High court cites jury racial error in ordering new trial

JEFFERSON CITY, Mo. -- A white defendant who protested a prosecutor's disqualification of the only black member of a jury pool will get a new trial, the Missouri Supreme Court ruled on Tuesday.

At issue was Cape Girardeau County Prosecuting Attorney Morley Swingle's use of a preemptory strike when selecting the jury to hear the case against Troy Marlowe, a former Poplar Bluff, Mo., man on trial for crimes related to the attempted theft of anhydrous ammonia, a key ingredient in methamphetamine.

When Swingle used one of his strikes to remove the only black potential juror, Marlowe's attorney objected. The U.S. Supreme Court ruled in the 1986 case Batson vs. Kentucky that lawyers must offer race-neutral reasons for removing racial minorities from a jury pool. A defendant need not be a minority to raise a so-called Batson claim.

Circuit Judge William L. Syler allowed the strike after Swingle explained that it was because the prospective juror was a state employee who was involved in a class-action lawsuit.

Because Swingle didn't adequately explain why he retained two white panel members who were also involved in such lawsuits, the state's high court found Swingle didn't disprove the defense's claims that the stated reasons were a pretext to keep the only black in the jury pool off the jury.

"The prosecutor never distinguishes the white juror from the stricken black (juror)," Judge Duane Benton wrote for a unanimous court. "This failure -- coupled with the low degree of logical relevance, in a criminal case, of class-action involvement -- left the evidence of pretext unrefuted."

The court ordered Marlowe be retried on the felony counts of resisting arrest and armed criminal action, for which the original jury found him guilty in November 2000. Marlowe was sentenced to 20 years in prison for those crimes.

Not a racial strike

Following Tuesday's ruling, Swingle was adamant that he chose to strike the pool member in question because he didn't think she would be a good juror for the state, not on racial grounds.

"I did not use a pretext," Swingle said. "I think this case is being reversed because in the heat of the moment I was not as articulate as I should have been in explaining my race-neutral reasons."

Swingle said he didn't strike the two white panel members who were involved in lawsuits because he felt their backgrounds made them sympathetic to the prosecution and outweighed any other concerns he might have had. One of those individuals was a former military policeman while the other had a college degree in criminal justice.

The Missouri Court of Appeals Eastern District in St. Louis found no fault with Swingle's action and denied Marlowe's request for a new trial.

Marlowe's attorney, John M. Albright, lauded the high court's reversal of the lower courts.

"It is unfortunate we had to go all the way to the Supreme Court to correct this error," Albright said. "Of course, Mr. Marlowe is happy to get a new trial."

Marlowe and two accomplices were accused of attempting to steal anhydrous ammonia from the Whitewater, Mo., co-op on Nov. 15, 1999. Authorities watching the scene because of previous thefts quickly stepped in to arrest the men. In attempting the flee, Marlowe allegedly struck a state trooper with his van and was found in possession of a firearm.

Swingle said he was confident Marlowe's reprieve would be brief.

"We will be re-trying Troy Marlowe on those two charges and seeking the same sentences again," Swingle said. "The evidence will be the same evidence."

Marlowe, 31, is currently incarcerated at the Northeast Correctional Center in Bowling Green. He will presumably be transferred to the Cape Girardeau County Jail or released on bond while awaiting trial.

mpowers@semissourian.com

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