WASHINGTON (By Charles Lane, Washington Post) December 7, 2004 -
A lawyer representing a Texas death row inmate
urged the Supreme Court yesterday to rebuke the state and federal
judges who supervise the state's capital punishment system, as the
court heard oral argument on a case of alleged racial discrimination
in jury selection.
Seth P. Waxman, who served
as solicitor general under President Bill Clinton, argued that
prosecutors deliberately excluded black potential jurors in the 1986
murder trial of Thomas Miller-El, who is black, and that both the
Texas courts and the New Orleans-based U.S. Court of Appeals for the
5th Circuit disregarded that evidence when they upheld Miller-El's
death sentence.
Noting that the Dallas
County prosecutor's office had, in the years before the Miller-El
trial, used a training manual that coached prosecutors to strike
black, Jewish and Hispanic jurors, and that prosecutors used a
procedure known as the "jury shuffle" at the trial to prevent
minorities from qualifying, Waxman called it an "extraordinary" case
in which the lower courts had been "objectively unreasonable."
Under Supreme Court
precedent, a defendant claiming that the prosecution's use of its
automatic objections to potential jurors was racially biased must show
the bias by clear and convincing evidence. If a state court upholds
the prosecution's behavior, the defendant can overturn that ruling
only by showing that no reasonable judge would have reached such a
determination.
In 2004, the Supreme Court
issued an 8 to 1 opinion largely endorsing Waxman's view of the
evidence and ordering the 5th Circuit to hear Miller-El's case, which
it had previously declined to do. The 5th Circuit responded by ruling
that prosecutors had a valid non-racial explanation for their actions.
Yesterday, several members
of the court made it clear this was not the answer they wanted from
the 5th Circuit, which covers Texas, Louisiana and Mississippi and is
considered one of the more conservative federal appeals courts.
Indeed, a majority of the
justices seemed to agree with Waxman.
Justice Stephen G. Breyer
read Texas Assistant Attorney General Gena Bunn an extensive summary
of the case, noting that prosecutors had used their right under Texas
law to "shuffle" the jury pool to move blacks away from the front of
the line in jury selection. Breyer quoted from seemingly identical
answers to questions about the death penalty from two potential
jurors, white and black, and then noted that prosecutors objected only
to the black person.
"I think that's the whole
story there," Breyer said. "I look at those two in context and I say,
'My goodness.' "
Bunn replied that there
were other, race-neutral reasons for blocking the black prospective
juror. Pointing out that prosecutors were looking for jurors who would
embrace the death penalty, she noted that the black juror had said
that any criminal could be rehabilitated.
The case is Miller-El v.
Dretke, No. 03-9659. A decision is expected before July.
