New standard for race on death-row juries

A court ruling Tuesday will force judges to look more closely at bias in jury selection.

Judges must be more vigilant in preventing the use of race as a factor in jury selection under a tougher standard established by the US Supreme Court.

The new standard emerges in the case of a Texas death-row inmate who said he was denied a fair trial when prosecutors excluded 10 of 11 qualified African-Americans from serving on his jury. In an 8-to-1 decision with implications for capital cases nationwide, the court ruled Tuesday that a federal judge and a federal appeals court panel wrongly denied the defendant an opportunity to raise the issue on appeal.

The decision marks an important victory for civil rights advocates who have long complained that some prosecutors deliberately try to exclude blacks from juries, particularly when the defendant in the trial is black. In effect, the decision puts every state and federal judge in the US on notice that he or she must pay closer attention to charges that jury selection has been tainted by racial discrimination.

'Take a harder look'

"It is a clear signal from the court: Take a harder look at these issues," says George Kendall of the NAACP Legal Defense and Educational Fund in New York.

Elisabeth Semel of the Death Penalty Clinic at the University of California at Berkeley law school says the high court's ruling is significant on a number of levels. "This opinion both clarifies what the rule is for giving appellate review and directs the Fifth US Circuit Court of Appeals to apply a much more generous opportunity for review," Ms. Semel says.

She says the court makes clear that judges in the case involving Thomas Joe Miller-El, the death-row defendant, did not take a rigorous enough look at the issue. "This really makes it clear it has to be a thorough analysis, a complete analysis. It can't be a kind of pick-and-choose," she says.

The high court's action doesn't necessarily mean that Mr. Miller-El will win his case and force a new trial. But at a minimum, he must be afforded an opportunity to challenge the way his jury was selected.

Texas prosecutors deny that race played a role in the disqualification of any jurors in Miller-El's 1986 trial. He was convicted of murdering a motel clerk during a robbery.

Attorneys for Miller-El argue that prosecutors in Dallas County had a long history of deliberately excluding African-Americans from juries in criminal trials because they believed they were unlikely to convict black defendants, regardless of the evidence presented at trial.

The US Supreme Court in a landmark 1986 decision declared such trial tactics were unconstitutional. But the court in 1986 did not offer specific instructions to trial judges about what exactly would constitute clear evidence that race had been used as an impermissible factor in jury selection.

Thus, prosecutors could continue to exclude black jurors, provided they offered a race-neutral reason to the trial judge.

At issue in the Miller-El case was to what extent the jury selection process in the Miller-El trial deserved closer scrutiny by both the trial judge and appeals court judges.

The high court ruled that such scrutiny is warranted in cases where racial stereotypes may have played a role in jury selection. Circumstantial evidence that suggests such a role is enough to trigger this higher level of vigilance by judges, the court says.

"The statistical evidence alone raises some debate as to whether the prosecution acted with a race-based reason when striking prospective jurors," Justice Anthony Kennedy writes for the majority. "The prosecutors used their preemptory strikes to exclude 91 percent of the eligible African-American [prospective jurors], and only one served on petitioner's jury."

The other side

In his lone dissent, Justice Clarence Thomas said that under his reading of the law and rules authorizing appeals in cases like Miller-El's, defendants face a high hurdle of having to prove the allegations in an appeal by "clear and convincing evidence."

In contrast, the majority of justices say the proper standard is that a defendant must show only that reasonable jurists could disagree over whether the defendant can provide clear and convincing evidence.

"The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Justice Kennedy writes.

Some experts consider the decision noteworthy for the court the justices went against. "In addition to the fact that their reversal was so decisive," says University of Houston law professor David Dow, "the fifth circuit being one of the most conservative courts is also extremely important."

Kris Axtman in Austin, Texas, contributed to this report.

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