The issue in the case concerns the exclusion of blacks from Thomas Miller-El's jury. The Court remanded his case to the Fifth Circuit with instructions to take a fresh look at the facts. In a decision described as "arrogant" and "insolent," the Fifth Circuit did just the opposite.

In an 8-to-1 decision last year, the Supreme Court instructed the appeals court to rethink its "dismissive and strained interpretation" of the proof in the case, and to consider more seriously the substantial evidence suggesting that prosecutors had systematically excluded blacks from Mr. Miller-El's jury. ... Instead of considering much of the evidence recited by the Supreme Court majority, the appeals court engaged in something akin to plagiarism. In February, it again rejected Mr. Miller-El's claims, in a decision that reproduced, virtually verbatim and without attribution, several paragraphs from the sole dissenting opinion in last year's Supreme Court decision, written by Justice Clarence Thomas.

The comprehensive New York Times article explains how the Fifth Circuit has "lost its way" in death penalty cases. TalkLeft's background on the case is collected here.