High Court Asked to Intervene in Case It Has Already Decided

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.

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.

“We question the dismissive and strained interpretation” that permitted the 5th Circuit judges to explain away the evidence, Kennedy wrote.

In his dissent, Thomas said Miller-El had failed to present “anything resembling clear and convincing evidence of purposeful discrimination.”

A year later, after rehearing the case, the same three 5th Circuit judges came to the same conclusion as they had the first time, affirming the decision of a federal trial judge who had rebuffed Miller-El’s claims that his constitutional rights had been violated.

In opposing further Supreme Court review, Gena Bunn of the Texas attorney general’s office countered that the 5th Circuit “conscientiously followed the dictate” of the Supreme Court, but after carefully reviewing the facts ruled against Miller-El.

The brief filed by Miller-El’s lawyers argues that the 5th Circuit’s failed to follow the Supreme Court’s direction to consider fully evidence of a pattern and practice of discrimination by Dallas prosecutors.

“Both the prosecutors involved in [Miller-El’s] jury selection joined the [Dallas] district attorney’s office when that office formally trained its prosecutors to exclude minorities from juries,” Marcus and Waxman wrote, citing the Supreme Court decision.

“As this court indicated, that evidence leads to the ‘supposition that race was a factor’ in [Miller-El’s] jury selection, and this supposition ‘could be reinforced by the fact that the prosecutors marked the race of each prospective juror on their juror cards,’ ” they wrote.

Those who joined in seeking new intervention by the Supreme Court include Sessions, who headed the FBI from 1987 to 1993; Gibbons and Arlin Adams, former federal appeals court judges in Philadelphia; Robert S. Litt, a former federal prosecutor in New York; Eric H. Holder Jr., deputy attorney general in the Clinton administration; and Beth A. Wilkinson, one of the attorneys who prosecuted and obtained a death sentence against Oklahoma City bomber Timothy J. McVeigh.

The judges’ friend of the court brief was prepared by veteran Supreme Court litigator Carter G. Phillips, along with attorney Elisabeth Semel, who runs the death clinic at UC Berkeley’s Boalt Hall Law School, and Boalt student Jessica Goneau.

Representatives of Common Cause and the League of Women Voters, neither of which has a formal position on the death penalty, acknowledged that it is unusual for their groups to enter this arena, but they said this case compelled them to sign on to a friend of the court brief.

“The League’s basic mission is to encourage the active participation of citizens in government, and racial discrimination that prevents citizens from participating in that system offends our core values,” said Elizabeth Lawson, the League’s senior lobbyist.

Edwin H. Davis, Common Cause vice president of policy and research, said “a concern with how government works, the process of government,” is “at the core” of the organization’s agenda and activity. “Jury selection is certainly one of the key elements in our system of justice, and in this case that element broke down,” Davis said.