Tuesday, June 14, 2005

Capital Punishment in Texas...

The Houston Chronicle has a follow up piece today to the Supreme Court's decision in Miller-El. The Chronicle noted that this decision, coupled with a decision in a California capital case Monday, is a sign of a broader attempt to rid racial profiling from jury selection.
"'The court is sending a strong message,' said Jordan Steiker, a professor at the University of Texas School of Law. 'It requires vigorous enforcement of the guarantee against racial discrimination in jury selection.'"

It also noted the Court's displeasure with the 5th Cir. and Texas state court's handling of capital cases:

The decision was the latest in a series of rebuffs to the 5th Circuit Court, considered one of the most conservative appellate courts in the country.

"It tells us again something the Supreme Court has been telling us before over the last couple of years — it has really lost confidence in the Texas courts as well as the 5th Circuit to police the fairness of death penalty trials in Texas," said David Dow, a professor at the University of Houston Law Center who has represented death row inmates. ...

The Supreme Court last year struck down three Texas death penalty convictions. In each case the defendant was black.

(Buy Dow's book on capital punishment here.) ACSblog has their report of the case here. There, they reference the Chronicle's story on the case from December of 2004 entitled High Court, Fith Circuit battle over death row. In it, the Chronicle noted, "The high court, annoyed that the 5th U.S. Circuit Court of Appeals in New Orleans had ignored the evidence, sent the case back with orders to take a second look. The lower court did. But it didn't change its mind." The split between SCOTUS and the 5th is becoming more and more evident:
The Supreme Court has indicated the 5th Circuit has gone too far, denying defendants' constitutional rights. Although the high court accepts and decides only a tiny fraction of the cases that are filed each term, it nevertheless has taken three Texas death penalty cases at least twice. In each, the high court repeatedly has warned the 5th Circuit about failing to comply with its rulings.

"What is really happening is the death penalty system in Texas is close to breaking, because the Supreme Court simply does not have the resources to police every single death penalty case that comes up from Texas," said David Dow, a professor at the University of Houston Law Center who represents death row inmates.
"They have to be able to count on the 5th Circuit and the Texas Court of Criminal Appeals to do their jobs," he added. "So far, they haven't been able to do that."

And to me, this is the most shocking portrait of the 5th Circuit's irresponsible handling of Texas death penalty cases, and the Miller-El case specifically:
The 5th Circuit said it was merely deferring to the state trial court's decision that Miller-El had not proved the bias. But Kennedy wrote that showing deference "does not imply abandonment or abdication of judicial review." His opinion laid out in detail the evidence the justices found to be obvious.
Rather than following the majority's opinion, however, the 5th Circuit relied on the reasoning of Justice Clarence Thomas, ... who was the lone dissenter in the case. It lifted several passages from his opinion, without attributing the wording to him, in its latest decision in the case.

Abdication of judicial review, indeed. The same week in December, the New York Times noted the Supreme Court's rising tension with the Texas capital punishment system.
Perhaps as telling is the exasperated language in decisions this year from a Supreme Court that includes no categorical opponent of the death penalty. Justice Sandra Day O'Connor wrote in June that the Fifth Circuit was "paying lip service to principles" of appellate law in issuing death penalty rulings with "no foundation in the decisions of this court." In an unsigned decision in another case last month, the Supreme Court said the Court of Criminal Appeals "relied on a test we never countenanced and now have unequivocally rejected." The decision was made without hearing argument, a move that ordinarily signals that the error in the decision under review was glaring.

You can read Sentencing Law and Policy blog's take on Justice Breyer's concurrence in Miller-El here. See my original post related to the Death Penalty in Texas, and the reversal of the conviction of Thomas Miller-El here.

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