- The Washington Times - Tuesday, February 25, 2003

WASHINGTON, Feb. 25 (UPI) — The Supreme Court ruled 8-1 Tuesday that the conviction of a black Texas murderer must get a constitutional review because blacks were largely excluded from his jury.

The decision does not appear to cover broad new ground. The Supreme Court ruled in 1986's Batson vs. Kentucky that "systematic exclusions of blacks" or other minorities from a jury could violate the Constitution.

But Tuesday's decision was the first time the Batson principle was defined in the modern age of very limited appeals.

The Antiterrorism and Effective Death Penalty Act of 1996 severely restricts constitutional review in capital cases.

Where formerly, federal appeals could take decades, death row inmates and others must now first get a "certificate of appealability" from an appeals court panel — obtainable only by showing the substantial denial of a constitutional right.

The court majority, led by Justice Anthony Kennedy, ruled Tuesday that an inmate satisfies that showing "by demonstrating that jurists of reason could disagree with (a trial judge's) resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further."

In effect, Kennedy and the majority left the bar low for getting a certificate of appealability, the gateway for a constitutional appeal.

Justice Clarence Thomas, the only black member of the court, was also the only dissenter.

The law requires federal courts to assume state court rulings are correct unless a convicted defendant can rebut that presumption "by clear and convincing evidence," Thomas said.

"Because (the Texas inmate) has not shown, by clear and convincing evidence, that any peremptory strikes of black veniremen (jury pool members) were exercised because of race, he does not merit a certificate of appealability."

In the underlying case that brought Tuesday's ruling, Thomas Joe Miller-El, his wife Dorothy and Kenneth Flowers robbed a Holiday Inn in Dallas. They ordered two employees, Doug Walker and Donald Hall, to lie on the floor. The robbers tied the employees' feet and hands, and gagged their mouths with strips of fabric.

Miller-El "asked Flowers if he was going to kill Walker and Hall," Kennedy said in the majority opinion. "When Flowers hesitated or refused, (Miller-El) shot Walker twice in the back and shot Hall in the side. Walker died from his wounds."

Miller-El was indicted for capital murder.

During jury selection, prosecutors used their "peremptory strikes" to exclude 10 of 11 available blacks from the jury pool.

Each side is given a limited number of peremptory strikes — exclusions without explanation.

Miller-El's court-appointed lawyer asked the judge to get rid of the jury, citing the 14th Amendment's equal protection guarantee. The judge refused, Miller-El was convicted and sentenced to death.

Meanwhile, while the appeal wound its way through the Texas courts in 1986, the Supreme Court ruled in Batson.

Under Batson's three tests, a defendant must show that a peremptory challenge is based on race; the prosecution must show it used a race-neutral reason for the strike; and a trial court must determine whether the defendant has shown "purposeful discrimination."

The Texas courts rejected Miller-El's appeal, and the Supreme Court first refused review in 1993.

Miller-El then asked for constitutional review in the federal courts, but a federal judge and a federal appeals court refused to issue a "certificate of appealability" as required by the 1996 Antiterrorism and Effective Death Penalty Act.

Tuesday's Supreme Court decision reverses the lower courts, and says a certificate of appealability must be issued.

The Supreme Court sent the case back down for a new lower court decision based on Tuesday's opinion.

(No. 01-7662, Miller-El vs. Director Cockrell)

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