Excluding Blacks From Jury Service: A Continuing Problem
Will Thomas Joe Miller-El make a second trip to the Supreme Court? The justices granted his first certiorari petition and ruled last year that the Fifth Circuit erred by failing to grant him a "certificate of appealability" (a procedural requirement that permits an appeal from the denial of a habeas corpus petition only if a judge believes that "reasonable minds could differ" about the outcome of the case). Justice Kennedy, writing for an 8-1 majority, noted that Miller-El made a strong showing that prosecutors at his trial systematically excluded blacks from his jury, entitling him to pursue that issue on appeal.
Miller-El's case thus returned to the Fifth Circuit, which was unpersuaded that blacks were intentionally excluded from Miller-El's jury despite compelling evidence to the contrary and despite Justice Kennedy's strong suggestion that Miller-El deserved a new trial.
Not only did the Fifth Circuit fail to take Kennedy's hint, it also - and this is far worse, from the standpoint of judicial integrity - entirely ignored his logic. Indeed, its opinion adopts the analysis of the lone Supreme Court dissenter in Miller-El's case, Clarence Thomas.
Edward Lazarus makes a strong argument that Miller-El has earned a second trip to the Supreme Court.
[T]the Fifth Circuit's [decision] will also have the effect, if it is left standing, of nullifying the Supreme Court's central message in its Miller-El decision. And that message urgently needs to be heard: The Court was right to stress that the judiciary at every level should be more vigilant in policing prosecutorial abuse of the peremptory challenge system.
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