- The Washington Times - Monday, June 13, 2005

The Supreme Court has refused to hear an appeal by “dirty bomb” suspect Jose Padilla on whether the military can continue holding the American as an “enemy combatant” without charging him with a crime.

The refusal came yesterday as the justices delivered two key opinions, which could stand to set a new precedent for defendants seeking to claim mistrial on grounds that racial bias affected the selection of their juries.

With Justice Clarence Thomas the lone dissenter, the court ruled 8-1 for a new trial to be given to Jay Shawn Johnson, a black man in California convicted in 1998 of killing his white girlfriend’s baby.

During jury selection at Johnson’s trial, prosecutors had used “peremptory challenges” — challenges that they don’t have to give a reason for — to strike three blacks from the jury. At issue before the high court was whether a defendant had to prove outright that prosecutors used race as a reason for dismissing the potential jurors.

The justices said no, ruling that even “the inference of discrimination” is sufficient for a defendant to claim that race had wrongly played a role in jury selection. “The issue in this case is narrow but important,” Justice John Paul Stevens wrote for the majority.

Similarly, the justices ruled 6-3 in a separate case to overturn the 1986 conviction of a black Texas death-row inmate on grounds prosecutors “racially discriminated” to create a white jury that found him guilty of murder. Chief Justice William H. Rehnquist and Justices Thomas and Antonin Scalia, dissented from the majority, which ordered a new trial for Thomas Miller-El.

In an unrelated case, the justices ruled unanimously to uphold procedures used by officials in Ohio for deciding which inmates can be moved to supermaximum-security prisons. The ruling came against prisoners who argued they get no fair chance to challenge such transfers.

The court’s refusal to hear the Padilla challenge, meanwhile, signals at least a temporary victory for the Bush administration, which has fought since September 11 for the right to hold some prisoners outside the realm of traditional American justice.

The battle over Padilla’s legal rights will remain in lower federal courts, where the next hearing is scheduled next month. Authorities say Padilla plotted to detonate a radioactive dirty bomb in the United States and that evidence links him to the Taliban and al Qaeda.

Such evidence has been brought against other Americans, such as “American Taliban” John Walker Lindh. But unlike Lindh, who was officially charged with a crime and sentenced to 20 years in federal prison, the administration argues Padilla is an enemy combatant, which means his constitutional rights can be denied.

The same classification is used for prisoners at the U.S. Naval Base Guantanamo Bay, Cuba. However, Padilla was never sent to Guantanamo because he’s an American. Instead, he’s been imprisoned in a South Carolina Navy brig since shortly after his arrest in Chicago more than three years ago.

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