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Last week the Supreme Court issued rulings on two volatile issues — further strengthening the rule against prosecutors striking jurors because of race and turning back a government effort to prosecute aborton protesters. The Supreme Court ruled 8-1 on Feb. 25 that a black Texas death row inmate should have been allowed to make his case that the jury that convicted him was screened by prosecutors in a racially biased way. The decision in Miller-El v. Cockrell, No. 01-7662, sends the case of Thomas Miller-El back to the lower courts, where he has been appealing his murder conviction since 1986. The Court also rebuked the U.S. Court of Appeals for the 5th Circuit for its “dismissive and strained” handling of Miller-El’s evidence of bias during jury selection. Dallas prosecutors had used peremptory strikes to exclude 10 of the 11 black potential jurors from Miller-El’s case. More important, the ruling represents a strong reaffirmation of Batson v. Kentucky, the 1986 ruling that barred racially based peremptory challenges by prosecutors. Led by Justice Anthony Kennedy, the majority also underscored the importance of vigilant judicial habeas corpus review, in spite of efforts by Congress to limit death row appeals in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). “Even in the context of federal habeas,” Kennedy wrote, “deference [to lower courts] does not imply abandonment or abdication of judicial review.” The 5th Circuit had deferred to the determination of a district judge in the Northern District of Texas, as well as state courts, that Miller-El had failed to establish a constitutional violation warranting habeas review. Cynthia Orr of the San Antonio firm Goldstein, Goldstein & Hilley, co-chair of the death penalty committee of the National Association of Criminal Defense Lawyers, says the ruling breathes new life into habeas appeals. “It really puts a lot of teeth back into Batson, and requires substantially more process than we thought AEDPA required.” Miller-El’s lawyer Jim Marcus of the Texas Defender Service says the high court sent a “clear message to the 5th Circuit that too much deference is inappropriate.” Justice Clarence Thomas, the only African-American on the Court, was also the only dissenter, arguing that for each potential juror struck by the prosecutor in Miller-El’s case, a plausible nonracial explanation could be made. “Because petitioner has not shown by clear and convincing evidence, that any peremptory strikes of black veniremen were exercised by race, he does not merit a certificate of appealability,” Thomas wrote. But Kennedy, speaking for the eight-justice majority, said, “We have no difficulty concluding that a [Certificate of Appealability] should have issued.” These certificates are required by AEDPA as a threshold finding to prevent death row inmates from filing frivolous appeals in federal court. Citing historical and statistical evidence about bias in jury selection in Dallas, Kennedy asserted that “happenstance is unlikely” to have produced the pattern of peremptory strikes that occurred in Miller-El’s case. The style of questioning was different for white and black members of the jury pool in Miller-El’s case, Kennedy noted, and the difference resulted in black jurors providing answers that would make them more excludable based on their views on the death penalty. Kennedy also questioned the practice in Texas of “jury shuffling,” which allows lawyers to scramble the order of potential jurors based solely on their appearance as they sit in the courtroom. The practice, Kennedy said, “raises a suspicion that the state sought to exclude African-Americans from the jury.” EXTORTION, RICO NOT VIABLE CLAIMS The Supreme Court on Feb. 26 sharply curtailed the use of federal extortion law and RICO as legal tools against aggressive abortion clinic protesters. By an 8-1 vote in Scheidler v. National Organization for Women, No. 01-1118, the justices agreed that whatever tactics Joseph Scheidler, Operation Rescue, and the Pro-Life Action League used against clinics, they did not fit the definition of extortion in the Hobbs Act, which requires “the obtaining of property” of someone else under threat of force. “Even when their acts of interference and disruption achieved their ultimate goal of shutting down a clinic that performed abortions, such acts did not constitute extortion, because petitioners did not ‘obtain’ respondent’s property,” wrote Chief Justice William Rehnquist. Because the Hobbs Act was no longer available to define “predicate acts” under RICO, Rehnquist said other state violations were not enough to justify a RICO case, which he said was “fatally flawed.” The ruling represented a major victory for abortion protest groups that have been the target of an array of legal actions aimed at making their strident, sometimes violent, actions at clinics too costly to pursue. The Racketeer Influenced and Corrupt Organizations Act, with its threat of treble damages, was viewed by abortion rights groups as a particularly strong weapon. But the case was also closely watched by other activists who saw a potential chilling effect if the use of the Hobbs Act and RICO were ratified by the Court. Actor Martin Sheen, the animal rights group PETA, and others had filed briefs in the case on the side of Scheidler. “This decision is a tremendous victory for those who engage in social protests,” says Jay Sekulow, chief counsel of the American Center for Law and Justice, lawyer for Operation Rescue in the case. “The decision removes a cloud that has been hanging over the pro-life movement for 15 years. The ruling clearly shuts the door on using RICO against the pro-life movement.” Adds Ken Connor, president of the conservative Family Research Council: “Watch for pro-abortion groups to protest this decision. The irony is that they will be exercising the very rights they seek to deny to others.” The ruling was a defeat for women’s groups and the Bush administration, which had argued that anti-abortion groups, through their protests, effectively seize control of abortion clinics, thus meeting the Hobbs Act definition of extortion. In a separate argument, Solicitor General Theodore Olson claimed that only the government, not private parties, could sue and obtain injunctive relief under RICO. The Court said Wednesday it did not need to rule on that question. Justice Ruth Bader Ginsburg wrote a separate concurrence suggesting that other legal avenues — including the federal Freedom of Access to Clinic Entrances Act of 1994 — are available to those seeking to punish disruptive clinic protests. In dissent, Justice John Paul Stevens said “no other federal court has ever construed this statute so narrowly.” He criticized the majority’s “dramatic retreat” from earlier positions, arguing that the narrow interpretation will benefit only “professional criminals.” Calling the decision “shocking,” NOW President Kim Gandy in a statement applauded Stevens’ dissent, saying “the ruling overturn[s] decades of case law, making this a banner day for criminal kingpins.” The issuance of the Feb. 26 opinion was marred by a baffling printing error — rare but not unheard of in the annals of the Court. Ginsburg’s concurrence included an errant footnote, preceded by an asterisk, identical to a footnote in Justice Antonin Scalia’s concurrence Feb. 25 in the unrelated Miller-El case. Court officials chalked up the mistake to “human error” of unknown origin. Corrected copies, including the footnote Ginsburg meant to write, were sent out to the online sites that carry Supreme Court rulings.

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