They fought the law
By A remarkable story, as the Supreme Court confronts egregious lawlessness in the Fifth Cicuit, itself intended to cover up egregious lawlessness in Texas’s administration of the death penalty:
The two lawyers who stood before the justices were the same two who argued for the same parties two years ago: Seth P. Waxman representing Thomas Miller-El, a convicted murderer; and Gena A. Bunn, representing the State of Texas, which has been trying to execute Mr. Miller-El for 19 years. And these were the same justices – except Chief Justice William H. Rehnquist, who is under treatment for thyroid cancer and will participate in the case from home – who ruled in February 2003 by a vote of 8 to 1 that Mr. Miller-El’s evidence of discrimination in the composition of his jury was enough to entitle him to a hearing before a federal appeals court. That court, which had earlier dismissed his case, followed the order to reconsider it and promptly dismissed it again, rejecting the Supreme Court’s majority analysis and adopting that of its sole dissenter, Justice Clarence Thomas.
Applying the dissenting rather than the controlling opinion isn’t just “activism,” using ambiguities to stretch precedents in favor of a preferred outcome; this is rampant nullification, right out of Jim Crow. Moreover, we’re talking about a death penalty case in which Antonin Scalia ruled against the state; it’s not as if the Supreme Court’s opinion is unreasonable.
Also of note is Texas’s attempts to defend the original trail, in which 10 out of 11 potential jurors were struck, in a county in which there was an extensive history of racial discrimination in jury selection:
Ms. Bunn began her answer by saying that Mr. Miller-El was asking the court to assume that race was the only reason for the removal of the jurors. Justice Souter cut her off. “That’s not his argument at all,” he said, adding: “He’s saying there is very strong circumstantial evidence that what tipped the prosecution to make the challenges here is racial. He’s not saying nothing else could have been involved. He’s saying race tipped it. Is there any reason that is unsound?”
The reason, Ms. Bunn answered, was that “the six strikes were not based on race” but because the black members of the jury pool expressed greater qualms about the death penalty than did the white members.
Justice Breyer then read from the record of what comparative pairs of jurors said in answers to questions about the death penalty; blacks whom the prosecution then struck, and whites who were allowed to remain. “I look at that and I say, ‘My goodness, it’s pretty hard to say’ ” whether there was any meaningful difference in the answers, Justice Breyer told Ms. Bunn.
The Texas standard seems to be that if the prosecutor doesn’t routinely use racial slurs in the courtroom nothing else can count as evidence of racial discrimination. OK.
More here.