Texas is first in the nation in executions, with 336 since 1976. But to keep the state's machinery of death humming at top speed, the courts that oversee the process have been short-changing justice.
The state's Court of Criminal Appeals and the federal 5th U.S. Circuit Court of Appeals have, at times, barely acknowledged the due process guarantees afforded capital defendants, leading an exasperated U.S. Supreme Court to take more appeals from Texas.
The extremity of the problem was voiced recently by Justice Sandra Day O'Connor _ not known as an opponent of the death penalty _ who wrote in June that the 5th Circuit pays "lip service to principles" in death penalty rulings.
Before the court now is the case of Thomas Miller-El, a black man convicted of murdering a clerk at a Holiday Inn in Dallas in 1985. The high court already has heard this case once. In 2003, in an 8-to-1 ruling, the court said that Miller-El appears to be the victim of the kind of racial bias in jury selection that was historically used as a regular tactic by Dallas prosecutors. It then returned the case to the 5th Circuit for a final judgment. But because the lower federal court ignored the findings of the Supreme Court and discounted the evidence of systematic exclusion, the Supreme Court has to wade into the case again.
Dallas has a long, sorry history of excluding racial minorities from juries. At one time prosecutors were instructed in writing not to allow "Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or well educated." While that particular manual was retired before Miller-El faced a jury in 1986, the biased practices persisted. Prosecutors in his case twice used a technique known as a jury shuffle to move potential black jurors down the list of prospects. And they used their peremptory challenges to remove 10 of 11 eligible black jurors.
During oral arguments last month, Justice Stephen Breyer read essentially identical answers to prosecutors questions about the death penalty from one black and one white potential juror. Only the black juror was challenged.
The 5th Circuit had dismissed these blatantly discriminatory acts, finding valid reasons foreach peremptory strike. And in open defiance of the Supreme Court, the court virtually transcribed paragraphs from Justice Clarence Thomas' lone dissent without attribution and used them in its majority opinion to justify finding against Miller-El. The high court cannot allow this insubordination. It must forcefully respond.
Perhaps most saddening is that there was a time when the 5th Circuit, headquartered in New Orleans, was considered a beacon of civil rights. Its judges ushered in a new era of legal equality and justice. Jurists such as Judge John Minor Wisdom and Judge Elbert Tuttle passionately enforced the rule of law, despite the deep institutional and public resistance to their desegregation rulings. They have been replaced with judges who display a hostility toward the due process rights in the Constitution.
For the sake of justice, the Supreme Court will have to keep a careful eye on the 5th Circuit.