|
ew York Times
December 5, 2004
Rulings in Texas Capital Cases Try Supreme Court's Patience
By ADAM LIPTAK and RALPH BLUMENTHAL
In the past year, the Supreme Court has heard three appeals from
inmates on death row in Texas, and in each case the prosecutors and
the lower courts suffered stinging reversals.
In a case to be argued on Monday, the court appears poised to deliver
another rebuke.
Lawyers for a Texas death row inmate, Thomas Miller-El, will appear
before the justices for the second time in two years. To legal
experts, the Supreme Court's decision to hear his case yet again is a
sign of its growing impatience with two of the courts that handle
death penalty cases from Texas: its highest criminal court, the Court
of Criminal Appeals, and the United States Court of Appeals for the
Fifth Circuit, in New Orleans.
Perhaps as telling is the exasperated language in decisions this year
from a Supreme Court that includes no categorical opponent of the
death penalty. Justice Sandra Day O'Connor wrote in June that the
Fifth Circuit was "paying lip service to principles" of appellate law
in issuing death penalty rulings with "no foundation in the decisions
of this court."
In an unsigned decision in another case last month, the Supreme Court
said the Court of Criminal Appeals "relied on a test we never
countenanced and now have unequivocally rejected." The decision was
made without hearing argument, a move that ordinarily signals that the
error in the decision under review was glaring.
The actions of the two appeals courts that hear capital cases from
Texas help explain why the state leads the nation in executions, with
336 since 1976, when the death penalty was reinstated, more than the
next five states combined.
In the Miller-El case, appellate lawyers and legal scholars are
buzzing over what they say is the insolence of the Fifth Circuit.
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. Prosecutors used peremptory
strikes to eliminate 10 out of 11 eligible black jurors, and they
twice used a local procedure called a jury shuffle to move blacks
lower on the list of potential jurors, the decision said. The jury
ultimately selected, which had one black member, convicted Mr.
Miller-El, a black man who is now 53, of killing a clerk at a Holiday
Inn in Dallas in 1985.
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 Fifth Circuit just went out of its way to defy the Supreme Court
on this," said John J. Gibbons, a former chief judge of the United
States Court of Appeals for the Third Circuit, in Philadelphia, who
joined a brief supporting Mr. Miller-El. "The idea that the system can
tolerate open defiance by an inferior court just cannot stand."
The Supreme Court agrees to hear only about 80 cases each year. It
seldom accepts cases to correct errors in the lower courts and
concentrates instead on resolving conflicts among appeals courts and
announcing broad legal principles. But in recent years the court has
often found itself fixing problems in specific Texas death penalty
cases. Over the last decade, it has ruled against prosecutors in all
six appeals brought by inmates on death row in Texas.
The cases all involved challenges to the fairness of the procedures
used to convict and sentence the defendants rather than arguments
about their innocence.
The two appeals courts handle an enormous number of capital cases and
grant relief in very few. Between 1995 and 2000, the Court of Criminal
Appeals heard direct appeals in 270 death sentences and reversed eight
times, according to a report by the Texas Defender Service, a
nonprofit law firm that represents death row inmates. The reversal
rate - 3 percent - is the lowest of any state. California, which has a
much larger death row, at 635, has executed only 10 people since 1976,
to Texas's 336.
By contrast, a comprehensive study of almost 6,000 death sentences
across the nation over the 20 years ended in 1995 found a 68 percent
chance they would be overturned by a state or federal court.
The Fifth Circuit also reviews Texas death sentences when inmates file
writs of habeas corpus - challenges to unlawful detentions. The court
has 50 or 60 capital cases pending at any given time, a spokesman
said. But in recent years it has very seldom ruled in favor of
prisoners on death row.
The two courts have been resistant to claims involving withheld
evidence, lies told by prosecutors and problems in jury selection, as
in the Miller-El case. But legal scholars say the most intractable
issue involves unusual instructions that were given to Texas juries
from 1989 to 1991.
The Supreme Court ruled in 2001 that those instructions were
unconstitutional. Yet the two appeals courts continued to uphold the
death sentences that resulted from the instructions. Since 1991, more
than 40 of the people in those cases have been executed, according to
Jordan Steiker, a law professor at the University of Texas.
The state appeals court, which considers only criminal cases, is made
up of elected judges, mostly former prosecutors.
The judges on the federal appeals court come from more varied
professional backgrounds and have life tenure. But legal scholars say
that court, once famous for defending civil rights, is now quite
conservative, is burdened with one of the heaviest federal appellate
dockets in the country and shows mounting hostility to death row
inmates and their lawyers.
David R. Dow, a law professor at the University of Houston who
represents death row inmates, said the federal appeals court had lost
its way in capital cases.
"The Fifth Circuit does not understand that it is an inferior tribunal
to the United States Supreme Court, and it acts lawlessly," said
Professor Dow, who was a law clerk to Judge Carolyn Dineen King of the
Fifth Circuit in 1985 and 1986. Referring to the court's critical role
in several historic civil rights cases, he added, "If it acted this
lawlessly in the 1960's, black people and white people would still be
eating at separate lunch counters."
Judge King, who is now the court's chief judge and is widely
considered a political and legal moderate, said Professor Dow's
critique does not apply to all of her court's decisions.
"The only response I would make," she said in an e-mail message, "is
that a broad generalization about the Fifth Circuit's death penalty
decisions indicates to me that the speaker may not have read all of
them. One cannot fairly generalize about those decisions."
Judge Lawrence E. Meyers, a Republican first elected to the Texas
Court of Criminal Appeals in 1992 and its longest-serving member,
said, "From my standpoint being on the court, I've seen it go up and
down, from way too liberal to way too far to the right." Now, he s
|
| |
| |
|
