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After nearly 20 years of appeals, Texas death row inmate Thomas Miller-El persuaded the Supreme Court on Monday to overturn his conviction because of the racial bias that tainted the selection of the jury in his murder trial. The 6-3 ruling, written by Justice David Souter, was one of two decisions Monday that amounted to a powerful affirmation of the Court’s disdain for racial discrimination in the use of peremptory challenges. In both Miller-El v. Dretke and Johnson v. California, the Court invoked Batson v. Kentucky, the 1986 ruling that barred the racially discriminatory use of peremptories. “The Court is saying that this is a very important right that has to be policed,” said David Ogden of Wilmer Cutler Pickering Hale and Dorr, one of Miller-El’s lawyers. “You have to look behind the race-neutral justifications that prosecutors are going to use to explain what they do.” Justice Stephen Breyer, in a concurrence in both cases, even suggested that the time has come to eliminate peremptories altogether because it has proved so difficult to filter racial bias from their use. He cited numerous studies by news organizations and others indicating that despite Batson, racial bias in jury selection persists. “The right to a jury free of discriminatory taint is constitutionally protected,” Breyer wrote in the Texas case, Miller-El v. Dretke. “The right to use peremptory challenges is not.” Souter’s opinion marked the second time the high court has ruled in Miller-El’s case. Two years ago, the Court ruled that Miller-El’s claims of jury selection bias were plausible enough that he deserved habeas corpus review. It sent the case back to the 5th U.S. Circuit Court of Appeals, which again reviewed his case but again rejected his claim. The Supreme Court was critical of the 5th Circuit’s “unsupportable” conclusion and said that when Miller-El’s evidence of bias is fairly considered, “its direction is too powerful to conclude anything but discrimination,” Souter wrote. The high court rejected the 5th Circuit’s conclusion and granted Miller-El habeas relief, which will probably result in a new trial. In extreme detail, Souter reviewed the tactics and “trickery” used by Dallas County prosecutors to ensure that no blacks were on the jury that determined his fate. Miller-El, who is African-American, was accused of murdering a Holiday Inn employee during a 1985 robbery attempt. Prosecutors “shuffled” the jury pool members when too many African-Americans appeared in the front of the panel, Souter said, and they asked different questions of white and black potential jurors. When asking the black jurors about their views on the death penalty, prosecutors used a far more graphic description of executions, apparently to make it more likely they would express disapproval and disqualify themselves. Prosecutors also kept records of the race of each of the potential jurors. The prosecutors’ race-neutral explanation for the strikes, Souter said, “reeks of afterthought.” Justice Clarence Thomas wrote a dissent longer than the majority opinion. In it, Thomas said a Texas court’s conclusion that there were nonracial explanations for the peremptory challenges in Miller-El’s case was “eminently reasonable.” Thomas, who was joined by Chief Justice William Rehnquist and Justice Antonin Scalia, said the majority had been swayed by emotion to disbelieve the prosecution’s explanations: “On the basis of facts and law, rather than sentiments, Miller-El does not merit the writ of habeas corpus.” In the California case, Justice John Paul Stevens wrote for the majority in deciding that the California Supreme Court had made it too hard for defendants to make out a prima facie claim of bias in jury selection. Jay Johnson, who is African-American, was accused of murdering a white child. The prosecutor used three of his 12 peremptory challenges to strike blacks from the jury pool, and Johnson’s jury was all white. After Johnson raised Batson claims on appeal, his conviction was set aside. But it was reinstated by the California Supreme Court, which said Johnson needed to provide “strong evidence” that racial factors were “more likely than not” the reasons for the challenges in order to launch a Batson inquiry. The California Supreme Court also said Batson gave states the right to set their own standards for evaluating claims of jury selection bias. Stevens said the “overriding interest in eradicating discrimination” requires state courts to adopt standards that make it easier for Batson claims to be tested — rather than being excluded at the outset. In the California case, Thomas was the only dissenter, arguing that states have “broad discretion” in devising procedures to comply with Batson.

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