- The Washington Times - Saturday, December 11, 2004

DALLAS — The U.S. Supreme Court and a lower court again disagree on what constitutes racial discrimination in jury selection and how such purported discrimination should be documented in a long-argued Texas death penalty case.

The outcome of this case, some legal analysts say, could have an effect nationwide on how far prosecutors can go to exclude certain jurors. It also has highlighted again what appears to be a growing rift between the high court and the New Orleans-based 5th U.S. Circuit Court of Appeals, which handles appeals from several Southern states, including Texas.

The 5th Circuit Court, once one of the nation’s most liberal in criminal matters, has slowly moved to the right. The Supreme Court has increasingly scrutinized, and in some cases overturned, lower court rulings in Texas capital cases — involving judgments of the 5th Circuit, as well as the Texas Court of Criminal Appeals.

In arguments before the Supreme Court Monday — the second time the high court had heard the defendant’s claims — several justices seemed irritated that the case was before them again.

The defendant is a black Dallas man, Thomas Miller-El, who was convicted of killing a motel clerk here in 1985. Months later, a local jury found him guilty and sentenced him to death. Through several appeals at various levels, Miller-El has claimed that prosecutors illegally conspired to keep many potential black jurors from sitting in his case.

The Supreme Court agreed with Miller-El’s attorneys with an 8-1 verdict in February 2003, returning the case to lower courts and saying that Dallas County jury selection — especially in capital cases — was “suffused with bias.”

It is generally posited that in some U.S. jurisdictions prosecutors long have tried to avoid seating blacks on juries in the belief that they would more likely refuse to convict black defendants, regardless of what evidence was presented.

In 1986, two months after Miller-El’s trial, the Supreme Court ruled in Batson v. Kentucky that any such exclusion of minorities was unconstitutional. But the issue has remained what some legal scholars call “the Achilles’ heel of the American justice system.”

Miller-El’s attorney, Seth P. Waxman, argued Monday that evidence of discrimination was “flagrant” and that the 5th U.S. Circuit Court of Appeals — ordered by the Supreme Court to re-examine the facts of the case — did not do so.

“What came out of the 5th Circuit that we didn’t have before us the first time?” Justice Stephen G. Breyer said last week. “I’m reading our opinion to say, unless something changes here, this is something bad; this is discriminatory.”

Along with Justice Breyer, Justices Anthony M. Kennedy, Ruth Bader Ginsburg, David Souter and John Paul Stevens said they found Miller-El’s evidence convincing, but Justice Antonin Scalia, who had voted in the majority in 2003, seemed to have changed his position.

“A buckshot defense must be analyzed pellet by pellet,” he said at one point in defending the presentation of Texas Assistant Attorney General Gena Bunn, who argued that Dallas prosecutors had fairly chosen Miller-El’s jurors.

Mrs. Bunn told the justices they shouldn’t consider “big picture” historical arguments, only specific occurrences. She was attempting to minimize a provocative “training manual” used by Dallas County prosecutors in the 1960s and 1970s, a “guidebook” that instructed state lawyers not to pick black, Hispanic, Italian-American, Jewish or overweight people for jurors.

That practice — or the perception to which it was adhered — has played a big role in the overturning of many Dallas County cases in recent years. The manual was withdrawn in the 1970s after critical complaint from several legal entities.

“Just because they destroyed the books didn’t mean the [prosecutors] forgot what had worked for them,” U.S. District Judge Robert Porter of Dallas said in an interview in the early 1980s.

Miller-El’s jury consisted of nine whites, one black, one Hispanic and one Asian-American. Ten of 11 potential black jurors were stricken and the prosecution used “shuffling,” wherein potential black jurors were moved to the rear of the list — allowing more prosecution-favorable citizens to be chosen first.

The high court will rule on the Miller-El case by May.

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