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.
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.
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.
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.
