updated 12/6/2004 6:22:34 PM ET 2004-12-06T23:22:34

The Supreme Court considered Monday whether an almost all-white Texas jury unfairly convicted and sentenced a black man to death, the latest in a string of capital cases to reach the court from the state that executes more people than any other.

Thomas Miller-El is challenging his conviction for the 1985 murder of a 25-year-old Dallas motel clerk. Several justices appeared willing to overturn his sentence, pointing to strong evidence of racial bias during jury selection.

It was the second time the justices had heard arguments after ordering a lower court to reconsider Miller-El’s prejudice claims. The New Orleans-based 5th U.S. Circuit Court of Appeals subsequently reaffirmed the conviction.

Breyer notes court's ‘strong suspicion’
Justice Stephen G. Breyer noted the high court’s 8-1 opinion last year found a “strong suspicion” of discrimination. He said black jurors were questioned more aggressively about the death penalty, and the pool was “shuffled” at least twice by prosecutors, apparently to increase the chances whites would be selected.

“I’m reading the opinion and thinking, unless something changes here, this is something bad, this is discriminatory,” Breyer said. “Is there something different found in the 5th Circuit that wasn’t here the last time?”

Justice Antonin Scalia countered that the lower court was only obligated to reconsider the conviction, not reverse it, since Texas prosecutors had offered enough evidence that exclusions were made for reasons other than race.

“The fact was, the degree of hostility by the black jurors to the death penalty was quite high. If there is a different attitude of the black jurors than to the white jurors, you can’t fault prosecutors for striking more of the black jurors,” Scalia said.

Thomas is mum
Justice Clarence Thomas, the court’s only black member and the lone dissenter in last year’s ruling, did not speak during oral arguments, which is his typical practice.

Since capital punishment was reinstated in 1976, Texas has executed more than one-third of 943 people put to death in the United States.

Justices this year issued stinging reversals in three cases involving Texas death penalty convictions on various grounds, a striking number for a conservative-leaning court that generally favors capital punishment. All the cases involved black defendants.

“If courts condone glaring racial discrimination in the courtroom, they teach the inevitable lesson that law is insincere or inept in its repeated avowals to afford equal justice to all,” the NAACP wrote in a friend-of-the-court-filing in support of Miller-El.

County prosecutors’ history examined
Miller-El contends that Dallas County prosecutors had a long history of excluding black prospects from juries, and pointed to training manuals that were distributed to prosecutors from the 1960s into the early 1980s. The manuals advised prosecutors to remove blacks or Jews from death penalty juries on the theory that those groups would be more sympathetic to criminal defendants.

At trial, he was convicted by a 12-member jury that included one black. Prosecutors struck nine of the 10 blacks eligible to serve.

During oral arguments, the high court’s liberal wing — John Paul Stevens, David H. Souter and Ruth Bader Ginsburg — pressed Texas assistant attorney general Gena Bunn on why prosecutors marked jury cards with notes or “cues” on race or signs of religious affiliation, such as facial hair or weight.

‘Cues’ in question
“Is it not a fair inference the cues were something the prosecutors considered relevant; and, if so, isn’t it uncontroverted evidence that was a reason for exclusion?” Stevens asked.

When Bunn responded that prosecutors were trying to avoid an all-white jury that could be challenged in court, a skeptical-sounding Souter cut in.

“Does that relate to weight and mustaches?” he asked. The cues “were all correlating to a manual that says, ‘keep these people off the jury.’ Doesn’t that lead to a reasonable inference that was what they were trying to do?”

Earlier this year, the Supreme Court overturned two Texas death sentences because jurors were not told of the defendants’ learning disabilities. They were LaRoyce Lathair Smith, convicted for the 1991 killing of a Taco Bell manager in Dallas, and Robert Tennard, charged with killing a Houston neighbor in 1985.

In February, the court lifted Delma Banks’ death sentence and delivered a strong criticism of Texas officials and lower courts, saying prosecutors hid crucial information that might have helped Banks’ case.

The case heard Monday is Miller-El v. Dretke, 03-9659. A ruling is expected by July.

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