New York Times
December 7, 2004

Justices Give Second Hearing in a Texas Death Row Case



WASHINGTON, Dec. 6 - The scene at the Supreme Court as a Texas death penalty case was argued Monday morning was strikingly familiar.

The two lawyers who stood before the justices were the same two who argued for the same parties two years ago: Seth P. Waxman representing Thomas Miller-El, a convicted murderer; and Gena A. Bunn, representing the State of Texas, which has been trying to execute Mr. Miller-El for 19 years. And these were the same justices - except Chief Justice William H. Rehnquist, who is under treatment for thyroid cancer and will participate in the case from home - who ruled in February 2003 by a vote of 8 to 1 that Mr. Miller-El's evidence of discrimination in the composition of his jury was enough to entitle him to a hearing before a federal appeals court. That court, which had earlier dismissed his case, followed the order to reconsider it and promptly dismissed it again, rejecting the Supreme Court's majority analysis and adopting that of its sole dissenter, Justice Clarence Thomas.

But if all those elements were the same, there was also a difference. In the intervening two years, the Supreme Court has made clear its growing unease with the administration of the death penalty in Texas and its exasperation with the state and federal courts that hear appeals from the state's death row. The Supreme Court was now taking the unusual step of hearing Mr. Miller-El's appeal from the United States Court of Appeals for the Fifth Circuit for a second time, and several justices indicated that the concerns they expressed the first time had not been allayed. Although Mr. Miller-El's life was at stake, in a sense it was the appeals court that was on trial in Miller-El v. Dretke, No. 03-9659.

"This case was here before and we all read the majority opinion," Justice Stephen G. Breyer told Ms. Bunn, an assistant state attorney general. "It might be in my interest if people followed dissents more often," he added wryly, while noting that it was the majority opinion and not the dissent that was binding on the appeals court.

Mr. Miller-El, a black man, was convicted of killing a clerk at a Holiday Inn in Dallas in 1985. Although the case is now in a new procedural stance, the underlying question is the same: did Texas prosecutors violate Mr. Miller-El's constitutional rights by deliberately excluding black jurors from his 1985 murder trial on the basis of their race?

Justice Breyer described the basis for the majority's previous conclusion that the way Mr. Miller-El's jury was chosen gave rise to a "strong suspicion" of racial discrimination. "I think that's what it is unless you have something to the contrary," he said. "What came out in the Fifth Circuit to change it? Is there something different in the Fifth Circuit that wasn't there before?"

Ms. Bunn replied that while the Supreme Court had looked at the "big picture" of the case, the Fifth Circuit appeals court had properly examined the precise circumstances that led to the removal of each black juror and found that each was "race-neutral and case-related."

The prosecution struck 10 of 11 black jurors; six of those strikes are now in dispute. Mr. Waxman, Mr. Miller-El's lawyer, argued in the first round and again on Monday that in removing black jurors from a black defendant's trial, the prosecution used a double standard, accepting white jurors while striking blacks who expressed equivalently ambiguous sentiments on whether they could impose the death penalty.

Mr. Waxman, who served as solicitor general during the Clinton administration, said that it was the big picture, "the totality of the evidence, the sheer weight of mutually reinforcing evidence" that the justices needed to look at to grasp what happened 19 years ago in a Texas courtroom and then to understand why the Fifth Circuit's finding of no constitutional violation was "unreasonable."

When Justice Antonin Scalia, who did an energetic job of reinforcing the state's argument at every turn, told Mr. Waxman that the state had an explanation for each juror and that "a buckshot attack" on the jury selection "has to be examined pellet by pellet," the lawyer responded:

"Let me switch metaphors on you. It is pointillistic. It's like walking up close to a Seurat and looking at a red dot and saying it's not necessarily a handbag. As a reviewing court, you have to step back and look at this."

Part of the context Mr. Waxman emphasized was a documented history of racial discrimination in the Dallas prosecutor's office. The two prosecutors who handled the jury selection in Mr. Miller-El's case were found by the Texas Court of Criminal Appeals to have engaged in improper racial discrimination in the selection of juries in other cases during the same period of the mid-1980's.

"Don't we have to have some reason to believe that the evidence of past practice has become irrelevant?" Justice David H. Souter asked Ms. Bunn. "Is it plausible to think there had been this change of heart?"

Ms. Bunn began her answer by saying that Mr. Miller-El was asking the court to assume that race was the only reason for the removal of the jurors. Justice Souter cut her off. "That's not his argument at all," he said, adding: "He's saying there is very strong circumstantial evidence that what tipped the prosecution to make the challenges here is racial. He's not saying nothing else could have been involved. He's saying race tipped it. Is there any reason that is unsound?"

The reason, Ms. Bunn answered, was that "the six strikes were not based on race" but because the black members of the jury pool expressed greater qualms about the death penalty than did the white members.

Justice Breyer then read from the record of what comparative pairs of jurors said in answers to questions about the death penalty; blacks whom the prosecution then struck, and whites who were allowed to remain. "I look at that and I say, 'My goodness, it's pretty hard to say' " whether there was any meaningful difference in the answers, Justice Breyer told Ms. Bunn.

The court's previous decision, Miller-El v. Cockrell, did not resolve the claim of discrimination. Rather, the justices held that the Fifth Circuit had erroneously failed to issue a "certificate of appealability" authorizing Mr. Miller-El to pursue his case through a petition for a writ of habeas corpus. Now the merits of the case are before the justices.

The state's insistence that there was a meaningful difference in potential jurors' answers on their attitude toward the death penalty is crucial to its defense of what occurred during jury selection. Under the Supreme Court's 1986 decision in Batson v. Kentucky, the use of peremptory challenges to shape a jury on a basis that appears to be racial is presumed unconstitutional unless the prosecution can provide a reason unrelated to race. Qualms about the death penalty would be an acceptable reason unless black and white jurors were held to different standards.

While Mr. Miller-El's case was tried shortly before the Supreme Court issued the Batson decision, the ruling applies to him retroactively. Nonetheless, the timeline proved something of a trap for Ms. Bunn and her vocal ally, Justice Scalia.

Several justices questioned the prosecution's practice of using cards to note the race of potential jurors in the pool. Justice Scalia provided a potential explanation for a practice that these justices found troubling. "Maybe the prosecution didn't want to come up with an all-white jury for fear it would be challenged," he said.

Ms. Bunn readily agreed. "It was necessary to keep track, as Justice Scalia noted, to be certain that you don't run afoul of Batson," she said.

Justice John Paul Stevens said, "Batson hadn't been decided yet."