Miller-El, Thomas v. Cockrell, Janie, Dir., Texas Dept. of Criminal Justice (02/25/2003)

Questions presented: (1) Is the court required to ignore uncontested evidence of a pattern and practice of racial discrimination, and evidence of contemporaneous instances of discrimination, when assessing the genuineness of a prosecutor's proffered race-neutral reason for exercising a peremptory challenge? (2) Did the court of appeals incorrectly conclude that 28 U.S.C. @@ 2254(d)(2) and 2254(e)(1) require a habeas corpus petitioner to rebut state court determinations of fact by proving them "unreasonable" by "clear and convincing evidence"? (3) When assessing whether a state court decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," may a federal court ignore the unreasonableness of the process by which the state court determined facts?

BY TARA MALONE, MEDILL NEWS SERVICE

Thomas Miller-El is black. But only one black juror was selected for his capital murder trial in 1986. Texas prosecutors struck ten out of eleven African-Americans from the jury pool, leaving only one black man who said during voir dire, "I think capital punishment is too easy."

Prosecutors alleged Miller-El shot two hotel clerks, killing one and crippling another, while robbing a Holiday Inn in Irving, Texas, near Dallas, in 1985. The surviving clerk, Donald Hall, testified that Miller-El tied up Douglas Walker and himself; then Miller-El removed his glasses, stood at the mens feet and shot them both with his nine-millimeter machine gun. Miller-El was convicted of murder and sentenced to death.

Before the trials completion, Miller-El objected to the exclusion of African-Americans from the jury pool. Miller-El claimed his rights under the 6th Amendment and Equal Protection Clause of the 14th Amendment were violated. The trial court denied the motion.

Miller-El argued in the Texas Court of Criminal Appeals that the exclusion of African-American jurors from his trial was indicative of a pervasive trend clouding jury selection in Dallas. Citing district attorney training manuals that warned prosecutors, "minority races almost always empathize with the defendant," as well as statistical findings from the 1986 Dallas Morning News story, "Race Bias Pervades Jury Selection: Prosecutors Routinely Bar Blacks, Study Finds," Miller-El said the district court failed to consider the historic exclusion of African-Americans from juries. The state court denied the appeal.

After exhausting his appeal options in state court, Miller-El sought habeas corpus relief in a federal district court. The district court denied the petition and a unanimous 5th Circuit Court of Appeals panel affirmed.

In the courts opinion, Judge Harold DeMoss Jr. acknowledged that Miller-El's "primary challenge is to the districts court alleged failure to give proper weight and credit to the evidence which he presented regarding the historical data evidencing exclusion of African-American jurors." Despite this, the three-judge panel determined that Miller-El failed to provide "clear and convincing evidence" to challenge the courts ruling that prosecutors struck ten out of eleven African-Americans from the jury pool for race-neutral reasons.

The appeals court based its analysis on the three-tiered test the U.S. Supreme Court provided in its 1986 opinion in Batson v. Kentucky, to evaluate discrimination claims in jury selection. Under Batson, a defendant must provide evidence indicating that prosecutors deliberately excluded potential jurors during selection because of race alone. Prosecutors must then offer a race-neutral explanation for why they objected to the excluded jurors. In determining the merits of a Batson claim, trial courts are advised during the third phase of review to consider any relevant information in determining whether prosecutors systematically discriminated against a particular race of jurors.

In seeking Supreme Court review, Miller-El's attorneys argued the appeals court erred in failing to consider corroborating evidence regarding jury selection during the third stage of Batson review. "Pattern-and-practice evidence is relevant in determining the genuineness of prosecutors race-neutral reasons," said Jim Marcus, Miller-El's attorney.

But prosecutors say discrimination was not an issue. "There was no historic pattern of racial discrimination," said Lori Ordiway, chief of the appellate section in the Dallas District Attorneys Office. Though only one juror on Miller-El's trial was African-American, Ordiway said that another member was Hispanic and one juror was Philippine. "One-quarter of the jury was non-white or non-Anglo."

The debate over whether courts should consider non-trial specific evidence of jury discrimination during the third phase of Batson review warrants Supreme Court review, Marcus said. "Not only are the rights of the accused and potential jurors at issue, but the integrity of the judicial process is also on the line," said Elisabeth Semel, an attorney with the Death Penalty Clinic at the University of Californias Berkeley Law School, who filed an amicus brief in support of Miller-El.

On Feb. 15, 2002, the Court granted certiorari in the case. Miller-El's execution, which was scheduled for Feb. 21, was stayed temporarily. Texas officials selected the February date, which was the tenth execution scheduled for Miller-El, after the 5th Circuit denied Miller-El's appeal in August 2001.

On Feb. 25, 2003, just over a year after Miller-El's execution date, the Court, by a vote of 8-1 sided with him, holding that the district court did not give sufficient consideration to Miller-El's claims of unconstitutional discrimination.

Writing for the majority, Justice Anthony Kennedy pointed to a host of factors that indicated Miller-El had made the needed prima facie case, including whether the prosecution acted with a race-based reason when striking prospective jurors was raised by the statistical evidence demonstrating that 91% of the eligible African-Americans were excluded from Miller-El's venire; by the fact that the state trial court had no occasion to judge the credibility of the prosecutors' contemporaneous race-neutral justifications at the time of the pretrial hearing; by the fact that three of the state's proffered race-neutral rationales for striking African Americans pertained just as well to some white jurors who were not challenged and who did serve on the jury; by the evidence of the state's use of racially disparate questioning; and by the state courts' failure to consider the evidence as to the prosecution's use of the jury shuffle and the historical evidence of racial discrimination by the Dallas County District Attorney's Office.

The lone dissenter was Justice Clarence Thomas, the only black member of the Court.