Dec. 7
TEXAS:
High Court Revisits Death Penalty
Capital punishment isn't nearly as endangered on the U.S. Supreme Court as
abortion rights are; but in its present form, it is not in as strong a
legal position as its most ardent supporters think it is.
There is a saying in Texas: you mess with the bull, you get the horns.
Right now the appellate courts of Texas, both state and federal, are
messing with the United States Supreme Court on the issue of the death
penalty. It's a war those lower courts certainly will lose; it's a battle
that for many reasons they shouldn't even fight.
As chronicled in depth in Sunday's New York Times, the highest court in
the land is locked in a battle with the 5th U.S. Circuit Court of Appeals
and the Texas Court of Criminal Appeals over how capital cases ought to
play out in court.
The lower appeals' courts keep affirming capital convictions generated
after dubious trials. The Justices keep rejecting the lower courts'
reasoning and sending the cases back down for fixing. Then, instead of
loyally following the High Court's rationale, the lower courts keep coming
back with new reasons (or in some cases, the same old reasons) for
affirming the convictions.
It's a cycle that can only end poorly for capital punishment supporters in
Texas and elsewhere. In fact, if Texas, the death penalty capital of
America, wants to inadvertently (and quite ironically) dispense with or
merely suspend capital punishment in the United States, it is well on its
way.
By antagonizing the Justices to this extraordinary extent, the lower
courts are simply lending support to those on the High Court who believe
that capital punishment procedures - from the way capital juries are
selected to the way appeals court review cases - are teetering on the
brink of unconstitutionality.
It wouldn't take much, with or without Chief Justice Rehnquist, to turn
the Court's slim majority in favor of capital punishment (as is) into a
slim majority that halts capital punishment until its procedural
safeguards are universally ensured.
Several swing Justices, including - famously - Justice Sandra Day
O'Connor, have in the past expressed growing concern not at the concept of
capital punishment itself but at the way in which it is enforced and
implemented.
Capital punishment isn't nearly as endangered on the Court as abortion
rights are; but in its present form (i.e. with current procedures in place
and the spate of news stories about innocent men being condemned), it is
not in nearly as strong a legal position as its most ardent supporters
think it is.
Given that context, why would the lower courts want to keep reminding the
Justices about how arbitrary capital cases can be, especially in the
South? Why wouldn't those lower courts go out of their way to keep the
Supreme Court confident that the rules in capital cases are and can be
fairly enforced and judiciously implemented?
Not for 50 years - since the bogus theory of interposition made its last
stand in the law during the Southern civil rights fights - have lower
courts thumbed their noses so blatantly at the Justices.
The reason for this column - and for the Times' lengthy take on the topic
- is that the Justices Monday heard oral arguments in a capital case out
of Texas that has become the symbol for the intra-court fight over the
death penalty.
This is the 2nd time this particular case, Miller-El v. Dretke, has found
its way to the High Court. The case initially caught the attention of the
Justices because there was some proof that prosecutors in the case
purposely sought to prevent black people from sitting in judgment on
Miller-El, who is black.
The suspicion of this proof was "strong" enough last year to persuade the
Justices, in a 8-1 vote, to send the case back down the legal chain with
instructions to the lower courts to rethink their conclusions about racial
bias in the case, which of course the Constitution precludes.
Usually, when the Justices send down such a missive in such direct terms,
it means an automatic reversal by the lower court, which like it or not,
usually turns around, reverses the conviction, and then says: "We are just
following what the Highest Court in the land has ordained."
Not this time. In this case, the federal appeals court simply affirmed the
conviction again, relying upon the words of Justice Clarence Thomas, the
lone dissenting judge in that 8-1 majority that had sent the case back
down in the 1st place.
That's the legal equivalent to awarding the Vince Lombardi trophy to the
team that gets it butt kicked in the Super Bowl. Which is why, on Monday,
Justice Stephen G. Breyer had the good sense to ask the Texas attorney
general arguing the case: "I'm reading the opinion and thinking, unless
something changes here, this is something bad, this is discriminatory. Is
there something different found in the 5th Circuit that wasn't here the
last time?"
The answer to that question, of course, is "no," which is why the Justices
this time around are much more likely simply to themselves reverse
Miller-El's conviction rather than try to rely again upon the intransigent
lower courts.
And if and when they do so, they likely will tweak death penalty law in a
way that won't thrill capital punishment supporters. The Court recently
has precluded capital punishment for mentally retarded killers and now is
considering the same ban for juvenile murderers.
The Miller-El case, the way it went down at trial and the way it has gone
up on appeal, gives the Justices yet another reason to tinker with capital
procedures more broadly. We won't see an outright ban on the death penalty
- there isn't a single Justice on the Court who is against it in all
circumstances - but the Miller-El case ultimately may make it harder to
get a capital conviction and then to defend that conviction on appeal.
Think that's what the Texas courts are hoping for? Me neither.
Wave the flag in front of the bull enough times and sooner or later that
bull is going to get to work. The Supreme Court is closer to limiting the
scope of capital punishment in this country thanks to the defiance of a
whole group of people who ought to know better.
So if you don't like the big ruling when it comes down next June, don't
blame the Justices. Blame the judges at the 5th Circuit and the ones
sitting on the Texas Court of Criminal Appeals. They are the ones who are
just asking to get gored.
(source: Attorney Andrew Cohen analyzes legal issues for CBSNews.com and
CBS News)
*********************************
Justices Give Second Hearing in a Texas Death Row Case
The scene at the Supreme Court as a Texas death penalty case was argued
Monday morning was strikingly familiar.
The 2 lawyers who stood before the justices were the same 2 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 2 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 2nd time, and several justices indicated that the
concerns they expressed the 1st 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; 6 of those strikes are now
in dispute. Mr. Waxman, Mr. Miller-El's lawyer, argued in the 1st 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 6 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."
(source: New York Times)
******************************
Justices restudy death case -- Supreme Court again weighs racial bias in
jury selection at Dallas man's 1986 capital trial
The U.S. Supreme Court on Monday for the 2nd time considered a nearly
2-decade-old death penalty case involving a 1-time Dallas County practice
of excluding minorities from juries.
In 1986, Thomas Miller-El was sentenced to die for the robbery and murder
of an unarmed Irving motel clerk. The case has become a focus for the
court's ongoing scrutiny of the Texas death penalty.
Besides determining the fate of Mr. Miller-El's case, the high court could
clarify how far prosecutors may go to exclude potential jurors.
In February 2003, the Supreme Court returned Mr. Miller-El's case to lower
courts, finding that Dallas County jury selection, particularly in capital
cases, had been "suffused with bias." Justices sought reconsideration of
Mr. Miller-El's complaints but stopped short of asking that he be retried.
Seth Waxman, a former U.S. solicitor general now representing Mr.
Miller-El, said previously considered evidence of prosecutorial misconduct
ought to be enough to overturn determinations that no discrimination
occurred.
"A finding of no discrimination is simply too incredible" for the court to
believe, Mr. Waxman said.
Assistant Texas Attorney General Gena Bunn, arguing on behalf of Dallas
County, said the lower courts had shown that potential black jurors were
dismissed because they reported problems with serving or ambivalence about
the death penalty, not because of race.
In Batson vs. Kentucky - a case decided a few months after Mr. Miller-El
was condemned to death - the Supreme Court prohibited any process that
would tend to exclude potential jurors on the basis of race. The court
ruled that even peremptory strikes, in which potential jurors are
dismissed without cause, could not be based on race.
The landmark opinion cited a 1986 investigation by The Dallas Morning
News. It found that Dallas prosecutors excluded 90 percent of black
prospective jurors from all 15 capital murder cases between 1980 and 1986.
Those cases included Mr. Miller-El's.
Methods of exclusion
Lawyers for Mr. Miller-El said prosecutors used time-tested methods to
exclude minorities, particularly blacks, from death penalty juries.
They questioned minorities in ways that other potential jurors were not,
often discussing the graphic details of execution to elicit evidence of
ambivalence toward capital punishment.
When random selection of the jury pool produced too many blacks for
consideration too early in the process, the juror panels were "shuffled" -
effectively moving blacks further back in the pack.
Juror registration cards from the case showed that prosecutors routinely
noted race and gender of potential jurors, as well as personal
characteristics - such as weight or whether a man wore a beard.
By the time Mr. Miller-El's jury was selected, more than 91 percent of the
blacks in his 108-person jury pool had been excluded. From the small pool
of blacks remaining, one was selected.
After the Supreme Court's first consideration of Mr. Miller-El's case,
state courts concluded that his complaints of bias were unjustified. And
when the U.S. 5th Circuit Court of Appeals said that it had no business
questioning these "findings of fact," the high court took the case again -
an indication that a majority of justices were displeased.
On Monday, one of them appeared to be Justice Stephen Breyer, who asked
how the state's arguments nearly 2 years ago are any different today. He
said the court had reviewed the original questions of bias carefully and
had concluded "unless something changes, this is something bad."
He said the specifics of jury shuffling and imbalanced questioning were
all the more suspicious because the tactics were outlined in an in-house
manual that taught prosecutors how to exclude minorities from juries in
these and other ways.
The 1963 Dallas County manual instructed prosecutors in emphatic terms:
"Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority
race on a jury, no matter how rich or how well educated." Dallas
prosecutors used similar, although less colorful, instructions until 1976.
"Put in that context, I have to think, 'My goodness,'" Justice Breyer
said.
Scrutinizing specifics
Ms. Bunn, the assistant attorney general, argued that the court shouldn't
consider "big picture" historical arguments, only specific circumstances.
For instance, Mr. Miller-El should have to produce a white juror taken in
spite of ambivalence toward the death penalty, Ms. Bunn said.
"Mr. Miller-El has failed to identify a similarly situated white juror,"
she said.
"A buckshot defense must be analyzed pellet by pellet," said Justice
Antonin Scalia, in apparent agreement.
Justice John Paul Stevens asked whether there was any "race-neutral"
reason for indicating race on jury cards. When Ms. Bunn could not
immediately think of one, Justice Scalia suggested one.
"Maybe prosecutors didn't want to come up with an all-white jury, for fear
that it would be challenged," he said.
The potential effect of the case could be significant, said Elisabeth
Semel, who directs the Death Penalty Clinic at the University of
California, Berkeley. A decision favoring Mr. Miller-El would "send a
strong message" about race and juries well beyond Texas, she said.
"Is it going to immediately result in a host of reversals in other cases?
No," she said. "But is it going to send a very clear message about what is
tolerable and what is not? I think it will."
UNDER REVIEW
The issue: In Miller-El vs. Dretke, the Supreme Court heard arguments on
whether blacks were unconstitutionally excluded as potential jurors in a
1986 Dallas death-penalty case.
What's next: A decision will be made by June 30, the end of the Supreme
Court term.
Death row: Since capital punishment was reinstated in 1976, Texas has
executed more than 1/3 of the 943 people put to death in the United
States.
Other cases: The high court issued reversals on various grounds this year
in three cases involving Texas death-penalty convictions, a striking
number for a conservative-leaning court that generally favors capital
punishment. All the cases involved black defendants.
(source: Dallas Morning News)
********************************
Judicial Defiance
The Supreme Court should not have had to hear the case of Thomas Joe
Miller-El once, let alone twice. But yesterday the court for the 2nd time
held oral arguments in a capital case that ought to embarrass even Texas,
with its unrivaled enthusiasm for executions. The question is simple: How
overtly discriminatory must jury selection be before it becomes
unconstitutional? Nearly two years ago, the Supreme Court instructed a
lower appeals court to seriously examine evidence of racial bias in the
jury's selection. The high court's message should have been clear when it
expressed suspicion that "the State sought to exclude African-Americans
from the jury." But after that ruling, the U.S. Court of Appeals for the
5th Circuit again averted its gaze from substantial evidence of
discrimination, treating the case with what seems like willful disregard
for the high court's meaning.
The backdrop of this case is Dallas's ugly history of keeping blacks out
of the jury box. In 1963, a training manual for the district attorney's
office stated: "Do not take Jews, Negroes, Dagos, Mexicans or a member of
any minority race on a jury, no matter how rich or how well educated." By
the time of Mr. Miller-El's murder trial in 1986, such formal policies no
longer existed, but office insiders testified that some prosecutors still
observed them. And the Dallas Morning News reported that, in 100 cases
studied, prosecutors had eliminated 92 percent of African Americans using
peremptory strikes, a device for removing jurors who would otherwise be
qualified.
The manipulations in Mr. Miller-El's case were not subtle. Prosecutors
exploited rules to move potential African American jurors out of
contention; of 11 who got past that barrier and were qualified to serve on
the jury, 10 were struck by peremptory challenge. The only African
American not challenged was one who declared that lethal injection is "too
quick. They don't feel the pain. . . . What I call punishment is back to
the old Indian days. . . . Pour some honey on them and stake them out over
an ant bed." Texas argues that would-be jurors' statements, not their
race, explain their being barred; but as the Supreme Court noted in its
last opinion, prospective black jurors were questioned differently from
others.
Amazingly, both the Texas court system and the 5th Circuit judges have
consistently approved the prosecutors' conduct. In the last go-round, the
5th Circuit declined even to hear the case, contending that reasonable
judges could not disagree on the subject. After eight Supreme Court
justices disagreed and ordered the lower court to consider the merits of
Mr. Miller-El's claims, the lower court rejected them -- using passages
lifted nearly verbatim from Justice Clarence Thomas's lone dissent.
This case is no longer only about how big a fig leaf Texas gets when its
prosecutors keep blacks out of the jury box. It also poses the question of
whether the Supreme Court will allow a lower tribunal -- keen to keep the
machinery of death humming -- to all but openly defy it. The answer must
be no.
(source: Editorial, Washington Post)
********************
Texas death-row reprieve one of few----Murderer's lawyer, ballistics cited
as reasons for grant
Activists call Texas a state without mercy when it comes to the death
penalty, but in a rare move two hours before she was to be executed, Gov.
Rick Perry granted convicted murderer Frances Newton a 120-day reprieve so
the courts could re-investigate her case.
Newton was convicted for the 1987 shooting deaths of her husband and two
young children. Prosecutors claimed Newton committed the murder to collect
$100,000 in life-insurance money. She has always claimed innocence and
said the murderer might have been a drug dealer she knew only as
"Charlie," who was trying to collect a debt from her drug-addicted
husband.
"After a lengthy review of the appellate court ruling, and clemency
proceedings, I see no evidence of innocence," Perry said in a written
statement. "However, I am granting the additional time to allow the courts
the opportunity to order a retesting of gunpowder residue on the skirt the
defendant wore at the time of the murders and of the gun used in the
murders."
Some questions have been raised about ballistics tests used as evidence in
Newton's case because they were run through the Houston Police Department
crime lab, which suspended DNA testing in December 2002 due to problems
that led to evidence contamination.
"It was scandal-ridden," said Jared Tyler, a Houston lawyer who has worked
on Newton's behalf. "The labs shut down. They failed basically every test
you could fail."
According to court records, tests found traces of possible gunpowder on
Newton's dress, but her attorneys now say it could have been garden manure
which also contains nitrates. Tests performed on Newton's hand on the
night of the crime found no evidence that she had fired a gun.
"Although this evidence was evaluated by the jury and the appellate
courts, new technology is available for testing gunpowder residue," Perry
stated.
A call for a moratorium in Harris County is underway because death penalty
cases with evidence processed in the labs have come up for execution,
Tyler said.
Another issue with Newton's case is she was provided inadequate defense by
the state, said Kathleen Feyh, spokeswoman for the UT branch of Campaign
to End the Death Penalty.
Newton was defended by court-appointed lawyer Ron Mock, who is known
around the state for having 16 of his clients sent to death row, according
to the Houston Chronicle.
"There's a joke we have," Feyh said. "That part of death row should be
named the 'Mock Wing' because he's sent so many people there."
The attorney appointed to assist Mock, Catherine Coulter, gave sworn
testimony that Mock told her he had thoroughly gone over the evidence in
the case, but later admitted he had not. According to an article by the
Houston Chronicle, Mock admitted at a hearing just a few days before the
trial that he had not interviewed any witnesses or filed any motions in
the case.
Mock has been disciplined by the state bar six times and suspended twice.
Mock said in an interview conducted by the Houston Chronicle that he
hadn't wanted to take Newton's case because he was burned out, but that he
had been asked to by a judge.
Only 2 other reprieves have been issued during Perry's term as governor.
One was granted in 2001 to Jeffery Tuckey, who was set to be executed
Sept. 11, when federal offices closed because of the terrorist attacks.
The 2nd reprieve went to Rodolfo Hernandez in March 2002 so police could
investigate claims he could provide evidence in several unsolved murder
cases.
"Inadequate defense, not having lot a lot of money, the Houston crime lab.
These are certainly issues that plague many of the cases on death row,"
Feyh said. "They should call the death penalty into question."
(source: The Daily Texan)
