Bias Charges Not Enough for Killer’s Habeas Case

(CN) - Despite admittedly "very serious, serious, concerns about the fairness of the jury selection," a Boston federal judge denied habeas relief to a black man sentenced to life in prison for murdering a white Northeastern University student.

"To the victim's family, the prospect of rehashing the facts of the crime or worse, witnessing the release of the defendant should this petition be granted, is surely excruciating," U.S. District Judge Nancy Gertner wrote. "To the defendant, the possibility that he has been imprisoned for over ten years without having had a trial that meets constitutional standards, is horrifying. But while I have very serious, serious, concerns about the fairness of the jury selection, I am obliged to deny the claim. I sit in this case not as a trial judge in the first instance. I sit as a federal judge reviewing a state court conviction, sadly many, many years after the trial, and after the law has consistently narrowed the scope of my review."

Roger Herbert was convicted in the January 1990 stabbing death of Northeastern student Mark Belmore. Witness testimony showed that Herbert, his brother and a few friends decided to attack the next person they saw. One of the assailants testified that the group, all of whom were black, had their sights set on a white victim.

Four days after Belmore, 19, was found beaten and stabbed to death, his wallet missing, one of Herbert's friends confessed to witnessing the attack and incriminated Herbert, who was also 19 years old.

At Herbert's trial, another witness said Herbert told him he stabbed Belmore in a rage after Belmore called Herbert a "nigger."

After being sentenced to life without parole for armed robbery and felony murder, Herbert raised several issued to form the basis of a federal habeas petition. He claimed that juror selection at his trial was racially biased, that police took his confession ignoring his demand for counsel, and that the statute under which habeas claims are now decided, the Antiterrorism and Effective Death Penalty Act (AEDPA), is unconstitutional.

Judge Gertner rejected the petition, but voiced serious concerns about both the trial and the constitutionality of AEDPA, which she noted "dramatically cabins my review of state proceedings."

Its terms dictate review of the trial court only on the basis of "clear error," she said.

The judge noted that Herbert may not have understood and waived his rights since the court did not adequately consider Herbert's learning disabilities, IQ of 76 and the nature of the interrogation. Herbert was told that no lawyer was available for him, and neither of the officers present at his confession testified at trial. Police also failed to record at least two interrogations of Herbert before gave an unrecorded confession, which he repeated on tape.

In the years following Herbert's case, Massachusetts' Supreme Judicial Court (SJC) "found that when confessions are not recorded, the jury must be instructed to weigh the evidence of statements with caution," Gertner noted

But this rule could not save the habeas petition. "Nevertheless, the SJC rule is prospective; there is no error," according to the 26-page opinion. "And the trial judge's and the SJC's failure to specifically account for Herbert's age, education level or low intelligence, while troubling, is not sufficient to undermine its opinion."

Of the six black jurors available, the state peremptorily struck three. The prosecution explained that it merely wanted to strike people who "lived in the area," but the defense pointed out that white jurors who lived or work in the area went unchallenged.

Moreover, after attorneys whittled down the jury pool, the trial judge designated a white woman as foreperson, which ensured she would serve as a deliberating juror.

Just one black person served on the jury, while two other black jurors served as alternates along with two white jurors.

"In this racially charged case, the jury selection should have been more careful," Gertner said. "The answers offered by the prosecutor for challenging the third black juror should have been scrutinized more carefully by the trial judge. Nevertheless, 'testimony' is too vague a standard, too vulnerable to bias to justify the challenge. It is literally in the eye of the beholder and the 'beholder' despite his best intentions, may be biased. However, given the standards I am obliged to apply, I cannot say this is error sufficient to grant this habeas petition."

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