Peremptory strike of black woman was for cause

School zone drug case jury seated

Waco – A drug charge of cocaine with intent to deliver within 1,000 feet of a school zone could net a 20-year-old black man a sentence of as little as 5 years on probation, life, or 99 years in the penitentiary.

Ulis Alexander and a co-defendant whose case was severed and tried earlier had more than 4 grams of the drug and less than 200 grams when narcotics officers arrested them.

As members of the venire struggled to answer whether they could judge Mr. Alexander solely on the evidence and testimony to be presented, one woman said, “It's really hard because you are asking us to answer based on a hypothetical situation...I mean, 4 grams. I'm not even sure I know exactly how much that is...”

Prosecutor Gabrielle Massey replied, “It's as much as there is in a packet of Sweet'n Low. One packet is 1 gram, so 4 grams is 4 packets of Sweet'n Low. Two hundred grams is two hundred packets of Sweet'n Low.”

Life, the woman replied, is too much. Even 10 years, she reasoned, is too much.

Ms. Massey repeatedly instructed the prospective jurors to answer based on their feelings. “Just as we sit here, right now,” could they be open to rendering a verdict and a sentence based solely on the evidence and testimony presented.

She then asked if there was anyone on the panel who would “have a problem” with assessing the young man's punishment at life.

“Life!” exclaimed a woman.

Another woman blurted, “We don't even know if they had weapons...”

A young white man answered by saying, “I think life would be too much for any drug charge.”

“Not with just intent. If somebody got hurt, then yes, but not unless someone got hurt,” a lady said.

More than a dozen persons adamantly stated that they could not consider a life sentence for possession of cocaine with intent to deliver it within 1,000 feet of a school zone – in this case, a day care center.

A female teacher said, “It's really hard because I teach 18-year-olds and we have a 20-year-old in front of us. They do stupid stuff all the time.”

Asked to choose between a sentence that emphasizes punishment as the first choice, one that causes deterrence in the mind of a convicted offender, or is aimed at rehabilitation, an overwhelming majority indicated they would prefer to rehabilitate an offender as their number one choice.

Row by row, most of the venire seated for examination said, “Three” when asked to choose from a list displayed on a screen.

Defense attorney Jack Hurley cautioned the jurors the standard of proof is much higher in a criminal case.

“The only guideline you have is if it's beyond a reasonable doubt and much more than just clear and convincing.”

He asked a professional photographer if sometimes even photographic evidence leaves room for a reasonable doubt.

The man answered yes, and that he agrees that in some cases it requires expert interpretation of photographic evidence to arrive at proof beyond a reasonable doubt when viewing a photographic document such as the Zapruder film of the Kennedy assassination.

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He was eventually chosen to serve on the jury.

A young black woman told prosecutors that she could not consider handing down a sentence at “the higher end” of the range of punishment called for by the law's enhancement paragraphs as to location of the offense within 1,000 feet of a school.

The judge and the attorneys questioned her in the privacy of the judge's chambers.

When the final count came, she was not chosen to serve on an evenly balanced jury of 6 men and 6 women.

Whilethe jurors were out on break, Judge Matt Johnson held a “Batson”hearing on a motion by defense counsel, so called because of aSupreme Court holding in Batson v. Kentucky.(click here for a report on Batson v. Kentucky)

In that case, a Louisville prosecutor struck all black veniremen from the panel in a burglary case involving a black defendant. Mr. Batson appealed, and the U.S. Supreme Court held that when prospective jurors of color are stricken without cause, the attorney who made the peremptory challenge must give a reason.

Ms. Massey and her co-counsel said a criminal records check revealed that the young woman had served a probation term for the offense of injury to a child, though she was not convicted.

At the time of the Batson decision, Chief Justice Warren Burger dissented, saying the holding would force those who make peremptory strikes to justify their actions, thus nullifying the entire concept of peremptory strikes of proposed veniremen and turning all such challenges to those of cause.

Presentation of evidence and testimony will begin on Wednesday morning at 9 a.m.

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