High court, 5th Circuit battling over death row

[Judi Lynn]

Dec. 5, 2004, 12:54AM

High court, 5th Circuit battling over death row
Cases can bounce back and forth as judges butt heads
By PATTY REINERT
Copyright 2004 Houston Chronicle Washington Bureau

Sources: Court and biographical records

WASHINGTON - Eight of the nine U.S. Supreme Court justices decided last year that death row inmate Thomas Miller-El, a black man from Dallas, showed ample evidence that prosecutors deliberately excluded blacks from his 1986 jury.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.
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Whether the New Orleans-based federal appeals court is scorning Supreme Court guidance or has a genuine philosophical disagreement, it's clear the lower court is butting heads with the high court, Houston lawyer and former Supreme Court clerk Brett Busby said.
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The 5th Circuit is composed of 14 lifetime appointees of Republican presidents Reagan, George H.W. Bush and the George W. Bush and six appointees of Democratic presidents Clinton and Carter. It is widely considered one of the two most conservative circuit courts in the nation and is known for its reluctance to side with criminal defendants, death row inmates in particular.

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.
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http://www.chron.com/cs/CDA/ssistory.mpl/nation/2932245

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