Sunday, December 05, 2004

Death Sentences in Texas Cases Try Supreme Court's Patience

Death Sentences in Texas Cases Try Supreme Court's Patience:
“In the past year, the Supreme Court has heard three appeals from inmates on death row in Texas, and in each case the prosecutors and the lower courts suffered stinging reversals.

In a case to be argued on Monday, the court appears poised to deliver another rebuke.”

Lawyers for a Texas death row inmate, Thomas Miller-El, will appear before the justices for the second time in two years. To legal experts, the Supreme Court's decision to hear his case yet again is a sign of its growing impatience with two of the courts that handle death penalty cases from Texas: its highest criminal court, the Court of Criminal Appeals, and the United States Court of Appeals for the Fifth Circuit, in New Orleans.

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.

The actions of the two appeals courts that hear capital cases from Texas help explain why the state leads the nation in executions, with 336 since 1976, when the death penalty was reinstated, more than the next five states combined.

In the Miller-El case, appellate lawyers and legal scholars are buzzing over what they say is the insolence of the Fifth Circuit.

In an 8-to-1 decision last year, the Supreme Court instructed the appeals court to rethink its "dismissive and strained interpretation" of the proof in the case, and to consider more seriously the substantial evidence suggesting that prosecutors had systematically excluded blacks from Mr. Miller-El's jury. Prosecutors used peremptory strikes to eliminate 10 out of 11 eligible black jurors, and they twice used a local procedure called a jury shuffle to move blacks lower on the list of potential jurors, the decision said. The jury ultimately selected, which had one black member, convicted Mr. Miller-El, a black man who is now 53, of killing a clerk at a Holiday Inn in Dallas in 1985.

Instead of considering much of the evidence recited by the Supreme Court majority, the appeals court engaged in something akin to plagiarism. In February, it again rejected Mr. Miller-El's claims, in a decision that reproduced, virtually verbatim and without attribution, several paragraphs from the sole dissenting opinion in last year's Supreme Court decision, written by Justice Clarence Thomas.

"The Fifth Circuit just went out of its way to defy the Supreme Court on this," said John J. Gibbons, a former chief judge of the United States Court of Appeals for the Third Circuit, in Philadelphia, who joined a brief supporting Mr. Miller-El. "The idea that the system can tolerate open defiance by an inferior court just cannot stand."

The Supreme Court agrees to hear only about 80 cases each year. It seldom accepts cases to correct errors in the lower courts and concentrates instead on resolving conflicts among appeals courts and announcing broad legal principles. But in recent years the court has often found itself fixing problems in specific Texas death penalty cases. Over the last decade, it has ruled against prosecutors in all six appeals brought by inmates on death row in Texas.

The cases all involved challenges to the fairness of the procedures used to convict and sentence the defendants rather than arguments about their innocence.

The two appeals courts handle an enormous number of capital cases and grant relief in very few. Between 1995 and 2000, the Court of Criminal Appeals heard direct appeals in 270 death sentences and reversed eight times, according to a report by the Texas Defender Service, a nonprofit law firm that represents death row inmates. The reversal rate - 3 percent - is the lowest of any state. California, which has a much larger death row, at 635, has executed only 10 people since 1976, to Texas's 336.

By contrast, a comprehensive study of almost 6,000 death sentences across the nation over the 20 years ended in 1995 found a 68 percent chance they would be overturned by a state or federal court.

The Fifth Circuit also reviews Texas death sentences when inmates file writs of habeas corpus - challenges to unlawful detentions. The court has 50 or 60 capital cases pending at any given time, a spokesman said. But in recent years it has very seldom ruled in favor of prisoners on death row.

The two courts have been resistant to claims involving withheld evidence, lies told by prosecutors and problems in jury selection, as in the Miller-El case. But legal scholars say the most intractable issue involves unusual instructions that were given to Texas juries from 1989 to 1991.

The Supreme Court ruled in 2001 that those instructions were unconstitutional. Yet the two appeals courts continued to uphold the death sentences that resulted from the instructions. Since 1991, more than 40 of the people in those cases have been executed, according to Jordan Steiker, a law professor at the University of Texas.

The state appeals court, which considers only criminal cases, is made up of elected judges, mostly former prosecutors.…
con·cept: Death Sentences in Texas Cases Try Supreme Court's Patience