On the afternoon of August 1, 1990, a customer walked into Wilkins Dry
Cleaners in Conroe, Texas and discovered the body of the clerk, Leta
Wilkerson, lying face up on the floor, her eyes open and her body
covered with blood. She had been shot once in the face and three times
in the back.
On the front counter was a pile of jeans with the name "McGinnis"
written in the pockets. $140 was missing from the cash register. The
victim's van was also missing form the parking lot. Two witnesses
identified McGinnis as near the scene earlier.
The van was recovered
abandoned the same day. Inside, officers found Wilkerson's wallet, from
which McGinnis' fingerprint was lifted. Three employees from a nearby
shopping center identified McGinnis as asking for assistance after the
van had broken down earlier in the day.
The following day, McGinnis was arrested at his aunt's home two blocks
from the cleaners, with $105 in his possession. A .25 caliber handgun,
determined to be the murder weapon, was found in the residence.
Two months later, McGinnis' aunt turned into police a set of keys found
in the home. The keys belonged to Leta Wilkerson. McGinnis had been
placed on probation for auto burglary five days before the murder.
Texas Attorney General
GLEN CHARLES MCGINNIS SCHEDULED TO BE EXECUTED.
AUSTIN - Monday, January 24, 2000 - Texas Attorney General John
Cornyn offers the following information on Glen Charles McGinnis who is
scheduled to be executed after 6 p.m., Tuesday, January 25th:
FACTS OF THE CRIME
On the afternoon of August 1, 1990, Homer Burson walked into Wilkins
Dry Cleaners in Conroe, Texas, to pick up some cleaning. He waited at
the counter, but no one approached to wait on him. He left, then
reentered with another customer.
Finally, noticing that the cash register was open, Burson walked
around the corner of the counter toward the back room of the store where
he discovered Leta Wilkerson lying face up on the floor, her eyes open
and her body covered with blood.
Burson immediately notified the police and called for an ambulance.
Wilkerson, who was employed at the cleaners as a clerk, was transported
to a nearby hospital where she was pronounced dead on arrival. She had
been shot once in the face and three times in the back.
Upon arriving at the scene, investigating officers found spent .25-caliber
bullets and bullet casings lying on the floor near where the body was
found. Officers also discovered blood on the front counter next to a
pile of jeans with the name "McGinnis" written in the pockets. The
telephone on the front counter had been left off the hook, objects were
in disarray and about $140 was missing from the cash register.
Additionally, police were informed that the 1985 silver-gray GMC
minivan the victim had driven to work that day was missing. Two
individuals picked Glen Charles McGinnis out of a photographic lineup,
identifying him as the man they had seen at or near Wilkins Dry Cleaners
around the time of the offense.
Late that evening, police found Wilkerson's minivan abandoned in the
parking lot of a nearby shopping center. Between the two front seats of
the van, they discovered Wilkerson's wallet, from which investigators
lifted McGinnis's fingerprint.
The following morning, three employees of
various businesses in the shopping center where the van was found picked
McGinnis out of a photographic lineup as the man they had seen the
afternoon before requesting assistance because his van was broken down.
Early on the morning of August 2, 1990, police were dispatched to
Williams Square Apartments, just two blocks from Wilkins Dry Cleaners,
where McGinnis was thought to be residing with his aunt, Annette
McGinnis. Police arrested McGinnis for the capital murder of Leta
Wilkerson and transported him to the police station, where they
discovered $105 in his possession.
Later that morning, police returned to Annette McGinnis's apartment
to search for a .25-caliber weapon. Annette McGinnis told police that
her nephew had been living with her in the apartment since July 27,
She also told police that she owned a .25-caliber semi-automatic
pistol; however, when she discovered that the gun was not where she had
left it, she agreed to let police search the apartment.
Police found a .25-caliber Raven semi-automatic pistol in a laundry
hamper in the hall closet. Annette McGinnis identified the gun as her
own, but stated that she did not know how it had gotten in the laundry
Firearms examiner Russell Johnson testified at trial that shell
casings recovered from the scene and bullets recovered from both the
victim's body and the scene had been fired from Annette McGinnis's gun.
Almost two months after the offense, Annette McGinnis contacted
police to inform them she had found a set of keys in her apartment. The
keys were later identified as the keys of Leta Wilkerson.
when asked at trial about the jeans found at the cleaners, Annette
McGinnis identified them as hers, but testified that she had not taken
the jeans to the cleaners. Rather, the jeans had previously been stored
away in a closet in her apartment because she did not wear them anymore.
On October 8, 1990, McGinnis was indicted in Montgomery County,
Texas, for the capital murder of Leta Wilkerson while in the course of
committing and attempting to commit the offense of robbery, which
occurred on August 1, 1990.
McGinnis was tried before a jury upon a plea
of not guilty, and on July 23, 1992, the jury found him guilty of the
capital offense. On July 30, 1992, in accordance with state law, the
trial court assessed McGinnis's punishment at death.
McGinnis appealed his conviction and sentence to the Court of
Criminal Appeals of Texas, which affirmed on December 14, 1994, and
denied rehearing on March 1, 1995. McGinnis then filed a petition for
writ of certiorari to United States Supreme Court, which was denied on
October 2, 1995.
McGinnis next filed an application for writ of habeas
corpus in the convicting court on May 7, 1996. On July 12, 1996, the
trial court issued findings of fact and conclusions of law recommending
that relief be denied. The Court of Criminal Appeals denied relief based
on the trial court's findings and conclusions in an order dated August
On January 3, 1997, McGinnis filed in federal district court a
petition for writ of habeas corpus. On February 2, 1998, the federal
district court issued a memorandum opinion and entered final judgment
After denying a post-judgment motion on April 7, 1998,
the federal district court granted McGinnis permission to appeal one
issue. On July 20, 1999, the United States Court of Appeals for the
Fifth Circuit, after full briefing and oral argument from the parties,
affirmed the district court's denial of habeas corpus relief.
of appeals denied McGinnis's petition for rehearing on August 25, 1999,
and the Supreme Court denied certiorari review on January 18, 2000.
on January 18, 2000, the Court of Criminal Appeals dismissed a second
application for state writ of habeas corpus filed by McGinnis as an
abuse of the writ. A clemency petition is pending before the Texas Board
of Pardons and Paroles.
PRIOR CRIMINAL HISTORY
At the punishment phase of trial, the State presented evidence of
McGinnis's prior criminal history.
On July 30, 1986, after several minor offenses culminating in
criminal trespass, McGinnis, then 13 years old, was adjudicated
delinquent and placed on juvenile probation by the 314th Judicial
District Court of Harris County, Texas.
The court entered an order
modifying the conditions of his probation on April 16, 1987, based on a
finding that McGinnis had violated his probation by leaving court-ordered
Then on September 3, 1987, the court revoked McGinnis's probation and
committed him to the institutional division of the Texas Youth
Commission after McGinnis was found guilty of burglary of a vehicle.
McGinnis was sent to Gainesville State School. He was paroled on January
At about 12:30 a.m. on August 28, 1988, Carole Speight left a club in
Houston, got in her minivan, and pulled out into the street. After going
about a block, Speight heard a voice from the rear of the van say "This
is a stick up." Speight turned around in the car, saw a man in the back
seat of her van, and started screaming.
The man shot at her, shattering
the front driver's side window. Finally, Speight was able to slow down,
jump out of the moving vehicle, and run away. The man drove away in her
van. Speight was unable to positively identify McGinnis as the gunman
who stole her van.
However, McGinnis was seen driving the van on September 4, 1988, when
he was involved in a minor traffic collision. At the scene of the
accident, McGinnis offered as identification a credit card with the name
Carole Speight, claiming that it was his mother's credit card.
police eventually recovered the van in Missouri City, Texas, on
September 7, 1988, McGinnis was driving. When the arresting officer
asked McGinnis for identification, he presented three credit cards with
Carole Speight's name on them, claiming they were his mother's credit
On September 28, 1988, McGinnis was charged with felony theft and
misdemeanor assault. He was classified as a "repeat offender," his
parole was revoked, and he was sent back to Gainesville State School.
McGinnis was paroled again on March 28, 1989.
On April 15, 1989, McGinnis was apprehended driving a stolen vehicle
in Houston. The steering column of the vehicle had been broken, and a
pair of needle-nosed pliers found in the front floorboard of the car had
apparently been used to start and turn off the vehicle as there were no
keys to the vehicle.
McGinnis was charged with the felony offense of
unauthorized use of a motor vehicle, and on April 26, 1989, his parole
was revoked. He was reclassified as a "chronic serious offender" and was
sent to Crockett State School. McGinnis was released from Crockett State
School in February of 1990.
On the afternoon of May 3, 1990, Tara Applegate left her car unlocked
and took her keys with her into a five-and-dime store in Conroe, Texas,
near Wilkins Dry Cleaners. Minutes later, she left the store, got into
her car, and started the ignition.
She turned around and saw McGinnis
crouched down in the floorboard of the back seat of her car. Applegate
tried to open the door and get out of her car but she got tangled in the
seat belt. Finally, she was able to untangle herself and get out of the
McGinnis then put the car in reverse with the door still open. He
started backing up with Applegate running along beside the car, caught
in the open door. Applegate fell underneath the car, and McGinnis ran
over her foot and drove away.
McGinnis pled guilty and received deferred
adjudication for the theft of Applegate's vehicle. McGinnis was released
on adult probation on July 27, 1990, and was directed to report
immediately to the Montgomery County Probation Department. He never
reported. Five days after his release, McGinnis murdered Leta Wilkerson.
Martin Rocha, McGinnis's juvenile parole officer, testified that
McGinnis repeatedly failed to fulfill his parole obligations. Rocha
contacted McGinnis's father at one point to see whether it would be
possible for McGinnis to live with him after he was released.
father told Rocha that McGinnis could come live with him if he was
willing to comply with certain rules. Rocha contacted McGinnis and
relayed that information to him. Rocha testified that McGinnis never
made a serious attempt to change his behavior while under his
supervision regardless of the opportunities Rocha and others afforded
him. Rocha further testified that, in his opinion, McGinnis is a threat
DRUGS AND/OR ALCOHOL
There was no evidence of drug or alcohol use
connected with the instant offense.
Glen McGinnis was convicted in the robbery and murder of Leta Ann
Wilkerson, 30. Leta was working as a clerk at a dry cleaners in Conroe.
McGinnis entered the store and shot her once in the head and three times
in the back with a .25 caliber handgun he had stolen from his aunt.
He stole money from the cash register and took Leta's van. His thumb print
was found on Leta's wallet. McGinnis had been placed on probation for an
auto theft charge just five days before Leta was murdered. McGinnis had
an extensive juvenile record.
Juvenile Offender Executed for 1990 Murder
Vatican, Lawyers' Group
Fought for Killer's Life
January 26, 2000
HUNTSVILLE, Texas (AP) -- Texas has carried out
its sixth execution this year and its first for the year 2000 of a
killer who committed his crime as a juvenile. Glen Alan McGinnis was 17
when he shot Leta Ann Wilkerson to death for $140. Without so much as a
whimper, McGinnis received a lethal injection Tuesday night.
Wilkerson traveled to Huntsville from Conroe with the eldest of his two
daughters, Kristy. Standing silently in a witness room, Wilkerson
watched his wife's killer die. "Justice has been served," he said
afterward. "He's been living nine and a half years. My wife, she missed
out on those nine and a half years," Wilkerson said. "There ain't a
holiday that goes by -- there ain't a day that goes by -- that it
doesn't affect me."
Victim left to die
Leta Ann Wilkerson was behind the counter in a laundry in August 1990
when a teenage gunman burst in, opened fire and emptied the cash
register. He left the 30-year-old mother of two dying on the floor. The
state carried out McGinnis' execution despite protests from the Vatican,
the European Union and the American Bar Association.
Those groups asked
Texas to spare McGinnis' life because he was a juvenile when he killed
Wilkerson. On death row, McGinnis admitted to his crime. He said in a
recent interview that he doesn't want to use a tough childhood as an
excuse for murder. Still, he said, he wondered how life could have been
if he hadn't spent his youth on the streets.
'I'm not crying' "I mean, man, I'm young," McGinnis said last week. "I'm
not crying, I'm not groping, but it's kinda sad that I got caught up so
young." In the summer of 1990, McGinnis already had logged time in
juvenile lockups, lived out of cars and learned to live by his wits. His
mother was serving a prison term for prostitution.
McGinnis grew up
bouncing in and out of juvenile centers and relatives' homes, stealing
cars and trespassing. At his 1992 trial, former Montgomery County
District Attorney Peter Speers told an all-white suburban Houston jury
that McGinnis, who is black, was "bad to the bone." "He has spit in the
face of every chance he's had to go straight," Speers said.
'A black man who killed a white woman'
But defense attorney William Hall described a deeply troubled teen
whose race and homosexuality doomed him in the eyes of the jury. "He was
polite, respectful [and] legitimately sorry about what he'd done," Hall
said. "But he was also a black man who killed a white woman. And he was
very, very gay, and that didn't help."
After his father abandoned him,
the young man lived in a one-bedroom apartment with a mother who traded
sex for crack cocaine. McGinnis was raped as a child and beaten with an
extension cord. "I was kinda lost within myself," McGinnis said last
week. "It seemed like every time I found something I thought I could
grasp on to, it went away."
Released five days before killing
Just five days before the killing, McGinnis was released on probation
for auto theft. He said he entered the Conroe laundry to steal cash for
his imprisoned mother. "I used to have no respect for people," McGinnis
said. "I never had no compassion."
McGinnis' execution was Texas' sixth
this year and the second of three scheduled for this week. He was the
eighth juvenile offender executed in Texas since capital punishment
resumed in the 1970s.
Glen Charles McGinnis
A man who was just 17 years old when he murdered a Montgomery County
mother of 2 was executed Tuesday night. In the moments before his
execution, Glen Alan McGinnis, 27, lay silently strapped to the death
chamber gurney with his eyes closed. He gave no final statement.
lethal drugs began flowing into his arms, McGinnis' chest heaved and he
gasped slightly before falling into unconsciousness. McGinnis was
pronounced dead at 6:17 p.m., 7 minutes after the flow of lethal drugs
His aunt, Mary Carter, and his cousin, Reponzel Scott, who witnessed
the execution through a nearby window, stood in prayer with their hands
in the air, their fingers spread. After he was declared dead, Carter
said, "Praise God. Thank you, Lord. I will bless the Lord at all times."
Then she and Scott collapsed onto each other in sobs.
McGinnis said in a recent interview that he doesn't want to use his
difficult childhood as an excuse for gunning down Laundromat clerk Leta
Ann Wilkerson, but he wondered what might have been had he not spent his
youth on the streets. "I mean, man, I'm young," McGinnis said last week.
"I'm not crying, I'm not groping, but it's kinda sad that I got caught
up so young."
In August of 1990, McGinnis already had logged time in juvenile
lockups, lived out of cars and learned to live by his wits. Just five
days before the slaying, he was released on probation for auto theft.
His mother was serving a prison term for prostitution when he walked
into a Laundromat, opened fire and helped himself to $140 from the cash
On death row, McGinnis did not deny his crime. He shot Wilkerson in
the head, shoulders and back during the robbery, leaving the 30-year-old
mother of 2 young daughters dying on floor.
At McGinnis' 1992 trial,
former Montgomery County District Attorney Peter Speers told an all-white
suburban Houston jury that McGinnis, who is black, was "bad to the bone."
"He has spit in the face of every chance he's had to go straight,"
But defense attorney William Hall described a deeply troubled teen
whose race and homosexuality doomed him in the eyes of the jury. "He was
polite, respectful, legitimately sorry about what he'd done," Hall said.
"But he was also a black man who killed a white woman. And he was very,
very gay, and that didn't help."
Pointing to the killer's youth, the Vatican, the European Union, the
American Bar Association and Amnesty International pleaded for McGinnis'
life. Late Tuesday afternoon, the U.S. Supreme Court denied McGinnis'
request for a stay of execution.
McGinnis' execution was the 6th this year in Texas and the 2nd of 3
scheduled for this week. He was the 8th juvenile offender executed in
Texas since capital punishment resumed in the 1970s.
To Victims' Families, the Anguish is Ageless
By Lisa Sandberg - Mysa.com
Jan 22, 2000
Karen Newsum hopes the final image her sister's killer sees at his
execution Tuesday is the face of his victim. "I want him to know that
she still matters," said the older sister of Leta Ann Jones Wilkerson,
who was killed Aug. 1, 1990, by 17-year-old Glen McGinnis during a
robbery at Wilkerson's dry cleaning store.
Newsum and three other family
members, including Wilkerson's 21-year-old daughter, will be watching
from the death chamber's visiting room when McGinnis, now 26, is
She said she is not seeking vengeance. "I forgave him first for my
sister, and I knew before I went to his execution I would have to
forgive him for myself," she said. "Leta would have been the first to
forgive him and would have turned right around and have helped him."
Wilkerson, who was 30, was alone at the cleaners she and her husband
owned in Conroe, about 45 miles north of Houston, when McGinnis came in
and demanded money. After taking about $100 in cash and checks, McGinnis
fired five shots into his victim.
Because of his age at the time of the murder, McGinnis' scheduled
execution touched off a wave of international protests last week,
including a direct appeal from Pope John Paul II to Gov. George W. Bush.
The United States is the world's only developed country that executes
inmates who were under age 18 at the time of their crimes. Newsum isn't
swayed by the arguments of death penalty opponents. "I'm a teacher and I
can tell you that at 17 these kids know right from wrong — even if they
haven't been raised in the perfect environment."
She was referring to
reports that McGinnis had been raped at age 10 by his stepfather and
subjected to vicious beatings. Once he was struck over the head with a
baseball bat. Another time his mother and stepfather burned his stomach
with hot grease. McGinnis left home for good when he was 11.
Texas lets up to five members of the inmate's and victim's families
witness executions from separate rooms. Dan Guerra, assistant director
of the Victim Services Division of the Texas Department of Criminal
Justice, said executions tend to be more emotional for the inmate's
family, since they are grappling with their loved one's death for the
first time. That's not to say executions are painless for victims'
Stephani Walsh, whose mother was murdered in 1977 in her San Antonio
home by Joseph John Cannon, said her relatives were not emotionally
prepared for the 1998 execution of the killer, who was 17 at the time of
his crime. "There was closure but it was traumatic," Walsh said. "And it
did create another anniversary date."
UNITED STATES OF AMERICA - "Shame in the 21st Century: Glen Charles
McGinnis - Scheduled for Execution on 25 January 2000 - Texas"
“Can you seriously expect to rehabilitate someone who was never
‘habilitated’ to start with?” District Attorney, arguing for a death
sentence at trial of Glen McGinnis, 1992
Glen McGinnis, a 26-year-old African American, was born in Houston,
Texas, on 11 January 1973. He is scheduled to die on 25 January 2000 in
Huntsville, where some 200 prisoners have been executed since Texas
resumed judicial killing in 1982.
Glen McGinnis had little contact with his natural father, who lived
separately. His mother worked as a prostitute out of the one-bedroom
apartment that she shared with her son. She was addicted to crack
cocaine -- he remembers her drug abuse from when he was about eight or
nine years old -- and she spent several periods in jail on drug
The young boy would often be left alone to fend for himself. He
suffered abuse, including beating with an electric cord, at the hands of
his stepfather, who lived in the apartment for about two years.
state Child Protective Services (CPS) intervened on three occasions,
once after the boy was raped by his stepfather when he was about nine or
10 years old, a second time when he was beaten on the head with a
baseball bat, and thirdly after his mother and stepfather burned his
stomach with hot sausage grease.
Each time the CPS returned him to his mother’s home after he had been
treated for his injuries, and each time he ran away, only to be caught
shoplifting and returned home again by the authorities. He ran away from
home for good when he was 11, and his formal schooling ended around this
He alternated between the streets of Houston and state juvenile
facilities, where he was sent when he was caught stealing cars. During
his time on the streets, he has said that he lived in cars and empty
apartments, and sometimes with adult friends. He continued to shoplift
clothing and food.
At the age of 17 he stole a car in an incident in which the vehicle
ran over the owner’s foot as the teenager drove away. Now considered an
adult under state law, he spent three months in Montgomery County Jail
for the offence. He was released on probation and went to stay with his
aunt who lived in Conroe, a small town in Montgomery County about 20
miles north of Houston.
A few days later, on 1 August 1990, the 17-year-old decided to rob
Wilkins Cleaners and Laundry in Conroe, apparently on the encouragement
of a neighbour. He twice entered the laundry, but hesitated and left. He
says that he then fetched his aunt’s gun to “scare” the attendant, and
brought some clothes with him in order to pretend to be engaged in
legitimate business at the laundry.
A few minutes later Leta Ann Wilkerson, the 30-year-old white
attendant, was shot dead. Glen McGinnis left the premises, leaving a bag
of clothes marked “McGinnis” behind. A little after 7am on the following
morning, he was arrested at his aunt’s house and charged with capital
For the next two years he was held in Montgomery County Jail before
coming to trial in July 1992. The trial lawyer told Amnesty
International in November 1999 that he had “tried and tried and tried”
to obtain a plea bargain from the District Attorney, whereby Glen
McGinnis would plead guilty to two crimes (robbery and murder) and
receive consecutive life prison sentences. The lawyer said that he had
achieved this before, but in this case the District Attorney appeared
set on obtaining a death sentence.
The pool from which jurors were to be selected for the trial
initially consisted of 102 individuals. Three of them were African
American, the rest were white. Although this was approximately
representative of the Montgomery County population at the time, what
happened next ensured that none of the three blacks would appear on the
Under Texas law, prior to actual jury selection by the defence and
prosecution, the judge considers reasons from any of the potential
jurors as to why they should be excused from jury duty. All three black
jurors in the McGinnis jury pool asked to be excused, two for medical
reasons and one because she was going on holiday.
Over the defence lawyer’s objections, the judge excused all three
after little or no consideration of their excuses. The judge excused 19
of the 33 white jurors who asked to pull out of jury duty. His action
meant that Glen McGinnis was given no opportunity to have African
Americans serving on his jury, as his defence lawyer was faced by a pool
of 80 whites from which he and the prosecutor would select 12 jurors.
Amnesty International has long voiced its concern that death
sentences in the USA are handed out disproportionately against the poor
and members of ethnic minority groups from an overwhelmingly white
judicial and law enforcement system. Many blacks have been sentenced by
all-white juries after blacks have been removed during jury selection.
Studies have consistently shown that the colour of a defendant’s skin,
or that of the victim, appears to be a factor in death sentencing.
Whilst it is almost impossible to prove actual racial discrimination in
any one individual case -- the standard set by the US Supreme Court for
a capital defendant to win an appeal against their sentence on racial
grounds -- the history of racism in the application of the death penalty
alone places an obligation on the authorities to ensure that all steps
are taken to ensure that the process is free, and seen to be free, from
any hint of racial prejudice. By any measure, the Montgomery authorities
failed to meet this obligation in the jury selection for Glen McGinnis’
The jury convicted Glen McGinnis of capital murder and the
proceedings moved into a sentencing phase. In a Texas capital sentencing,
jurors are required to decide whether the defendant had acted
deliberately in killing the victim and whether he or she represented a
continuing threat to society. If their answer to both questions is
unanimously “yes”, then they are asked to consider if there are any
mitigating factors which should result in leniency. If the answer to
this is “no”, the defendant is sentenced to death.
The District Attorney (DA) argued vigorously for a death sentence,
depicting Glen McGinnis as an habitual criminal who would represent a
continuing threat to society if allowed to live. The local press
reported the DA as stating: “this guy’s been a criminal since he was 13
years old... It’s been one crime after another, with capital murder just
kind of being the inevitable result”. The judge even allowed the
prosecutor to introduce evidence of a crime of which Glen McGinnis had
never been identified as the perpetrator.
In Houston in 1988 a woman had her van stolen at gunpoint by a black
male. Over a week later, 16-year-old Glen McGinnis was found in
possession of the van. The woman had not been able to identify the
teenager as the gunman, and had described an individual of different
At Glen McGinnis’ trial, over the objections of the defence, the
woman’s testimony of the incident was presented to the jury, thereby
linking the defendant to a crime (armed robbery, as opposed to
possession of a stolen vehicle) of which he had never been convicted. It
is unknown what weight the jury attached to this evidence in weighing up
the teenager’s “future dangerousness”.
For its part, the defence presented evidence of the defendant’s
childhood of abuse and neglect, as well as his apparent capacity to
flourish in a structured environment.
Four employees at the juvenile detention facility where he had been
held in 1989 and 1990 testified that he had a good disciplinary record
in the institution, and that he was polite and respectful to adult staff
They told the jury that he was not violent or aggressive, even
in the face of repeated taunting and aggression from other juveniles in
the facility aimed at his open homosexuality.
They also testified that
they believed that it was not in Glen McGinnis’ character to
deliberately enter a store with the intent to kill someone. One of the
staff members told the jury that she had considered adopting Glen
McGinnis after working with him during his time in detention.
The defence also presented an expert witness, a former head of the
state prison system’s psychology program, who argued that Glen McGinnis
was a product of his environment, and an impulsive teenager who had
acted without deliberation when he shot Leta Wilkerson.
Based on interviews with the teenager, psychological tests, and a
review of the state’s records, he argued that Glen McGinnis was not
likely to be a continuing threat to society, especially when held in the
structured environment of a prison, and that he had the capacity for
The expert sought to support his opinion with testimony from an
interview he had conducted with Glen McGinnis, in which the teenager had
told him that he had become “panicked and hysterical” when Leta
Wilkerson told him that she did not have the key to the cash register
and that he had only fired the gun in her direction “to prove to her
that it was real” and “to scare her”.
The judge refused to allow the jury to hear this evidence on the
grounds that it was hearsay, and therefore unreliable, despite the fact
that an experienced professional psychologist had assessed it as being
valid supporting testimony. The jurors were unable to consider this
testimony in their deliberations at which they decided that the teenager
should be sentenced to death.
Whatever led to the shooting inside Wilkins Laundry on 1 August 1990,
whether the teenager’s panic and confusion as Glen McGinnis claims, or
as the result of calculated deliberation as the prosecution asserted,
the end result was that Leta Ann Wilkerson lay dead, shot four times.
She left a husband and two young daughters, more victims of gun violence.
Amnesty International does not seek to excuse the crime or its tragic
consequences. It seeks only that the state not compound the violence by
carrying out another killing.
President George Bush ratified the International Covenant on Civil
and Political Rights (ICCPR) in June 1992, with a proviso worded by the
US Senate that the country’s prosecutors and courts could ignore the
treaty’s ban on the use of the death penalty against child offenders.
One month later, just such a defendant -- Glen McGinnis -- was sentenced
to death, possibly the first such sentence passed after US ratification
of the ICCPR. The Governor of Texas, George W. Bush Jr, son of the
former president and himself a would-be US President, will have the last
word in whether Glen McGinnis is executed in violation of international
Glen McGinnis - Executed on January 25, 2000
On 25 January 2000 Glen McGinnis was executed in Texas shortly after
6pm local time. His execution is a blatant violation of international
law, which prohibits the use of the death penalty against child
Glen McGinnis had been sentenced to death for the murder of
Leta Ann Wilkerson during a robbery of a laundry in Conroe, Montgomery
County, Texas, in August 1990. He was 17 at the time of the crime.
Glen McGinnis gave no final statement before being given a lethal
injection. In a recent interview he reportedly said that he did not want
to use the abuse and abandonment that marked his childhood to make
excuses for his crime, although he wondered what would have been if he
had not lived on the streets for most of his teenage years
The European Union appealed for clemency: 'The European Union
respectfully urges the United States authorities to commute Mr McGinnis'
sentence to life imprisonment, or such other penalty compatible with
international law.' The UN High Commissioner for Human Rights, the
American Bar Association and the Pope also appealed for the execution to
In a letter sent to Governor George W. Bush of Texas on 24 January,
Amnesty International's Secretary General Pierre Sane wrote: On behalf
of more than one million Amnesty International members across some 100
countries, I am writing to you in your capacity not only as a Governor
who took office on a promise to make Texas a 'beacon' state, but also as
a presidential contender in a country which claims to be a shining light
for human rights in the world.
There is indeed no doubtthat in the next
few hours, a spotlight of an international nature will be focused on the
USA specifically on your office, and the power invested in you to
reprieve those condemned to death in Texas.
After those hours have
passed, citizens and governments across the world will be able to make
their own assessment of the respect for global human rights standards
held, not only by the highest executive officer of an individual US
state, but also by a potential future leader on the world stage.'
Governor Bush has again shown his contempt for international
standards of justice, and deepened the USA's isolation in a world where
almost no other country executes people for crimes committed when they
were children. Glen McGinnis becomes the third child offender to be
executed in the USA in January 2000.
Since October 1997, there have been eight known executions of child
offenders in the world - one in Iran and seven in the USA. Three of
these US executions have taken place in Texas, under the governorship of
George W Bush. Eleven prisoners have been executed in the USA in January
2000, bringing to 609 the total number of inmates executed since the USA
resumed executing in 1977.
Texas juvenile execution
A man who was still legally a boy when, at the age of 17, he killed a
laundry clerk during a 1990 robbery was executed by lethal injection on
Tuesday in a Texas prison.
Glen McGinnis, 27, died without making a statement in an execution
that drew protests from the European Union, human rights group Amnesty
International and the American Bar Association because McGinnis was a
juvenile at the time of the killing.
McGinnis was sentenced to die for the Aug. 1, 1990 killing of Leta
Ann Wilkerson in Conroe, Texas near Houston. He shot her 4 times in the
head and back while robbing the laundry where she worked, then fled in
Death penalty opponents complained that McGinnis came from a troubled
background from which the state of Texas should have protected him when
he was young. His mother was a drug abuser and he was raped and beaten
as a child. "Texas failed to protect Glen from an extremely abusive home
situation. It is failing him again by executing him for a crime he
committed as a youth. Texas Gov. George W. Bush could exhibit some 'compassionate
conservatism' by granting clemency,'' the Texas Coalition to Abolish the
Death Penalty said in a statement.
Bush, the Republican presidential
frontrunner who was campaigning in New Hampshire on Tuesday, took no
action in the case. He has commuted only one death sentence to life in
prison since taking office in January 1995.
McGinnis becomes the 6th condemned inmate to be put to death this
year in Texas, and the 205th overall since the state resumed capital
punishment on Dec. 7, 1982. McGinnis also becomes the 11th condemned
inmate to be put to death this year in the USA and the 609th overall
since the USA resumed executions on Jan. 17, 1977.
Glen McGinnis [Texas]. Born to a mother who was
addicted to crack cocaine and who worked out of their one-bedroom flat
as a prostitute, Glen McGinnis, black, suffered repeated physical abuse
at the hands of her and his stepfather, who raped him when he was nine
or 10. Ran away from home at the age of 11 and lived on the streets,
where he engaged in shoplifting and car theft.
He was sentenced to death
by an all-white jury for the shooting of Leta Ann Wilkerson, white,
during a robbery in 1990. Various juvenile correctional officials
testified that he was non-aggressive even in the face of taunting about
his homosexuality from other inmates, and had the capacity to flourish
in the structured environment of prison. Executed on 25 January 2000.
United States Court of Appeals Fifth Circuit
181 F.3d 686
Gary L. Johnson, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-appellee.
July 20, 1999
Revised August 9, 1999
Appeal from the United States District Court for the Southern
District of Texas
WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
appeals the district court's dismissal of his
petition for habeas relief under 28 U.S.C. 2254.
* A jury in Montgomery County,
Texas, found McGinnis
guilty of capital murder while committing a
robbery. At the punishment phase, the jury found
that McGinnis acted
deliberately, that he was a continuing threat to
society, and that there were not sufficient
mitigating circumstances to warrant a sentence
of life imprisonment. Accordingly, the state
trial court imposed a sentence of death. The
Texas Court of Criminal Appeals upheld
and sentence on direct appeal, and the United
States Supreme Court denied
McGinnis a writ of certiorari.
then filed a petition for a writ of habeas
corpus in Texas state court. The trial court
issued findings of fact and conclusions of law,
recommending that McGinnis's
habeas corpus petition be denied. The Texas
Court of Criminal Appeals denied
based on the trial court's findings. Finally,
McGinnis filed a
petition for a writ of habeas corpus under 28
U.S.C. 2254 in federal district court. The
district court granted the government's motion
for summary judgment, and entered final judgment
denying McGinnis's 2254
requested a certificate of appealability ("COA")
from the district court. The district court
granted McGinnis a COA
on two issues: (1) whether the state trial
court's excusal of three African-American
venirepersons violated the Sixth and Fourteenth
Amendments to the United States Constitution,
and (2) whether the state trial court denied
McGinnis due process
under the Fourteenth Amendment by excluding
certain evidence from the punishment phase of
We review summary judgment
rulings de novo, applying the same standard
applied by the district court. See Alton v.
Texas A&M Univ., 168 F.3d 196, 199 (5th Cir.
1999). Summary judgment is appropriate where the
record shows "that there is no genuine issue as
to any material fact and that the moving party
is entitled to judgment as a matter of law."
FED. R. CIV. P. 56(c).
McGinnis is entitled to habeas relief
from his state conviction and sentence only if
the Texas court's adjudication of his claims "resulted
in a decision that was contrary to, or involved
an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States." 28 U.S.C.
argues that the state trial court's decision to
excuse three African-Americans from the venire
was unconstitutional. According to
excusals violated the "fair cross section"
requirement of the Sixth Amendment, theEqual
Protection Clause of the Fourteenth Amendment,
and the Due Process Clause of the Fourteenth
Of the 102
individuals who reported for jury duty in
McGinnis's case, three
were African-American. Texas law provides that
after the venire has been sworn, the trial court
shall "hear and determine excuses offered for
not serving as a juror, and if the court deems
the excuse sufficient, the court shall discharge
the juror or postpone the juror's service." TEX.
CRIM. P. CODE, art. 35.03.
venirepersons asked to be excused pursuant to
Article 35.03, including the three African-Americans.
The first African-American juror sought an
excuse because she had scheduled an out-of-town
vacation. The second African-American juror
sought an excuse because she had high blood
pressure and vision problems, and because she
worked to support herself. The third African-American
juror sought an excuse because she suffered
seizures and was on medication. The trial court
accepted these excuses, over
McGinnis's objections. In total, the
court excused twenty-two potential jurors,
including the three African-Americans. As a
result, the pool of jurors presented to the
attorneys for peremptory challenges contained no
first argues that the state court's excusal of
all three African-American venirepersons
violated the Sixth Amendment.1
The Sixth Amendment requires that juries in
criminal trials must be "drawn from a fair cross
section of the community." Taylor v. Louisiana,
419 U.S. 522, 527, 95 S. Ct. 692, 696, 42 L. Ed.
2d 690 (1975). Accordingly, "venires from which
juries are drawn must not systematically exclude
distinctive groups in the community and thereby
fail to be reasonably representative thereof."
Duren v. Missouri, 439 U.S. 357, 363-64, 99 S.
Ct. 664, 668, 58 L. Ed. 2d 579 (1979). To
establish a prima facie Sixth Amendment
(1) that the group alleged to
be excluded is a distinctive group in the
community; (2) that the representation of this
group in venires from which juries are selected
is not fair and reasonable in relation to the
number of such persons in the community; and (3)
that this underrepresentation is due to
systematic exclusion of the group in the jury
Id. at 364, 99 S. Ct. at 668.2
As to the first requirement of
the prima facie case, African-Americans are
unquestionably a "distinctive group in the
community" for Sixth Amendment purposes. See
United States v. Royal, 174 F.3d 1, 6 (1st Cir.
1999); United States v. Rioux, 97 F.3d 648, 654
(2d Cir. 1996). As to the second requirement,
statistics on the proportion of African-Americans
on jury venires relative to the whole community.3
need not decide whether these statistics are
sufficient to satisfy the second requirement,
evidence plainly fails to satisfy the third
fails to show that the state court's excusal of
the three African-Americansfrom his jury venire
resulted from the "systematic exclusion" of
argues that the excusal of the three African-American
venirepersons was systematic "because it
resulted from the operation of Texas procedures
by which juries are qualified, excused, or
exempted from service" and because "article
35.03 creates a systematic danger of the
underrepresentation of distinctive groups on
criminal jury venires." These contentions fail
to satisfy the third requirement of the prima
According to the Supreme Court,
a process systematically excludes a group if the
underrepresentation of that group is "inherent
in the particular jury-selection process
utilized." Duren, 439 U.S. at 366, 99 S. Ct. at
669; Timmel v. Phillips, 799 F.2d 1083, 1086-87
(5th Cir. 1986). McGinnis
presents insufficient evidence that
underrepresentation of African-Americans is "inherent"
in the excusal process under article 35.03. The
only evidence McGinnis
presents concerning the effect of article 35.03
involves his own venire.4
asserts that the state court excused only
sixteen out of the thirty non-African-American
venirepersons who sought excusal under article
35.03, whereas the court excused all three
Based on these figures, he contends that the
trial court excused 100% of the African-American
venirepersons seeking excusal, but excused only
53.3% of the non-African-American venirepersons
These statistics alone are
insufficient to raise a genuine issue that the
Texas excusal provision inherently causes
African-Americans to be underrepresented. We
have held that "[o]ne incidence of a jury venire
being disproportionate is not evidence of a 'systematic'
exclusion." Timmel, 799 F.2d at 1087. Therefore,
"a one-time example of underrepresentation of a
distinctive group wholly fails to meet the
systematic exclusion element in Duren." Id.; see
also Untied States v. Defries, 129 F.3d 1293,
1301 (D.C. Cir. 1997); Singleton v. Lockhart,
871 F.2d 1395, 1399 (8th Cir. 1989).6
fails to presentevidence sufficient to
demonstrate that the excusal of three African-American
venirepersons violated clearly established Sixth
Amendment law. Accordingly, the district court
did not err in granting summary judgment on
also contends that the excusal of three African-American
venirepersons violated the Equal Protection
Clause of the Fourteenth Amendment. The Equal
Protection Clause protects a criminal defendant
against "purposeful racial discrimination" in
the selection of his venire. Batson v. Kentucky,
476 U.S. 79, 86, 106 S. Ct. 1712, 1717, 90 L.
Ed. 2d 69 (1986). "As in any equal protection
case, the burden is, of course, on the
[criminal] defendant who alleges discriminatory
selection . . . to prove the existence of
purposeful discrimination." Id. at 93, 106 S. Ct.
at 1721 (quotation marks omitted).
Although we have found no
precedent involving an Equal Protection
challenge to an excusal provision such as the
one at issue in this case, we are guided by
Supreme Court precedent in other areas of jury
and venire selection. See id. at 96-97, 106 S.
Ct. at 1723 (peremptory challenges); Castaneda
v. Partida, 430 U.S. 482, 495, 97 S. Ct. 1272,
1280, 51 L. Ed. 2d 498 (1977) (grand jury
selection). To make out a prima facie case of
purposeful discrimination, the criminal
defendant must show that the group excluded from
jury participation is "a cognizable racial group,"
and that the "relevant circumstances raise an
inference" of purposeful discrimination. Batson,
476 U.S. at 96, 106 S. Ct. at 1723. "In deciding
whether the defendant has made the requisite
showing, the trial court should consider all
relevant circumstances." Id. at 96-97, 106 S. Ct.
A criminal defendant may make
out a prima facie case of discriminatory purpose
by showing "substantial underrepresentation" of
a cognizable group. Castaneda, 430 U.S. at 495,
97 S. Ct. at 1280. In addition, "a selection
procedure that is susceptible of abuse or is not
racially neutral supports the presumption of
discrimination raised by the statistical showing."
Id. at 494, 97 S. Ct. at 1280.
has failed to raise an inference that the trial
judge excused the three African-American
venirepersons because of purposeful racial
discrimination. As discussed above, the
statistical evidence presented by
insufficient to demonstrate that the judge
disproportionately excluded African-Americans.
Furthermore, the excusal
provision is facially neutral as to race, and
McGinnis presents no
evidence that the judge treated the African-American
venirepersons differently from the non-African-American
venirepersons. For example,
McGinnis cites no evidence that the judge
accepted weaker excuses from African-Americans
than he did from non-African-Americans. In
short, nothing in the record suggests that
racial bias motivated the excusal of the three
the state habeas court found that the state
trial court excused the three African-American
venirepersons based on race-neutral criteria.
Such factual findings by a state court "shall be
presumed to be correct." 28 U.S.C. 2254(e)(1). A
petitioner contesting such a finding "shall have
the burden of rebutting the presumption of
correctness by clear and convincing evidence."
McGinnis's evidence of
purposeful racial discrimination is not clear
and convincing. Accordingly,
McGinnis fails to raise a genuine issue
of fact that the trial court's actions violated
clearly established Equal Protection law. The
district court did not err in granting summary
judgment as to that claim.
also argues that the trial court's excusal of
three African-Americans from the venire violated
the Due Process Clause of the Fourteenth
Amendment. He cites Peters v. Kiff, 407 U.S.
493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972), in
which the Supreme Court reversed the denial of a
writ of habeas corpus, because the petitioner
alleged that the jury-selection procedures
systematically excluded African-Americans. Three
justices reasoned that such systematic exclusion
violated the Due Process Clause. See id. at 501,
92 S. Ct. at 2168 (opinion of Marshall, J.); see
also United States v. Cronn, 717 F.2d 164, 167
(5th Cir. 1983) (reading Justice Marshall's
opinion as resting on due process grounds).
In Peters, Justice Marshall
addressed solely "whether a State may subject a
defendant to indictment and trial by grand and
petit juries that are plainly illegal in their
composition." Peters, 407 U.S. at 501, 92 S. Ct.
at 2168. To Justice Marshall, it was clear that
the systematic exclusion of African-Americans
alleged in Peters violated the Equal Protection
Clause and the Sixth Amendment. See id. at
498-500, 92 S. Ct. at 2166-67. The only issue
was whether the criminal defendant, who was
white, had standing to challenge the exclusion
of African-Americans from the grand and petit
juries. See id. at 500 n.10, 92 S. Ct. at 2167
n.10. Justice Marshall concluded:
[W]e hold that, whatever his
race, a criminal defendant has standing to
challenge the system used to select his grand or
petit jury, on the ground that it arbitrarily
excludes from service the members of any race,
and thereby denies him due process of law. This
certainly is true in this case, where the claim
is that [African-Americans] were systematically
excluded from jury service.
Id. at 504, 92 S. Ct. at 2169.
Marshall's Peters opinion allows a criminal
defendant to challenge the racial composition of
his grand or petit jury under the Due Process
Clause, only when the arbitrary or systematic
exclusion of a particular racial group renders
the jury "plainly illegal in [its] composition."
Id. at 501, 92 S. Ct. at 2168. In Peters,
Justice Marshall accepted as given that the
facts alleged by the petitioner violated the
Equal Protection Clause and the Sixth Amendment.
In the present
case, however, McGinnis
cannot show that the excusal of the three
African-American jurors rendered the jury that
convicted him "plainly illegal." As discussed
above, McGinnis has not
demonstrated the systematic exclusion of a
distinctive group, as is required for a Sixth
Amendment violation, nor has he demonstrated
purposeful racial discrimination, as is required
for an Equal Protection violation. Accordingly,
McGinnis fails to
provide a basis for his Due Process claim. The
district court did not err in grantingsummary
judgment as to this claim.
McGinnis argues that the trial court's
decision to exclude certain testimony of an
expert psychologist violated the Due Process
Clause of the FourteenthAmendment. At the
punishment phase of the trial,
McGinnis called Dr. Walter Quijano as an
expert witness. Dr. Quijano testified that, in
his opinion, McGinnis
did not act deliberately in committing the crime,
would not pose a future danger to society, and
was capable of remorse. Dr. Quijano sought to
support these opinions with testimony about his
interview with McGinnis,
in which McGinnis gave
Dr. Quijano his account of the crime. According
to Dr. Quijano, McGinnis
stated that he only "wanted to prove to [the
victim] that the gun he had was a real gun," and
that he only "fired towards the direction of the
[victim] to scare her."
The trial court excluded as
hearsay any testimony about
McGinnis's specific statements during the
does not dispute that such testimony is hearsay
under Texas law. Rather,
McGinnis contends that under Green v.
Georgia, 442 U.S. 95, 99 S. Ct. 2150, 60 L. Ed.
2d 738 (1979), excluding such testimony violates
the Due Process Clause. In Green, the Supreme
Regardless of whether the
proffered testimony comes within Georgia's
hearsay rule, under the facts of this case its
exclusion constituted a violation of the Due
Process Clause of the Fourteenth Amendment. The
excluded testimony was highly relevant to a
critical issue in the punishment phase of the
trial, and substantial reasons existed to assume
its reliability. . . . In these unique
circumstances, the hearsay rule may not be
applied mechanistically to defeat the ends of
Id. at 97, 99
S. Ct. at 2151-52 (quotation marks and citations
omitted). The circumstances in Green were unique
indeed. At his punishment phase, Green sought to
introduce testimony that another individual had
admitted to the murder. The witness planned to
testify that the other individual confessed to
killing the victim, "shooting her twice after
ordering [Green] to run an errand." See id. at
96, 99 S. Ct. at 2151.
Our court has limited Green to
its facts. See Edwards v. Scroggy, 849 F.2d 204,
212 (5th Cir. 1988). In Edwards, we upheld a
trial court's decision to exclude from the
punishment phase mitigating testimony concerning
statements made by the defendant. There, a
priest testified about his meeting with the
defendant. The court allowed the priest to
testify about his opinion of the defendant based
on that meeting. See id. at 212. The priest
testified that the defendant was gentle, soft
spoken, and exhibited no hostility. See id.
However, the trial court
excluded as hearsay any testimony about direct
statements made by the defendant during that
meeting. See id. We upheld the trial court's
evidentiary ruling, writing that "unlike Green,
the State of Mississippi's application of its
hearsay rule to exclude the evidence proffered
in this case was not unnecessarily limiting, nor
did it operate to render [the] trial
fundamentally unfair." Id.
Likewise, excluding Dr.
Quijano's hearsay testimony about
statements was not unnecessarily limiting. Dr.
Quijano was permitted to testify about his
opinion of McGinnis's
state of mind during and after the crime.
statements to Dr. Quijano did not render
fundamentally unfair. Accordingly, we find that
the district court did not err in granting
summary judgment as to
McGinnis's Due Process claim under Green.
The state court's exclusion of hearsay evidence
did not violate clearly established federal law.
For these reasons, we AFFIRM
the district court's denial of habeas corpus
relief under 28 U.S.C. 2254.
McGinnis bases his
Sixth Amendment argument exclusively on the
state court's excusal of the three black
does not argue that presence of only three
African-Americans in the initial venire violated
the Sixth Amendment.
We have found no cases that apply the Duren
test to an excusal provision such as article
35.03. However, we assume for the purposes of
argument that the Duren test applies.
jury composition statistics from nine Montgomery
County capital cases, including his own. In
these cases, a total of 781 venirepersons were
presented to the attorneys for peremptory
challenges. Eighteen of these venirepersons were
African-American-2.3% of the total.
McGinnis points out
that according to 1990 census data, the
population of Montgomery County is 3.8% African-American.
statistics from eight other Montgomery County
capital venires, see supra n.3, are legally
insufficient to prove that underrepresentation
of African-Americans is inherent in the article
35.03 excusal process. These statistics contain
no information on the number of venirepersons
excused pursuant to article 35.03.
These figures, which indicate that the state
court excused a total of nineteen venirepersons
under article 35.03, seem inconsistent with a
statement made earlier in
McGinnis's brief that the court excused a
total of twenty-two venirepersons. For the sake
of argument, however, we will examine the
statistics as he presents them in the context of
his Sixth Amendment claim.
We have found no cases that examine the
appropriate use of statistical analysis in the
context of a facially neutral juror excusal
provision, under which jurors voluntarily decide
whether to seek an excuse from jury service.
statistics are legally inadequate under Timmel,
we need not address this issue today. We note,
however, that the mode of analysis endorsed by
the Supreme Court to examine the racial
composition of grand juries demonstrates that
the excusal pattern in
McGinnis's case is not, as a statistical
matter, suspicious. In Castaneda v. Partida, 430
U.S. 482, 496 n.17, 97 S. Ct. 1272, 1282 n.17,
51 L. Ed. 2d 498 (1977), the Supreme Court
analyzed grand jury statistics using standard
deviations. It held that the impartiality of a
selection process becomes "suspect" only "if the
difference between the expected value and the
observed number is greater than two or three
standard deviations." Id.; see also Boykins v.
Maggio, 715 F.2d 995, 996 (5th Cir. 1983) (rejecting
criminal defendant's claim that the jury and
venire selection process systematically excluded
blacks where the observed jury composition was
two standard deviations from the expected value).
McGinnis, thirty-three venirepersons
sought excusal-three African-Americans and
thirty non-African-Americans. The judge granted
nineteen excusals-three to African-Americans and
sixteen to non-African-Americans. To calculate
the standard deviation, we assume that the
nineteen excuses were granted at random. See
Castaneda, 430 U.S. at 496 n.17, 97 S. Ct. at
1281 n.17; Boykins, 715 F.2d at 995 (calculating
the standard deviation by "[e]mploying the
statistical analysis approved by the Supreme
Court in Castaneda"). The standard deviation is
calculated by taking the square root of the
following product: the total number of excuses
granted, times the percentage of African-Americans
in the pool of excuse-seekers, times the
percentage of non-African-Americans in the pool
of excuse-seekers. See Castaneda, 430 U.S. at
496 n.17, 97 S. Ct. at 1281 n.17; Boykin v.
Georgia-Pacific Corp., 706 F.2d 1384, 1391 n.3
(5th Cir. 1983). Here, the judge granted
nineteen excusals from a pool that was 9.1%
African-American and 90.9% non-African-American.
These figures yield a standard deviation of
Assuming a random distribution,
we would expect 1.73 African-Americans to be
excused (9.1% times 19). See Boykins, 715 F.2d
at 996 (calculating the expected value). Thus,
the observed number of African-Americans excused
(3), exceeds the expected number by 1.27 (3
minus 1.73). To express this disparity (1.27) in
terms of standard deviations, we simply divide
it by the standard deviation for the sample
(1.25). See Boykin, 706 F.2d at 1391 n.3. The
disparity is 1.02 standard deviations, well
below the two or three standard deviations
required under Castaneda.