Discriminatory Use of Peremptory Challenges: Miller-El, Round 2

Miller-El v. Dretke

When Miller-El was tried for murder and attempted murder after robbing a Holiday Inn in Texas the prevailing case-law on jury selection was Swain v. Alabama (1965) which required an objector to prove "systematic discrimination." In this case the lower court accepted all of the prosecutor's race neutral reasons for dismissing 10 of the 11 qualified black prospective jurors. While Miller-El's appeal was pending the Supreme Court decided Batson v. Kentucky (1986) which overturned the "systematic discrimination" test, and replaced it with the rule that "discrimination by the prosecutor in selecting the defendant’s jury sufficed to establish the constitutional violation."

To win his case Miller-El must show by clear and convincing evidence that the Texas court's conclusion was unreasonable, overcoming a presumption of correctness favoring the Texas court. The majority uses 5 arguments to show that the preemptory challenges were used for discriminatory purposes. (1) The majority compares several potential black jurors' stated views on the death penalty with those of white jurors that did serve, and concludes that whatever reasonable objections the prosecution may have had about the black jurors would have been equally applicable to the white jurors. (2) The majority looks to the number of times, and the inferred reasons behind "shuffling" the jury pool, which each side was allowed to do, and which each side did. Shuffling the jury pool is exactly what it sounds like, and the majority inferred that the purpose behind this by the prosecution was to move minority jurors to the back of the line. (3) The majority identified two types of questions regarding the death penalty, one being graphic in its description, and one not, and concluded that 3% of non-black jurors received the graphic description, as opposed to 53% of blacks. Of those that expressed ambivalence about the death penalty, 30% of non-black jurors received the graphic description, as opposed to 80% of blacks. (4) [or perhaps 3b] The majority concluded that the prosecution deliberately asked 12.5% of non-black jurors what the lowest penalty they would give would be without telling them what the mandatory minimum was as opposed to 94% of blacks. Of those that expressed ambivalence about the death penalty: non-black: 27%; black: 100%. (5) Finally, the majority used testimony by former Assistant District Attorneys about (in)formal policies regarding minorities as being favorable to the defense.

The dissent argues that a substantial amount of what the majority relies on is not properly before the court because under the AEDPA the court must evaluate the case “in light of the evidence presented in the State court proceeding,” which articles such as juror cards and most of the juror questionnaires were not. The majority argues that "the dissent conflates the difference between evidence that must be presented to the state courts to be considered by federal courts in habeas proceedings and theories about that evidence." The dissent also counters the majority's assertions about most of the statistical information, and some interesting points are made about the weight of evidence, but to get into it here would extend this to be as long as the opinion is. I guess the question as to whether the evidence is properly before the Court turns on what "presented" means, and whether an implicit reference is enough to have presented it to the state court.

More interestingly, Justice Breyer, in a concurring opinion, argues for the abolition of preemptory challenges. I have written a number of papers, and done a few presentations on preemptory challenges, and the fact that a Supreme Court Judge would use an opinion as an opportunity to deride them is encouraging. Preemptory challenges give the lawyers a chance to stack the jury without justification, and may very well be abolished some day. The reason I find Justice Breyer's opinion so encouraging is that it is not often that something so historically pervasive in our system is seriously questioned by someone of his status, and it is nice to see that legal professionals are not afraid to question the system in which they work.