 
characteristics to be portrayed.”). This propensity is particu­
larly true when people are “questioned about racial atti­
tudes.” Id. (citations omitted). But where—as here—a 
defense attorney knows the juror “probably” is prejudiced, 
Pet. App. 10 at 215, careful voir dire is a necessity.

This Court in Turner v. Murray cautioned that due to “the 
range of discretion entrusted to a jury in a capital sentencing 
hearing, there is a unique opportunity for racial prejudice to 
operate but remain undetected.” 476 U.S. at 35. The Turner 
Court addressed the concern at the heart of this case—that of 
a juror harboring racial bias toward blacks and the likely 
influence of the juror’s biased attitude on the sentencing 
determination:

[A] juror who believes that blacks are violence prone or 
morally inferior might well be influenced by that belief in 
deciding whether petitioner's crime involved [] aggravat­
ing factors. * * * More subtle, less consciously held ra­
cial attitudes could also influence a juror’s decision in 
this case. Fear of blacks, which could easily be stirred up 
by the violent facts of petitioner’s crime, might incline a 
juror to favor the death penalty. [Id. at 35.]

The Court also emphasized that the potential for racial bias to 
taint death penalty proceedings is particularly troublesome 
“in light of the complete finality of the death sentence.” Id.

The critical question in Turner was whether there was an 
unacceptable risk of racial prejudice that may have infected



20

the sentencing determination. The Court found an unaccept­
able risk to exist, particularly “in light of the ease with which 
that risk could have been minimized.” Id. at 36. In Peti­
tioner’s case, the risk could easily have been minimized by 
defense counsel’s questioning of a juror who counsel knew 
“probably” harbored racial prejudice against African Ameri­
cans.

Defense counsel, of course, are not constitutionally re­
quired to engage in a fishing expedition to probe the uncon­
scious minds of each prospective juror in hope of uncovering 
racial biases. But surely defense counsel violate their duties 
to their clients if they fail to bring to light known risks of 
racial bias by a juror that have the potential to infect the 
juror’s capital sentencing determination.

CONCLUSION
For the foregoing reasons, as well as those in the petition, 

the petition should be granted.

Respectfully submitted,

Audrey j. Anderson 
Catherine E. Stetson* 
Mary L. Johnson 
Christopher R. Zaetta 
James S. Black, II 
Hogan & hartson l .l .p .
555 Thirteenth Street, N.W. 
Washington, D.C. 20004 
(202) 637-5491

Counsel for Amicus Curiae