The U.S. Supreme Court appears poised to overturn a Texas death penalty for the fourth time in recent years, the New York Times reports. In a case being argued today, attorneys for Texas death row inmate Thomas Miller-El, will appear before the justices for the second time in two years. Te fact that the high court is hearing his case again is a sign of its growing impatience with the Texas Court of Criminal Appeals and the United States Court of Appeals for the Fifth Circuit in New Orleans.
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 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 actions of the two appeals courts from Texas help explain why Texas 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, 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 the jury. Instead of considering much of the evidence, the appeals court reproduced, virtually verbatim and without attribution, several paragraphs from the sole dissenting opinion 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 U.S. Court of Appeals for the Third Circuit, who joined a brief supporting Miller-El. “The idea that the system can tolerate open defiance by an inferior court just cannot stand.”