Racism in the trial

Let me see what else I want to cover real briefly.
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I'll talk a little bit more about this during individual voir dire, but let me get one thing right out of the way here. Everybody look over at that defendant over there. And it's obvious that he ain't a white guy or what we call a Caucasian; I'd venture to say he's not a black man, he's not a green man, he's not Oriental, or -- who knows what he is. But most folks, based on his name and his appearance, they're going to come to the conclusion that Mr. Alba is Hispanic. And whether or not -- and I don't know what that means today. Who knows what that word means today. Hispanic or Mexican-American or Mexican or American-Mexican or Puerto Rican, or does it mean anybody south of the Rio Grande. I don't know. But obviously it would appear that he's not Caucasian. All right. ... And we've had jurors that had feelings about Hispanics; they've had certain feelings about the way they treat women or whatever.... it's silly to ask that right now, so I'll save that for voir dire.

Q. All right. We're going to talk a little bit about that.
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You know, so there's no doubt about it whatsoever, if you take a look over there at the defendant Mr. Alba, he is -- depending on, I guess, whatever term you want to use, he's either Hispanic or Mexican or Mexican-American or he's Puerto Rican or whatever; but he's not Caucasian, I think it's fair to say, based on his appearance and name, And he's not black.
A. Yes.
Q. He's not Chinese or anything like that. So are you with me that he's -- let's call him a Hispanic for now.
And make no bones about it, I'm trying to have him executed. That's my job. I believe what he's done deserves it.

Also during the voir-dire, Mr. Goeller's description of Mr. Alba's race often ridiculed the concept of being Hispanic:

Q. Okay. That's good. One final thing. You notice by looking at the defendant -- his lawyers, at least, have indicated that he's Hispanic. All right? And I guess that's a fair statement. His last name is Alba, and he looks Hispanic, whatever Hispanic means. I don't really know what that means; but apparently he's not Caucasian. In other words, he's not white. And he's not black, and he ain't green or yellow, and he's not Oriental. So he must be Hispanic, I guess. With that in mind, do you got any special feelings one way or another against Hispanics or for them or anything like that?

He even intimated in his racial descriptions that Mr. Alba might not even be American:

Q. Okay. One issue in this case certainly will be that the defendant over there is -- I guess the way the federal government calls it now is Hispanic.
A. Yes.
Q. And I don't know whether that term actually applies to him, but obviously he's either Hispanic, by his name, or he's Mexican American or Mexican or -- he's non-Caucasian and he's probably not black. Fair enough?

Mr. Goeller made his trial stragety perfectly clear, Mr. Alba's race would become an essential part in his attempt to garner a conviction. Prosecutor Goeller even attempted to get racist jurors onto the petit jury, and alerted biased jurors on how to answer during voir-dire, if they wanted to sit on this trial involving issues of race that he was to raise later:

Interracial marriages[1]. Hispanics marrying Caucasians, or Caucasians marrying blacks, or whatever; anything like that. Some folks have feelings about that. And that's fine. That's absolutely fine. You can sit there as a juror and say, I don't believe in it. I don't like it. That's okay. It doesn't matter. As long as it would not interfere with your ability to be fair and impartial in voting these issues.

Prosecutor Goeller did not meet any apparently prejudiced jurors during voir-dire that he did not want to get on to the regular jury. For example, in questioning petit juror Kappus:

Q. All right. How do you feel about people from different cultures who marry one another?
A. I don't believe in interracial relationships
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Mr. Goeller: Judge, we accept the juror.

Q. Well, I mean, some people might say, Gee, that's terrible. God never meant the races to mix. Other people might say, Hey whatever floats their boat. If those two people want to do that, no concern to me. Do you have any particular -- A. I think that's someone else's decision. I would not personally marry someone of another race.
Q. But if someone else did, would that offend you?
A. I don't know. It would depend on the people.
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Mr. Goeller: We accept the juror

Q. Did you have -- did you form any general conclusion about Hispanics as a result of encountering them in the Marine Corps or otherwise?
A. Not in the Marine Corps.
Q. From any other source?
A. In my job right now we do have a few Hispanics -- or Mexicans, as we call them at work -- that have given me some bad views.
Q. Okay.
A. They don't have the gumption, basically to learn the English language. When they speak to me, they speak Mexican, and I don't speak Mexican. I don't think I should have to. And I don't particularly like these guys. If they don't want to learn something to help me out, then I don't feel that it's truly right.
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Q. General feelings about Hispanics that don't learn English in general?
A. A general view? They've got to prove to me that they don't want to live here. If they don't want to live here, fine, move out. They've got to prove to me that they're not willing to do their part.
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Q. Well, I mean, you can look at the defendant here and you can see that he's not a blonde-haired, blue eyed German guy, can't you?
A. Correct.
Q. Is there anything about the feeling that you have with your co-workers there at work who aren't behaving like they ought to behave that would carry over to affect your ability to fairly judge Mr. Alba here?
A. It's hard to say. I don't really think it would, but I'm not guaranteeing anything.
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Q. And people come to the courtroom with -- I mean, they bring their life baggage with them. They bring what they've learned before they ever showed up here, how they grew up, that have all their experiences, and it sounds to me like lately you've had some bad experiences with Hispanic people.
A. You have got that right.
Q. And it also sounds to me like you think that might affect your judgement.
A. It may; it may not. It's hard to say. ...
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A. It might be on the best interest for me not to serve on this trial. There might be another one that I can serve, because, like I said, I am unsure.
Q. Do you feel like your bad experience with Spanish people might adversely impact the defendant in this case?
A. It might yes.

Even after dialog such as this, Mr. Geoller did not find reason to dismiss this juror, and fought hard to keep him on the jury panel. The greater the jurors bias towards Hispanic men and their culture the more the prosecution wanted them on the jury. Juror Hazen, although married to a black man at one time, openly expressed the likelihood that she would prejudge Mr. Alba based on her beliefs on Hispanic culture and the way they treat their women. This time prosecutor O'Connell tried to mold her answers so that she would be allowed to sit as a juror in this case. (S.F. vol 7, p.311, and pp. 311-356).

Prospective jurors who did not voice racially biased comments weren't so popular with the prosecutor. For example, thje questioning of petit juror Williams by Prosecutor Haynes elicited the following response from the prosecution:

Q. What's your view about people from different races or different cultures who marry each other?
A. That are married to each other?
Q. Yeah.
A. Well I've never really given it much thought. You know, I -- I grew up in Southern California in a Hispanic community, Santa Ana, California, went to school with Hispanics. Later in the service, you know, there was some mixed marriages, et cetera. It didn't bother me. I figured two people loved each other, then that's the way it was.
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Mr. Goeller: I'd use a peremptory your Honor.

Although the prosecution noted with one juror the impropriety of using race as a factor in deciding this case[3], and prosecutor Goeller promised another juror that race would not be a factor in deciding the case , Goeller presented race evidence for the jury to use in their deliberations, in both the guilt and innocence and the penalty phases of the trial, and argued race as the primary basis for giving Mr. Alba the death penalty. During the penalty phase of the trial, Mr. Goeller's racial ephitets started with his own expert, Dr. Coons, asking him in a hypothetical about whether a Hispanic male, from a Hispanic culture with certain other variables was likely to be a future danger. He began his hypothetical stating,Assume, Dr. Coons, that the defendant is approximately 36 years of age, and is Hispanic; and comes from an Hispanic background. (S.F. vol 26, p. 382) (All of these charecteristics are of Mr. Alba at the time of his trial.) He continued with the "defendant's" expert, Dr. Quijano raising similar race-based testimony. In cross-examining Dr. Quijano, prosecutor Goeller brought out that the doctor in his studies of different races concluded that hispanics in general were predisposed to violence, moreso than any other race. He also stated that Hispanics were more predisposed to be recidivist, moreso than any other race. Dr. Quijano used these factors concerning Hispanics as factors to determine Mr. Alba's furture dangerousness, Texas' second special issue:

Q. Okay.
Some of the things -- or the things that you use in determining whether or not a person is going to -- where there's a probability that they're going to commit those criminal acts of violence that would constitute a continuing threat to society, would be statistical, environmental, and clinical judgment factors. Correct?
A. Yes.
Q. Okay. Now, I want to talk to you a little bit about those statistical factors, and how they kind of play into all this. Those are things -- those statistical factors are those things that they're kind of in black and white. I mean, a person is this age, and he can't be any other age; He's either Hispanic or he's not; he's either black or he's not; or he's white or he's not; or he's male -- those kinds of things. Race according to at least one study cited in your paper has some bearing on this. Correct?
A. Yes.
Q. And Hispanics have a higher recidivism rate than blacks or whites.
A. Yes. That is true.

Q. Okay. So for those statistical factors -- and also we've got to -- we've got to consider his age, his sex, his race, his socioeconomics and employment history ... .

Q. Well, the fact that the defendant's Hispanic and he's using -- calling other people wetback. Does that mean anything.

Q. So when we're talking about these statistical factors -- that more men re-offend than women, Hispanics offend more than blacks or whites, people form the low socio- economic groups, people who have opiate addiction or alcohol abuse offend more often that those who don't, people who have less education offend more often that those who have less education offend more often than those who have -- do all those things cause people to offend?
A. No. They are simply contributing factors. They are not causal factors. One cannot control one's gender or one's color. And obviously there are many, many Hispanics, many whites, many Orientals who don't commit crimes. But the frequency among those who commit crimes, these are the characteristics. They don't cause each other; they just happen to be coincidental to each other.}

Now Dr. Quijano takes the witness stand, and he's published a book. He's authored an article on what to look for to help juries predict whether somebody is going to be violent or dangerous in the future. ... And I went down all the indicators. They didn't want to talk about those indicators, but I did, and I forced the issue. He's male; he's Hispanic; his age; no high school diploma; different kinds of arrest; different kinds of pools.

As a result Mr. John Alba is the only man, since Texas re-instated the death penalty after Furman, to be sent to death row from Collins county, for the killing of his wife.

[1] - This case involved the murder of a spouse in an interracial marriage. John was married to a white woman. The prosecutor also made sure that the jury knew that John's wife was white, too (SF Vol)
[2] - Prosecutor Goeller was not content with making racist comments limited to Hispanics, Blacks or Orientals, he even managed to discuss Nazis exterminating Jews with Mr. Snapp on 1144-1145
[3] - Prosecutor Goeller in a failed attempt to save Juror Abadie from a challenge for cause explained:

Q. Sir, let me make sure that you understand what is going to be asked of a juror in this case. You are never going to be asked to take into consideration the defendant's race. Okay? Do you see what I'm saying? I mean, you look over there at him. Whether he's a Mexican or Hispanic or Latino or whatever he is, it won't matter.