Archive for June, 2005

SCOTUS today issued Miller-El v. Dretke, a Texas death row inmate’s Habeas challenge to peremptory strikes made by prosecutors, claiming that they were made on the basis of race. Lower courts had routinely rejected Miller-El’s claims and the 5th Circuit had even refused to certify appealability. In 2002, SCOTUS reversed that (Miller-El v. Cockrell) and ordered that the 5th Circuit review the merits. Today, SCOTUS reversed the 5th Circuit (again) and ordered that Habeas relief be granted.

Writing for the majority [pdf], Justice Souter delves into the vast evidence collected by Miller-El regarding racial bias. The opinion itself is a fascinating read, especially because it details the disparate treatment of black and non-black jurors who gave extremely similar responses on their juror questionnaires and in voire-dire questioning. The gist, however, is best summed up by Justice Souter himself, when he writes:

In the course of drawing a jury to try a black defendant, 10 of the 11 qualified black venire panel members were peremptorily struck. At least two of them, Fields and Warren, were ostensibly acceptable to prosecutors seeking a death verdict, and Fields was ideal. The prosecutors chosen race-neutral reasons for the strikes do not hold up and are so far at odds with the evidence that pretext is the fair conclusion, indicating the very discrimination the explanations were meant to deny. The strikes that drew these incredible explanations occurred in a selection process replete with evidence that the prosecutors were selecting and rejecting potential jurors because of race.

At least two of the jury shuffles conductedby the State make no sense except as efforts to delay consideration of black jury panelists to the end of the week, when they might not even be reached.  The State has in fact never offered any other explanation.

Nor has the State denied that disparate lines of questioning were pursued: 53% of black panelists but only 3% of non-blacks were questioned with a graphic script meant to induce qualms about applying the death penalty (and thus ——————explain a strike), and 100% of blacks but only 27%  of non-blacks were subjected to a trick question about the minimum acceptable penalty for murder, meant to induce a
disqualifying answer.   

…

The StateÂ’s pretextual positions confirm Miller-ElÂ’’s claim, and the prosecutors own notes proclaim that the Sparling ManualÂ’s emphasis on race was on their minds when they considered every potential juror.   

The state courtÂ’s conclusion that the prosecutorsÂ’ strikes of Fields and Warren were not racially determined is shown up as wrong to a clear and convincing degree; the state courtÂ’s conclusion was unreasonable as well as erroneous.  The judgment of the Court of Appeals is reversed, and the case is remanded for entry of judgment for petitioner together with orders of appropriate relief.

Justice Souter relies mainly on venirepersons Fields and Warren, both of whom had responses similar to white panel members who were accepted by the prosecution, and yet were struck via peremptories. In fact, as the quote above indicates, Fields was quite in favor of the death penalty and was all too willing to impose it.

Justice Breyer has a very interesting concurrence, where he advocates adopting Justice Marshall’s position from concurrence in Batson: abandon peremptory challenges. Prof. Berman has a nice post on this concurrence.

I’ll get to the dissent soon.

Justice Souter’s majority opinion here [pdf], Justice Breyer’s concurrence suggesting prohibiting peremptory challenges altogether here [pdf] and Justice Thomas’ dissent here.