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High Court Asked to Intervene in Case It Has Already Decided

Death row inmate's lawyers say appellate judges didn't heed sufficiently an order to review their client's claim of racial bias.

June 20, 2004|Henry Weinstein | Times Staff Writer

The U.S. Supreme Court is known for not liking to have to repeat itself. In a case before it this week, though, attorneys for a Texas death row inmate are joined by a coalition of courtroom veterans and citizen groups in asking the court to say it again, louder.

Last year, the high court rebuked a trio of federal appeals court judges for failing to adequately review the claims of a black inmate who argued that prosecutors had unfairly excluded African Americans from the jury in his 1986 murder trial. Prosecutors said they were simply trying to get jurors sympathetic to the death penalty.

By a vote of 8 to 1, the high court sent the case back to the U.S. 5th Circuit Court of Appeals with directions to reexamine whether jury selection was tainted. "Happenstance" cannot explain why more than 90% of the eligible black jurors were rejected by the prosecutors, Justice Anthony M. Kennedy wrote for the majority.

The 5th Circuit looked at the case again, and in February, let stand the conviction of 53-year-old Thomas Miller-El.

Those asking the Supreme Court to intervene a second time argue that the review was so cursory that the authority of the high court has been defied. Rather than basing its review on the majority opinion in the case, the 5th Circuit relied on the rationale offered by prosecutors and the lone justice who dissented in the case, they say.

For The Record
Los Angeles Times Tuesday June 22, 2004 Home Edition Main News Part A Page 2 National Desk 1 inches; 53 words Type of Material: Correction
Death penalty -- An article in Sunday's Section A about a case pending before the U.S. Supreme Court omitted a word when describing the lawyers for Texas death row inmate Thomas Miller-El. The name of the program at UC Berkeley's Boalt Hall Law School is the death penalty clinic, not the death clinic.

Miller-El's lawyers have been joined in the new appeal to the Supreme Court by former FBI Director William S. Sessions and a coalition of former federal judges and prosecutors, the NAACP Legal Defense Fund, Common Cause and the League of Women Voters.

The high court has scheduled a conference on the case for Thursday.

If the 5th Circuit ruling stands, it "will undermine the public reputation and integrity of the courts," according to a brief filed on behalf of the dozen former federal judges and prosecutors.

"It seems to me that the 5th Circuit is thumbing its nose at the Supreme Court," said John Gibbons, a member of the group and a former 3rd Circuit Court of Appeals judge appointed by President Nixon. "You don't have the rule of law if intermediate appellate courts think they can ignore directions from the top."

The judges' brief asserts that the 5th Circuit "disregarded specific conclusions drawn by [the Supreme] Court," among them that prosecutors questioned prospective black more jurors more intensely about their attitudes on the death penalty than prospective white jurors.

Rather than conducting its own analysis, the brief says, the 5th Circuit "adopted, sometimes verbatim and always without attribution," prosecution arguments and the dissenting opinion written by Justice Clarence Thomas.

The brief, submitted by Miller-El's lead lawyer, Jim Marcus of the Texas Defender Service, and Washington attorney Seth P. Waxman, also contends that the 5th Circuit flouted the Supreme Court's ruling.

The case stems from a 1985 robbery at a Holiday Inn in a Dallas suburb by Miller-El, his wife Dorothy and Kenneth Flowers.

Hotel employee Doug Walker was shot and died from his wounds; fellow worker Donald Hall survived and testified against Miller-El. The state sought the death penalty only against Miller-El, having concluded that he was the triggerman.

The jury that convicted Miller-El and voted for a death sentence consisted of nine whites, one Latino, one Philippine American and one African American.

Miller-El's lawyers argued at the time that prosecutors had systematically excluded African Americans from the jury pool by making challenges based on race and utilizing "jury shuffles," a process whereby attorneys are able to rearrange the order in which prospective jurors come up for questioning.

Those claims were rejected by the trial judge, Texas appeals courts, a federal district judge and a 5th Circuit panel composed of Harold R. DeMoss Jr., an appointee of President George H.W. Bush, and W. Eugene Davis and Edith H. Jones, both appointed by President Reagan. Jones frequently has been mentioned as a possible nominee for the Supreme Court if a vacancy occurs during the presidency of George W. Bush.

Last year, the high court said the trio, like the other courts that had reviewed the case, had turned a blind eye to evidence that prosecutors violated the law.

During appeals, the Texas attorney general's office maintained that the Dallas prosecutors had done nothing wrong.

Although the Supreme Court did not overturn the conviction, it did rule that Miller-El had presented sufficient evidence of bias to entitle him to a full hearing on the issue.

In his majority opinion, Kennedy noted that prospective black jurors were subjected to more penetrating questions about their attitudes on the death penalty.

Moreover, Kennedy emphasized that evidence showed that "the culture of the district attorney's office [in Dallas] in the past was suffused with bias against African Americans," and that the appeals court had failed to take sufficient account of this.

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