Naked City

Supremes Back Miller-El

In an 8-to-1 decision Feb. 25, the U.S. Supreme Court voted to grant Texas death-row inmate Thomas Miller-El the right to appeal his complaint of race-based jury selection to the 5th U.S. Circuit Court of Appeals. In a 24-page opinion written by Justice Anthony Kennedy, the court ruled that the 5th Circuit's earlier rejection of Miller-El's claims violated the right to equal protection under the 14th Amendment to the Constitution. "In this case we once again examine when a state prisoner can appeal the denial or dismissal of his petition for writ of habeas corpus," the court wrote.

Specifically, Miller-El argued that the 5th Circuit erred in denying him a "certificate of appealability" after the federal court for the Northern District of Texas denied his claims, in his habeas appeal, of racial bias in jury selection at his original trial in 1986. A COA must be granted by the appellate court in cases such as Miller-El's, and the Supremes, in reversing and remanding the case, ruled that the 5th Circuit had applied the wrong standard to Miller-El's claim. "A petitioner seeking a COA need only demonstrate 'a substantial showing of the denial of a constitutional right,'" Kennedy wrote, by showing that "jurists of reason could disagree with the district court's resolution of his constitutional claims ... or could conclude the issues presented are adequate to deserve encouragement to proceed further." Instead, the 5th Circuit misapplied the law by merely backing up the lower court, which had also applied the wrong standard of proof to Miller-El's claims.

Miller-El and his wife were convicted of the 1985 robbery and murder of two clerks at an Irving Holiday Inn. At trial, Miller-El's attorney asked the judge to strike the entire jury, arguing that Dallas prosecutors had engaged in race-based jury selection by excluding blacks from the jury pool with peremptory challenges, asking different questions of potential jurors of different races, and engaging in "jury shuffling." The trial court denied Miller-El's request, saying there was "no evidence ... that indicated a system of exclusion of blacks" from the pool. While the Supreme Court opinion notes that its ruling on the COA question is "not the occasion for a ruling" on the merits of Miller-El's claims of racial bias, the court's decision to remand the case to the 5th Circuit, "counsels us to explain in some detail the extensive evidence concerning the jury selection procedures."

Indeed, the court discusses fairly extensive detail about the evidence of racial bias and concludes that, "the culture of the [Dallas] District Attorney's Office in the past was suffused with bias against African-Americans in jury selection," the court wrote. "This evidence ... is relevant to the extent it casts doubt on the legitimacy of the motives underlying the State's actions in [Miller-El's] case." Further, the court wrote, "[o]ur concerns here are heightened by the fact that, when presented with this evidence, the state trial court somehow reasoned that there was not even the inference of discrimination to support a prima facie case. This was clear error. ..."

The lone dissenter, Justice Clarence Thomas, wrote that the majority of the court was too broad in its finding that Miller-El's COA should have been granted, and that the justices should have presumed that the trial court's finding that there was "no purposeful discrimination" was correct. Instead, Thomas wrote, his colleagues applied too low a standard on Miller-El's claims and called their opinion "illogical," adding that the evidence of racial bias was at best "entirely circumstantial."

Miller-El's attorney, Jim Marcus of Houston, director of the Texas Defender Service, was pleased with the court's decision. "The court has sent a pretty clear signal that the 5th Circuit didn't give adequate review of this case," he said. "In general, the 5th Circuit's way of handling these decisions has been far too deferential to the state." The ruling may also impact the case of another Texas death-row inmate, Delma Banks Jr., scheduled for execution March 12; a request for the Supreme Court to hear that case is currently pending. Racial bias in jury selection is also an issue in Banks' case -- "He has a [similar] claim with evidence of a significant pattern of racial discrimination [in Bowie County] for years," Marcus said. The 5th Circuit also denied Banks a COA on his racial bias claim.

Miller-El's case will return to the 5th Circuit, where Marcus said he hopes the case will finally receive a thorough review. "We hope that, now that they are not bound by their previous reading of habeas law, they will decide this case favorably."

The Supreme Court's ruling can be found online at

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