On Dec. 6, for the second time in as many years, the U.S. Supreme Court heard the appeal of Texas death row inmate Thomas Miller-El, who was convicted of the 1985 murder of an Irving hotel clerk by a jury from which prosecutors struck all but one black potential juror. At trial, Miller-El’s attorney asked the judge to strike the entire jury, arguing that Dallas Co. prosecutors purposely excluded blacks from the jury pool with peremptory challenges, asked different questions of potential jurors of different races, and engaged in so-called “jury shuffling.”
The trial court denied that request, saying there was no evidence that “indicated a system of exclusion of blacks” from the pool. In 2001, the U.S. 5th Circuit Court of Appeals agreed, ruling that prosecutors had not engaged in “disparate questioning” of potential jurors, and that the state’s reasons for striking the minority jurors were “fully supported by the record.” Miller-El, the court concluded, “failed to present clear and convincing evidence to the contrary.”
In 2003 the Supremes disagreed, ruling in a detailed 28-page opinion that there was indeed evidence that “the culture of the [Dallas DA’s Office] in the past was suffused with bias against African-Americans in jury selection.” Justice Clarence Thomas was the lone dissenter in the case, opining that the 5th Circuit was correct and that his colleagues should have presumed that the trial court’s original finding was correct; Miller-El’s evidence of racial bias, Thomas wrote, was “entirely circumstantial.”
The Supremes punted the case back to the 5th Circuit, but after a cursory review the appellate court again denied Miller-El’s claims. So in June the Supremes again agreed to review the case – a move that many court watchers consider an outward sign of irritation with the 5th Circuit’s determination to flout the high court’s wishes. The appeals court relied not on the lengthy majority opinion but on Thomas’ dissent, and on portions of the state’s brief, to make the determination that Miller-El’s appeal should again be denied. “It might be in my interest if people followed dissents more often,” Justice Stephen Breyer opined from the bench. However, he noted, it’s the majority opinion that counts. A decision in the case is expected early next summer.
This article appears in December 10 • 2004.