Image: Miller-El
Brett Coomer  /  AP file
Death row inmate Thomas Miller-El contends that prosecutors purposely excluded blacks from his jury. In a harsh rebuke to Texas, the Supreme Court on Tuesday ordered a new trial for him.
updated 6/14/2005 3:20:16 PM ET 2005-06-14T19:20:16

A U.S. Supreme Court decision that warns against bias in death penalty cases is the latest indication that the high court may be losing confidence in Texas, the state that executes more people than any other, legal experts say.

In Monday's 6-3 decision, the court sided with black murder suspects in Texas and California who said their juries had been unfairly stacked with whites. It was the fourth time in two years that the court has intervened in a Texas death penalty case.

"I think that probably one term ago a critical mass of justices on the Supreme Court lost confidence that the state courts in Texas or the federal courts reviewing cases in Texas were doing what they were supposed to be doing to correct constitutional errors," said David Dow, director of the Texas Innocence Network and a law professor at the University of Houston.

The Supreme Court used the cases to bolster its landmark 1986 decision barring prosecutors from disqualifying potential jurors based on their race. Justice Clarence Thomas, the only black member of the high court, voted against both suspects.

In the Texas case, the court ordered a new trial for Thomas Miller-El, who had been convicted for the 1985 murder of a 25-year-old Dallas motel clerk.

Long history of exclusion
Miller-El contends that Dallas County prosecutors had a long history of excluding blacks 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, Miller-El was convicted by a 12-member jury that included one black. Prosecutors struck 10 of the 11 blacks eligible to serve.

The Texas attorney general's office, which takes over death row appeals when the cases get to the federal courts, referred comment to the Dallas County district attorney's office. District Attorney Bill Hill, who was not in office when Miller-El was convicted, said his office does not tolerate illegal discrimination during jury selection.

Last year, the Supreme Court overturned the sentences of two Texas death row inmates because jurors were not told of their learning disabilities. The high court vacated another death sentence because of what justices determined was prosecutorial misconduct.

"To have in the space of two terms as many interventions by the Supreme Court in the Texas death penalty, as we've seen, it's unprecedented," said Dow, who has represented a number of Texas death row inmates in their appeals.

Justice David H. Souter, writing the 6-3 decision, said there was strong evidence of prejudice during jury selection in Miller-El's case. He noted the pool was "shuffled" at least twice by prosecutors, apparently to increase the chances whites would be selected.

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"At least two of the jury shuffles conducted by the state make no sense except as efforts to delay consideration of black jury panelists," Souter said, adding that it "blinks reality" to deny jurors were struck because they were black.

Souter was joined by Justices John Paul Stevens, Sandra Day O'Connor, Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer.

Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty, said the Supreme Court "finally had to step in because the Fifth Circuit repeatedly refused to acknowledge a serious problem of unfairness."

But in Thomas' 36-page dissent — longer than Souter's opinion — he argued that Texas prosecutors had offered enough evidence that exclusions were made for reasons other than race.

‘The state did not discriminate’
"In view of the evidence actually presented to the Texas courts, their conclusion that the state did not discriminate was eminently reasonable," Thomas wrote in an opinion joined by Chief Justice William H. Rehnquist and Justice Antonin Scalia.

Thomas, one of the most conservative members of the court, has opposed black defendants in the past and has voted against affirmative action.

In the California case, the court ruled 8-1 that courts there had made it too hard for defendants to claim racial bias in jury selection. Justices said courts should reconsider the case of a black man, Jay Shawn Johnson, who was convicted of second-degree murder in the death of his white girlfriend's baby. The jury was all white.

Dow noted the importance of keeping in perspective the high court's actions on Texas death penalty cases. Despite overturning the several state cases, "over that same period we've had 50 executions," he said.

"The fact is a death penalty lawyer, even from Texas, is still going to lose much more often than he or she is going to win," Dow said. "But I think in the last two years, especially, there has been a sense among death penalty lawyers you might actually get relief when you get to the Supreme Court.

"Four or five years ago," he said, "you never would have expected that."

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