Court Hears Argument on Race Bias in Capital Case

A lawyer representing a Texas death row inmate urged the Supreme Court yesterday to rebuke the state and federal judges who supervise the state's capital punishment system, as the court heard oral argument on a case of alleged racial discrimination in jury selection.

Seth P. Waxman, who served as solicitor general under President Bill Clinton, argued that prosecutors deliberately excluded black potential jurors in the 1986 murder trial of Thomas Miller-El, who is black, and that both the Texas courts and the New Orleans-based U.S. Court of Appeals for the 5th Circuit disregarded that evidence when they upheld Miller-El's death sentence.

Noting that the Dallas County prosecutor's office had, in the years before the Miller-El trial, used a training manual that coached prosecutors to strike black, Jewish and Hispanic jurors, and that prosecutors used a procedure known as the "jury shuffle" at the trial to prevent minorities from qualifying, Waxman called it an "extraordinary" case in which the lower courts had been "objectively unreasonable."

Under Supreme Court precedent, a defendant claiming that the prosecution's use of its automatic objections to potential jurors was racially biased must show the bias by clear and convincing evidence. If a state court upholds the prosecution's behavior, the defendant can overturn that ruling only by showing that no reasonable judge would have reached such a determination.

In 2003, the Supreme Court issued an 8 to 1 opinion largely endorsing Waxman's view of the evidence and ordering the 5th Circuit to hear Miller-El's case, which it had previously declined to do. The 5th Circuit responded by ruling that prosecutors had a valid non-racial explanation for their actions.

Yesterday, several members of the court made it clear this was not the answer they wanted from the 5th Circuit, which covers Texas, Louisiana and Mississippi and is considered one of the more conservative federal appeals courts.

Indeed, a majority of the justices seemed to agree with Waxman.

Justice Stephen G. Breyer read Texas Assistant Attorney General Gena Bunn an extensive summary of the case, noting that prosecutors had used their right under Texas law to "shuffle" the jury pool to move blacks away from the front of the line in jury selection. Breyer quoted from seemingly identical answers to questions about the death penalty from two potential jurors, white and black, and then noted that prosecutors objected only to the black person.

"I think that's the whole story there," Breyer said. "I look at those two in context and I say, 'My goodness.' "

Bunn replied that there were other, race-neutral reasons for blocking the black prospective juror. Pointing out that prosecutors were looking for jurors who would embrace the death penalty, she noted that the black juror had said that any criminal could be rehabilitated.

The case is Miller-El v. Dretke, No. 03-9659. A decision is expected before July.

Separately, the court overturned a ruling by another appeals court with which it frequently tangles, the liberal-leaning U.S. Court of Appeals for the 9th Circuit, based in San Francisco.

A San Diego police officer known only as John Roe was fired from the police force for making videotapes of himself masturbating in uniform and selling them on eBay, the online auction site.

Roe sued, claiming that he had been fired for expressing his point of view. The 9th Circuit upheld his claim, ruling that the videos amounted to a form of free speech.

In an unsigned opinion without recorded dissent, the Supreme Court said it had "no difficulty" summarily ruling otherwise, without briefing or oral argument.

Under existing precedent, the court gives public employees less protection in airing internal workplace grievances, and more protection for speaking out against their employers' policies. Roe's videos fit comfortably into neither category, but the court noted that they did not concern any subject of "legitimate news interest."

"The speech in question was detrimental to the mission and functions of the employer," the court said. "There is no basis for finding that it was of concern to the community as the Court's cases have understood that term in the context of restrictions by governmental entities on the speech of their employees."

The case is San Diego v. Roe, No. 03-1669.

Also yesterday, the court showed it was in no rush to intervene in the issue of military tribunals for suspected terrorists being held at the U.S. naval base at Guantanamo Bay, Cuba. It granted the Bush administration's request that the court not expedite consideration of a plea by attorneys for alleged al Qaeda member Salim Ahmed Hamdan for a Supreme Court hearing before his case is reviewed by the U.S. Court of Appeals for the District of Columbia Circuit.

On Nov. 8, a federal district judge in Washington struck down the Pentagon's proposed military tribunal for Hamdan, a ruling the Bush administration has appealed.

Yesterday's decision means that the D.C. Circuit case will continue on schedule, with a hearing likely early next year. Meanwhile, the government has until Dec. 27 to file its brief opposing Hamdan's request to bypass the D.C. Circuit, which the court will probably act on no sooner than January. The case is Hamdan v. Rumsfeld, No. 04-702.