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Supreme Court clarifies unconstitutionality of race in jury selection

WASHINGTON—The Supreme Court made it easier for defendants to claim racial bias in jury selection in two rulings Monday, one that voids a Texas man's death sentence and another that thwarts a California effort to make discrimination claims more difficult.

The decisions offer important clarification to the court's thinking about racial motives in jury selection, which it had declared unconstitutional in a 1986 Kentucky case.

The rulings came with an interesting twist: They were both made over the objections of Justice Clarence Thomas, the court's sole black member and someone who's spoken eloquently about the role discrimination played in his life growing up in the South.

Thomas said California should be given "broad discretion" to determine how claims of racial bias were handled and that the Texas inmate hadn't proved his discrimination claims.

At issue in both rulings was the court's landmark 1986 decision in Batson v. Kentucky, which outlawed attempts during jury selection to eliminate people on the basis of race.

Since that ruling, the court has struggled to define clearly enough for lower courts how to determine when a lawyer's challenge of a juror may have racial motives. Monday's rulings make it clear that the justices take Batson seriously, though, and think lower courts aren't following their lead.

"I think the rulings illustrate the court's frustration with the watering down of Batson to the point that even patently discriminatory decision-making was being insulated from judicial correction," said Jordan Steiker, a death penalty expert who teaches at the University of Texas law school. "This signals the willingness of the court to police lower courts' application of law to the facts in cases, something they don't do too often."

In the Texas case, the justices said that a lower court—for the second time—got it wrong when it denied Thomas Joe Miller-el's claim that prosecutors used race to excuse 10 of 11 prospective black jurors from hearing the case. The 5th U.S. Circuit Court of Appeals, in New Orleans, initially denied Miller-el's right even to raise his objections on appeal; the Supreme Court voided that decision in 2003.

The 5th Circuit then found that Miller-el hadn't sufficiently proved that prosecutors discriminated against him, leading to Monday's second Supreme Court reversal.

Writing for the majority in the 6-3 ruling, Justice David Souter called the raw numbers in Miller-el's jury selection "remarkable." When juries are chosen, prosecution and defense lawyers have the chance to remove a certain number of candidates for any reason except race, gender or other attributes the Constitution protects.

"Out of 20 black members of the ... panel for Miller-el's trial, only one served," Souter wrote, noting the court had found in 2003 that prosecutors in the case used 91 percent of their jury strikes on blacks.

Souter also found prosecutors questioned blacks more aggressively about their views on the death penalty and gave most black jurors a more grisly description of how Miller-el would be executed if they sentenced him to death.

"If anything more is needed for an undeniable explanation of what was going on, history supplies it," Souter continued. "The prosecutors took their cues from a 20-year-old manual of tips on jury selection" that suggested blacks weren't desirable for death penalty cases.

Justices John Paul Stevens, Sandra Day O'Connor, Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer joined Souter's opinion. Chief Justice William H. Rehnquist and Justice Antonin Scalia joined Thomas in dissent.

In the California case, the justices said the state high court erred when it required Jay Shawn Johnson to prove it was "more likely than not" that prosecutors had used race to dismiss black jurors in his murder trial.

Instead, once Johnson objected that all blacks had been struck from his jury, the judge should have conducted an inquiry to force prosecutors to explain their actions, the justices ruled.

"The issue in this case is narrow but important," Stevens wrote for the court in the 8-1 ruling. The process mandated by the Batson decision "is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process."

Thomas was the lone dissenter in the California case, a fact that didn't surprise some close readers of his work.

Thomas' opinion reflects "a tendency by black conservatives," said Angela Onwuachi-Willig, a University of California at Davis law professor, "to dismiss the racial reason for alleged mistreatment when they think there's an equally strong nonracial reason."

Onwuachi-Willig said Thomas and other black conservatives objected to the "victimology" they saw in African-American culture, a tendency to blame discrimination for problems that might have other explanations.

"I think part of what he's saying is: Stop complaining, it's not really race," Onwuachi-Willig said.

Thomas, who grew up poor in the segregated South and has said he couldn't get work as a lawyer in his native Georgia because no firm would hire blacks, may feel he has a special authority to judge when others are victims of discrimination.

"It may be a generational difference, where he feels he knows racism when he sees it, and what he sees today doesn't come close," Onwuachi-Willig said. "I think if he can find an equally strong nonracial reason for something, he'll dismiss any possible racial motivation."

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(c) 2005, Knight Ridder/Tribune Information Services.

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