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Race Bias Pervades Jury Selection

By STEVE MCGONIGLE and ED TIMMS / The Dallas Morning News

Editor's Note: This story first appeared in The Dallas Morning News on March 9, 1986.

Dallas County prosecutors routinely have excluded nine out of 10 blacks qualified to serve as jurors, perpetuating a decades-old pattern of racial discrimination on felony juries.

For four out of five black defendants, the selection process means that the constitutionally guaranteed impartial jury of their peers will be an all-white jury.

An eight-month investigation by The Dallas Morning News shows that prosecutors routinely manipulate the racial composition of juries through their use of peremptory challenges -- legal objections that allow lawyers to dismiss prospective jurors without explanation.

District Attorney Henry Wade, however, denied that his assistants exclude prospective jurors solely because of race, although he acknowledged that race may be a factor in whom they dismiss. Prosecutors, Wade said, act within the spirit of the adversary legal system to exclude anyone if they believe it will give their client -- the people of Dallas County -- "a fair trial."

While blacks comprise 18 percent of Dallas County's population, The News' analysis of 100 randomly selected felony trials found that fewer than 4 percent of jurors were black. In fact, the chance of a qualified black serving on a jury was 1-in-10, compared to a 1-in-2 chance for a qualified white.

Of those blacks struck from juries by peremptory challenges, the study found, 92 percent were barred by prosecutors. Blacks were excluded from juries at almost five times the rate of Anglo jury candidates and twice as often as Hispanic candidates.

Several legal experts characterized the findings as showing that Dallas County prosecutors are engaging in a "systematic exclusion' of black jury candidates that violates not only the defendants' right to a fair trial, but also the right of black citizens to participate equally in administering justice.

Defense attorneys contend prosecutors, while picking what they perceive will be the most conviction-prone juries , are ignoring their legal duty to uphold justice.

"I think that the black population, being a significant portion of Dallas County, is being totally discriminated against, and if I were a black person I'd be up in arms about it," said Dallas defense lawyer Kerry FitzGerald, head of the Texas Criminal Defense Lawyers Project.

Wade, Dallas County's chief prosecutor for 35 years, said that in some cases, he believes blacks may be "more likely' to convict defendants than those who actually are selected for juries.

"I'm frankly trying to get more on ( juries )," Wade said of blacks. "We don't take them on just to balance the jury."

City Council member Al Lipscomb, an outspoken critic of jury selection in Dallas County, charged that prosecutors are using "racist tactics' that alienate blacks from the judicial system.

"The criminal justice system itself should be indicted here in Dallas for tampering with the law, for tampering with the rights of citizens," said Lipscomb, one of two black members on the City Council.

The U.S. Supreme Court has ruled that systematic exclusion of an identifiable group of potential jurors is unconstitutional. It has reversed criminal convictions on such grounds -- including three cases from Dallas County in the 1940s in which racial bias in the selection of grand jurors was alleged.

FitzGerald contended that "stacking' the racial makeup of juries denies defendants of all races their constitutional right to have their fates determined by a representative cross section of the community.

Increasingly, similar arguments are being voiced throughout the nation. Supreme courts in four states and three of the 11 federal circuit courts of appeal, for example, have modified peremptory challenges because of concern about their racially biased use by prosecutors.

In Texas, prosecutors and defense lawyers each have 10 peremptory challenges in non-capital felony trials. The peremptory challenge allows lawyers to cull prospective jurors without having to give cause.

The U.S. Supreme Court is studying the "cross section argument' -- that defendants have a right to a trial by a representative section of the community -- in a Kentucky case to decide whether to modify a controversial 1965 decision that permits racially based peremptory challenges in individual cases.

The court stated in Swain v. Alabama that a prosecutor's use of his peremptory challenges is not unconstitutional unless he uses them "in case after case' to exclude blacks for no reason related to any trial strategy.

Critics of Swain contend that it gives prosecutors free rein to exclude blacks and imposes an impossible burden on defendants to prove unconstitutional exclusion because of the lack of records identifying potential jurors by race.

Arch McColl, president of the Dallas County Criminal Bar Association and Criminal Defense Lawyer, said The News' study exemplifies the type of race discrimination by state action that the high court consistently has condemned. It also demonstrates, McColl said, that prosecutors still adhere to jury selection guidelines suggested in a controversial 1969 paper.

The paper, written by then-Assistant District Attorney Jon Sparling, noted that minorities "almost always empathize with the accused' and therefore do not make good jurors for the prosecution.

"You are not looking for a fair juror," Sparling advised in the paper, which later was made part of a manual for Texas prosecutors, "but rather a strong, biased and sometimes hypocritical individual who believes that defendants are different from them in kind rather than degree."

Sparling, now a candidate for the Republican nomination for district attorney, said he was repeating "the conventional wisdom of the time' and that he no longer believes the guidelines are valid.

"I don't see that there is a good reason, and I don't think there's ever been a good reason, to systematically exclude blacks," Sparling said.

State District Judge Larry Baraka, a former prosecutor and the county's first black felony court judge, said The News' findings also demonstrate the failure of judges and defense lawyers to stop the exclusion of qualified blacks from jury service.

"I'm in shock," Baraka said. "I thought things had gotten a lot better, but apparently they haven't."

Wade said his assistants are trained to use their peremptory challenges to dismiss potential jurors they believe will empathize with the defendant. He said, however, that not all his assistants may use their peremptory challenges intelligently.

"You're trying to get either a completely unbiased juror or one that may be biased in favor of the state," said Wade, who is not seeking re-election. "And I suspect a lot of those (blacks) being cut would probably be better jurors than the ones they end up with."

Wade suggested that the high rate of black exclusion revealed in The News' study might stem from a disproportionately large number of blacks who express doubt about assessing maximum punishments or who have personal knowledge of criminal cases.

Wade said he was not convinced by The News' findings that his assistants engage in an illegal, systematic exclusion of blacks. "It indicates, maybe, that," he said.

The News' study is based on a computer analysis of Dallas County court records from 100 felony jury trials conducted during 1983 and 1984. The trials were selected at random from among the 1,036 trials held during that period.

The study examined records on 4,434 prospective jurors to determine the racial composition of juries , as well as the race of persons excluded from jury service by judges, prosecutors and defense lawyers.

Among the major findings of the study are:

* Juries in 72 of the 100 trials had no blacks. Of the 28 juries with black members, eight sat in judgment of black defendants while 20 decided the fate of Anglo and Hispanic defendants.

*Only two of 54 black male defendants included in the study were tried by juries that had black males. None of the seven male Hispanic defendants had a male Hispanic juror. All 38 Anglo defendants had a majority of Anglos on their juries.

*Of those blacks eliminated from jury service by peremptory challenges, 92 percent were struck by prosecutors. Four percent were excluded by defense lawyers, and 4 percent were dismissed by both sides. (Neither side knows the other's challenges until the judge receives them at the end of the preliminary examination.)

*Forty-seven Hispanics and 46 blacks served on juries , although the number of blacks summoned for jury duty was five times greater than the number of Hispanics.

*The percentage of blacks disqualified from jury service by judges was 1 1/2 times the percentage of disqualified Anglo or Hispanic jury candidates. However, blacks were excluded by prosecutors at almost five times the rate of Anglo jury candidates and twice as often as Hispanic candidates.

Prosecutors maintain that blacks themselves are partly responsible for their underrepresentation on felony juries because many disqualify themselves by saying they cannot judge others or consider a life sentence in cases where state law provides such punishment upon conviction.

Under Texas law, prospective jurors who say they cannot follow the law because of personal convictions or bias are disqualified for "cause."

After those disqualified are dismissed by the judge and both sides exercise their peremptory challenges, the first 12 people who remain are chosen to sit on the jury.

Peremptory challenges, in varying forms, have existed since the 13th century in English law. Historically, they were granted only to the defense in a criminal case. It has been in the last century in the United States that prosecutors were granted the right to exercise such challenges.

Defense lawyers argue that the use of peremptory challenges by Dallas County prosecutors to exclude blacks from juries stems from a racial stereotype that blacks are less inclined to convict and assess harsh penalties.

The stereotype has been passed from generation to generation of prosecutors and is particularly acute in Wade's office, defense lawyers say, because of its heavy emphasis on conviction rates as the means for earning promotion.

"You don't get hired unless you can play that game, and you certainly don't progress," said Vincent Perini, president of the Dallas Bar Association.

"What they are, really, is a bunch of SMU frat rats who are, you know, putting in a little postgraduate work down there kicking nigger ass before going on to the real world, the respectable world, the Dallas Country Club and the civil law firm," Perini said.

Norman Kinne, one of Wade's top three felony prosecutors and a member of his staff for 14 years, strongly denied Perini's characterization of the district attorney's staff.

"I can't believe the elected president of the Dallas Bar Association, in one fell swoop, manages to insult Southern Methodist University, fraternities, the black race, the Dallas Country Club and all civil law firms," Kinne said.

"However, we have tried over the years to provide, under Mr. Wade's guidance, professional prosecution of which all citizens may be proud. The record of this office and the quality of life in Dallas speaks for itself."

Baraka said stereotyping blacks as being less inclined to convict and assess tough sentences is "absurd."

"Skin color has nothing to do with the process of your damn brain," he said.

Defense lawyers say the practice of excluding blacks has diminished as the number of black prosecutors in Wade's office has increased, but they say that even black prosecutors succumb to the pressure to win at all costs. Eight of the 42 felony court prosecutors on Wade's staff are black.

Black lawyers, in particular, maintain that blacks, more than whites, have more reason to dislike criminals because of the higher crime rate in the black community.

"People, be they black, white or brown, are tired of crime; they're just tired of it," said Royce West, a black former prosecutor and a Democratic candidate for district attorney. "I think that when blacks and browns are systematically included on juries that they will give stiffer punishments."

Added defense lawyer Frank Hernandez: "Blacks, Mexican-Americans, women are just as tough, if not tougher, on a defendant who meets their minority status because they look upon that person with some sort of anger sometimes: "You are causing our whole group to be looked upon in this (bad) way."

"Just because you're black doesn't mean that if the defendant is black he gets away," said Hernandez. "Blacks don't like to be shot at in 7-Elevens any more than anybody else. Nor do Hispanics like to be burglarized."

The practice of prosecutors excluding blacks is so commonplace that defense lawyers say they routinely incorporate it into their trial strategy, rarely dismissing even prosecution-minded blacks, anticipating that prosecutors will use one of their peremptory challenges to do the job for them.

In The News' study, only 3.3 percent of the peremptory challenges exercised by defense lawyers were against blacks; 2.5 percent were against Hispanics. Ninety-four percent of the defense strikes were exercised against Anglos.

Dallas County Public Defender Ralph Taite said he routinely warns black clients that they will likely face "a white jury composed of housewives, sometimes rednecks, a lot of middle-class people who come from the suburbs, who have very little contact with them."

"There's not going to be anybody on that panel who's going to be able to say, "Yeah, that's the way it is over in South Oak Cliff, or South Dallas, or West Dallas," ' Taite said.

The only time blacks get on a jury , defense lawyers contend, is when there are too many white non-conformists who appear to prosecutors to be even worse risks.

"You get about 12 hippies and 14 painted-up women and a bunch of cab drivers and bartenders, and they (prosecutors) will be inclined to take chamber of commerce-type blacks -- you know, business-looking, good background with job," said veteran defense lawyer Charles Tessmer.

Defense attorney Richard Aguire said The News' findings that Hispanics serve on juries in a greater proportion than blacks confirms observations that prosecutors prefer Hispanics over black jurors.

The reason, Aguire said, is that prosecutors believe Hispanics will follow the lead of the Anglo majority on a jury. According to defense lawyers, prosecutors also believe that Hispanics will not favor black defendants because of what prosecutors perceive as historical antipathy.

Members of the judicial system argue the impact that exclusions of minorities have on sentencing, but many agree that the practice has a wide-ranging impact on the appearance of justice in Dallas County.

The threat of an all-white jury prompts some black defendants to waive their right to a trial and seek a plea bargain, lawyers say; other defendants change their pleas after learning that their jury contains no member of their race.

"Black people don't like to go to trial, regardless ... They don't believe they're going to get a fair trial from white people," explained defense lawyer Carl Gaines, the second black prosecutor hired by Wade.

Nor does the impact of black exclusion stop with defendants. Blacks called for jury service say the absence of blacks on juries causes them to question whether the judicial system is color-blind.

Many families of defendants leave the courtroom believing they have witnessed "white man's justice," said Peter Lesser, a defense attorney and a Democratic candidate for district attorney.

"I think that hurts the judicial system because then they're not concentrating on the fact that Johnny is a no-good scumbag who beat up this old lady, stole her purse, put her in the hospital and nearly killed her," Lesser said. "They're concentrating on the fact that, well, it's racist."

Jessica Guillory was one of nine black potential jurors summoned in February for a case involving a black woman charged with welfare fraud. Mrs. Guillory said she felt intimidated after watching the panel reduced to an all-white jury.

"It made me know that I better not ever get in trouble, that I don't feel like justice is all it's supposed to be," said Mrs. Guillory, one of six blacks dismissed by the state.

Baraka said blacks have been so conditioned to expect unfairness from the justice system that many do not consider jury service a possibility.

"As a defendant, we don't stand a chance. We're arrested more often, we're convicted more often, we receive more punishment. I mean, those are just the facts," Baraka said. "And as honest, law-abiding citizens who believe in God and the American way and pay taxes to send our children to school, we're still told we're not anything of value."

West, a defense attorney, said that even black professionals contemplate ignoring a jury summons, believing that because of their race, their opinions are not wanted by the justice system. "There's no sense going down there (to the courthouse) because they're going to strike them just because they are black," West said.

Still other blacks have a more visceral reason for avoiding jury service, according to state District Judge Ed Kinkeade, who oversees operation of the central jury pool.

"They tell me, "I'm afraid of the courthouse; nothing good happens at the courthouse, and I don't want to be a part of it," ' Kinkeade said.

Racial discrimination in jury selection in Dallas County dates back at least to the 1930s when riots narrowly were averted after blacks appeared at the courthouse, insisting they be considered for jury service. In 1938, a black college president was thrown head-first down the courthouse steps by two white men when he refused to leave the central jury room.

In the 1940s, the U.S. Supreme Court, in three separate cases, told Dallas County that its method of selecting grand jurors was unconstitutional because it intentionally excluded blacks.

Evidence presented to the Supreme Court in one Dallas case in 1942 showed that no black ever had served on the Dallas County grand jury . Two grand jury selection officials said they had not summoned any blacks because they knew of no qualified black in the county, which then had 55,000 black residents.

The law was then the most common form of exclusion. Most blacks were simply disqualified from jury service because, in order to be an eligible juror, a person must have paid a poll tax -- a required fee for voting -- and be a property owner.

Blacks who did qualify for jury service in Dallas County were rarely served with summonses; those who were served and appeared at the courthouse frequently were told by judges that their services were not needed.

Not until 1949 did a black serve on a trial jury in Dallas County, 81 years after blacks were granted full rights as citizens by the 14th Amendment to the U.S. Constitution.

When Wade took office as district attorney in January 1951, he said, he made it a priority of his office to prosecute more crimes against blacks, because of the higher crime rate in predominantly black neighborhoods. That policy has remained a priority ever since, Wade said.

However, Wade said he has never had a policy of preventing blacks from serving on juries and has seated blacks on juries as far back as the 1950s.

But state District Judge Jack Hampton, who served on Wade's staff from 1958 to 1962, recalled being reprimanded by Wade when he allowed a black woman to serve as a juror on a misdemeanor drunken driving case. The case ultimately ended in a mistrial because the woman could not reach a verdict.

"'If you ever put another nigger on a jury, you're fired,""' Hampton quoted Wade as saying. "That was the way things were back in 1958."

Said Wade: "That didn't happen, so far as I'm concerned."

Hampton said he did not put another black on a jury for the remainder of his career as a prosecutor.

Five years later, a treatise on jury selection credited to Assistant District Attorney Bill Alexander, then one of Wade's top aides, reiterated the belief that certain minorities were not appropriate state's jurors.

"Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury , no matter how rich or how well educated," Alexander advised prosecutors. "I may like these people, but they will not do on juries."

Alexander, now a federal prosecutor in Dallas, said he accepted blacks as jurors when he was in Wade's office and does not remember writing the treatise that advised against selecting minorities. "I just won't take responsibility for that," he said.

In 1963, when the treatise appeared, the number of blacks appearing for jury duty remained small. But by the end of the decade, that number was increased significantly with the abolition of the state poll tax in 1966 and the advent of a new law designating voter registration lists as the source lists for juries.

It was then, according to defense lawyers, that prosecutors began in earnest to exercise their peremptory challenges against blacks.

In 1969, Sparling, then an assistant district attorney, delivered what became a highly publicized speech to a training session for prosecutors. Sparling's suggestions on jury selection, in fact, were the subject of a Time article in 1973 that carried the headline: "Women, Gimps, Blacks, Hippies Need Not Apply."

In addition to minorities, Sparling's recommendations warned against selecting "free-thinkers," people with physical afflictions and the overweight -- especially women and young men.

Wade and his assistants maintain the Sparling manual never was followed blindly and never has been read by most current prosecutors. They insist that prosecutors are trained to make individual decisions on jurors based on a combination of demographic factors and personal observations.

"Why do I want 12 white people on a jury when one of them is a person who's been unemployed for a while or not much of a work record, and came to court without a coat and tie, and you struck this young black business executive just because he was black?" said Jerry Banks, formerly one of Wade's top assistants. "That's dumb."

Any prosecutor who allowed his racial prejudices to interfere with his judgment in selecting the best possible jury , Banks said, would not have lasted long in Wade's office.

Defense lawyers claim that prosecutors with the least experience are the most likely to rely on stereotypes handed down by more experienced prosecutors.

"If Douglas MacArthur wrote his memoirs on the campaign in the South Pacific and you wanted to be a great general, what would you do?" asked Aguire, a former prosecutor. "If you're an inexperienced prosecutor, you do what the old master says."

The process of culling black jury candidates is apparent almost every Monday in the Dallas County Courthouse. Dozens of blacks, along with other potential jurors, enter the central jury room and later are sent to a felony court for jury questioning. But when the jury is seated, blacks more often than not are left sitting in the audience.

Inside the courtroom, prosecutors commonly exercise peremptory challenges against blacks who voice similar views and appear to possess similar qualifications to whites who are selected on the jury.

The News witnessed prosecutors repeatedly dismissing black professionals in favor of blue-collar whites, even though the whites may not have lived in the county as long. The practice was particularly pronounced when the defendant was black.

Selecting a jury , lawyers agree, is part gamesmanship and part psychology, with each sides attempting to guess how the other will use its 10 peremptory challenges to sculpt a jury of people most inclined to favor its side of the case.

Previously in The News:

03/09/1986: Race bias pervades jury selection


  • Most blacks trust selection system, survey finds
  • Picking juries is an inexact science, lawyers say


03/10/1986: Black youth's trial illustrates imbalance

  • Jury selection biased throughout Texas

03/11/1986: Judge plans to urge action to end jury selection bias

  • Some states act to reduce jury-selection bias

05/20/1986: Dallas man gets stay of execution

  • Special Report: Striking Differences

Article by Arch McColl, Criminal Defense Attorney.

Prisoner wins $4 million lawsuit

FORT WORTH -- A former federal prison inmate won a $4 million federal court verdict against a guard she says raped her.

Marilyn Shirley said she's glad justice was done and hopes the verdict will lead to changes in the prison system.

The 47-year-old Dallas woman said she was raped about six months before her September 2000 release from a federal women's prison in Fort Worth. She served three years for a drug-related offense.

She went public with her ordeal to show the guard that she is not afraid and to warn other inmates, she said.

Her attorney, Criminal Defense Lawyer Arch McColl III, said the guard later was transferred to a men's prison, remains under investigation but hasn't been charged.

Prison officials did not comment.

Prisoner System Battering

Marilyn Shirley paid for her crimes. She wants a prison guard to pay for what she says he did to her.

By Betty Brink

Preparing myself for prison had to be the hardest thing I ever had to do, but it really doesn't hit until you arrive at the front entrance and realize this is where you're going to be for the next 36 months of your life. Outside, life will go on, but yours is put on standstill inside the razor wire and fences. ...

Marilyn Ann See Shirley spent many a sleepless night in Fort Worth's federal prison camp at Carswell - fear-filled nights when she lay awake wondering whether an attacker would call her out from bed, if the guard would be there shining his light in her eyes, nights when she wondered if the evidence hidden under her bunk would ever reach authorities.

Convicted on a drug charge, Shirley was locked up at the Federal Medical Center at Carswell from Jan. 12, 1998, until Sept. 10, 2000.

When she got out, the fear was gone, but the sleepless nights became her new jailer. So she bought the blue-jacketed notebooks and kept them by her bed, and when she couldn't sleep, she wrote. Night after night, she filled their pages with the detailed memories of her days at Carswell, from that bleak winter afternoon when she "kissed my kids and husband goodbye" at the gate until the Indian summer day she walked out a free woman, three months shaved off her sentence for good behavior, her debt to society paid in full.

The notebooks tell of the anxieties, nightmares, and fears that have haunted her since she left the confines of the razor-wire fence: Still not feeling right. Been very nervous and panicky ... Hope I don't have another nightmare ...Very depressed. ...Will I ever feel pretty and clean again? Will I still want sex? ...Woke up in hot sweat! Can't stop shaking and crying. ...Want to be somewhere safe. ... Am I losing my mind? Gotta take another bath and get him off me.

Back in 1998, as Marilyn Shirley tried to mentally prepare herself for the lonely journey she was about to begin, the one thing she couldn't prepare for was rape.

On March 11, 2002, Marilyn Shirley's attorneys filed a $10 million lawsuit in Fort Worth federal court, alleging that Carswell prison guard Mike Miller had raped her almost two years earlier. Documents in the case include a graphic description of what Shirley said happened to her:

"He took off his belt and keys and pulled his pants down, and proceeded to push her head down on his penis, forcing her to perform oral sex on him, saying ... 'Do you think you're the only one? Don't even think of telling because it's your word against mine and you will lose.'

"Officer Miller then turned her around, shoved her head against the wall, bent her over, shoved his finger into her vagina, placed his penis in her vagina, and holding his hand over her mouth, proceeded to rape her.

"Subsequently a loud noise, like someone clearing their throat as if to give a signal, was heard over Miller's radio and he jumped back and told her to get out and if she told anyone, she would be sent to seclusion.

" Shirley, jerking and shaking, pulled up her pants, returned to her room, went into the bathroom, threw up and sat on the bed and cried the rest of the night."

The suit, filed by attorneys Arch McColl of Dallas and Gina Joaquin of Hurst, seeks $10 million from Miller and the Bureau of Prisons. Shirley's allegations also triggered an FBI investigation of Miller that is still active, according to FBI spokesperson Lori Bailey. Miller, a senior federal correctional officer at Carswell since 1996, is still employed by the Bureau of Prisons but is no longer at the women's prison, BOP public affairs officer Carla Wilson said.

Shirley reported the rape to Carswell authorities on Sept. 10, 2000, the day she was released from prison. Eight days later, Miller was transferred to the BOP's Federal Medical Center for men in Forest Hill. The bureau, Wilson said, will take no action against Miller unless the FBI investigation leads to an indictment. She said she did not know why he was transferred so quickly following Shirley's charges.

Reached by phone at his home in North Richland Hills, Miller refused to talk about the allegations. "I've been advised by an attorney not to talk to you." He has filed an answer to the lawsuit, denying all the allegations. The Bureau of Prisons has not filed its answer yet.

Sitting in a quiet corner of a Dallas coffee shop recently, Marilyn Shirley was more than ready to talk about the night of March 12, 2000. "I'll never forget it," she said, her voice barely above a whisper. "As much as I want to, and as much as I pray to God to let me forget, it won't go away." A small-boned and slender woman, Shirley has long brown hair streaked with blonde tints, framing a weathered but still attractive face that speaks of a life lived on the edge.

Born in East Texas in 1955 to a family struggling to make ends meet, Marilyn See ran away from her Gladewater home in her early teens and bummed around the town, living mostly in her car or occasionally with friends. "I was just a free spirit," she said. "I wanted to be on my own.

But it wasn't all it was cracked up to be." One night after work at a steak house, she was sleeping in her car when a darkly handsome man roared up on a Harley and asked her why in the hell she was sleeping in her car. "I was so scared, I couldn't talk. When I finally told him I had nowhere to go, he put me on the back of his bike and took me to his house, fed me, and put me to bed. He didn't touch me. I fell in love right then." The man was Raymond Shirley, 15 years her senior. They married, and she began a roller-coaster life that alternated between drugs, crime, an occasional arrest, and periods of normalcy, with kids born along the way. "I never blamed anyone else for my troubles. When I wound up in jail at Carswell, I knew I'd gotten myself into this mess, so I just had to make the best of it," she said. "But the best of it didn't include rape."

FMC-Carswell, as the women's prison is labeled in federal records, is a sprawling compound that includes a high-rise hospital for chronically or terminally ill federal female prisoners and a smaller, tightly secured cellblock for violent and high-security inmates.

Across the street from those buildings is the prison section known as the camp, a cluster of two-story apartments that sit among large oak and pecan trees. There, non-violent, low-security offenders live communally, with three to five women in each unit. Camp inmates are locked in their rooms at night, but during the day they work in various jobs for which they have been trained, such as welding, auto repair, groundskeeping, and office work, always under the watchful eye of guards. Because the camp women have freedom of movement during the day, Shirley said, some of the officers - including Miller - didn't like to pull guard duty there. "I think it was because they couldn't control us as well ... we were more independent."

Dark-haired and muscular, Miller was in his mid-thirties, Shirley said, and was married with one daughter. He had been a BOP officer there for four years - and Shirley had never had any trouble with him before.

In fact, records show she caused no trouble with anyone at the prison while she served her sentence for "unlawful use of a communication device" (a telephone) to facilitate a sale of methamphetamines. Prison records show that she had taken all the required BOP courses, from substance abuse prevention to learning job skills; had become an expert welder with an "outstanding" work performance rating; and had never had an incident report written against her. She kept a low profile, her fellow inmates said, did her work, and counted the days. She was rewarded with time credited for good behavior, and when she left, the BOP gave her a $250 check for being a model prisoner.

(She did not rejoin her husband, however. Soon after she entered Carswell, Raymond Shirley, now 62, was convicted of conspiracy in the same drug transaction and is serving eight years in protective custody at an unnamed federal pen. Both Shirleys had been under the witness protection program, in connection with an unrelated case, when they were convicted of drug crimes in 1997. By the time they entered prison, they had once again assumed their real names. Neither Marilyn Shirley nor federal authorities will comment on the earlier case.)

What she calls "those dark hours" began one March night when Miller had pulled duty as the camp's night safety officer. Shirley, then 45, had seven months left on her sentence. In her lower bunk bed, in the apartment she shared with four other women, she was "dreaming of going home. ... I was so excited about getting out and being with my children and having some privacy," Shirley said. "The apartments were like living in a fish bowl."

Shirley's account of what happened next is recounted in detail in the court documents. She said she had dropped into a deep sleep when she was suddenly jarred awake by the slamming of the apartment door. It was 3:30 a.m. She looked up to see Miller coming toward her, yelling, "Get up, Shirley, you're wanted at the officer's station."

"For what?" she asked sleepily. "Just get up," he said. By that time, her roommates were awake from the commotion. Recently released inmate Gail Birch, who had shared the apartment with Shirley for almost three years, saw Miller standing over Shirley, she told Fort Worth Weekly, heard him tell her to "report to the safety office," watched her pull on her sweat pants and leave. Everyone went back to sleep, Birch said, thinking he had pulled her out for a random drug test. "That kind of thing happened a lot. Drugs were everywhere. It was harder to smuggle chewing gum into that prison than drugs," she said.

But a drug test was not on Miller's mind.

Still, as Shirley followed him into the office, she had no fear for her own safety, she said. "I was scared to death, but not of Miller. Getting called out in the middle of the night, I thought something might have happened to my husband, who's diabetic, or one of my 22-year-old twins."

Then Miller did a strange thing, Shirley said. He picked up the phone and told someone at the other end that he was taking a break and "if anyone heads over here, give me the signal." Then, she said, he pulled her toward him and tried to kiss her. He told her he had been fantasizing about her and began to grope her breasts. She pushed him away and told him to stop. "I begged him, 'Please don't do this, you're a married man.' I thought I could talk my way out." It didn't happen.

Miller ordered her into a side room, she said, where she remembers an ironing board with a radio sitting on it. It was a storeroom where supplies were kept for the inmates. The more she cried and begged him to leave her alone, the more brutal he became, she said, forcing her to perform oral sex on him and then raping her from behind.

"I couldn't even tell you what kind of shorts he was wearing," she said, in the interview with the Weekly. "It was dark in that little room, and he had dropped his pants and underwear. All I can remember is the sound of that big old belt buckle that he wore, hitting the floor."

Shirley said she also remembers the pain and fear and humiliation of those moments. "It seemed like it lasted an hour," she said, "but it was probably only about half that. The warning he got from someone stopped it," she said. "And that just means he had an accomplice, and that this was something that goes on all the time. I still get sick thinking about it."

All the way back to her room, she said, she focused on one thing: "I've got my pants. I've got the evidence. I have to save my pants." And she did. She took her gray sweatpants off and carefully wrapped them in black plastic and hid them under her bed.

The next morning, according to the court filings, she "confided in her welding boss, Maria Monreal, and advised her that she had been raped by Officer Miller." Shirley said that at the time she asked Monreal not to tell anyone until Shirley was ready to leave the camp. Monreal complied, in violation of bureau policy. Contacted by Fort Worth Weekly at her Granbury home, Monreal said she no longer worked at the prison and had "no more comment at this time."

When Shirley's roommates asked, she told them that Miller had just wanted to talk to someone to help him stay awake. After about a month, she broke down and told Birch, swearing her to secrecy.

"I was in the witness protection program," Shirley explained. "And I had been told [by the Justice Department officials who had jurisdiction over her] not to bring any attention to myself while I was in Carswell." Publicity could have endangered her life, she said. And by now, of course, she was scared of Miller.

"Who would believe me? I wanted out. He could have retaliated against me. Made up something that could have kept me there for months past my release date. I decided to wait until the day I was walking out the gate to let the BOP know and turn the pants over to 'em."

Even in today's politically correct society, prison rape is still fodder for jokes - and not just in the locker rooms.

Last year 7-Up stirred a storm of protest from human rights groups when it aired a commercial titled "A Captive Audience" that depicted a company spokesman passing out cans of the soft drink to male prisoners. He drops one, then refuses to bend over to pick it up. Asked to pull the commercial by such groups as Human Rights Watch and the ACLU, 7-Up refused. And more recently, California's attorney general angered the same groups when he was quoted in news reports as saying that he'd "love to personally escort Kenneth Lay to an 8-by-10 cell that he could share with a tattooed dude who says, 'Hi, my name is Spike, honey.'"

But prison rape is no joke, angry reform advocates say.

"Recognized by the Supreme Court as a form of cruel and unusual punishment, prison rape violates the Constitution, offends fundamental principles of human dignity, and shames the society that allows it to occur," Human Rights Watch activist Joanne Mariner wrote last year in a book-length report on male-on-male prison rape.

But a leading advocate for women victims of violence says that prison rape occurs precisely because society has no shame about it. Professor Wendy Murphy, who teaches about the historical and cultural roots of violence against women at the New England School of Law, also founded a group that provides legal help to Boston-area victims of violent crime.

"Even the most outrageous cases such as gang rape leading to death or pregnancy or transmission of AIDS only get a moment in the sun, then things go back to the way they were because the victims have no voice and too many people still view prison rape of both males and females as an acceptable part of the sentence," she said.

"As a class, there are none more voiceless in this country than women prisoners. The cultural and historical idea that males are 'entitled' to sex ... is magnified immensely in a women's prison setting where the victims are captives with no place to turn."

No one even has a handle on the depth of the problem. With two million prisoners in county, state, or federal jails, no accurate nationwide data exists on just how widespread the abuse is. The only estimates are based on anecdotal evidence.

Studies compiled recently by the ACLU National Prison Project in Washington, D.C., suggest that as many as 20 percent of male prisoners and 10 percent of females have been coerced into sex or raped while in U.S. prisons. But the figures could be much higher, the ACLU pointed out, because of the obvious difficulty in getting those behind bars to report on their abusers.

Fears of retribution, repeated rapes, or that prisoners will not be believed are grounded in reality, Murphy said. Currently, federal and state inmates must exhaust their prison's administrative complaint procedures, which often takes six months, before they are allowed to file a suit in state or federal court. The delay, she said, makes them vulnerable to many forms of retaliation. Murphy and others are seeking legislation to change such policies.

According to Bureau of Prisons public affairs officer Carla Wilson, the agency keeps no records on the number of its employees who have been prosecuted and convicted of sexual harassment, sexual abuse, or rape of inmates or other employees. And complaints from inmates against an employee for sexual offenses are not available to the public, she said. The Fort Worth Star-Telegram did report in 1999 that an FMC-Carswell cook received three years probation after pleading guilty to "sexual abuse of a ward" and admitting that he had sex with a female inmate.

Often the only ones who know the names of such predators, however, are the women in the prisons themselves. "We have a grapevine that's pretty damn good," said Marilyn Shirley's roommate Gail Birch, 58, who spent nine years at Carswell for transportation and possession of marijuana. She now lives near Hillsboro and spoke to the Weekly from her home. "I knew Marilyn really well. We were roommates for almost three years. She was real pretty, sweet, didn't get into any of the gossip or fighting, and she sorta took in the newcomers, mothered 'em, made 'em comfortable. Marilyn was a good girl."

When Shirley finally told Birch what had happened to her that night in March, Birch said, "I knew it."

Birch also knew Miller well, she told the Weekly. "He never smiled," she said. "We talked a lot about our lives, during smoke breaks, and he showed me pictures of his wife. She was a beautiful Hispanic girl." But he also hustled inmates, she said.

She claimed that Miller used her to try to get close to one young inmate at the camp. "He gave me notes to smuggle to her," she alleged, "and called her 'Angel Eyes.' She was very pretty and very young..." Birch said Miller told her that he was "falling in love" with the young inmate.

He found excuses to get the woman into his office, Birch said. "The girl tried to avoid him. She came to me for help, because she was frightened," Birch said. "But he was an officer - what can you do?" Because the woman is still incarcerated at Carswell, Birch didn't identify her.

When the inmates talked without jailers around, Birch said, "the topic was Miller." Birch, who was at Carswell when Miller came to work there, said the guard was "a male chauvinist pig. He saw women as objects, treated us with no respect, talked down to us."

Another former inmate, Carolyn Wiginton, described Miller as "an ass. He used his power to humiliate and degrade the women here," with curses and sexually charged language. Wiginton, a former nurse, served time for a narcotics conviction and now lives in Shawnee, Okla. She said she worked alongside Shirley for five months and found her to be trustworthy.

Shirley said she had heard the stories but that she had never had any problems with Miller. "He and I had a smoke sometimes, outside on the benches. We talked about our families." Birch and former inmate Becky Stone both said that Shirley never flirted with the guards or did anything inappropriate.

Birch said she had heard of no rape allegations against Miller, other than Shirley's. "But I saw him take other girls out of their rooms at night, just like he did Marilyn," she asserted.

"It was widespread knowledge throughout the camp about Miller," Stone said. Stone, of Midwest City, Okla., served eight months for embezzlement. She's been out since 1999. She had been warned that Miller was a problem, she said, and she simply avoided him. Stone said she was harassed by another BOP worker who made lewd remarks about "my body parts," but she didn't file a charge. "I didn't have that long to go, and I didn't think it would do any good. ... A lot of women in prison keep quiet" about sexual abuse, she said, "so they can get out without any trouble. It gets them in trouble if they tell."

Shirley claims in her court filings and in interviews that Miller began trying to intimidate her soon after the alleged rape. "I was walking to work one day, not long after, and Miller was driving the perimeter truck," she said. "He ran the truck off the road, drove straight toward me, slung gravel on me, and tried to run me down.

"I ran behind a building, started shaking all over, and vomited. It was awful."

At other times, he would come into her room late at night and shine his flashlight in her face, she said.

Finally, when the day came for her to leave, Shirley took her allegations and the sweat pants to Carswell administrator Amy Carlton.

"I was raped," Shirley told her.

And then, she said, all hell broke loose. Carswell Warden Joe Bogan was called to the office, along with a battery of prison administrators. She was held for three hours, giving statements and answering questions.

"Ms. Carlton took the pants, turned them inside out, spread the legs, and saw a black pubic hair," Shirley said. "She used tweezers to take it as evidence, put it in a baggie, and sealed it. I watched her do it." Then Carlton took photographs of the pants, put them in a sealed bag, and called the FBI. Agent Bruce Shinkle took the pants and the pubic hair to be sent to Washington for DNA testing.

Three days later, the FBI gave Shirley a lie detector test, which she said she passed.

She moved in with a daughter in Dallas, got a job, and began to wait. "I thought it would happen so fast," she said. "And I was sure that they would indict Miller. I had given them enough evidence, and I had witnesses."

More than two years later, she's still waiting. In the meantime, the carefully preserved evidence on her pants has been determined to be inconclusive. The FBI found semen all right, but Shirley said an agent told her that, as evidence, it was flawed because the semen came from a man who had had a vasectomy.

A DNA expert said a vasectomy can make it harder but not impossible to get a conclusive DNA analysis, because sperm is no longer present in the semen. Dr. Greg Sawyer, a DNA specialist at Bio-Synthesis, Inc. in Lewisville, said that seminal fluid from a vasectomized man would almost certainly contain some skin or white blood cells, providing DNA to be analyzed. "I would ask the FBI to do further testing," he said.

And then there was the pubic hair. "I told them 'you have the hair,'" Shirley said. But they didn't. "The hair's gone," she said. "It was lost."

FBI spokeswoman Lori Bailey said that because the investigation is continuing, "We can't release any information on any test results we have received that may be used as evidence." Bailey would not confirm that the FBI had ever received - or had lost -the hair.

Still, Shirley said, there's the semen. In a women's prison, she said, "that proves that I had sex with a man that night. There's no such thing as consensual sex with a guard if you're locked up in a prison. It's either rape or it's coerced. And it's illegal. And my roommates saw Miller get me. That ought to be enough evidence to get him in and put him under oath. ... Shouldn't it?"

A Broader Vision for Fair Park

Plans would make area year-round attraction with shops, restaurants

By JAIME JORDAN / The Dallas Morning News

An amusement park, retail shopping and restaurants are all part of a vision for Fair Park that developers say will make it a year-round destination for area residents and visitors.

Hargreaves Associates, which is also doing consulting work for the city on the Trinity River project, presented its concepts to improve the park and the area around it at a public meeting Thursday night.

The plan includes proposals for hotel and meeting space within the park and calls for narrowing some streets, such as Robert B. Cullum Boulevard, to provide better access to the park.

The plan's creators said it would transform South Dallas.

"More green space and lots of things to do, from soccer fields to paddle boats to indoor skating to throwing a Frisbee to having a picnic," said Mary Margaret Jones, president of Hargreaves Associates, a San Francisco-based landscape and architectural firm hired by the city to develop the plan.

Eddie C. Hueston, executive general manager of Fair Park, said the firm was hired for $1.5 million after some much-needed revitalization of the park's buildings.

"Now that we'd restored the buildings ... and we have saved some of the buildings, we thought, 'Now what do we do with them? What's the next step?' "

About 275 people attended Thursday's meeting, the second of three about the proposal. The first meeting, in October, addressed objectives the proposal should focus on.

The major obstacle to the plan is money.

"You'll see a lot of pretty pictures, but half of what we're doing is figuring out how to pay for it, getting it built," said Doris Guerrero, a project manager with Hargreaves Associates.

There are no cost estimates for the project yet, said B.G. Clark, an associate at Carter Burgess, which has been contracted to help address the project's financing.

"Our next task is to do a cost estimate," he said. "We're looking at costs for all areas of the project - operation, maintenance, marketing, security, utilities. It does us no good to build it if we can't maintain it."

There are plans for underground and improved surface parking and better pedestrian and DART access near the park's museums.

The Midway would include an amusement park that would be open from April through October, Ms. Jones said. The plan also calls for space for a year-round marketplace.

Hargreaves Associates also recommended converting an area on the north side of the park that is now mostly a lumberyard into a site for a hotel and meeting space.

Ms. Jones said the project would also emphasize rehabilitating the park's historic facilities.

Mr. Clark said restructuring the governing body of the park would be essential to the park's future.

Mr. Hueston said that Thursday was the first time he'd heard of that possibility and that no such recommendation had been made to the city's parks board, which hired Hargreaves Associates with council approval.

Another meeting is scheduled for the summer. Between now and then, the project team will develop strategies to begin work on the project.

Residents urged the city to focus on little steps in the meantime.

Arch C. McColl said that the city needs to start promoting the park now and that citizens should get involved with raising money.

"There's nothing like this in the world, and we're potentially letting it die," he said. "But we can't do it without money. Where are our leaders?"

Mr. McColl said he was starting a fund at his law firm to raise $25,000 for the project.

Texas Parrish Stands by Its Priest

By Joel Anderson

The Associated Press

DALLAS - More than 2,000 parishioners at St. Thomas Aquinas Catholic Church rallied to the defense of their priest after he was accused of not performing required criminal background checks on church workers.

"This is going to rip the soul out of this church," said parishioner Sharon Beach during Monday's candlelight vigil. "It's going to be a horrible thing if they remove this man."

The Rev. Stephen Bierschenk is the second area priest reassigned this month for not conducting background checks required after a sex scandal in the Dallas Roman Catholic Diocese five years ago. The Rev. Efren Ortega, a priest for 12 years at St. James Catholic Church, was also reassigned.

Neither of the priests nor the unchecked workers have been accused of sexual misconduct.

Bierschenk said he did not know that workers who had little or no contact with children needed to be screened.

"Obviously, the Diocese of Dallas and the two bishops believe they have the right to act with urgency in order to ensure the safety of the children of the parish," diocesan spokesman Bronson Havard said Monday.

Bierschenk informed Dallas Bishop Charles Grahmann that he would fight his reassignment to the much smaller St. Michael Church in McKinney, about 30 miles north of Dallas.

Organizers of the vigil asked parishioners to protest Bierschenk's transfer by not donating money or attending Sunday Mass.

At one point during the vigil, Bierschenk walked out of the church to cheers and applause. As he received hugs and words of encouragement, his eyes filled with tears.

"I don't have a speech because you've made me cry already," he said after cheers of "We love Father B" died down.

Arch McColl, the priest's attorney, said canon law protects priests from punitive reassignments without due process.

"They've kept things secret from him," McColl said. "They've flashed 15 pages of documents at him and not provided him with copies."

In 1997, the diocese was hit with a nearly $120 million verdict in a lawsuit that accused church officials of allowing a priest to molest altar boys and conspiring to cover it up. The verdict was cut by about three-quarters on appeal.

The verdict prompted the diocese to require fingerprinting and criminal background checks for all workers.

In other developments:

• A Roman Catholic priest was convicted yesterday in Santa Rosa, Calif., of molesting a 13-year-old girl in 1981 but acquitted of charges that he raped a 14-year-old girl in a church four years earlier.

The Rev. Don Kimball, 58, had denied the charges, although he admitted to having sex with adult women. He was tried more than two decades after the alleged crimes because of recent changes in state law that extended the statute of limitations for sex crimes involving children younger than 14.

• Boston's Cardinal Bernard Law said yesterday that he met recently with Pope John Paul II to seek "counsel and advice" and raised the possibility of resigning, but came away determined to clean up the sexual-abuse scandal in his archdiocese.

Calls for Law's resignation mounted last week after church personnel records released by a plaintiff's attorney showed Law knew of sex abuse allegations against the Rev. Paul Shanley but allowed him to continue as a parish priest.

Eleven American cardinals have been summoned by the Vatican to a meeting next week in Rome.

• The head of a commission appointed to review how the Archdiocese of Milwaukee handles sexual-misconduct allegations said the church should release more information about six priests accused of such allegations. The church has refused to identify the priests or describe their current duties, citing the complexity of the cases and victims' privacy.

• The Archdiocese of Newark, N.J., has decided to give prosecutors the names of priests and other church staffers accused of sexual abuse, making it the last of New Jersey's five dioceses to pass on such accusations to authorities.


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