5th Circuit follows Supreme Court directive...

5th Circuit sets aside Dallas man's conviction

After being rebuked twice by the U.S. Supreme Court, the 5th U.S. Circuit Court of Appeals on Monday issued an order overturning a conviction in a Texas death-penalty case.

Appeals Judges Edith H. Jones, W. Eugene Davis and Harold R. DeMoss Jr. issued a one-paragraph unpublished opinion setting aside Thomas Joe Miller-El's 1986 capital murder conviction and ordering him released unless a new trial date is set within 120 days.

"All (the judges) were doing was what the U.S. Supreme Court said in no uncertain terms they had to do," said Neil Siegel, assistant professor of law and political science at Duke University.

Miller-El's attorney — Jim Marcus, director of Texas Defender Services — said the decision was expected and preparations are under way for a new trial. The order contrasted with the 5th Circuit panel's two lengthier decisions, the first setting out why the judges believed Miller-El did not deserve permission to appeal.

...In an 8-1 ruling, the Supreme Court overruled the appeals court in February 2003, giving strong hints on how the 5th Circuit should rule. The appeals court then allowed the appeal, but didn't take the high court's hints. Instead, the panel followed the reasoning of the lone dissenter in the Supreme Court decision, lifting several paragraphs verbatim from the dissent in rejecting the appeal.

As Texas Defender Service's director Jim Marcus noted, this decision was expected. After the Supreme Court has dealt with the issue twice, you would certainly hope so. But there will be another trial.

I first wrote about the the Miller-El decision in this post, where I noted that:

Last year there was discussion that the Supreme Court is so frustrated by Texas' and the 5th Circuit's unwillingness to provide rigorous tests and protections related to capital punishment, that at some point, the Supreme Court may halt the process in Texas until the state can come to grips with just just how unfair it's process is.

It may seem counter-intuitive, but the 5th Circuit's (unpublished) decision yesterday in many ways worked to bolster the capital punishment system in Texas. How so, you wonder? Well, if they had taken the (frankly unheard of) step of once again ignoring a direct order from the Supreme Court, it would have made the High Court reasonably likely to slap a moratorium on the capital punishment system in Texas.

This holding does NOT mean that Miller-El "gets off." He will be retried, only this time (hopefully) there will be no racism used by the prosecution to select jurors to hear the case.

See more on Miller-El and other capital punishment in Texas issues in my posts: Capital Punishment in Texas... and Believe it or not.... (Also see posts on the UH Law Center's Prof. David Dow's recent capital punishment book: Lethal Injustice... and Go buy this book....)