High court revisits racial bias in jury selection

The Sixth Amendment to the US Constitution guarantees in all criminal cases trial by an impartial jury. That means a group of individuals comprised of a cross section of the community willing and able to judge the evidence without affording special consideration to either the prosecutor or the defendant.

But what happens when race enters the equation?

In some jurisdictions in the US, prosecutors long followed a secret policy of excluding as many African-Americans as possible from a jury whenever the defendant was black. They did so because they believed that African-American jurors would be more likely than other jurors to acquit black defendants regardless of the evidence presented at trial.

The US Supreme Court ruled in 1986 that such jury-selection tactics are unconstitutional in a case called Batson v. Kentucky. But the issue of jurors and race remains an Achilles heel of the American system of justice.

Wednesday, the US Supreme Court is examining the selection of a jury in Dallas County, Texas, that took place two months before the court's 1986 Batson decision. At issue is whether Texas death-row inmate Thomas Joe Miller-El was denied a fair trial when prosecutors excluded 10 of 11 qualified African-Americans from his jury.

Aside from the obvious importance to Mr. Miller-El, the case is significant because it may offer judges, prosecutors, and defense counsel nationwide firm guidance on how to handle claims of racial discrimination in jury selection.

But the case could also represent something of a crossroads for the court.

On one side, a majority of justices have recently shown a heightened concern about the fairness of procedures used in death-penalty cases. On the other hand, a majority of justices have also upheld Congressional efforts to short-circuit the use of federal habeas petitions – like Miller-El's – to challenge death sentences.

Legal analysts will be watching closely during Wednesday's oral argument for clues about how the justices view the case. They'll be paying particular attention to the centrist, swing judge, Anthony Kennedy.

"This case comes to this court from a dark chapter of blatant and open racial discrimination in jury selection," writes Jim Marcus of Texas Defender Service in Houston in his brief to the court on behalf of Miller-El.

"If the blatant discrimination patent in this record is not condemned, then the subtler forms of unconstitutional race discrimination that sometimes, regrettably, occur in jury selection in our own era are much more likely to go undetected," Mr. Marcus says.

Officials with the Texas Attorney General's Office say the Dallas County prosecutors acted properly during jury selection in Miller-El's case. The prosecutors removed those jurors who expressed unfavorable views about the death penalty, regardless of their race, says Gena Bunn, chief of the Capital Litigation Division of the Texas Attorney General's Office, in her brief.

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