Death Row Redux (Supremes rebuke Texas)

[undeterred]

By Greg Moses, AlterNet. Posted June 17, 2005.

In a suprising turnabout, the Supreme Court serves up a rebuke to Texas and gives death row inmate Thomas Miller-El a second chance. In the recent dispute between Supreme Court justices over the question of race discrimination in jury selection, we find two warring camps of legal theory. By issuing its order to give one death row prisoner a new trial in Texas, the court majority seems to be forging a legal theory that can advance the long, good fight for racial justice. On the other side are some truly dangerous leanings.

In the logical dispute between a six-Justice majority led by David H. Souter and a three-Justice dissent led by Clarence Thomas we find the majority holding prosecutors strictly to account for the reasons they actually give when explaining under oath why they exercised peremptory strikes against black candidates for jury duty. What the prosecutor actually says about his or her reasons is what the majority tests for soundness. On the dissenting side, however, we find that when prosecutors give faulty reasons explaining why they were thinking non-racially, Justice Thomas asks the Supreme Court to look deeper into the record to see if more plausible non-racial accounts might be found.

In death penalty cases, which logical method seems better for the Supreme Court to adopt: demanding that prosecutors give coherent reasons the first time when asked to show why their peremptory strikes were not racially motivated? Or shall we instead allow prosecutors to get close enough for government work, assuring them that the ruling minds of the judicial system will be standing by to find better race-neutral accounts if needed?

Or here's another question. When a black man sitting on death row wants to appeal his death sentence because he feels that black jurors were banned from his trial BECAUSE they were black, should we allow that death row prisoner to introduce jury cards, questionnaires, and testimony used to select the jury? For the majority opinion in the case of Texas death row inmate Thomas Miller-El, the answer is clearly yes, the prisoner is entitled to carry with him on appeal the jury selection documents that were used at his trial. But for the dissenting minority, access to jury selection docs should be limited on appeal.

http://www.alternet.org/rights/22251/