David S. Mejia's Louisville Criminal Defense Blog
Miller-El A Near-Unanimous Supreme Court Issues a Reminder That Prosecutors’ Use of Peremptory Challenges to Strike African-Americans From Juries Violates Equal Protection
This article originally appeared in the May 2003 issue of The Advocate.
Good news. On February 25, 2003, in an 8 to 1 decision, Miller-El vs. Cockrell, 123 S.Ct., 1029 (Feb 25, 2003), written by Justice Anthony Kennedy, the United States Supreme Court admonished federal habeas courts reviewing state jury trials that the systematic exclusion of black jurors from capital cases is not only degrading and unworthy of prosecutors, it’s unconstitutional.
It has been seventeen years since the Court ruled in Batson vs. Kentucky, 476 US 79 (1986) that a state trial prosecutor’s use of preemptory challenges to exclude persons from the petit jury based on race, nationality or gender violates the Equal Protection Clause of the Fourteenth Amendment. Nevertheless, in the time that has followed, Texas prosecutors apparently didn’t get it, as they continued to exclude blacks from capital murder cases without embarrassment and, perhaps, with prosecutorial pride. In the face of an astounding demonstration of prosecutorial misbehavior that would make even the most hardened Commonwealth Attorney blush, the United States Supreme Court condemned such action as unconstitutional. To drive home its point, the Supreme Court castigated the Fifth Circuit Court of Appeals for abdicating its judicial responsibility as a court of review by its failure to enforce the established dictates of Batson vs. Kentucky, 476 US 79 (1986). The effect of the Court’s holding was that in the context of federal habeas corpus review the federal courts failed to give sufficient consideration to Miller-El’s allegations and proof of racial discrimination in jury selection.
Batson established a three-step process for determining whether a prosecutor’s use of preemptory challenges is racedriven and thereby violative of equal protection.
First, The accused must allege purposeful discrimination and present evidence to indicate that the prosecution has deliberately excluded potential jurors during voir dire based on race. In addition to race (black or white), ethnicity, age or sex are cognizable. See, Roman vs. Abrams, 822 Fd 2nd 214, 227-228 (2nd Cir. 1987); United States vs. Iron Moccasin, 878 Fd 2nd 226, 229 (8th Cir. 1989). Circumstances that tend to buttress charges of discrimination are: (1) the number of racial group members in the venire; (2) the nature of the crime; (3) the race of the defendant and/or victim; (4) the pattern of strikes against members of a racial group; (5) the manipulating or incitefull manner, tone or words used by prosecutors during voir dire. See Batson, 476 US at 96. The constitutional basis for the defendant’s objection to race-based preemptory challenges is the Equal Protection Clause irrespective of whether the defendant and excluded jurors are of the same race. United States vs. Tucker, 90 Fd 3rd 1135 at 1141 (6th Cir. 1996); United States vs. Rodriguez, 935 Fd 2nd 194, 195 (11th Cir. 1991). Additionally, the state may likewise challenge the defendant’s racial abuse of preemptory challenges on equal protection grounds. Georgia vs. McColloum, 505 US 42, 55-56 (1992).
Second, Once the aforementioned prima facie showing is made, the burden of proof shifts, as the prosecution must in response offer a credible race-neutral explanation for why they struck the excluded jurors. See Hernandez vs. New York, 500 US 352, 358-359 (1991). The defendant, in certain circumstances where, for example, pretext is suggested, may contest the credibility of the prosecutor’s neutral-based explanation. See Davis vs. Balt. Gas and Elec. Co., 160 Fd 3rd 1023, 1026 (4th Cir. 1998); United States vs. Thompson, 827 Fd 2nd 1254, 1261 (9th Cir. 1987). The reliability of the prosecutors’ explanations, in light of the evidence, may likewise be challenged.
Third, in weighing and determining the merit of a Batson claim, that is whether purposeful discrimination has been proved, trial judges are advised in the third phase to consider any relevant information in deciding whether prosecutors systematically excluded a particular race of prospective jurors. The matter ultimately comes down to whether the trial court finds the prosecutor’s [race-neutral] explanations believable based upon his or her demeanor, the inherent plausibility of explanations given, whether the proffered rationalizations have some basis in accepted trial strategy. The weight given such factual findings on review was the procedural context in which the Miller-El case reached the United States Supreme Court. The evidence in the Miller-El trial: a common, cold-blooded armed robbery and murder, perhaps explains how it was that this rather ordinary case traveled from a Texas county court to the highest court in America.
Its facts provide proof of the age-old maxim that a “bad” case, that is a criminal prosecution with facts demonstrating brutality in its commission, can set the course for creating bad law. Experience teaches that the more violent and wanton the alleged conduct of the accused; the more likely it is that law enforcement and prosecutors will be tempted to abandon fairness. “Convict at any cost” becomes the state’s agenda and, from there, the momentum builds. In the course of the prosecution of the accused, as this fever-level pitch builds and accumulates, trial judges can get caught up in the identical waive of negative emotion, even loathing. When this happens, just like the trial prosecutor, judges too become unwilling or unable (it really doesn’t matter which) to resist the urge to do whatever it takes to get the defendant tried, convicted and sentenced. It is the satisfaction of that base need that over-rides everything, even the Constitution itself. In the case of Miller-El, the evidence summarized was that Thomas Miller-El, an African-American, and his wife Dorothy, with a third person Kenneth Flowers, robbed a Dallas motel at gunpoint. The three emptied cash drawers and ordered Doug Walker and Donald Hall, two employees, to lie on the floor. Walker and Hall were also bound and gagged. After Flowers hesitated or refused to kill the two employees, Miller-El shot Walker and Hall. Walker died. Hall was paralyzed. After the prosecution indicted Miller-El for capital murder, they took him to trial and got a guilty verdict and death sentence in a year. To help assure this result, the Dallas prosecutors were allowed to strike ten out of eleven prospective jurors who, like Thomas Miller-El, were African-American.
Remarkably, the Supreme Court saw substantial proof of purposeful discrimination in the jury selection process that neither the Texas courts nor, sadly, the lower federal reviewing courts were able to discern. In the course of jury selection, the Dallas prosecutors, having already obtained cause strikes on nine African-American prospective jurors, exercised preemptory strikes to exclude ten out of the other eleven. Additionally, prosecutors exploited local court rules, by using a system of shuffling of the venire to minimize the chance of African-Americans in the venire from being called into the jury box. When questioning prospective jurors about the death penalty, prosecutors tailored their questions to illicit responses from whites that led to their remaining on the panel while conversely led to African Americans being stricken. For example, African-Americans were provided grizzly details of the death chamber (which made them react with revulsion, which due to their negative responses resulted in their being dismissed) while whites were merely provided general descriptions, which did not cause reactions of horror or revulsion. Evidence, in a Batson hearing conducted after Miller-El’s jury trial, also established a history of the Dallas prosecutor’s office willfully keeping African-Americans off juries. A prosecutor’s training manual, that was used to educate the prosecutors of Miller-El actually instructed Dallas prosecutors in writing not to “take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or well educated.” Former Dallas prosecutors testified that it was the official policy of the Dallas prosecutor’s office, when Miller-El was tried, to keep African Americans out of the jury box. Significantly, the only African American the prosecutors allowed to serve was the one who said “I think capital punishment is too easy” and that lethal injection is “too quick...pour some honey on them and stake them out over an ant bed”. One can only wonder — was it simply Thomas Miller-El’s guilt of a brutal murder and robbery, in the minds of the Texas courts, the federal district court, the United States Court of Appeals, that prevented them from overturning Miller-El’s conviction and death sentence...even despite clear and undisputed evidence of jury manipulation based on race? Whatever the reason, Texas prosecutors, having successfully convinced Texas courts that jurors were not stricken because of race, were equally persuasive in convincing the federal reviewing courts. It was, finally, the Fifth Circuit’s wholesale abject deference to such factual judgments or credibility findings of the Texas state courts, and declining to even hear the case, that jolted the Supreme Court into giving Miller-El the fairness all men accused of capital murder deserve.
After reviewing both the trial record and the Texas prosecutors’ race-neutral explanations and egregious trial conduct, the Miller-El Court, with no difficulty, reversed the court of appeals, stating, “proof of systematic exclusion from the venire raises an inference of purposeful discrimination because the result bespeaks discrimination.” Citing Batson, 476 U.S. at 94. Notwithstanding the repeated denials of Texas prosecutors that their jury selection method wasn’t race based, the Supreme Court ruled that federal appeals courts simply can not ignore substantial, to some even shocking, evidence of racial discrimination by a prosecution team. “[D]eference,” said the Supreme Court, “does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief.” In requiring the Fifth Circuit to review Miller-El’s appeal on remand, the Court issued the following directive, “A federal court can disagree with a state court’s credibility determination...and ...conclude the (state court) decision was unreasonable.” With that, the Supreme Court reversed the Fifth Circuit Court of Appeal’s refusal to grant a certificate of appealability to Miller-El which in effect had affirmed the federal district court’s denial of habeas corpus relief. The Miller-El Court ruled that to ignore such egregious prosecutorial race-based manipulation of death penalty juries can not stand. To do so, said Justice Anthony Kennedy, would render “...the Equal Protection Clause...vain and illusory.” Citing Norris vs. Alabama, 294 U.S. 587 at 598.
Justice Clarence Thomas, the only African-American member of the Supreme Court, filed the lone dissent.