Miller-El v. Dretke (03-9659), Johnson v. California (04-6964)

June 16, 2005 Supreme Court Update

Greetings, Court fans!
We're following up on Tuesday's Update with the two Batson cases. As a quick refresher, in Batson the Court created a three-part test for reviewing a claim that the use of peremptory strikes in jury selection was discriminatory. First, the objector must make out a prima facie case by showing that the facts give rise to an inference of discrimination in the use of strikes. The other side must then come forward with a race-neutral explanation for the strikes. Finally, the trial court must decide whether the objector "has proved purposeful racial discrimination." The Court's two decisions on Monday dealt with both the factual and legal aspects of that inquiry. With that out of the way, on to the cases!
After two decades and two trips to the Supreme Court, Thomas Joe Miller-El's conviction and death sentence have been overturned. In Miller-El v. Dretke (03-9659), the Court found that the State's use of peremptory challenges to exclude black jurors from Miller-El's jury violated the Equal Protection Clause. Justice Souter wrote for the majority, relying on the following facts: (1) the Dallas County prosecutor struck 10 of 11 qualified black jurors (91 ); (2) the prosecutor struck black jurors while accepting nonblack jurors with similar views on the death penalty; (3) the prosecution twice requested that the jury be "shuffled" (randomly reseated) when black jurors were seated at the front; (4) the prosecutor tended to use different questions during the voir dire of black jurors in an apparent attempt to disqualify them (e.g., graphically describing executions to a majority of black jurors but to few nonblack jurors); and (5) a history of Dallas County prosecutors' discriminating in jury selection. The Texas trial court made a factual finding that the peremptory challenges were not racially motivated, and under AEDPA Miller-El had to show this was wrong by clear and convincing evidence. The Court noted that while that standard is "demanding," it is "not insatiable; as . . . deference does not by definition preclude relief." The Court found the cumulative evidence "too powerful to conclude anything but discrimination."
The dissenters, Justice Thomas joined by Scalia and the Chief, took the majority to task for relying on evidence and arguments not specifically presented to the Texas courts (though the evidence was arguably accessible to the trial court). For habeas practitioners, this aspect of the case may have the most impact on their actual practice. (Another takeaway for prosecutors is that they must be clear and inclusive when providing their reasons for striking a juror because the strike will be evaluated based on the reasons given.) The dissenters also presented a different statistical analysis of the strikes, concluding that the most likely factor driving the State's strikes was juror ambivalence toward the death penalty as reflected in initial juror questionnaires.
In a powerful concurrence, Justice Breyer argued for abolishing peremptory strikes altogether. It is difficult to devise a legal test "that will objectively measure the inherently subjective reasons that underlie the use of a peremptory challenge," and the practical problems of proving a Batson violation are nearly overwhelming, as this case demonstrates. Breyer cites numerous studies finding that the use of discriminatory challenges remains a problem, perhaps because those exercising strikes are not even aware of the stereotypes affecting their decisions. Moreover, peremptory challenges may undercut "the jury's democratic function and undermine its representative function." Rather than a jury of our peers, we are left with a hand-molded jury of individuals acceptable to counsel and their hired jury consultants.
While Miller-El is the larger and more controversial of Monday's decisions, Johnson v. California (04-6964) may have a broader impact on future Batson challenges. California required that, to make out a prima facie case and satisfy the first Batson prong, the objector "must show that it is more likely than not the other party's peremptory challenges, if unexplained, were based on impermissible group bias." In Johnson's case, the prosecutor struck all three blacks in the jury pool, yielding an all-white jury (including the alternates). Nevertheless, the trial court found that Johnson did not satisfy his initial burden (and thus did not ask the prosecutor to explain himself) since, based on the jurors' questionnaire responses, the prosecutor could have had a race-neutral rationale for the strikes.
Justice Stevens wrote for a nearly unanimous Court (8-1, with Thomas dissenting), rejecting California's test as imposing too high a burden on Batson's first prong. The "more likely than not" standard is not equivalent to an "inference of discrimination." Here, striking all black jurors in a case involving the murder of a white child by a black man was sufficient to satisfy the first prong. The trial court should have required the prosecutor to present his reasons for the strikes and obtain all relevant evidence before moving to Batson's final prong and determining whether the strikes were purposefully discriminatory. Thomas dissented, arguing that Batson left states with wide latitude as to the process for evaluating Equal Protection challenges to peremptory strikes and that "California's procedure falls comfortably within its broad discretion to craft its own rules of criminal procedure."
Until next week, thanks for reading!
Kim & Ken

From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400