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E.R. SHIPP Death State gets busted



Published: Wed, June 22, 2005 @ 12:00 a.m.



The U.S. Sup-reme Court has finally busted the Death State, Texas, proving that the anti-death penalty crowd is not made up of paranoid conspiracist apologists for criminals. That the issue of race is deeply embedded in the administration of the death penalty in Texas could not be denied by even a supposedly conservative-leaning court.

What's more startling than a decisive 6-3 vote, reversing the conviction of Thomas Miller-El, who was convicted and sentenced to death by a jury of 11 whites and one black, was the insistence upon the dissenters -- Clarence Thomas, Antonin Scalia and William Rehnquist -- that racism is a thing of the distant past. Well, it is that. But it is also a thing of the less distant past -- and of the present.

Tainted jury selection

In the Texas case decided last week, the Supreme Court ruled that, as Miller-El had maintained, the jury selection process was tainted by racial discrimination. Texas prosecutors -- no doubt operating from the playbook published through the 1980s -- took extra measures to assure that blacks were eliminated from the jury. Ten of the 12 blacks in the jury pool were dismissed. Texas courts found the prosecutors' explanations "completely credible and sufficient."

The Supreme Court, though, found those explanations "so far at odds with the evidence that pretext is the fair conclusion, indicating the very discrimination the explanations were meant to deny."

Those tactics remind me of my summer as an intern for Team Defense in Georgia in the 1970s. One of my tasks was to find ways to educate rural blacks about surviving prosecutors' questions so that they might be chosen to serve as jurors in capital cases.

Part of that included my "preaching" from rural pulpits about what to expect, including aggressive questioning about whether they believed in the Bible and the 10 Commandments, especially "Thou shalt not kill." If they said yes, they, unlike whites, were likely dismissed.

Jury pool

The 1970s might seem the distant past to a child, but to judges of an age to sit on the courts that have ruled on the case of Miller-El since 1986, the '70s were just the other day.

Even Clarence Thomas, a Georgian by birth, a conservative Republican by choice, should know that. But in writing the dissenting opinion, he bought the prosecutors' explanation that race had nothing to do with eliminating blacks from the jury pool.

I do not believe in capital punishment. But if states insist upon retaining this option, they must guarantee that defendants receive fair trials. That means doing something that so far has been impossible: eliminating racism from the criminal justice process from arrest to sentencing.

X E.R. Shipp is a columnist for the New York Daily News. Distributed by Knight Ridder/Tribune Information Services.




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