This article originally appeared in
The
Texas Civil Rights Review, under the title, “Race Bias and
the Death Penalty One More Time: The Supreme Court Decision on Texas
Death Row Prisoner, Thomas Miller-El.”
In the recent dispute between
Supreme Court justices over the question of race discrimination
in jury selection, we find two warring camps of legal theory.
By issuing its order to give one death row prisoner a new trial
in Texas, the court majority seems to be forging a legal theory
that can advance the long, good fight for racial justice. On the
other side are some truly dangerous leanings.
In the logical dispute between a six-Justice majority led by David
H. Souter and a three-Justice dissent led by Clarence Thomas we
find the majority holding prosecutors strictly to account for the
reasons they actually give when explaining under oath why theyexercised
peremptory strikes against black candidates for jury duty. What
the prosecutor actually says about his or her reasons is what the
majority tests for soundness. On the dissenting side, however, we
find that when prosecutors give faulty reasons explaining why they
were thinking non-racially, Justice Thomas asks the Supreme Court
to look deeper into the record to see if more plausible non-racial
accounts might be found.
In death penalty cases, which logical method seems better for the
Supreme Court to adopt: demanding that prosecutors give coherent
reasons the first time when asked to show why their peremptory strikes
were not racially motivated? Or shall we instead allow prosecutors
to get close enough for government work, assuring them that the
ruling minds of the judicial system will be standing by to find
better race-neutral accounts if needed?
Or here's another question. When a black man sitting on death row
wants to appeal his death sentence because he feels that black jurors
were banned from his trial BECAUSE they were black, should we allow
that death row prisoner to introduce jury cards, questionnaires,
and testimony used to select the jury? For the majority opinion
in the case of Texas death row inmate Thomas Miller-El, the answer
is clearly yes, the prisoner is entitled to carry with him on appeal
the jury selection documents that were used at his trial. But for
the dissenting minority, access to jury selection docs should be
limited on appeal.
Justice Thomas argues that once a trial is over, and the death
penalty has been awarded, then death row prisoners can only re-try
issues and documents that they found relevant during jury selection
itself. If after the trial is over a more complete review of the
jury selection process yields new arguments for finding race discrimination,
the minority view would tell the death prisoner, sorry, too late.
Thomas argues that trial judgments should not be reversible on
the basis of new issues found in fuller review of jury selection
materials. If defendants fail to discern the best case for race
discrimination the first time around, it is simply “unrealistic”
to expect the trial court to know what was never pointed out, and
if the trail court didn't know it at the time, then it can't be
revisited on appeal.
On the other hand, the majority opinion argues that a court may
be held accountable for making the best possible ruling based on
the complete record at hand, whether the judge actually takes the
time to know it or not. Death row prisoners therefore have the right
to go over everything once again with a fine toothed comb.
Working in the legacy of the late Justice Thurgood Marshall, the
majority of the Supreme Court seems to appreciate the care that
has to be taken with logical analysis when you set out to find patterns
of race bias. Sophisticated players in the race bias game are quite
often difficult to catch. In a culture of race bias the players
may not be fully aware of the bias they are exercising. In a concurring
opinion by Justice Breyer, the Supreme Court reminds us what Marshall
predicted: that so long as peremptory strikes are used in jury selection,
there will never be a failsafe method to disable their usefulness
to racial bias.
In the case of Miller-El, it took nearly two decades to produce
a winning case by means of “disparate impact” analysis. By means
of this method of analysis, the majority of the court was convinced
that if prosecutors were taken at their word about the reasons they
gave for striking certain black panelists, then certain nonblack
panelists should have been stricken as well. But by carefully weighing
the prosecution’s "stated reasons" (not the best possible
reasons that were available whether they stated them or not) and
measuring those reasons against the full evidence of the jury selection
process, the majority agreed that a racial bias was detectable.
In contrast to Justice Thomas' attempt to show that a kind of non-racial
explanation could be found, the concurring opinion by Justice Breyer
draws on advancing scholarship in the psychological and social sciences
to cast deeper inquiries into embedded structures of prejudice.
In this battle between competing logics of race bias analysis, which
one do we want guiding the Supreme Court? The one that tends to
narrow the field of inquiry into possible race bias or the one that
tries to keep up with ways that we are learning to see more clearly?
These are just some of the issues that emerge from a blow-by-blow
reading of the Miller-El decision handed down on June 13. While
it is instructive to follow this pioneering skirmish in the logic
of death row justice let's not forget that in 21st Century USA,
the construction and maintenance of death row facilities is a barbaric
foundation for anything that resembles truth or justice. As we will
see below, Thomas makes a crucial claim about death penalty cases
that should serve as a basis for abolishing the death penalty altogether.
At least listen to the man on Death Row
As far as the Fifth Circuit Court of Appeals was concerned, the
case was twice closed. And Justice Thomas would never have allowed
an appeal. But on Monday a Texas death row prisoner won a majority
ruling from the US Supreme Court that jury selection for his 1986
murder trial was flawed by racial discrimination.
In 2001 the federal appeals court first attempted to close the
case of Texas death row prisoner Thomas Miller-El by refusing to
hear his argument that his jury had been selected in a discriminatory
fashion. The trial judge in Miller-El's case had been instructed
by the appeals court to review prosecution "strikes" against
Black jurors to make sure they were not the result of "racial
bias" and the trial judge ruled that in each case the prosecution
gave valid "race neutral" reasons. On that basis, the
appeals court refused to consider an appeal. But in 2002 the US
Supreme Court said it would at least listen to Miller-El's plea
that the case was appealable.
"After examining the record of Miller-El’s extensive evidence
of purposeful discrimination by the Dallas County District Attorney’s
Office before and during his trial," the Supreme Court in 2003
ruled that an appeal was in order. “The prosecutors used their peremptory
strikes to exclude 91% of the eligible African-American venire members,"
wrote the Supreme Court at that time. "Happenstance is unlikely
to produce this disparity.” The Supreme Court sent the case back
to the Fifth District for a hearing.
"During jury selection in Miller-El’s trial for capital murder,
prosecutors used peremptory strikes against 10 qualified black venire
members," recalls Justice Souter in Monday's opinion (with
STEVENS, O’CONNOR, KENNEDY, GINSBURG, and BREYER concurring). "Miller-El
objected that the strikes were based on race and could not be presumed
legitimate, given a history of excluding black members from criminal
juries by the Dallas County District Attorney’s Office."
Fifth Circuit judges listened to Miller-El's appeal as ordered,
but they ruled against him in 2004, finding that race-neutral explanations
for striking the black panelists were plausible. Once again Miller-El
went to the Supreme Court. In Monday's ruling the Supreme Court
says to the Fifth Circuit: "again we reverse."
Putting together a pro-death jury
"When the government’s choice of jurors is tainted with racial
bias," argues Justice Souter, "the very integrity of the
courts is jeopardized." In the case of Miller-El, the Supreme
Court again this week ruled that the numbers are "remarkable":
"Out of 20 black members of the 108-person venire panel for
Miller-El’s trial, only 1 served. Although 9 were excused for cause
or by agreement, 10 were peremptorily struck by the prosecution."
"More powerful than these bare statistics," says the
Court this time around, "are side-by-side comparisons of some
black venire panelists who were struck and white panelists allowed
to serve." Although one black panelist (we'll use his initials
BJF) was struck from the jury pool by the prosecution for saying
that "life imprisonment would give an individual an opportunity
to rehabilitate" there were at least two white jurors and a
Hispanic who expressed similar views about rehabilitation but who
were not struck.
Says Souter, a complete reading of the evidence shows that the
black panelist, "should have been an ideal juror in the eyes
of a prosecutor seeking a death sentence, and the prosecutors’ explanations
for the strike cannot reasonably be accepted." After all, the
panelist had said in court that if the state puts someone to death,
then it must be God's will.
"He testified that he had no religious or philosophical reservations
about the death penalty and that the death penalty deterred crime,"
reports Justice Souter. "He twice averred, without apparent
hesitation, that he could sit on Miller-El’s jury and make a decision
to impose this penalty."
Justice Souter takes lower courts to task for not noticing that
the prosecution's explanation for removing BJF had mischaracterized
the black panelist's views. "He [the prosecutor] represented
that [the panelist, BJF] said he would not vote for death if rehabilitation
was possible, whereas [BJF] unequivocally stated that he could impose
the death penalty regardless of the possibility of rehabilitation."
writes Souter. "Perhaps [the prosecutor] misunderstood, but
unless he had an ulterior reason for keeping [BJF] off the jury
we think he would have proceeded differently."Souter discounts
the prosecution reason not only because it mischaracterized the
juror's position, but also because the prosecutor under oath added
the following sentence:
"Those are our reasons for exercising our . . . strike at
this time."
For Souter, the tentative qualifier served as evidence that the
prosecutor may have been able to offer non-racial reasons for the
strike, but was also preparing ground to change those reasons, which
in fact he soon did. The panelist had a relative in the criminal
justice system, explained the prosecutor. But why did the prosecutor
not offer that reason first? Under these circumstances the "new
explanation" says Souter "reeks of afterthought"
and "makeweight."
A jury of one’s peers – or executioners?
In a closely argued dissent, Justice Thomas writes that Miller-El
is the party of afterthought who changes the basis of his argument
with each new venue of appeal. In panelist BJF, Thomas did not find
Souter’s “ideal juror” who saw the hand of God acting in state executions.
Instead, Thomas said the religious onvictions of the panelist gave
prosecutors good reason to fear that he would be reluctant to issue
a death penalty. “Those fears were confirmed by [the panelist’s]
view that all people could be rehabilitated if introduced to God,”
writes Thomas, “a fear that had special force considering the special-issue
questions necessary to impose the death penalty in Texas.”
Texas jurors delivering a death penalty have to agree unanimously
that “there is a probability that the defendant would commit criminal
acts of violence that would constitute a continuing threat to society.”
When panelist BJF testified that ach and every person is capable
of rehabilitation, prosecutors feared that he would never be able
to agree that a defendant had the probability of being a “continuing
threat to society.” As Thomas admits, however, BJF did testify “that
he could impose the death penalty, even on a defendant who could
be rehabilitated.”
For Thomas, it was panelist BJF who had the pretext for getting
on the jury, not the prosecutor who had the pretext for keeping
him off. And yes, while explaining his reason, the prosecutor did
mischaracterize the testimony to some degree, admits Thomas, ut
a careful reading of the transcript shows that prosecutors had good
reasons to strike BJF even if they didn't state those reasons as
carefully as they should have.
For Souter, however, the Supreme Court is not supposed to help
the prosecution find the best non-racial reasons for striking a
juror. The Supreme Court is supposed to evaluate the reasons given
by the prosecution in order to determine if racial discrimination
might be going on. When a prosecutor fails to state his best non-racial
reasons for striking a juror, why should the Justices rehabilitate
his case?Based on reasons stated for striking black panelist BJF,
Justice Souter finds three nonblack panelists who should have been
equally disqualified but who did not attract prosecution strikes.
Justice Thomas, working from his rehabilitated logic of “actual
reasons” (not actually given) found that the nonblack jurors identified
by Souter were in fact more favorable for the prosecution overall.
For example, while the stricken black panelist was related to a
one-time prisoner, the nonstricken white panelist was related to
an agent of the FBI.
In this dispute over panelist BJF, Souter and Thomas are arguing
from two different places. While Thomas finds a more plausible non-racial
account than the one actually put on record, Souter tests the reasons
given on the record and tosses them out if they don’t fit a coherent
non-racial account. The white panelist from the FBI family also
testified that she would be reluctant to give the death penalty
in a case where rehabilitation was possible. If the prosecution
struck the black panelist for similar reasons, why did they not
strike her?
What neither side in the dispute addresses is the racialized impact
of selecting jurors on the basis of family affiliations. ithhigh
rates of criminalization among black men in the USA, the "non-racial"
search for jurors who have no criminals in the family will surely
in the long run disable an important pool of peers.
Under present rates of criminalization and incarceration in black
communities why shouldn't families affected by these histories be
allowed to evaluate state's evidence from a jury seat?
Black jurors strike out
In the prosecution's strike against another black panelist (again
we'll use his initials, JW) Souter finds another example of disparate
treatment. Although the panelist repeatedly says thathe would be
able to hand down a death penalty, he does admit to having "mixed
feelings" about the actual punishment that the death penalty
brings. By shortening the life of a killer, the death penalty might
be viewed as relieving the suffering of "personal punishment."
The prosecution claims that the opinion cost the panelist a chance
to serve on a death penalty jury. Yet four other panelists who were
not struck also said the death penalty might be viewed as the "easy
way out" – including a white juror and the lone black juror
who was seated.
As for that lone black juror, Souter sets the stage of ircumstance.
Having used 11 of its 15 peremptory strikes, the prosecution was
looking at three upcoming panelists who had already expressed in
writing that they were opposed to the death penalty. The prosecution
would need to save three strikes for them.
“In fact,” argues Souter, “if the prosecutors were going to accept
any black juror to obscure the otherwise consistent pattern of opposition
to seating one, the time to do so was getting late.”
It is not the business of the courts to clean up the reasons that
prosecutors actually give for their strikes says Souter. Even if
the ppeals court and dissenting justices find more defensible reasons
for striking jurors, it "does nothing to satisfy the prosecutors’
burden of stating a racially neutral explanation for their own actions."
Too many Blacks spoil the scheme
In the 2003 ruling that sent Miller-El back to the appeals court,
the Supreme Court found that prosecutors also used the technique
of "jury shuffle" to manipulate racial makeup. If "too
many" black panelists were sitting at the front of the jury
pool, prosecutors would "re-shuffle" the jury in hopes
of moving more lack panelists to the back.
"At the beginning of the third week, the first four panel
members were black. The prosecution shuffled, and these black panel
members ended up at the back. Then the defense shuffled, and the
black panel members again appeared at the front. The prosecution
requested another shuffle, but the trial court refused."
When black panelists can't be shuffled to the back, they might
be prompted to sound a little more hesitant about applying the death
penalty. During questioning, prosecutors used two scripts leading
up to the death penalty questions. One was a bland statement of
the prosecution's intent to seek the death penalty and it was used
91 percent of the time during the questioning of white panelists.
For half of the black panelists however another script was used:
"When the death penalty is assessed," said the prosecutor
to half the black panelists, "at some point Mr. Thomas Joe
Miller-El – the man sitting right down there – will be taken to
Huntsville and will be put on death row and at some point taken
to the death house and placed on a gurney and injected with a lethal
substance untilhe is dead as a result of the proceedings that we
have in this court on this case."
How would you feel about the death penalty if the question were
put that way? The more a panelist squirms at the thought of execution,
the less qualified she becomes for jury duty in Texas. While half
of the black panelists were given the squirmy script, 94 percent
of the white panelists were not. Souter does not buy the case offered
by Texas that the graphic script was given for non-racial reasons
in order to flush out previously identified noncommittal panelists.
The alleged non-racial patterns, says Souter, do not fit the facts.
Different scripts for different folks
"The same is true for another kind of disparate questioning,
which might fairly be called trickery," writes Souter. "The
prosecutors asked members of the panel how low a sentence they would
consider imposing for murder. Most potential jurors were first told
that Texas law provided for a minimum term of five years, but some
members of the panel were not, and if a panel member then insisted
on a minimum above five years, the prosecutor would suppress his
normal preference for tough jurors and claim cause to strike."
If the Supreme Court wants to call it trickery when some black
jurors are disqualified for failing to enthuse about the death penalty
strongly enough while other black panelists are tossed out for feeling
too strongly about minimum sentences, then why would we want to
re-phrase? Trickery it is. But it is especially exasperating trickery
for Souter who pastes into his 2005 opinion the findings of the
2003 Supreme Court that the "mandatory minimum" trick
was played on 88 percent of the black panelists in the Miller-El
trial and six percent of the whites. Yet Souter takes pains to note
that those Supreme Court findings from "Two Terms ago"
had no effect on the Fifth Circuit Court of Appeal.
After this, Souter pastes more excerpts from the 2003 findings,
establishing that Dallas County has a history of court record when
it comes to excluding blacks from juries. When courts are aware
that a local pattern of bias exists, shouldn't they take extra pains
to review claims of bias in those areas? The Supreme Court had already
intervened once. Why is the Fifth District being so stubborn in
its refusal to take direction?
Evidence most vile
Justice Breyer's concurring opinion begins by remembering Thurgood
Marshall's opinion that the only way to eliminate the discriminatory
use of jury strikes would be to eliminate jury strikes themselves.
"To begin with," writes Breyer, "this case illustrates
the practical problems of proof that Justice Marshall described.
As the Court’s opinion makes clear, Miller-El marshaled extensive
evidence of racial bias. But despite the strength of his claim,
Miller-El’s challenge has resulted in 17 years of largely unsuccessful
and protracted litigation – including 8 different judicial proceedings
and 8 different judicial opinions, and involving 23 judges, of whom
6 found the Batson standard violated and 16 the contrary."
Even with the evidence and the backing of the Supreme Court on
his side, Miller-El lost his case before most of the judges he faced
by a nearly three-to-one margin. Thurgood Marshall could see this
day coming.
After a dense survey of law, psychology, and social science, Breyer
concludes that, "the use of race- and gender-based stereotypes
in the jury-selection process seems better organized and more systematized
than ever before."
"For example, materials from a legal convention, while noting
that 'nationality' is less important than 'once was thought,' and
emphasizing that 'the answers a prospective juror gives to questions
are much more valuable,' still point out that '[s]tereotypically'
those of 'Italian, French, and Spanish' origin 'are thought to be
pro-plaintiff as well as other minorities, such as Mexican and Jewish[;]
[P]ersons of German, Scandinavian, Swedish, Finnish, Dutch, Nordic,
British, Scottish, Oriental, and Russian origin are thought to be
better for the defense'; African-Americans 'have always been considered
good for the plaintiff,' and '[m]ore politically conservative minorities
will be more likely to lean toward defendants.'"
If England can do away with jury strikes, argues Breyer, why can’t
we? Time may be coming when the Supreme Court will be able to strike
down jury strikes altogether.
In dissent, Justices Thomas, Rhenquist, and Scalia argue that the
majority should not have been able to test the validity of non-racial
reasons against juror cards and questionnaires, because these materials
were never part of the evidence considered by the trial court. Souter
replies that since juror materials were part of the original records
of the state court, they are fair game for appeal, even those parts
that were not identified as significant at the time of trial.
Clarence Thomas: The High Executioner
In his dissent over the use of juror records, Justice Thomas seems
to talk past his own characterization of the majority opinion. In
the words of Thomas, the majority argues that records used to appeal
the jury selection "might not expand on what the state trial
court knew"; which seems to say that the jury-selection materials
actually used at the time of trial really bring nothing new into
the record. But when Thomas argues that the majority claim is "incorrect"
he shifts the question away from "what the state trial court
knew" to what Miller-El actually referenced in his jury-selection
appeals.
It is strange that Thomas would first characterize the question
of appealable materials as one of determining "what the trial
court knew" but then base his dissent to the question of what
Miller-El selected from that record as racially biased at the time
he first objected in state court. In the shift of emphasis between
trial records used and trial records pointed to by the defendant,
Thomas seems to argue that a state court should only be held responsible
for "knowing" those parts of the record that that defendant
points out.
"Miller-El’s arguments gave the state court no reason to go
leafing through the voir dire transcript," says Thomas. "What
is more, voir dire at Miller-El’s trial lasted five weeks, and the
transcript occupies 11 volumes numbering 4,662 pages. To think that
two years after the fact a trial court should dredge up on its own
initiative passing references to unseen questionnaires – references
buried in a more than 4,600-page transcript no less – is unrealistic."
Even if Thomas is correct to argue that a trial court judge cannot
be expected to actually "know" everything in the record,
it seems odd to conclude that the "actual knowledge" of
the judge as a person should serve as the limiting criterion for
what can be appealed after the trial is over. When a difference
is established between a judge's actual ignorance of facts in the
record and what the record preserves, the more objective and fair
determination of "what the trial court knows" would seem
to fall on the side of the documentary record.
Something cold is suggested when Thomas complains that trial courts
cannot be expected to completely consider their own records of jury
selection in death penalty cases. In fact, these very limits of
knowledge would make a fine argument for abolishing the death penalty
altogether. As Thomas points out, the certainties required to make
sure that the death penalty is fairly administered are "unrealistic"
to expect at the trial court level.
Thomas complains that the logic of "disparate treatment"
analysis has been introduced very late in the appeals process. In
freezing the logic of analysis at the level of the state court,
Thomas narrows considerably the power of federal appeals courts
to join defendants in looking for patterns of discriminatory behaviors
in state courts. But in racist USA, what better reason would we
need for having a federal court in the first place?
In the subtext of the Miller-El ruling, the validity of "disparate
impact" logic serves as the life preserver of racial justice,
bobbing up once again, presumably to the irritation of Thomas and
his fellow dissenters. But “disparate impacts” are often difficult
to detect in the flow of lived experience. By definition they can
never be found in any individual act. The logic of “disparate impact”
requires careful analysis of patterns of action over time, space,
and circumstance. Because this pattern-seeking analysis requires
some distance from the individual actions in question, what is truly
"unrealistic" is the expectation of Justice Thomas that
well-developed disparate impact analysis must only be developed
at the trial court level. And because the ability to rationalize
disparate impact also grows in sophistication over time, it will
be wise to take the suggestion of Thurgood Marshall and eliminate
the kinds of arbitrary court practices that can be used to craft
discriminatory outcomes.
But in closing I'd like to come back to the complaint made by Justice
Thomas that the complete records of these death penalty cases are
in a very practical way unknowable. And when we have unknowable
bodies of evidence upon which we are basing executions in a country
and a state with such clear patterns of racial bias as exist in
the USA and Texas, it is simply unconscionable that the Supreme
Court still allows the death penalty at all, never mind the continuing
use of peremptory strikes.
Greg Moses is editor of the Texas Civil Rights Review and author
of Revolution
of Conscience: Martin Luther King, Jr. and the Philosophy of
Nonviolence. His chapter on Civil Rights under Clinton and Bush
appears in Dime's
Worth of Difference, edited by Alexander Cockburn and Jeffrey
St. Clair. |