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These cases just keep coming. Thomas Miller-El got his case before the public on the Internet and found legal counsel prepared to fight for him. Otherwise he would be just another statistic in George "Dubya" Bush's murderous legacy as governor of that state. It is clear that the public support gained from a public, aggressive delivering of the facts to the public can actually save a life.

Thomas Miller-El

High court, 5th Circuit battling over death row
Cases can bounce back and forth as judges butt heads

Thomas Miller-El

The U.S. 5th Circuit Court of Appeals most often decides cases in three-judge panels. Here are the panels for Texas death row rulings that conflicted with the Supreme Court's approach: (see sidebar)

WASHINGTON, DC - Eight of the nine U.S. Supreme Court justices decided last year that death row inmate Thomas Miller-El, a black man from Dallas, showed ample evidence that prosecutors deliberately excluded blacks from his 1986 jury.

The high court, annoyed that the 5th U.S. Circuit Court of Appeals in New Orleans had ignored the evidence, sent the case back with orders to take a second look. The lower court did. But it didn't change its mind.

So on Monday, in what has become a pattern of repeat trips to the Supreme Court for Texas death cases, lawyers for Miller-El will ask the justices to decide a different fundamental question: Is the 5th Circuit so blatantly disobedient that it must be reined in - again?

Whether the New Orleans-based federal appeals court is scorning Supreme Court guidance or has a genuine philosophical disagreement, it's clear the lower court is butting heads with the high court, Houston lawyer and former Supreme Court clerk Brett Busby said.

"The majority of the Supreme Court seems to be increasingly trying to send them a message that the law is contrary to the way they are portraying it," he said.

The 5th Circuit is composed of 14 lifetime appointees of Republican presidents Reagan, George H.W. Bush and the George W. Bush and six appointees of Democratic presidents Clinton and Carter. It is widely considered one of the two most conservative circuit courts in the nation and is known for its reluctance to side with criminal defendants, death row inmates in particular.

The Supreme Court has indicated the 5th Circuit has gone too far, denying defendants' constitutional rights. Although the high court accepts and decides only a tiny fraction of the cases that are filed each term, it nevertheless has taken three Texas death penalty cases at least twice. In each, the high court repeatedly has warned the 5th Circuit about failing to comply with its rulings.

In the case of Robert Tennard, a Houston man who killed a neighbor, a six-justice majority of the Supreme Court heaped shame on the 5th Circuit in June. The court wrote that the 5th Circuit's test for deciding cases in which the defendant has a low IQ has "no foundation in the decisions of this court."

Last month, the court delivered the same message directly to the Texas Court of Criminal Appeals, which used the same test to deny the appeal of Dallas killer LaRoyce Smith without waiting for the high court's ruling in the Tennard case.

In Smith's case, the Supreme Court justices, without scheduling arguments, issued a 7-2 unsigned opinion urging the state court to pay attention and stop relying on "a test we never countenanced and now have unequivocally rejected."

The same day, the justices overturned, without comment, the death sentence of Ted Calvin Cole, also known as Jalil Abdul-Kabir. It returned his case to the 5th Circuit with instructions to reread the Tennard decision and reconsider Cole's appeal.

Johnny Penry

Even before Tennard's case, Texas death row inmate Johnny Paul Penry's case had been to the Supreme Court and back to the 5th Circuit several times because of what the high court saw as the lower court's faulty system of reviewing the evidence on defendants' low IQ and mental retardation.

The high court has since accepted several other Texas death penalty appeals and has summarily thrown out lower-court decisions and sent the cases back for more work.

"What is really happening is the death penalty system in Texas is close to breaking, because the Supreme Court simply does not have the resources to police every single death penalty case that comes up from Texas," said David Dow, a professor at the University of Houston Law Center who represents death row inmates.

"They have to be able to count on the 5th Circuit and the Texas Court of Criminal Appeals to do their jobs," he added. "So far, they haven't been able to do that."

Texas Attorney General Greg Abbott, whose staff represents the state in death penalty appeals, declined through a spokesman to comment on the Miller-El case or on the conflict between the Supreme Court and lower appeals courts.

And, like most federal judges, those on the 5th Circuit do not discuss their decisions with the media.

But Rob Kepple, executive director of the Texas District and County Attorneys Association in Austin, defended the judges, saying Supreme Court decisions "are very good at telling you you did it wrong" but are "notoriously void of guidance on telling you how to do it right."

"It shouldn't be surprising to anybody that the courts are going to go back and forth as (they) try to guess what the Supreme Court wants them to do," he said.

In Miller-El's case, Jim Marcus of the Houston-based Texas Defender Service and former Solicitor General Seth Waxman of Washington complained in court briefs that despite "overwhelming evidence of racial discrimination" and "strong indications that the state courts mishandled that evidence," the 5th Circuit twice came to the identical conclusion against their client.

"It did so largely by ignoring this court's direction," the lawyers wrote, adding that the Supreme Court should send a clear message that this will not be tolerated.

Miller-El's evidence included the fact that prosecutors asked different questions of potential jurors based on their race, eliminated blacks who gave similar answers or had similar backgrounds as whites who were seated on the jury, and exercised their option to shuffle the seating order of the jury pool when the front seats were occupied by blacks.

Perhaps most damning, though, was evidence of a history of discrimination against minority potential jurors by the Dallas County District Attorney's Office. Miller-El's lawyers produced the office's training manuals on jury selection that in the 1960s read: "Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated." Later versions advised avoiding such jurors because "minorities usually empathize with the accused."

Prosecutors in Miller-El's case used their jury pool strikes to eliminate 10 of the 11 blacks. The jury that convicted Miller-El and sent him to death row for the 1985 shooting murder of Irving Holiday Inn clerk Doug Walker included an African-American, a Hispanic and an Asian-American. The nine other jurors were white.

Supreme Court Justice Anthony Kennedy, writing for the majority last year, said Miller-El's evidence revealed a culture in the district attorney's office that was "suffused with bias against African-Americans in jury selection."

The 5th Circuit said it was merely deferring to the state trial court's decision that Miller-El had not proved the bias. But Kennedy wrote that showing deference "does not imply abandonment or abdication of judicial review." His opinion laid out in detail the evidence the justices found to be obvious.

Rather than following the majority's opinion, however, the 5th Circuit relied on the reasoning of Justice Clarence Thomas, the high court's only black member, who was the lone dissenter in the case. It lifted several passages from his opinion, without attributing the wording to him, in its latest decision in the case.

Texas Assistant Attorney General Gena Bunn wrote in her brief to the Supreme Court that the 5th Circuit did follow the high court's lead in re-evaluating that evidence. It simply came to the same conclusion as before, that Miller-El failed to show that prosecutors struck the black potential jurors because of their race rather than their views, she said.

The case is to be decided by next summer.

Courts wrong to deny inmate hearing on bias, Justices say

Thomas Miller-El

WASHINGTON, DC - The Supreme Court said today that a Texas death row inmate who came within a week of being put to death had unfairly been denied a chance to present federal courts with evidence of racial bias in the jury selection for his trial.

The court ruled, 8 to 1, that lower courts should at least have granted the inmate, Thomas Miller-El, a threshold opportunity to bring a federal court challenge to his 1986 conviction for murdering a hotel clerk during a robbery the year before.

The court did not rule on the merits of the defendant's case, although it said the Dallas County prosecutor's office had clearly been "suffused with bias" against black jurors in the past. Mr. Miller-El is black. Nor did the court say that the defendant should ultimately be allowed to have a full review of his case in the federal courts.

But the justices did say that Mr. Miller-El should have been granted an initial opportunity to at least apply for a writ of habeas corpus, which is a challenge to the constitutionality of a prisoner's conviction or sentence.

The ruling may encourage other death row inmates whose fates may rest on their chances of gaining access to the federal courts once their state appeals are exhausted, especially since the High Court admonished the federal appellate courts not to abdicate their responsibility to examine state criminal proceedings for constitutional error.

"We conclude, on our review of the record at this stage, that the district court did not give full consideration to the substantial evidence petitioner put forth," Justice Anthony M. Kennedy wrote for the majority.

And while the court emphasized it was not ruling on the merits of Mr. Miller-El's case, it noted that an overwhelming majority of the Dallas County prosecutor's challenges to prospective jurors were used to exclude blacks from the panel.

"Happenstance is unlikely to produce this disparity," Justice Kennedy wrote. Citing a 1963 instruction sheet in which the district attorney's office told prosecutors in stark language to get rid of minority jurors "no matter how rich or how well educated," Justice Kennedy said it was clear that "the culture of the district attorney's office in the past was suffused with bias against African-Americans in jury selection."

"Even if we presume at this stage that the prosecutors in Miller-El's case were not part of this culture of discrimination, the evidence suggests they were likely not ignorant of it," Justice Kennedy continued.

The decision today overturned a ruling by the United States Court of Appeals for the Fifth Circuit, in New Orleans, which held in 2001 that the defendant's petition for a writ of habeas corpus did not even qualify for a hearing. The lower courts had come to that conclusion earlier.

The lone dissenter today was Justice Clarence Thomas, who wrote that the defense's evidence of historical bias was "entirely circumstantial" and did not constitute "anything remotely resembling `clear and convincing' evidence of purposeful discrimination."

Justice Antonin Scalia, who joined in the majority, also wrote a somewhat grudging concurring opinion in which he called the case "very close" in favor of the defendant. The opinions in the case, Miller-El v. Cockrell, No. 01-7662, can be read on the Supreme Court's Web site,

Mr. Miller-El was approaching his execution, scheduled for Feb. 15, 2002, when the Supreme Court granted a stay and agreed to hear his case. The court appointed Seth Waxman, a former solicitor general now in private practice, to represent him.

When the justices heard the case last Oct. 16, Mr. Waxman told them it was "surpassingly important" that they use Mr. Miller-El's case to clarify how the "abstract rules" for detecting unconstitutional racial bias in picking a jury ought to work in actual practice.

Habeas corpus petitions are the principal means by which state inmates can obtain federal court review of their convictions or sentences, and they have been responsible for overturning a significant number of death sentences in recent years.

But they have also been criticized on grounds that they unduly prolong death row appeals. As a result, Congress passed a law in 1996 to limit the federal courts' ability to overturn state court results.

Under that law's provisions, a defendant has to be granted a "certificate of appealability" by a lower court to apply for a habeas corpus writ once his standard appeals are exhausted. Cases raising questions about prisoners' rights to bring habeas corpus proceedings are likely to come before the high court again, given that in some cases they are issues of life or death for the defendants.

Competent to Stand Trial?? A Bad Joke - At the Best!

On November 15th, 1985, Holiday Inn in Irving, Texas was robbed. During the course of the robbery, one of the clerks, the 25-years old Mr. Douglas Walker was fatally shot. His fellow clerk, Mr. Donald Ray Hall, (29) survived the shooting, but he ended up paralyzed from the chest down.

Six days later on November 21st, 1985, Thomas was seriously wounded after he was shot in the back and left flank by the Houston SWAT team during arrest. While slipping in and out of consciousness, Thomas heard one of the police officers say: "Is the nigger dead? If he ain't dead, then kill him"!

Thomas Miller-El was close to death because the bullet tore up his intestines and the post-operative diagnosis was:"gunshot wound to the left flank with injuries to the jejenum, stomach, liver, pancreas, small bowel mesentery, abdominal wall, diaphragm and colon."

After a lengthy fifty-two days of inpatient treatment in a Houston hospital, including two surgeries, Thomas was transferred to the Dallas County Jail and tried nineteen days later.He was in a critical condition and continued to experience severe complications before, during, and after his trial. During Thomas' trial in 1986, he remained in the Dallas County infirmary during the course of trial. When he was discharged from the hospital in Houston, his medical condition was critial, because of a double-barreled colostomy and metallic bullet fragments were scattered throughout his abdomen. Thomas Miller-El arrived at the Dallas County Jail in a weakened, anemic state, susceptible to recurrent infections.

Although his medical condition required several hospitalizations during his trial, and prompted multiple requests for medical evaluations from the trial court, Thomas' trial proceeded without pause. He kept suffering constantly from numerous infections and complications with the colostomy and infections in the gunshot wound. He was also suffering greatly during trial because of pneumonia. The medical staff of the Dallas County Jail, when responding to Thomas' needs, generally did so only after substantial delays. The treatment was frequently denied or delayed, which resulted in prolonged bouts of pain and illness.

By December 20, 1985, one month after Thomas was shot, he weighed 153 pounds. Thomas is six feet, five inches tall and had weighed 235 pounds before his arrest. Thomas had lost eighty-two pounds, in four weeks. Therefore the doctor had ordered double diets for him. The double diets were never followed up.

Some days during the trial he was brought to the court in a wheelchair. Other days he would fall asleep in the court exhausted by the severe pain which he was suffering from 24 hours a day. In addition to these problems, he was suffering from constant lack of sleep.

He was ordered up around 1 a.m., and brought to a cold waiting cell. He was trafficated from one cold holding cell like cattle, along with hundreds of other prisoners who were appearing in the various other Dallas Courtrooms. All of this occurred before the court proceedings started about 9 a.m., and wasn't brought back to the prison before 5 p.m. Sometimes not before 8 p.m. During the these eight weeks of this trafficing back and forth to the Courtroom daily in his seriously ill condition, he was never given a hot meal, only a pork sandwich, a peanut sandwich and a cookie if he was lucky. Thomas is a Muslim and doesn't eat pork. Needless to say, the lack of food in such a condition had it's impact on his serious health condition.

Stephen Bowers who was the Medical Director for the Dallas County Jail System, had no knowledge of any of the information regarding the nature and extent of Thomas' injuries when he offered his opinion in the State habeas proceeding. Moreover, the first notation in the Dallas County Jail records made by a medical doctor appears on February 17, 1986, one month after Thomas' arrival at the jail, two weeks after the commencement of jury selection, and one week after Judge McDowell ordered Thomas to be evaluated.

When Thomas arrived in Dallas County Jail on January 16, 1986, he was substantially underweight with obvious traumatic injuries and a double-barreled colostomy. The Ben Taub Hospital records did not follow up. The medical staff at Dallas County Jail were aware of that Thomas had been shot and given a double-barreled colostomy, and the medical staff that were responsible for his care for over five months had no knowledge of the nature and extent of Thomas' internal injuries.

On February 10, 1986, Judge McDowell ordered Thomas sent to Parkland Medical Hospital for an evaluation. Thomas had chills and fever. He was diagnosed with pneumonia, and was prescribed Darvocet N-100 and Erythromycin 500 mg. Although the trial court had ordered Thomas to the hospital the day before, and he was taking the maximum available dosage of a narcotic medication, Thomas' jury selection resumed on February 11, 1986.

Throughout the following week, jail medical staff costantly failed to give Thomas his antibiotics and pain medication on schedule. In an affidavit submitted during state habeas corpus proceedings, Thomas averred:

"I would be given my pain medication at the time they came to take me to the court, because they said they couldn't bring it over to me in the court. I could not get my pain medication four times a day. The medical personnel would only give me two pills each morning, before I left for court. One of the dozes was for 8:00 a.m., and the other was for 12:00 noon. However, having to wait in freezing cold holdover cells, I always stayed sick, and hurting more throughout the day. Sometimes I'd have to take the first doze of my pain medication at 2:00 a.m. or 3:00 a.m., so that I could have some sort of physical relief. Then, I would take my remaining pill about 8:00 a.m., in the court holdover cell, a few minutes before being called into court. That way I wouldn't be having too much pain in the morning as I endured the long voir dire of the individual jurors. But I did not receive any medication at 4:00 p.m. and 8:00 p.m. because I would still be in court or in the court holdover waiting to go back to the infirmary. I'd either be in court or in the court holdover cell when it came time for me to take the 4:00 p.m. and 8:00 p.m. dosages.Therefore, I'd never get to take them and my pain would become a torture."

On one morning, Thomas kept his medication, so he could take it in the Courtroom. The Court bailiff (officer), searched Thomas' pockets, found the medication and told the Judge that Thomas was trying to smuggle drugs into the Courtroom. The Judge called the prison doctor and asked him if Thomas needed that medication, to which the doctor said "No" and that Thomas didn't need any pain medication.

On February 19, 1986, for the second time, the trial court expressed its concern about the effect of Thomas' medical condition regarding his ability to stand trial. Dr. Collyns received a note:

"Ms. Stacy wants you to check this inmate in regards to his need of more pain medic. He ran out of his medic. today. The Judge also wants to know if it is important for his well being. The man is on trial for att/cap/murder." First on February 24, 1986, dr. Collyns sent a note to Court that Thomas didn't need more pain medication and the court again failed to convene a hearing regarding Thomas' competency to stand trial.

Thomas had not been examined by a doctor since the morning of February 20, 1986. On this morning Thomas received Darvocet for his pain before Dr. Collyns had examined him. On February 24, 1986, after they had stopped the administration of Darvocet in the morning, no doctor had examined Thomas, and on this day Dr. Collyns sent his opinion to the Court that Thomas didn't need more pain medication.
However, on February 25, 1986 Thomas' trial counsel had an extensive colloquy about his need for medication. Thomas was in an obvious weakened condition, kept having severe pain, and was only able to whisper when he was asked by the Judge what kind of medication he was receiving. The defense counsel's request for an evaluation because of their doubts regarding Thomas' medical fitness to attend court, was denied and based on outdated and inaccurate information.(Dr. Collyn's examination of Thomas on February 20, 1986)

E. Brice Cunningham, one of Thomas' attorneys wrote in an affidavit:

"I remember another occasion, during the trial, that Mr. Miller-El leaned over to me ..... and said, "there is something wrong with me"......... I asked the court to allow us to approach the bench. At this time I adviced the court of what I observed and believed was the serious medical condition of Mr. Miller-El at that time ......... Each time we brought Mr. Miller-El's poor medical condition to the attention of the court, Judge McDowell responded by making Mr. West and Affiant responsible for obtaining medical supplies or proper medical attention, although I believe that was the responsibility of ( 1 ) the Trial Court; ( 2 ) the medical doctor assigned to the Dallas County Jail; and ( 3 ) any other medical personel such as nurse, who were on duty."

Thomas continued to experience "constant" chest pains and was also experiencing fever and chills, but the court proceedings continued. On March 4, 1986, Thomas was sent to Pakland Hospital for incision and drainage treatment of a chest abscess. Again, on March 10, 1986, Thomas received emergency surgical treatment at Parkland Hospital for an infected cyst.

Thomas was being treated with Motrin and Cloxacillin, an antibiotic. There is no indication in the record that Thomas received his medication on schedule, if at all, during court proceedings. In the evening of March 20, 1986, Thomas requested to see a doctor. He had not seen a doctor since March 10th when he was at Parkland Hospital and Dr. Collyns had not examined him since March 4th. On March 21, 1986, Thomas was in court when Dr. Collyns came, and the examination was "rescheduled." According to Dallas County Prosecutor Norman Kinne, Thomas, who had been complaining of pain the night before, was sleeping in court. And the court proceedings continued.

On March 24, 1986, Thomas had still not received any medical attention after his request about this on March 20th. Two seperate notations indicate that Thomas was in court when someone came by to evaluate him. On this day, March 24th, Thomas was only able to respond to the leading questions of the court and attorneys with "yes" and "no" answers because of the horrible psysical condition he was in.

Both the court and defense counsel made self-serving assertions that Thomas seems competent, even though they had all earlier on that day, requested evaluations of Thomas' medical condition and the trial court would do so again only hours later. First during the preparations of Thomas' Writ of Habeas Corpus, his trial-counsel stated in an Affidavit that:

"I was never advised as to the severity of Mr. Miller-El's medical condition, by the persons who had this medical information, viz., the doctor assigned to the jail, nurses, and etc .......... Affiant was aware of the fact that Mr. Miller-El was having medical problems, evidenced by the colostomy bag that Mr. Miller-El was required to wear, and was in pain, because Mr. Miller-El told me so. However, Counsel for Mr. Miller-El were never made aware, and did not learn the full gravity of Mr. Miller-El's condition, until being advised by Mr. Miller-El's attorneys appointed to represent him on the filing of a Writ of Habeas Corpus. After learning more about what the attorneys representing Mr. Miller-El on his Writ of Habeas Corpus, conserning the alleged medical conditions of Mr. Miller-El, at the time of his trial, Trial Counsel would have brought the matter of Mr. Miller-El's medical condition to the court's attention, requested a Hearing to determine this fact, and would have done what ever was possible to assure Mr. Miller-El was receiving the best medical attention, either in the Dallas County Jail, Parkland Memorial Hospital, or some other medical facility that had dealt with his problem."

Exhibit 28 ( Affidavit of E. Brice Cunningham ) at 5-6 On March 24, 1986, the jury returned a verdict of guilty at 3.22 p.m. A note written at 7:15 p.m., by a jail staff person stated JudgeMcDowell's bailiff requested Mr. Miller-El undergo a medical evaluation to determine his ability to stand trial. Thomas was experiencing "nausea, pain, stopped up colostomy, backache."

Thomas Received his Guilty Verdict in this condition. Still - the State claims Thomas was competent to Stand Trial

After he received his quilty verdict, Thomas Miller-El was admitted to the Parkland Medical Hospital Emergency Room at 7:39 p.m., and treated for a small bowel obstruction. On March 25, 1986, he returned to the Dallas County Jail, with instructions to return if increased abdominal pain and vomiting. This same morning Thomas was discharged from the Parkland Medical Hospital Emergency Room, the punishment phase resumed at 10:00 a.m.

After Thomas' medical problems had been ignored for four days and spending the previous night in Parkland Hospital, Thomas testified during a motion to suppress. His brief testimony consisted of only very short answers to leading questions from his defense counsel. Thomas was clearly having difficulty speaking in an audible voice and experienced some confusion during the short exchange with his lawyer.

On March 26, 1986, Thomas was experiencing back pain and his colostomy was not working. The proceednings resumed at 9:15 a.m. and Thomas was sentenced to death at 2:30 p.m. On March 28, 1986, for the first time since March 4th, Dr. Collyns examined Thomas and prescribed antibiotics. On April 1, 1986, Thomas was exeperiencing chest, back and abdominal pain, but he was not given any medication. Almost one week later, still untreated, Thomas sent a note that he needed a doctor because he has severe pains in his side, stomach and sometimes his back. There is no indication Dr. Collyns treated Thomas, although he noted that Thomas experienced:

Constant pain in his upper abdomen or chest on April 9, 1986, when he came to examine Thomas. The nurse's note on the same day: "Shaking, lips dry, cracked, Greenish, odorish drainage to open chest wound. He had high temperature, fast pulse and low blood pressure." Thomas was then sent to Parkland Hospital again.He received emergency treatment for infection in the gunshot wounds in his chest. On April 25th, when he again was sent to Parkland Hospital, his weight was 165.5 pounds, just twelve-and-a-half more pounds more than he did five months before.

On June 26, 1986, Thomas was transferred to the Ellis One Unit of Texas Department of Corrections still having complications with the colostomy.

The medical expert Ari Kiev, concludes in the end of his Affidavit that:" It is also my opinion, in terms of reasonable medical certainty, that any man in the physical and mental condition reflected by Mr. Miller-El's medical records, evidencing this level of depression, pain, injury, and resulting complications, would not be capable of withstanding any stressful event, must less a trial for life. I would not recommend that any patient of mine go anywhere under the circumstances reflected by these records, much less to court every day as a defendant in a capital murder trial."

In spite of all the above-mentioned which clearly describes the debilitated condition Thomas was in during the whole trial, The U.S. Fifth Circuit Court denied Thomas' request for a COA. ( Certificate of Appealability )