Judicial defiance

It's not exactly former Alabama Gov. George Wallace standing defiantly in front of the schoolhouse door to keep blacks out, or former Arkansas Gov. Orval Faubus forcing LBJ to call out the national guard.

But today, in an editorial, the Washington Post pointed out the obvious: The Texas Court of Criminal Appeals and the U.S. Fifth Circuit Court of Appeals are defying U.S. Supreme Court edict.

Here's the editorial:

Judicial Defiance

Tuesday, December 7, 2004; Page A24

THE SUPREME COURT should not have had to hear the case of Thomas Joe Miller-El once, let alone twice. But yesterday the court for the second time held oral arguments in a capital case that ought to embarrass even Texas, with its unrivaled enthusiasm for executions. The question is simple: How overtly discriminatory must jury selection be before it becomes unconstitutional? Nearly two years ago, the Supreme Court instructed a lower appeals court to seriously examine evidence of racial bias in the jury's selection. The high court's message should have been clear when it expressed suspicion that "the State sought to exclude African-Americans from the jury." But after that ruling, the U.S. Court of Appeals for the 5th Circuit again averted its gaze from substantial evidence of discrimination, treating the case with what seems like willful disregard for the high court's meaning.

The backdrop of this case is Dallas's ugly history of keeping blacks out of the jury box. In 1963, a training manual for the district attorney's office stated: "Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated." By the time of Mr. Miller-El's murder trial in 1986, such formal policies no longer existed, but office insiders testified that some prosecutors still observed them. And the Dallas Morning News reported that, in 100 cases studied, prosecutors had eliminated 92 percent of African Americans using peremptory strikes, a device for removing jurors who would otherwise be qualified.

The manipulations in Mr. Miller-El's case were not subtle. Prosecutors exploited rules to move potential African American jurors out of contention; of 11 who got past that barrier and were qualified to serve on the jury, 10 were struck by peremptory challenge. The only African American not challenged was one who declared that lethal injection is "too quick. They don't feel the pain. . . . What I call punishment is back to the old Indian days. . . . Pour some honey on them and stake them out over an ant bed." Texas argues that would-be jurors' statements, not their race, explain their being barred; but as the Supreme Court noted in its last opinion, prospective black jurors were questioned differently from others.

Amazingly, both the Texas court system and the 5th Circuit judges have consistently approved the prosecutors' conduct. In the last go-round, the 5th Circuit declined even to hear the case, contending that reasonable judges could not disagree on the subject. After eight Supreme Court justices disagreed and ordered the lower court to consider the merits of Mr. Miller-El's claims, the lower court rejected them -- using passages lifted nearly verbatim from Justice Clarence Thomas's lone dissent.

This case is no longer only about how big a fig leaf Texas gets when its prosecutors keep blacks out of the jury box. It also poses the question of whether the Supreme Court will allow a lower tribunal -- keen to keep the machinery of death humming -- to all but openly defy it. The answer must be no.