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Justices Show Intolerance for Racial Bias in Jury Selection

Times Staff Writer

The Supreme Court put a spotlight Tuesday on racial bias in selecting juries, as the justices reopened the case of a black death row inmate from Texas who had been tried by a nearly all-white jury.

The court took up the case of Thomas Miller-El a year ago, just a week before he was to be executed.

And in an 8-1 ruling on Tuesday, the court rebuked state and federal judges in Texas for turning a blind eye to evidence that prosecutors had deliberately excluded blacks from the jury that convicted him.

“The culture of the district attorney’s office [in Dallas] in the past was suffused with bias against African Americans,” said Justice Anthony M. Kennedy. Moreover, “happenstance” cannot explain why more than nine out of 10 eligible black jurors were turned away by the prosecutor, he added.

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“We question the dismissive and strained interpretation” that allowed judges to explain away this evidence, he said.

Civil rights lawyers said they were pleased that the conservative high court -- which commonly upholds death penalties -- put prosecutors and trial judges on notice that racial bias in jury selection will not be tolerated.

In Miller-El’s case, defense lawyers cited a 1963 manual that told Dallas prosecutors to exclude certain people from juries whenever possible. “Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or well educated,” the manual advised.

Though versions of this manual were used into the mid-1970s, judges in Texas refused to believe race bias was behind the exclusion of most blacks from Miller-El’s jury.

The U.S. 5th Circuit Court of Appeals refused even to allow Miller-El’s lawyers to appeal the issue of race bias in his jury, a move the high court called a clear error.

The justices stopped short of ordering a new trial for Miller-El. Instead, they sent the case back to the appeals court with the instructions to take a careful look at race bias.

Only Justice Clarence Thomas dissented. He said he was not convinced “that even one of the peremptory strikes (dismissing a black juror) was the result of racial discrimination.”

Echoing the Texas prosecutors, Thomas said the potential black jurors were turned away because they voiced doubts about the death penalty, not because of their race.

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Tuesday’s ruling was more of a reminder than a major restatement of the law. It was notable too because it came in a brutal murder case.

Miller-El robbed, tied up and shot two hotel clerks in 1985. One died, and one survived to testify against him.

There was little doubt about his guilt, although juries often stop short of applying the death penalty and send murderers in similar cases to prison for life.

Civil rights lawyers and death penalty foes appealed his case, saying he was not tried by a jury of his peers.

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“In many parts of the country, prosecutors still distrust minority jurors,” said George Kendall, an attorney for the NAACP Legal Defense Fund in New York. By carefully examining the record in this case, the high court signaled to judges that they too must watch for bias when juries are being selected, he said.

Tuesday’s ruling is likely to have an immediate effect in the case of Delma Banks Jr., a black defendant who is set to be executed in Texas on March 12. He was tried by an all-white jury in Texarkana and convicted based on circumstantial evidence. Defense lawyers say they will ask the Supreme Court to reopen his case as well.

“The pernicious stain of racism permeates the death penalty system, particularly in Texas,” said Rick Halperin, president of the Texas Coalition to Abolish the Death Penalty.

But a death penalty supporter in California said the jury selection system has changed for the better since 1986, when Miller-El was tried.

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“The rules have changed dramatically since then,” said Kent Scheidegger, an attorney for the Criminal Justice Legal Foundation in Sacramento.

In April 1986, a month after Miller-El’s trial in Dallas, the Supreme Court handed down a ruling intended to end racial bias in the selection of juries.

Typically, a criminal trial begins with a large pool of potential jurors. Some of them are turned away for “cause.” For example, they may know the defendant, the victim or the prosecutors. Or they may be unable to serve for the time required.

From this smaller pool, both the prosecutor and defense lawyer may exclude, or “strike,” an equal number of other people based on the hunch they will be unfriendly to their side.

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In its 1986 decision in Batson vs. Kentucky, the high court told judges to police this process.

If the prosecutor excludes an unusual number of blacks, the judge should call a halt and force the prosecutor to explain the reason for excluding these individuals. If the prosecutor has a convincing “race neutral” reason, the jury selection can continue. If not, the judge should start over in picking a jury.

Since then, however, the Supreme Court has rarely revisited the issue.

Congress has also made it harder for state prisoners to appeal cases in the federal courts. One rule set in 1996 said inmates who lose before a U.S. district judge do not have an absolute right to have their claims heard by the appeals court. Instead, the appeals court can decide for itself whether to grant them a “certificate of appealability.”

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The idea was to screen out frivolous claims.

However, the Supreme Court said the 5th Circuit Court had gone too far and was ignoring strong claims, such as that of Miller-El.

Whenever an inmate raises a “debatable” constitutional claim, the appeals court should hear it, the justices said in Miller-El vs. Cockrell, 01-7662.

This procedural ruling may prove significant in regions where conservative appeals courts routinely turn away such appeals. Still, Tuesday’s ruling did not resolve the hardest issue raised by Miller-El’s case: how to know and detect racial bias.

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Lawyers for the state of Texas defended the prosecutors in Miller-El’s case, arguing that the blacks who were excluded from the jury were rejected because they opposed the death penalty, not because of their race.

Scheidegger, the Sacramento lawyer, agreed that excluding a greater percentage of blacks than whites from juries did not necessarily mean there was racial bias.

“The fact is that a larger percentage of African Americans are opposed to the death penalty, so the jury makeup may not be proportional to the population. The issue in these cases is whether race was the real reason for the exclusion,” he said.

But Justice Kennedy said that the prosecutors in Miller-El’s case questioned blacks and whites differently. “Disparate questioning did occur,” Kennedy wrote, and that alone is “evidence of purposeful discrimination” that calls for reopening the case.

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