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Court hits jury race bias

Rulings boost ability to challenge jury selection on racial grounds.

By Staff writer of The Christian Science Monitor / June 14, 2005



WASHINGTON

Since 1986, the US Supreme Court has made it clear that there is no place in the jury selection process for the intentional exclusion of prospective jurors because of their race.

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But how this prohibition may be enforced has been a subject of uncertainty and confusion among judges, lawyers, and prosecutors.

Monday the US Supreme Court took action in two cases - from Texas and California - aimed at erasing at least some of the confusion.

The two decisions make it easier to challenge even the appearance of racial bias in the jury selection process, analysts say. The decisions also send a message to trial and appeals-court judges that they must be more attentive to allegations of racial inequality in jury selection and take more aggressive steps to investigate bias allegations.

"Decisions about who should live or die or who should serve on a jury should not be influenced by race," says Richard Dieter, executive director of the Death Penalty Information Center.

In Jay Shawn Johnson v. California, the high court struck down a portion of California's test for racial bias in jury selection. The justices said California's test made it too hard for some challengers to get beyond an initial showing to obtain an inquiry by the trial judge. The vote was 8 to 1.

In Thomas Miller-El v. Doug Dretke, the Supreme Court ordered a new trial for Mr.

Miller-El, a black death-row inmate in Texas, because of allegations that prosecutors improperly excused black jurors from the jury panel that sentenced him to die in 1985. Prosecutors said race did not play a role in their decision to excuse 10 of 11 black jurors from the panel. Trial and appeals-courts judges agreed with this assessment.

On Monday, the nation's highest court reversed, saying that the Texas court's conclusion "was unreasonable as well as erroneous." The 6-to-3 majority opinion was written by Justice David Souter.

"It is true, of course, that at some points the significance of Miller-El's evidence is open to judgment calls, but when this evidence ... is viewed cumulatively its direction is too powerful to conclude anything but discrimination," he writes.

In a dissent joined by Chief Justice William Rehnquist and Justice Antonin Scalia, Justice Clarence Thomas says much of the evidence relied upon by the high court had not been heard in the Texas courts.

"For nearly 20 years now, Miller-El has contended that prosecutors peremptorily struck potential jurors on the basis of race," Justice Thomas writes. "In that time, seven state and six federal judges have reviewed the evidence and found no error. This court concludes otherwise, because it relies on evidence never presented to the Texas state courts."

Miller-El was convicted and sentenced to die for killing a Holiday Inn clerk during a robbery. During selection of his jury, 10 of 11 blacks (91 percent) were excluded under peremptory challenges by prosecutors. "The prosecutors' chosen race-neutral reasons for the strikes do not hold up and are so far at odds with the evidence that pretext is the fair conclusion," Souter writes.

He adds that the two prosecutors in the case had been trained in how best to exclude blacks from cases as part of a strategy to help convict black defendants. He writes that they used race-coded juror cards, requested random shuffles of the jury pool, and engaged in disparate questioning designed to knock blacks off the panel while allowing whites to continue as jury members.

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