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Washington�A year after winning a rare victory in the U.S. Supreme Court, a Texas death row inmate, backed once again by a group of prominent former judges and prosecutors, is telling the high court that the 5th U.S. Circuit Court of Appeals has basically thumbed its nose at its first ruling. Last year, in an 8-1 ruling, the high court found that the lower courts had failed to give “full consideration to the substantial evidence” offered by Thomas Joe Miller-El, who is black, that prosecutors had used racial bias during jury selection in his 1986 capital murder trial. Miller-El v. Cockrell, 537 U.S. 322. That evidence included the exclusion of 10 of 11 eligible blacks from the jury pool in Miller-El’s trial; a history of discrimination by Dallas prosecutors, including training manuals that claimed “minority races almost always empathize with the defendant”; jury shuffles; and a 1986 newspaper report showing that 90% of eligible blacks were excluded by prosecutors using peremptory challenges in 15 death penalty cases from 1980 to 1986. The majority, led by Justice Anthony M. Kennedy, sent the case back to the 5th Circuit, which had refused to review Miller-El’s claim, with an explanation of how to evaluate whether prosecutors had purposefully discriminated. Last March, the 5th Circuit, on remand, rejected Miller-El’s claim, holding that he had failed to prove that prosecutors had engaged in purposeful discrimination with their peremptory challenges. The high court on June 24 is expected to consider whether to hear Miller-El’s new petition challenging what his lawyers call the 5th Circuit’s “begrudging approach to claims of discrimination in jury selection” under Batson v. Kentucky, 476 U.S. 79 (1986), and its “myopic application” of Batson to Miller-El’s case. Miller-El v. Dretke, No. 03-9659. Representing Miller-El, former Solicitor General Seth Waxman of Washington’s Wilmer, Cutler & Pickering and Jim Marcus of the Texas Defender Service noted in their petition that the 5th Circuit “literally incorporated verbatim (without attribution) analyses and discussions” from the dissenting opinion by Justice Clarence Thomas in the first Miller-El case and from the state’s unsuccessful brief in that same case. Opposing the petition, Texas argued that the 5th Circuit “considered all relevant evidence” but found it insufficient to overcome the state trial judge’s finding “that prosecutors struck prospective jurors, not because of their race, but because of their unfavorable case-related views.” Elizabeth Semel, co-director of the death penalty clinic at the University of California, Berkeley School of Law, and Carter Phillips of Sidley Austin Brown & Wood filed an amicus brief again supporting Miller-El on behalf of former FBI Director and federal Judge William Webster, former federal appellate Judge John Gibbons, former Tennessee Attorney General W.J. Michael Cody and others.

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