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Court warns about bias in picking juries


The Supreme Court admonished lower courts and prosecutors yesterday to more carefully consider possible racial bias during jury selection, siding in two cases with black murder defendants who contended that they faced juries unfairly stacked with white panelists.

In one of the cases, an exasperated Supreme Court overturned the conviction of Texas death row inmate Thomas Miller-El two years after it had ordered a lower court to review his case for jury bias. Ignoring the hint, the lower court let Miller-El's conviction stand - saying there was no bias.

The Supreme Court shot back with yesterday's sharply critical 6-3 ruling. The court called the 5th U.S. Circuit Court of Appeals' finding that there was no discrimination "unsupportable" and said jury selection in Miller-El's case was "replete with evidence that the prosecutors were selecting and rejecting potential jurors because of race."

In a separate case, the court in an 8-1 decision said California's legal standard for weighing claims of jury bias was too strict. The ruling allows defendant Jay Shawn Johnson, a black man convicted of murdering his white girlfriend's toddler, to pursue a new trial. He was tried by an all-white jury.

Justice Clarence Thomas, the court's only black member and a staunch conservative, wrote a dissent in each case.

The rulings come as the broader issue of race-based challenges to the death penalty has gained ground in some places, including Maryland where the state's highest court last week took up a case claiming that application of capital punishment is biased against blacks. For Texas, which has the highest execution rate in the country, the ruling in Miller-El's case marked the latest in a string of death penalty reversals handed down by the Supreme Court.

"I'm always encouraged when the U.S. Supreme Court rebukes this state, but I would say I am cautiously optimistic that Miller-El will be given a better shot at a fairer trial," Rick Halperin, president of the Texas Coalition to Abolish the Death Penalty said yesterday. "With these rulings, they're welcome, they're long overdue - but one shouldn't automatically assume compliance."

A landmark 1986 Supreme Court case, Batson vs. Kentucky, established that it is unconstitutional to exclude a potential juror because of race. But cases across the country, even in recent years, have demonstrated the difficulties of recognizing and preventing what is often a subtle form of bias.

Miller-El's case offered a dramatic example, with the Supreme Court this year granting a rare second review - and second emphatic criticism of the selection process that resulted with one black juror on the 12-person panel.

According to testimony and court records, Dallas prosecutors during Miller-El's trial marked juror registration cards to note each person's race and gender and other characteristics. Prosecutors also routinely "shuffled" juror panels, which reduced the likelihood of black jurors ending up on the panel.

County prosecutors also had relied for years on an in-house manual, issued in 1963 and now repudiated, which offered advice such as: "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. They will not do on juries."

"The state notes ... that there might be racially neutral reasons for shuffling the jury, and we suppose there might be," Justice David H. Souter wrote for the majority yesterday. "But no racially neutral reason has ever been offered in this case, and nothing stops the suspicion of discriminatory intent from rising to an inference."

Souter was joined in the majority by Justices John Paul Stevens, Sandra Day O'Connor, Anthony M. Kennedy, Ruth Bader Ginsburg and Stephen G. Breyer, who also raised the possibility that the practice of permitting lawyers to cut some jurors without explanation should be eliminated.

Thomas' dissent in the Miller-El case was joined by Chief Justice William H. Rehnquist and Justice Antonin Scalia. They argued that Texas prosecutors had demonstrated that factors other than race were considered in striking nine of 10 black potential jurors.

"The state courts held two hearings, but despite ample opportunity, Miller-El presented little evidence that discrimination occurred during jury selection," Thomas wrote.

The Supreme Court first reviewed Miller-El's case two years ago, when it sent the case back to the New Orleans-based 5th U.S. Circuit Court of Appeals with specific instructions to explore whether racial discrimination played a role at all in the selection of his jury.

Taking up the case again, the 5th Circuit upheld Miller-El's conviction for a second time, agreeing with Thomas' dissent that the potential black jurors were excluded for a reason other than race. Yesterday's Supreme Court ruling countered with a detailed recounting of the jury process and argued that it "blinks reality" to conclude the jurors were eliminated for any other reason.

In the California case, the court determined that part of the state's test for weighing claims of jury bias was too restrictive. Under state law, a defendant has to show that it "is more likely than not" that prosecutors discriminated in picking a jury. Most states require judges to question prosecutors whenever there appears to be a possible race bias in jury selection.

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