Top justices denounce race bias in jury selection

WASHINGTON -- The Supreme Court warned prosecutors on Monday to use care in striking minorities from juries, siding with black murder suspects in Texas and California who contended their juries had been unfairly stacked with whites.

Justice Clarence Thomas, the only black member of the high court, voted against both suspects, including the Texas inmate whose death sentence was overturned.

The court used the cases to bolster its landmark 1986 decision barring prosecutors from disqualifying potential jurors based on their race.

Justice Stephen Breyer suggested a radical change in the way juries are picked. He said that the only way to get discrimination out of jury selection may be to stop letting prosecutors and defense lawyers dismiss some potential jurors without giving a reason. That suggestion was made by the late Thurgood Marshall, the first black justice, and Breyer seemed to launch a campaign for it.

The rulings, in the final three weeks of the Supreme Court's term, came in appeals filed by indigent black inmates in Texas and California.

In the Texas case, the court ordered a new trial for death row inmate Thomas Miller-El, who had been convicted for the 1985 murder of a 25-year-old Dallas motel clerk. It was the second time the justices had reviewed his case.

Justice David H. Souter, writing the 6-3 decision, said there was strong evidence of prejudice during jury selection. He noted that black jurors were questioned more aggressively about the death penalty, and the pool was "shuffled" at least twice by prosecutors, apparently to increase the chances whites would be selected.

"At least two of the jury shuffles conducted by the state make no sense except as efforts to delay consideration of black jury panelists," Souter said, adding that it "blinks reality" to deny jurors were struck because they were black.

Souter was joined by Justices John Paul Stevens, Sandra Day O'Connor, Anthony Kennedy, Ruth Bader Ginsburg and Breyer.

Miller-El contends that Dallas County prosecutors had a long history of excluding blacks from juries and pointed to training manuals that were distributed to prosecutors from the 1960s into the early 1980s. The manuals advised prosecutors to remove blacks or Jews from death penalty juries on the theory that those groups would be more sympathetic to criminal defendants.

At trial, Miller-El was convicted by a 12-member jury that included one black. Prosecutors struck 10 of the 11 blacks eligible to serve.

Thomas issued a 36-page dissent, which was longer than Souter's opinion, arguing that Texas prosecutors had offered enough evidence that exclusions were made for reasons other than race.

"In view of the evidence actually presented to the Texas courts, their conclusion that the state did not discriminate was eminently reasonable," Thomas wrote in an opinion joined by Chief Justice William H. Rehnquist and Justice Antonin Scalia.

Thomas, one of the most conservative members of the court, has opposed black defendants in the past and has voted against affirmative action.

Charles Hobson, an attorney with the Sacramento-based Criminal Justice Legal Foundation, said winning another conviction may be difficult for Texas prosecutors.

"Retrying 20-year-old cases is never easy. Memories fade. Some witnesses may be gone," he said.

In the other case, justices ruled 8-1 that California courts had made it too hard for defendants to claim racial bias in jury selection. Justices said courts should reconsider the case of a black man, Jay Shawn Johnson, who was convicted of second-degree murder in the death of his white girlfriend's baby. The jury was all white.

"The issue in this case is narrow but important," Stevens wrote.

He said that the California legal standard for jury bias claims, that a defendant must show that it is "more likely than not" that prosecutors discriminated in selecting jurors, is "an inappropriate yardstick." Defendants must only show evidence that infers discrimination, the court found.

"Undoubtedly, the overriding interest in eradicating discrimination from our civic institutions suffers whenever an individual is excluded from making a significant contribution to governance on account of his race," Stevens wrote in the decision, which quoted extensively from the 1986 ruling.

In a brief dissent, Thomas said a state has "broad discretion to craft its own rules of criminal procedure."

Welsh White, a professor at the University of Pittsburgh School of Law, said the two decisions show the Supreme Court is interested in how courts are following the 1986 decision in Batson v. Kentucky.

"There's some suggestion they're going to try to really give it some teeth," he said.

The cases are Miller-El v. Dretke, 03-9659, and Johnson v. California, 04-6964.

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