- The Washington Times - Wednesday, February 26, 2003

The Supreme Court yesterday made it tougher for prosecutors to exclude from capital murder trials black jurors who oppose the death penalty.
By an 8-1 vote the court ordered a hearing for Thomas Joe Miller-El on assertions that he was denied a jury of his peers when prosecutors dismissed 10 of the 11 black prospects in a jury panel.
"Happenstance is unlikely to produce this disparity," Justice Anthony M. Kennedy wrote for the court in an opinion joined by every justice except Clarence Thomas.
Justice Thomas said defendants should not rely on statistics but must show "clear and convincing evidence" that blacks were removed because of race.
Prosecutors argued that some blacks in the panel were ambivalent about executions and others had a family history of crime. Justice Kennedy said whites in similar circumstances were not excluded.
The single black man on the jury told the court that execution was "too quick" and suggested, "Pour some honey on them and stake them out over an ant bed."
Miller-El was convicted of killing Holiday Inn clerk Douglas Walker, 25, who was shot in the face at point-blank range with a machine gun after being tied up. Another clerk, Donald Hall, remains paralyzed from the chest down from wounds received during the 1985 robbery in Irving, Texas, and identified Miller-El as the killer.
Miller-El now has the chance to prove that exclusion of blacks was "selective and based on racial considerations."
At the high court, Miller-El's evidence of jury bias included a 1986 statistical study by the Dallas Morning News, and training materials from 1963 and 1969 that include the advice, "Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated."
"There was no historic pattern of racial discrimination," argued Dallas Assistant District Attorney Lori Ordiway, who called the cited material obsolete and irrelevant. She said Miller-El's jury also included a Hispanic and a Filipino.
"One quarter of the jury was nonwhite or non-Anglo," she said.
The high court rejected her argument in an opinion that clarifies how courts should review claims under the landmark 1986 Batson ruling that said race alone never can be the basis for excusing a prospective juror. A hearing must be given if the defendant shows that the lower court's decision was "debatable," the court said.
"In this case, the statistical evidence alone raises some debate as to whether the prosecution acted with a race-based reason when striking prospective jurors," said the opinion reversing the 5th U.S. Circuit Court of Appeals.
Berkeley, Calif., lawyer Elisabeth Semel, who filed a brief for former prosecutors and judges backing Miller-El, said the ruling means that more cases will be reviewed. "He doesn't have to show he would win. He simply has to show that the question is debatable," she said.
In a separate case, the court ruled unanimously that a state welfare agency may reimburse itself for child care from Social Security payments for children in its custody.
In a case brought in the name of Danny Keffeler, who was orphaned at age 12, the justices overturned a Washington Supreme Court ruling that the practice violates a law shielding Social Security benefits from "levy, attachment, garnishment, or other legal process."
"Without such agencies to identify children eligible for federal benefits and to help them qualify, many eligible children would either obtain no Social Security benefits or need some very good luck to get them," said the opinion written by Justice David H. Souter.
He said 1,480 of Washington state's 10,578 foster children receive Social Security.

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