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Slate's Jurisprudence: Court Passes on Padilla Case

MADELEINE BRAND, host:

From NPR News and Slate magazine online, this is DAY TO DAY. I'm Madeleine Brand.

Coming up, political analysis from NPR's senior Washington editor, Ron Elving.

But first, the Supreme Court today overturned the conviction of a black death-row inmate in Texas on the grounds that prosecutors unfairly excluded blacks from his jury. Thomas Miller-El, who was convicted of murdering a motel clerk 20 years ago, will now get a new trial.

Joining us to talk about this case and a few other Supreme Court decisions is Emily Bazelon. She's the legal analyst for our partners at the online magazine Slate and for DAY TO DAY.

Welcome, Emily.

EMILY BAZELON reporting:

Thanks very much.

BRAND: So what was Thomas Miller-El's complaint about his jury, and what did the court say today?

BAZELON: Thomas Miller-El's complaint was that prosecutors at his trial struck 10 of 11 black jurors who were available to hear the case. And six of those strikes are in dispute. In 1986, the Supreme Court ruled in a decision called Batson vs. Kentucky that prosecutors have to have a good reason for striking a black or Hispanic or Asian juror. You can't just strike someone because of their race. There has to be another non-racially-based reason for the strike. And the question in the case today was whether prosecutors really had another good reason or not. In a 6-to-3 decision written by Justice David Souter, the court said that in Miller-El's case, the prosecutors were using a double standard. They struck the black people who were interested in serving on the jury who expressed uncertain feelings about the death penalty, but they did not strike the white people who expressed similar sentiments.

And Miller-El's lawyers had also introduced evidence that the two prosecutors in his case had been found by a Texas court to have struck jurors on the basis of race in two other cases that went to trial at about the same time as Mr. Miller-El's case.

BRAND: And this case is familiar to the court in some way. Did it not rule on it before?

BAZELON: Yes, in 2003, in an 8-to-1 decision, the Supreme Court said that the 5th Circuit, which is the Federal Court of Appeals in Texas and other states in the South, had wrongly refused to review the case. In other words, there's now a standard for whether appeals courts even really get to the merits of an appeal at all in death-penalty cases. And the 5th Circuit has said, `This is just a routine matter that we don't even really need to review closely. And the Supreme Court said, `No, no. You need to go back and take a close look at this case and at this claim of racially impermissible strikes on the jury.'

And so the 5th Circuit took that ruling and did, in fact, review the case, but applied the analysis in the lone dissent on the Supreme Court, a dissent by Justice Clarence Thomas. And so the case then came back to the Supreme Court this winter in the posture where the court was going to itself look at the merits and really take a close look at whether the circuit had done what the Supreme Court asked it to do the first time around.

BRAND: And, Emily, how far-reaching is this case? Will it set a precedent for other death-penalty cases?

BAZELON: Well, cases about race-based strikes on juries are very fact-specific. They always come down to the sort of detailed analysis of, you know, exactly what the prospective jurors said and what the prosecutors gave as their rationale. But with that said, lower courts are always looking for guidance for the Supreme Court about the kinds of reasons that prosecutors give that are a mere pretext or the kinds of reasons that look like they're solid. And so this case will help flesh out that area a little bit.

But the problem generally of how you analyze whether prosecutors are striking people because of their race or for some other reason prompted Justice Breyer this morning in a concurrence to say that he thinks that we should get rid of pre-emptory challenges--in other words, challenges that prosecutors and defense lawyers can bring against jurors; that we should just get rid of them entirely because they're not serving any good purpose.

BRAND: All right, the court also announced a few other decisions today. Tell us a little bit about those.

BAZELON: Well, there was a unanimous decision in which the court gave drug researchers an expanded right to do what are called pre-clinical studies that are related to an existing drug that's already patented. And this decision means that big drug companies will have more flexibility to start experimenting with therapies, as long as they can show that down the line the experiments they're doing will lead to a drug that can be marketed.

In another decision that was also unanimous, the Supreme Court decided to give more room to prison officials, more deference to them in deciding which prisoners should go into supermax facilities.

BRAND: And, Emily, the term is almost over. Remind us of some of the other big cases we're still awaiting verdicts on.

BAZELON: We have two weeks left, and we're waiting for three relatively big decisions. One is in a case about the limits of the power of local governments to condemn property when the local governments are trying to pursue a redevelopment project. And that's a case that involves the limits of the takings clause in the Constitution.

Then there's a case involving Grokster, the peer-to-peer file-sharing company. And that case is about whether companies that put out a lot of uncopyrighted material are liable for the copyright infringement that the users of their services are doing.

And the third case we're waiting for is about public displays of the Ten Commandments and whether those displays violate the First Amendment's protection against establishment of religion.

BRAND: Opinion and analysis from Emily Bazelon. She's the legal analyst for our partners at the online magazine Slate.

Thanks, Emily.

BAZELON: Thanks very much. Transcript provided by NPR, Copyright NPR.

Madeleine Brand
Madeleine Brand is the host of NPR’s newest and fastest-growing daily show, Day to Day. She conducts interviews with newsmakers (Iraqi politicians, US senators), entertainment figures (Bernardo Bertolluci, Phillip Seymour Hoffman, Ricky Gervais), and the everyday people affected by the news (an autoworker laid off at GM, a mother whose son was killed in Iraq).

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