Morris, Kenneth Wayne ( 2009 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-43,550-03

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EX PARTE KENNETH WAYNE MORRIS, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM HARRIS COUNTY

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   Price, J., filed a statement dissenting to the dismissal of the application in which Womack, J., joined.

DISSENTING STATEMENT  

This is the applicant's second subsequent post-conviction application for writ of habeas corpus, challenging his conviction for capital murder. ⁽¹⁾ He is scheduled to be executed this evening and has, accordingly, also filed a motion to stay his execution. While I am not pleased that he has waited until such a late hour to press his claim, I do believe that he has identified sufficient specific facts to establish that the claim he presently raises could not have been brought to us in his previous applications because the factual basis was not available on the dates he filed those applications. ⁽²⁾ Unlike the Court, I also believe that the applicant has made out a prima facie case for relief. Because the Court does not grant the applicant's requested stay of execution and remand the cause for further development, I respectfully dissent.

The applicant alleges that the District Attorney of Harris County based his decision to seek the death penalty in his capital murder case on the impermissible basis of his race. The applicant is an African-American. He was tried in 1993. He alleges that during an eight-year period of time that includes 1993, the Harris County District Attorney made the discretionary decision to pursue the death penalty against black defendants who had been indicted for capital murder at a rate that was 75% greater than the rate at which he sought the death penalty against white defendants who had been indicted for capital murder during the same period. The factual basis of his claim is a statistical study that was reported in the Summer 2008 volume of the Houston Law Review. ⁽³⁾ The applicant relies upon the Supreme Court's opinion in McCleskey v. Kemp. ⁽⁴⁾ In McCleskey, the Supreme Court rejected a claim that the whole judicial process unconstitutionally discriminated against African-Americans in the selection of those who would be prosecuted for capital murder, at least in part because so many "entities" are involved. ⁽⁵⁾ The applicant alleges that, because the Houston Law Review study is more focused on the discretionary decisions of a single district attorney, made over a distinct period of time, he has made out an equal protection claim under the Fourteenth Amendment under the criteria identified in McCleskey.

The Court does not dismiss the applicant's subsequent claim for failing to allege previously unavailable facts. Instead, the Court finds that the applicant fails to satisfy the judicial gloss we have de facto placed upon the statutory authorization of subsequent writs in capital cases, namely, that they must also "make a prima facie showing of possible merit." ⁽⁶⁾ I disagree. The applicant must show that the District Attorney's decisions to seek the death penalty against him had a discriminatory effect and was the product of a discriminatory purpose. ⁽⁷⁾ He makes a prima facie showing of discriminatory effect by virtue of his showing that between 1992 and 1999, the District Attorney sought the death penalty against blacks at 1.75 times the rate at which he sought the death penalty against whites. ⁽⁸⁾ It is less apparent that this statistical anomaly will also suffice, by itself, to make out a prima facie case for purposeful discrimination. ⁽⁹⁾ But the applicant alleges other instances of racial discrimination on the part of the Harris County District Attorney's Office during the same period of time that provides at least some inferential support to the claim that the decision to seek the death penalty against blacks at a disproportionate rate was racially motivated. I would give the applicant the benefit of the doubt on this question, grant his motion to stay the execution, and remand the cause to the convicting court for full evidentiary development under Article 11.071, Section 5(a)(1).

Because the Court will not, I respectfully dissent.

Filed: March 4, 2009

Do Not Publish

1. Tex. Code Crim. Proc. art. 11.071.

2. Id., § 5(a)(1).

3. Scott Phillips, Racial Disparities in the Capital of Capital Punishment, 45 Hous. L.R. 807 (2008). This article actually acknowledges that "the DA pursued death against black defendants and white defendants at the same rate," but goes on to contend that "controlling for confounders reveals disparities in the treatment of black defendants: the odds ratio for black defendant changes from .91 in the bivariate logistic model to 1.75 in the multivariate logistic model. The transformation occurs because black defendants committed murders that were less serious." Id. at 830.

4. 481 U.S. 279 (1987).

5. Id., at 294-95 & n.15.

6. See Ex parte O'Brien, 190 S.W.3d 677, 683 (Tex. Crim. App. 2006) (Cochran, J., concurring in dismissal).

7. McCleskey v. Kemp, supra, at 292.

8. See Hunter v. Underwood, 471 U.S. 222, 227 (1985) (state constitutional provision that caused disenfranchisement of blacks at 1.7 times the rate of whites provided "indisputable" proof of discriminatory impact).

9. The applicant cites Belmontes v. Brown, 414 F.3d 1094, 1127 (9^th Cir. 2005), for the proposition that his statistical evidence is forceful enough to constitute prima facie evidence of purposeful discrimination. As I read the Ninth Circuit's opinion, however, the court assumed without deciding that particular question.