Jackson v. State (Ex parte Jackson)

• Decision Date: 28 February 2020
• Docket Number: 1190138
• Citation: 305 So.3d 506 (Mem)
• Parties: EX PARTE Jamal O'Neal JACKSON (In re: Jamal O'Neal Jackson v. State of Alabama)
• Court: Alabama Supreme Court

305 So.3d 506 (Mem)

EX PARTE Jamal O'Neal JACKSON(In re: Jamal O'Neal Jackson

v.State of Alabama)

1190138

Supreme Court of Alabama.

February 28, 2020

Angela L. Setzer and John W. Dalton, Equal Justice Initiative, Montgomery; and Glenn L. Davidson, Mobile, for petitioner.

Submitted on certiorari petition only.

SELLERS, Justice.

WRIT DENIED. NO OPINION.

Bolin, Shaw, Wise, Bryan, Mendheim, and Stewart, JJ., concur.

Parker, C.J., and Mitchell, J., dissent.

MITCHELL, Justice (dissenting).

We are being asked in this petition for certiorari review to allow briefing on several issues related to Jamal O'Neal Jackson's capital-murder conviction and death sentence.¹ I believe that briefing is warranted with respect to only one issue, which is presented in Part IV of Jackson's petition.

In Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), the United States Supreme Court granted relief to a petitioner who claimed that the State violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), in his capital trial by using its peremptory strikes to remove black veniremembers based on their race. Among the evidence supporting a finding of discrimination in that case was the fact that "[o]nly 6% of white venire panelists, but 53% of those who were black," were questioned about their feelings on the death penalty using the so-called "graphic script," which described the method of execution in rhetorical and clinical detail, as opposed to the more generic description used with other veniremembers that omitted such details. 545 U.S. at 256, 125 S.Ct. at 2334. The United States Supreme Court provided this example of the graphic script used by the prosecution in Miller-El:

"I feel like you have a right to know right up front what our position is. Mr. Kinne, Mr. Macaluso and myself, representing the people of Dallas County and the state of Texas, are actively seeking the death penalty for Thomas Joe Miller–El ....

"We do that with the anticipation that, when the death penalty is assessed, at some point Mr. Thomas Joe Miller–El--the man sitting right down there-will be taken to Huntsville and will be put on death row and at some point taken to the death house and placed on a gurney and injected with a lethal substance until he is dead as a result of the proceedings that we have in this court on this case. So that's basically our position going into this thing."

545 U.S. at 256, 125 S.Ct. at 2334. Miller-El argued that those questions were designed to elicit plausibly neutral grounds for peremptory strikes of black veniremembers. 545 U.S. at 255, 125 S.Ct. at 2333.

In his petition, Jackson cites to the record in this case and claims that only 3% of white veniremembers, but 44% of black veniremembers, were questioned about their feelings on the death penalty from a voir dire script that echoed the one used in Miller-El. When questioning these potential jurors, the prosecution referred to the death penalty as a process where a defendant is "strapped down to a gurney" and "a needle gets put in [the defendant's arm] and then they are injected with drugs that stop their heart." Of the 15 veniremembers questioned in this way, 8 were removed for cause (7 of whom were black), with the remaining 7 removed by peremptory strikes (6 of whom were black). Jackson contends that this result supports an inference of racial discrimination.

Given that the voir dire in Jackson's trial apparently paralleled the voir dire in Miller-El in this respect, and given that the Court of Criminal Appeals did not discuss Miller-El in reaching its conclusion below that the record "contain[ed] no indication that the State engaged in disparate or desultory questioning of jurors," Jackson v. State, [Ms. CR-16-1039, Sept. 20, 2019] 303 So. 3d 846, –––– (Ala. Crim. App. 2019), I would allow briefing on the issue of whether Jackson's case should be remanded for a Batson hearing...