The New York Times, Feb. 25, 2003
By LINDA GREENHOUSE
WASHINGTON, Feb. 25 — The Supreme Court ordered a new hearing for a Texas death row inmate today in a surprisingly broad 8-to-1 decision that warned the federal courts of appeals against shutting the door prematurely on state inmates who seek to present constitutional challenges to their convictions or sentences.
The court said that in order to gain a hearing, an inmate appealing a denial of habeas corpus need not present a winning case, only a plausible one. The decision could have a substantial impact, reopening federal courthouse doors that some appellate judges have closed through stringent interpretations of new limits on habeas corpus review that Congress adopted in 1996.
In an opinion by Justice Anthony M. Kennedy, the Supreme Court sharply criticized both the Texas courts and the lower federal courts for ignoring strong evidence of racial bias in the selection of the nearly all-white jury that found a black Texas man, Thomas Miller-El, guilty of murder 17 years ago.
Without resolving the merits of Mr. Miller-El’s discrimination case, the majority said today that in appealing the denial of his habeas corpus petition, he had presented evidence of bias substantial enough to entitle him to a hearing. The United States Court of Appeals for the Fifth Circuit had misapplied both the facts and the law in refusing to permit the appeal, the court said.
The lone dissenter was Justice Clarence Thomas, who said that Mr. Miller-El had not met even the relatively low threshold that the majority emphasized today. “The simple truth” was that proof of racial bias was circumstantial at best, lacking “anything remotely resembling clear and convincing evidence of purposeful discrimination,” Justice Thomas said.
The majority opinion instructed the New Orleans-based appeals court to grant Mr. Miller-El the “certificate of appealability” necessary for him to present to that court his constitutional challenge to the composition of his jury. The prosecution had used its peremptory strikes to remove 10 of 11 black potential jurors.
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While not resolving Mr. Miller-El’s particular case, the justices today did something with potentially greater systemwide impact in warning the federal appeals courts not to abdicate their responsibility to scrutinize state-court criminal proceedings for constitutional error.
Justice Kennedy said that while it was true that Congress had rewritten the habeas corpus statute to require greater deference by federal judges to state court determinations, “deference does not imply abandonment or abdication of judicial review.” He added, “Deference does not by definition preclude relief.”
As a formal legal matter, the case framed and answered a single technical issue: how the federal appeals courts are to exercise the gatekeeping function that Congress gave them in the 1996 law, the Anti-Terrorism and Effective Death Penalty Act.
The purpose of that law was to streamline the federal courts’ handling of habeas corpus petitions, which are challenges to the constitutionality of a conviction or sentence. Under the 1996 law, an inmate whose habeas corpus petition fails at the federal district court level cannot move up the appellate ladder without a “certificate of appealability.”
In an earlier decision interpreting this prerequisite, Slack v. McDaniel in 2000, the Supreme Court had set a rather low threshold for inmates to meet. They need only demonstrate, the court said then, that the district court had disposed of a substantial constitutional claim in a manner that was open to disagreement among reasonable judges. In other words, in order to be eligible to appeal, an inmate did not have to present a winning case but simply one that was arguably plausible.
The practice of the Fifth Circuit, however, along with some other federal appellate circuits, has been to collapse into a single inquiry the appealability issue and the actual merits of the appeal. That was what happened in Mr. Miller-El’s case and that was the error that the court used his case to correct today.
In denying the certificate of appealability in August 2001, the appeals court said that Mr. Miller-El had failed to demonstrate that the Texas courts’ earlier rejection of his appeal was both unreasonable and “contrary to clearly established federal law as determined by the Supreme Court.” But that test was intended for the ultimate determination of a habeas corpus petition’s merits, not for the appealability stage, Justice Kennedy said in his opinion, Miller-El v. Cockrell, No. 01-7662.
He said the certificate of appealability determination “is a separate proceeding, one distinct from the underlying merits.” Justice Kennedy continued, referring to the certificate by its initials, C.O.A.: “The Court of Appeals should have inquired whether a `substantial showing of the denial of a constitutional right’ had been proved. Deciding the substance of an appeal in what should only be a threshold inquiry undermines the concept of a C.O.A. The question is the debatability of the underlying constitutional claim, not the resolution of that debate.”
Lawyers who specialize in habeas corpus and the death penalty said today that the result of the decision would almost certainly be to grant more hearings to state inmates, both on and off death row.
The court’s holding was not limited to death penalty cases, but could prove particularly significant in that context, according to Diann Rust-Tierney, director of the American Civil Liberties Union’s death penalty project. “This needed to happen,” she said. “It’s a reminder that for the system to have any integrity, courts have to get to the merits of these claims.”
The Fifth Circuit’s handling of habeas corpus cases has been of great concern to those with qualms about the death penalty because that circuit, which covers Texas, Louisiana and Mississippi, supervises the most active death row in the country.
From 1992 to 2002, Texas carried out 247 executions, accounting for 37 percent of all executions in the country. Eight of the 12 executions so far in 2003 have been in Texas. Nearly every execution is preceded by an effort to obtain habeas corpus review in the federal courts.
Eric M. Freedman, a habeas corpus expert at Hofstra University Law School, said today that an inmate’s ability to get a hearing on the merits of a habeas corpus petition was “absolutely critical.” He called the decision “a very welcome reaffirmation of the importance of independent federal scrutiny of the underlying facts before coming to a legal conclusion.” Professor Freedman added, “The message has to be: Judging is what judges are paid to do.”
The majority opinion examined at length the evidence of racial bias that Mr. Miller-El, who was convicted of killing a Dallas hotel clerk during a robbery, had tried to present.
Criticizing the appeals court’s interpretation of the evidence as “dismissive and strained,” Justice Kennedy said Mr. Miller-El had clearly shown that the evidence of bias was at least debatable. Not only did the prosecution remove most black jurors, but black members of the panel were subjected to more searching questioning on their views of the death penalty in what Justice Kennedy said could fairly be seen as an effort to build a record justifying their removal.
In a concurring opinion, Justice Antonin Scalia said he regarded the case as “a close rather than a clear case” for granting the certificate of appealability.