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Monday, June 13, 2005

A critique of Justice Souter's Miller-El v. Dretke death penalty opinion (and a Beldar war story about picking juries)

I'll tell you what's wrong with the United State Supreme Court's 6/3 decision today in Miller-El v. Dretke. And if you understand how our state and federal trial and appellate courts are supposed to work, you'll see that it's wrong — regardless of whether you support or oppose the death penalty.

And, because I'm a crusty old trial-lawyer writing for a blog instead of a law review, I'll tell you a war story to help make my point.


Thomas Joe Miller-El is black. He was convicted of capital murder by a Dallas County jury and sentenced to death. Today's majority opinion, written by Justice David Souter, held that he's entitled to federal habeas corpus relief — essentially a federal order commanding the State of Texas to either retry or release Mr. Miller-El — on grounds that the prosecutors impermissibly used racial discrimination in exercising their peremptory jury strikes, with the result that some black potential jurors weren't selected. The resulting jury that convicted and sentenced Mr. Miller-El comprised seven white females, two white males, and three other males who were, respectively, black, hispanic, and Filipino (although you must turn to Justice Thomas' dissent, in which Justice Scalia and Chief Justice Rehnquist joined, to find that out.)

Let me say up front that I do not know, one way or the other, whether these prosecutors in this particular case were or were not acting out of racial bias when they made their peremptory jury strikes. Plausible arguments can be made that they were — and such arguments fill almost all of Justice Souter's 33-page opinion. Plausible arguments can be made that they were not — and such arguments fill almost all of Justice Thomas' 36-page dissent. My criticism does not at all depend on which of those arguments is true, or more true, or more likely correct than the other, in this particular case.

Mr. Miller-El's arguments and Justice Souter's opinion were based on a 1986 Supreme Court decision about race and the jury selection process, Batson v. Kentucky. To say that Batson itself has spawned confusion and chaos — in both criminal and civil cases, state and federal, trial and appellate — would be a considerable understatement.

How bad is the mess? Well, I've read Batson, and I've read some (but only a fraction) of the appellate precedents that have tried to interpret and apply it. Yet I picked a jury in a civil case in Harris County District Court back in March — and I have absolutely no idea whether anything I did or didn't do in that jury selection, or that my opponent did or didn't do, violated Batson.


That's because like every other trial lawyer, in deciding how to exercise peremptory strikes on my client's behalf, I relied in that case upon my observation and intuition and experience. But all of that was filtered through and undoubtedly affected to some extent by a whole bunch of stereotypes. Sex-based stereotypes; age-based stereotypes; class and occupational stereotypes; geographic stereotypes; religious stereotypes; grooming stereotypes. And yes, racial stereotypes.

I'm pretty sure my opposing counsel did too. But I don't even understand fully what stereotypes I used and how much weight I gave each of them, so I certainly can't claim to know that about my opposing counsel's exercise of discretion.

Now, in this particular trial, I was representing the plaintiff in a car-crash personal injury case. This was a very simple case. Neither side was using "jury consultants" or "shadow jurors"; we hadn't done any demographic studies or taken any polls or conducted any "focus groups." I've done those things in big cases, though, and I know that what they would have produced — while perhaps very impressive and polished — would ultimately have been a series of guesses and hunches, partly also based on stereotypes.

The way civil juries are selected in Houston, each side submits its list of peremptory strikes simultaneously, and the clerk seats the first twelve potential jurors who haven't been either excused for cause (by the judge) or stricken peremptorily (by either side). So it's quite common for there to be "double-strikes" — jurors whom neither side could persuade the judge to excuse (and may not even have attempted to do so), but whom both sides "spend a strike" on.

I used one of my side's strikes on a well-dressed white female bank manager because — according to the "conventional wisdom" and trial-lawyer lore and stereotypes — she was a "model defense juror" for a PI case. But I only had six strikes to use, and there were several other "model defense jurors" whom I didn't strike. So why her?

I just didn't like the way she looked at me. Sorry, that's the honest, best, and most complete answer I can give. Would she have turned out to be a "defense juror"? I have no idea, and neither does anyone else, including her.

It turned out, though, that my opposing counsel had also stricken her. "Why'd you strike Number 14?" I asked him. "She's a model defense juror!" I said.

"Yeah," he said, "but I just didn't like the way she looked at me."

One prospective juror in the front row was a tall young man, white, late twenties, with a long straggly beard and long hair down to the middle of his back. He was wearing a t-shirt, jeans, and sandals. Single, no religion listed. "Occupation: music sound engineer." Fidgety; wouldn't look at either lawyer or any of the parties, just stared at his lap. Very close-mouthed in response to questions. The instant short-hand reference my team used for him — sorry, this is crude and likely to offend some — was "Jesus." When going through the list with my team to pick our strikes, I said to them, "We don't need to spend any time talking about 'Jesus,' he's a certain defense strike, and based on his demographics and conventional wisdom, he's probably a pretty good plaintiff's juror anyway." So we skipped him.

My opponent didn't strike "Jesus," though, and he made it onto the jury. I asked my opponent, "Why didn't you strike 'Jesus'?" (My opponent instantly knew who I meant.)  "Dunno," he answered, "just a feeling."

"Jesus" became the jury's eventual foreman. Interviews with other jurors after the verdict suggest he was a big tort reformer, intensely skeptical of all personal injury plaintiffs, and very articulate in persuading the other jurors to return a damages verdict that I thought was shockingly tight-fisted by historical Harris County standards.

I didn't have any reason to think that the racial composition of the jury was going to be particularly important, given the parties and issues. But yeah, I factored that in, to some extent, in deciding how to exercise my strikes. How? I dunno, and I couldn't tell you if I tried. I'm certain that my opponent did too, but I can't tell you how, and doubt he could either.

So did race have any impact on this absolutely garden-variety civil trial? I dunno. I tend to think not, but I can't absolutely exclude that possibility. But nothing happened to tickle my radar; neither I nor my opposing counsel mentioned anything about the race of anyone to each other or the judge, much less trying to mount a "Batson-challenge" to each other's use of our peremptory strikes.

I can tell you that this jury was unique in my experience in one way, however: twelve eleven men ended up being seated.\*/ I was happy with that at the time, based on the "conventional wisdom" that women can tend to be harder on, and less sympathetic to, other women — and my client was female. With this particular jury, though, the "conventional wisdom" didn't pan out — and maybe that particular piece of wisdom is just a load of crap.

Was I disappointed in this particular jury's verdict. Oh, yes, I was indeed — we won, expected to win, and deserved to win on liability, but I thought these jurors were really miserly (based on my wholly subjective comparison to jury verdicts in other cases I've either tried or seen tried). But were they "unfair"? I don't have any reason to think so. Was the trial fair? Oh, yes — it was a remarkably clean trial, with experienced lawyers on both sides who weren't trying to break any of the rules, and an experienced judge who appreciated that and therefore was able to let us try our cases pretty much the way we wanted to. The whole thing took a day and a half, start to finish. Neither side had any legal grounds for an appeal — not based on jury selection, or evidentiary rulings during the trial (there were only a couple of those that were even disputed, and we worked out compromises on both), or on the court's charge to the jury. I was disappointed with this result, but I certainly can't say that "justice was not done."


I'm not saying that this trial I've just described was "typical" or in any way "uniform." I'm emphatically not denying that historically, trial lawyers everywhere, in both criminal and civil cases, have used and continue to use race and racial stereotypes. I'm not saying that Batson is "bad law," at least in principle. And I repeat, I don't know whether the prosecutors who handled Mr. Miller-El's case stepped over the appropriate line.

But I'm pretty sure they don't know for sure either — didn't at the time, don't know now. I'm quite sure that anyone who operates exclusively on the basis of racial stereotypes or any other "conventional wisdom" is going to do a lousy job of jury selection because whatever "art" is involved in exercising peremptory strikes requires more sensitivity and open-mindedness than that.  And my strong (albeit entirely subjective) sense and my personal experience over the last 25 years has been that those stereotypes have become less and less valuable as predictors of jury outcomes.

But back, at last, to Judge Souter and the proper role of the United States Supreme Court. That Court does not exist to right individual wrongs — not even in death penalty cases. Anyone who thinks that the Supreme Court could do that, or even approximate doing that, is a fool. The Supreme Court's job is to announce the rules for other judges, and for the lawyers who practice before them, to follow. And friends and neighbors, the Hon. David Souter's opinion for the Court in Miller-El v. Dretke completely fails in that regard.

The Supreme Court's decision today means a lot to Mr. Miller-El and his lawyers, I'm sure, and I don't mean to mock or belittle him or them. But no lawyer or judge reading that opinion is going to have a clue what it means for any other case. Any time an appellate decision contains long, long quotes from the trial transcript and not many case citations, that's a pretty good hint that the decision will be of little precedential value. And that's almost all Justice Souter's opinion is.

That's not the only problem, though. Mr. Miller-El's case has gone up and down through the Texas trial and appellate court system, and then through the federal district court and the Fifth Circuit. But now the Hon. David Souter — joined by five other Justices — has looked at the record (some of which the Texas state courts never saw), and he's come to the conclusion that these particular prosecutors stepped over the line, wherever it is. And to do so, he's engaged in juror-by-juror, question-by-question, line-by-line second-guessing of the prospective jurors, the prosecutors, and the trial judge! So we read, for instance, this:

[Potential juror] Fields should have been an ideal juror in the eyes of a prosecutor seeking a death sentence, and the prosecution's explanations for the strike cannot be reasonably accepted.

Are you kidding me? Here's a Justice of the U.S. Supreme Court deciding — years after the fact and on a cold written record — that a prosecutor must have been lying about his intentions because he deviated from the "conventional wisdom." You're damned if you stereotype; and now, you're damned if you don't.

Leave aside the fact that Congress passed a law specifically designed to prohibit the federal courts (including the Supreme Court) from doing that sort of second-guessing. (This point, regarding the Antiterrorism and Effective Death Penalty Act of 1996, is in my view the strongest and most appropriate argument in Justice Thomas' dissent. I think Justice Thomas also couldn't resist the temptation to get into the "I saids" and "He saids" with Justice Souter, but that's just not what the Supreme Court is supposed to do.) Completely apart from that statute, if any federal court should be doing this second-guessing at all, it should be the federal district court, with the circuit courts available to correct those occasions when a federal district judge has gotten something conspicuously and obviously wrong. For the Hon. David Souter to reach into the maelstrom, pluck out one case, and say, "I've come to a different conclusion from reading this record" is a misuse of the Supreme Court's resources. It certainly encourages every litigant to seek Supreme Court review. It diminishes, or at least randomizes, the roles of the federal district courts and courts of appeals. It's bad policy — whether you're for or against the death penalty. It's the kind of confusion about the proper role of the Supreme Court that you might excuse in a former appellate court justice whose job has been to do that sort of fact-specific review of the record; but it's been a long time since Justice Souter was in that job, and with due respect, he needs to rise above that role.


And so I find myself in the unusual position of saying something nice about Justice Stephen G. Breyer. Justice Breyer concurred in Justice Souter's opinion, but also wrote separately and fairly briefly. And I think he, at least, "gets it" — he understands that regardless of the Court's good intentions, Batson has been and continues to be a disaster:

... Miller-El's challenge has resulted in 17 years of largely unsuccessful and protracted litigation — including 8 different judicial proceedings and eight different judicial opinions, involving 23 judges, of whom 6 found the Batson standard violated and 16 the contrary.

(The six being, of course, Souter, Stevens, O'Connor, Kennedy, Ginsburg, and Breyer himself — all on the Supreme Court, so their six votes count more than the other 16 votes combined.) He continues:

The complexity of this process reflects the difficulty of finding a legal test that will objectively measure the inherently subjective reasons that underlie use of a peremptory challenge. ...

... [Among other problems,] Batson asks judges to engage in the awkward, sometime[s] hopeless, task of second-guessing a prosecutor's instinctive judgment — the underlying basis for which may be invisible even to the prosecutor exercising the challenge. ... In such circumstances, it may be impossible for trial courts to discern if a "seat of the pants" peremptory challenge reflects a "seat of the pants" racial stereotype.

Now, Justice Breyer has to be cute here, because he's just signed on to Justice Souter's opinion which purports to have done the "impossible" — and to have done it better, in some mysterious way, than all of the lower state and federal courts did. I'd rewrite that last sentence just to state the obvious — it is impossible to do with any precision or predictability whatsoever.

Justice Breyer's proposed solution is to eliminate peremptory challenges altogether — which would mark a very, very radical change in centuries-old jury trial practices, civil and criminal. I think that would be a serious mistake. It would amount to a statement that "this part of the art of practicing trial law has been abused by some practitioners (although we can't come up with any rules that would let everyone agree as to when) — so we're going to abolish this part of the art." I'd hate to see that happen, because I believe that as whimsical and subjective as jury selection is, it still contributes in a mostly-positive way to that fuzzy goal we call "justice."\**/

No, I'd propose something quite different. I'd propose that we keep peremptory challenges, but that we leave the prevention of their abuse virtually entirely to trial judges. They have broad, enormous discretion in all sorts of other fuzzy, subjective areas, subject only to restricted review by appellate judges. It's a sad historic truth that some trial judges used to be racists too, and that they failed to follow their instincts or uphold our common national principles; and to the extent that Batson has moderated those excesses, that's some justification for its past transaction costs (in terms of uncertainty and confusion). But the Supreme Court can't — can't, not even if it wanted to, not even if you think it should — be relied upon to fix these problems individually, not even in death penalty cases. If anyone should be allowed to second-guess how trial lawyers use their peremptory challenges, it should be the trial judges who've seen the faces, heard the tones of voice, and assessed everything that's happened using all of the soft, squishy, and invaluable subjective experience that accrues from presiding over many, many trials.

You can't take "seat of the pants" decisions out of the practice of law, folks. But having the Hon. David Souter serve as "tailor-in-chief," picking at decades-old threads in the crotch of someone else's pants, hurts rather than helps the system.


\*/Rereading this, I realized that I misremembered this detail. It was actually eleven men and one woman — still unique in my own experience.

Posted by Beldar at 08:09 PM in Law (2006 & earlier), Trial Lawyer War Stories | Permalink


Other weblog posts, if any, whose authors have linked to A critique of Justice Souter's Miller-El v. Dretke death penalty opinion (and a Beldar war story about picking juries) and sent a trackback ping are listed here:

» Justice Souter Practices Mind Reading and Thread P from Sue Bob's Diary

Tracked on Jun 14, 2005 12:58:30 PM

» If you want to understand why.... from Media Lies

Tracked on Jun 14, 2005 8:05:41 PM

» Beldar’s War Story on Picking Juries from Patterico's Pontifications

Tracked on Jun 14, 2005 8:47:12 PM

» Kinsley: Are editorial boards relevant? from blogHOUSTON

Tracked on Jun 14, 2005 10:45:47 PM


(1) ed made the following comment | Jun 14, 2005 12:03:22 AM | Permalink


Should I be disgusted? It's the Supreme Court. Of course they deserve nothing but contempt.

(2) Patterico made the following comment | Jun 14, 2005 1:30:36 AM | Permalink

As a trial lawyer myself, I love such stories. I laughed out loud -- I mean *loud* -- twice.

I don't always trust the trial judges to be as observant as I am, though. I got "Wheelered" (motion based on racially motivated peremptories) when I worked in Compton. (It happens to every prosecutor in Compton.) The woman I had just stricken had been sleeping in the audience the previous day. But the judge told me he hadn't noticed that (and consequently, as in one of today's Batson cases, told me I was close to the line).

The kicker is that I have to turn around to watch the people in the audience, and the judge doesn't. But I always pay attention to them -- mostly to see who's sleeping. If they're sleeping in the audience, they will be crappy jurors.

But in this particular situation, as far as the cold record looked, I looked like a liar. Because the judge hadn't been alert.

I still agree with your basic premise. Just a quick war story of my own, to make the point that those experienced trial judges aren't infallible (I know you already knew that).

(3) VA Jim made the following comment | Jun 14, 2005 6:32:23 AM | Permalink

So what is tight-fisted or miserly?

(4) Steven Jens made the following comment | Jun 14, 2005 9:25:25 AM | Permalink

Could you elaborate (you weren't long-winded enough!) on how jury-selection contributes to justice?

My understanding is that British courts seat the first jurors on the list unless they have quite serious conflicts of interest. I'd be interested in seeing a comparison by someone who has seen both systems at work.

(5) Kent made the following comment | Jun 14, 2005 11:52:30 AM | Permalink

The bank teller looked at you funny, so you struck her. She looked at your learned opponent funny, so he struck her. Maybe she just doesn't like lawyers?


I much enjoy the war stories. Perry Mason without Viagra commercials.

I do have my doubts about peremptory challenges. It sounds like you consider them a very important part of the system. Can you elaborate more on why you think this is so?

(6) Beldar made the following comment | Jun 14, 2005 12:31:51 PM | Permalink

VA Jim, as to whether this jury was "tight-fisted": I really don't want to get into the specifics of the evidence here. But here's the general outline:

My client had discharged her original lawyers (for what I thought were excellent reasons, but again, I don't want to get into that in detail here), and I was hired only days before trial. So I had to try the case on the record they'd developed, which was less than ideal. Although there was no real dispute over whether the defendant had caused the collision or whether my client had been injured in it, the defendant's lawyer argued that some of my client's continuing medical problems could be traced to other, prior accidents.

Only two witnesses testified — my client and one of her treating physicians, a young neurologist with excellent credentials who was in no way a "hired gun." His medical opinion, unrebutted, was that this accident, rather than the others, had caused her continuing problems. But as a jury concededly has the right to do, this one only partly accepted his testimony, and came to its own conclusions on causation. As a consequence, they awarded only about half of her medical bills, plus roughly that same amount again for her past and future pain and suffering. Calculating pain and suffering awards is necessarily very subjective, but my past experience has been that most Harris County juries will award at least a small multiple (say, two or three times) of the claimant's medical expenses.

The total verdict was a few thousand dollars higher than the pretrial offer that had been made by the defendant's insurer, but was less than his policy limits — and my pretrial goal and expectation was that the jury would award at least the policy limits. Also, my client's original lawyers had, predictably, intervened to try to enforce their contingent fee agreement, but we eventually were able to reach a compromise on that issue. So after deducting their compromise-reduced fee, plus the amounts (also the product of compromises) required to reimburse my client's health insurers for the medical bills they'd paid, the net amount remaining was quite modest — worth both my and my client's trouble in going to court for, but on a purely economic basis, just barely.

I'm still wondering whether this result reflects a fundamental, broad change in local jury attitudes or whether this jury was an aberration. Although I'm satisfied with my performance, I would have done some things very differently had I been working the case up from scratch. Still, I'm not sure that those differences would have made much difference in the size of the verdict, and I'm inclined to think that as a result of public concerns with tort reform, Houston juries really have changed in the last few years. They're not just on the look-out for "phony" or exaggerated claims, they've ratcheted down the whole system. (That's also based on my observation of the jury selection and results of another PI case that began trial while my jury was deliberating; it, too, returned a plaintiff's verdict, but a very, very modest one.)

Economics notwithstanding, I'm still glad that I took on and tried this case. I was very offended by the conduct of my predecessor counsel and felt that my client had been abused by them; I felt like my profession owed her better treatment than she'd gotten, frankly. And had I not agreed to take it, her claim would have been dismissed outright, and then the defendant's insurance company would have gotten a very undeserved windfall. She also got the catharsis of being able to tell her story in court and the satisfaction of having the jury assign the blame to the defendant — both of which are intangible, but still valuable. And although I've first-chaired many personal injury cases to verdict over the last 25 years, my previous PI trials had all been from the defense side, and I'd never taken a plaintiff's PI case all the way to verdict; indeed, I hadn't tried a personal injury case to verdict from either side in several years. So part of my reason for taking this case on the brink of trial was the certainly that it would go to a verdict, and I gained some valuable experience and more current insights into local jury tendencies that will help me in other cases.

\**/Mr. Jens and Kent, the process really ought to be called "juror de-selection" rather than "jury selection." Batson is premised on the notion that one side can use strikes to get a jury that's biased in its favor. Maybe that's possible with some jury pools; but far, far more often, each side's lawyers are trying to use their limited number of strikes to remove the jurors they perceive as likely to be most biased against them.

Patterico's war story above (about the sleeping prospective juror) is an excellent example to show why it's appropriate to allow each side's lawyers to de-select at least a few jurors who the judge will not otherwise excuse. The art of exercising peremptory strikes lies in making completely subjective but still somewhat accurate assessments as to which jurors are going to be unreceptive to your case — perhaps because of serious bias and hostility that they won't admit under questioning, or perhaps simply because they're asleep.

Sometimes you strike someone who you're pretty sure has some powerful secret agenda, even if you aren't at all sure which way it cuts. The glare from the bank officer that I interpreted as anti-plaintiff, for example, my counterpart interpreted as an indication that she was "squirrely" and therefore dangerously unpredictable. Neither of us wanted her on the jury, but the judge would never have excused her "for cause," and so she ended up being a double-strike. There was actually one other double-strike on this jury — again, someone who was just "giving off vibes" that spooked both me and my opponent, although I can't tell you why.

Both sides attempt to trim off jurors whom they perceive to be at the extreme margins. And most experienced trial lawyers firmly believe (as I do) that we're at least partly successful at that. If that's not done, the percentage of crackpots who make it onto juries will increase — which will result in more hung juries in particular and, even when verdicts are reached, tend to further randomize them.

Finally: Patterico's anecdote does indeed confirm that even experienced trial judges aren't infallible. But at least they have the opportunity to observe, and their own "radar" (since they're mostly former trial lawyers) is there in the courtroom with them. I don't know how well tuned Mr. Justice Souter's radar is, but I know it was beeping from somewhere in Washington, not in Dallas at Mr. Miller-El's trial; that it beeped only many years after everyone had left the courtroom; and (as Justice Breyer points out) that same written record hadn't started 16 other equally remote judges' radar beeping.

(7) Mike made the following comment | Jun 14, 2005 10:23:56 PM | Permalink


This is a dramatic shift in the balance of power between prosecutor and defense attorney. Instead of equal peremtory strikes, the defense is not limited, but the prosecutor must guard against making any racially motivated strikes, and he must guard against the APPEARANCE of racially motivated strikes.

(8) Jim D made the following comment | Jun 14, 2005 10:56:12 PM | Permalink

I read about the El-Miller decision today as I was wrapping up at work.

It seems the Supreme Court is taking all of these niceties that I've just learned and thrown them out the window.

I reckon the Supremes ALWAYS do that (this is why they are Supreme). Still, it adds for confusion.

I was taught a mere six months ago that the Batson standard for peremptories tended to be a hard standard to violate (that is, it would be difficult to prove improper motive in getting the jury thrown out). I'm not so sure any more. I tend to agree with your sentiments on this case, Beldar.

I also find myself - as a student, not a practitioner - somewhat worried that the Supreme Court's trend towards being ultra-nitpicky in interpreting Strickland's ineffective assistance of counsel standard. Granted, I wouldn't want to be sentenced to death because my lawyer was a somnabulent drunk. But I worry there's a slipper slope to what the Court has been doing, and if they don't draw the line somewhere anybody who gets convicted of murder will argue that their lawyer sucked and that will be the end of it.

I appreciate your recent comments on Burnt Orange Report, btw.

(9) David Nieporent made the following comment | Jun 15, 2005 2:21:05 AM | Permalink

I was taught a mere six months ago that the Batson standard for peremptories tended to be a hard standard to violate (that is, it would be difficult to prove improper motive in getting the jury thrown out). I'm not so sure any more.

Three words: Death. is. Different. Throw capital punishment into the mix, and appellate judges do all sorts of strange things. The AEDPA was supposed to eliminate this sort of judicial nitpicking, but as Thomas points out in his dissent, they ignored it. They never would have issued this ruling if Miller-El had been sentenced to LWOP.

(10) TP made the following comment | Jun 15, 2005 9:50:55 AM | Permalink


Your entire criticism seems to boil down to the point that J. Souter has no basis for second-guessing the trial court's opinion based ona years-cold record.

I'm sorry, but that exact criticism could apply equally well to hundreds of issues of appellate review of fact issues that occurred in the trial court. Deference should be given -- but not blindness. The job of a reviewing court is just that -- to review even determinations of factual issues that occurred years, if not decades ago.

I can certainly see the problems inherent in such a system. But that's the point -- they inhere in the system of appellate review of factual determinations we tend to have in this country. I fail to see why your criticism has any specific force as to this particular issue -- as you yourself acknowledge, you are not contending that the prosecution's conduct in this case was, as a matter of fact, proper.

I respectfully dissent from your dissent. ;-)

(11) Troopship Berlin made the following comment | Jun 15, 2005 10:13:55 AM | Permalink

Seventy years ago, in Norris v. Alabama, 294 U.S. 587 (1935), the Supreme Court held that the intentional exclusion of blacks from jury service solely because of race, is a denial of equal protection to a black defendant in a criminal case.

In California, where I practice, this rule has been expanded and re-stated in Code of Civil Procedure §§ 231.5, as follows:

A party may not use a peremptory challenge to remove a prospective juror on the basis of an assumption that the prospective juror is biased merely because of his or her race, color, religion, sex, national origin, sexual orientation, or similar grounds.

There is a question as to whether these rules make any sense from a logical standpoint, and it is posed in the April 25, 2005 issue of National Review by Theodore Dalrymple, who is a physician, not a lawyer.

The question is: If people are removed from juries because of their "race, color, religion, sex, national origin, sexual orientation, or similar grounds," does it follow that the resulting trials are unfair? Dalrymple concludes that it does not, whether the stereotypes or assumptions which caused the removal of the prospective jurors were accurate or not:

"If the stereotypes were not accurate, there is no reason to believe that the verdicts would have been any different if juries had been selected that included [in Dalrymple's examples] Jews and black women. (I am assuming, of course, that the juries from which they were excluded nevertheless performed their duty to the best of their abilities. It is not alleged otherwise.)
If, on the other hand, the stereotypes were accurate, and for example 'no Jew would vote to send a defendant to the gas chamber' ———— to quote the words of Alameda County judge Stanley Golde, himself a Jew who sentenced many murderers to death, and therefore a refutation of his own dictum ———— then including Jews and black women in the juries would not render the trial fairer, it would merely render it unfair in precisely the opposite direction. A fair trial involves fairness to the prosecution as well as to the defense. Thus, those who hold that the absence of stereotypically merciful Jews and black women from the juries rendered the capital trials in Alameda County unfair are in fact denying the possibility of a fair jury trial at all, under any circumstances whatsoever. And if there cannot be a fair jury trial, no particular unfairness of a jury trial can be objectionable. Unfairness is in fact the best we can hope for: Indeed, we might as well have trial by ordeal."

"It might be argued that it is better for an unfair trial to be merciful than for it to be punitive: though better for whom? The proposition that it is preferable for a murderer to go free than for him to be executed is at the very least a doubtful one, from which many, probably most, people dissent."

"In theory, the Supreme Court has forbidden the exclusion of jurors on the grounds of race and religion, but it is difficult to believe that lawyers do not use these as sociological markers for beliefs that are either favorable or detrimental to their clients' cases. But even rejection of jurors without reference to their race or religion, on the grounds of their past and present beliefs, is a denial of the possibility of juror objectivity. It is like saying that a doctor who dislikes a certain patient will prescribe only poison for him, or fail to diagnose a fatal illness in someone whom he likes."

Nothing I've read about Miller-El raises a reasonable doubt about whether he committed the crime for which he was convicted. Presumably, if there were any doubt about Miller-El's guilt, somebody on the Supreme Court would have made that argument.

As far as I know, no one has argued that Miller-El's jury convicted him on the basis of racial animus, rather than on the basis of the evidence. Jurors are not required to be bias-free; they are only required to set aside any biases they may have, and decide cases on the basis of the evidence. There is no indication that the jurors failed to do this.

(12) Beldar made the following comment | Jun 15, 2005 10:53:57 AM | Permalink

TP, I'm not suggesting that the Supreme Court endorse the use of racial prejudice in making strikes, nor that the issue be exempt from appellate court review. I am suggesting that it's not the Supreme Court's job to correct individual abuses — it's the trial judge's job, backstopped mainly by the first-level appellate judges in his own judicial system. If Miller-El's state-court trial judge had reached the same conclusion that Justice Souter did, I'd have no real problem with that. If the Texas Court of Appeals or Court of Criminal Appeals did, I wouldn't have much of a problem. If the federal district judge who reviewed the habeas petition reached that conclusion, I still wouldn't fuss. The Fifth Circuit ought to be able to correct the very rare circumstances in which all those other judges have gotten things wrong.

Mr. Nieporent, I agree with you that as a practical matter, the Supreme Court (and for that matter, all courts) should and do give extra close looks to death penalty cases, and that had this not been one, the Supreme Court wouldn't have intervened. Batson, however, has been read to apply to all civil and criminal jury trials, so the transaction costs and confusion it imposes are indeed broad.

Jim D, I was privileged to assist the judge for whom I clerked (Judge Carolyn King, now Chief Judge of the present Fifth Circuit) in writing the (old) Fifth Circuit's panel opinion in Strickland, which the en banc court (Unit B, now the Eleventh Circuit) overturned, and then the Supreme Court essentially put back into place. Although I agreed with the law that the Supreme Court announced in Strickland, I was a bit peeved that the Justices proceeded to an independent review of the record and concluded that Mr. Washington couldn't meet the newly-clarified tests for proving ineffective assistance. (My judge's opinion for the original panel had remanded for the federal district court to reconsider the record using the clarified tests.) So Strickland itself was another example, IMHO, of the Supreme Court paying selective lip service to the notion that lower courts ought to be given the first shot at applying the correct legal standards. Back then (1980-1981), as the wave of death penalty cases tried under post-Furman statutes was surging back through the Fifth Circuit, Strickland actually represented a substantial and helpful clarification of the law on ineffective assistance (on which there'd been a huge split between the circuits); we knew, and very much hoped in fact, that Strickland was likely to go up when we were working on the panel opinion. But under whatever standard, it's more or less inevitable that most convicted defendants will try to argue ineffective assistance pretty much regardless of the legal standard or the record from his actual trial representation; and I certainly don't have a problem with them having the right to do so. As for Miller-El, I don't think it makes any new law; it just tells everyone in the system that the Supreme Court doesn't mean what it says about standards of review and deference to lower courts, and that their attempts to apply Batson will be subject to Supreme Court reversal on a somewhat random basis (although more likely in death penalty cases than others, probably).

Troopship Berlin, the whole premise of Batson, and of the "conventional wisdom," is ugly: Blacks will vote against convicting blacks, whites will vote to convict blacks, regardless of the evidence. While I think our society has made enormous progress in the last half-century, that the ugly premise is less true now than formerly, and that in other areas of the law (e.g., "affirmative action") our laws should begin transitioning toward genuine color-blindness, I can't deny that there are pockets (mostly geographic, but perhaps sometimes case- and issue-specific) still left in which racial discrimination may still be prone to distorting the criminal justice system. That's why I'm not calling for Batson to be overturned altogether; but I don't think the Supreme Court is the only court that can be trusted to enforce it, and I don't think the entire Texas state-court system or the Fifth Circuit are systemically incapable of doing so (which of course is the spin that the media has put on Miller-El).

(13) TP made the following comment | Jun 15, 2005 11:33:11 AM | Permalink


I don't necessarily share your confidence in Texas appellate court judges' handling of death penalty cases on review. While I have nothing but respect for the jobs the fine judges of this state do, the facts are that they -- including the Fifth Circuit -- have been repeatedly admonished by the Supreme Court on death penalty issues.

Even a whole bunch of appellate courts can sometimes get issues wrong.

Personally, I think it was fine for the SCT to step in here, because the evidence was so overwhelming, IMO. As Publius noted over at LF, if this case doesn't present a Batson violation, no case does. The fact that a bunch of reviewing courts looked at this and didn't see a problem is only the beginning, not the end, of the inquiry.

I still tend to think you are asking far too much deference be shown. If you are disagreeing with the majority's opinion on the evidence, as J. Thomas did, I have no problem at all. But you've said several times that you're not disagreeing with that. This is odd to me. Without arguing that the SCT got it wrong on the law, you seem to be contending that the SCT got it wrong because they didn't bow to what the lower appellate courts have found on the matter.

That seems almost question-begging, B. The entire question is whether the lower appellate courts actually got it right. I don't see how your argument works if you begin by offering no opinion on whether the SCT -- or the courts they reversed -- were closer to the 'right.' If it's improper for the SCT to review even these wholly factual issues on a cold record, that's not deference. It's blindness. It's no review at all, IMO.

(14) Beldar made the following comment | Jun 15, 2005 12:42:49 PM | Permalink

Good points, TP, as always. I'll try to respond to them.

First, I disagree with your (and the MSM's) characterization that the judges of the Texas appellate courts and the Fifth Circuit "have been repeatedly admonished by the Supreme Court on death penalty issues." Justice Souter's opinion doesn't contain any sweeping admonition. That's just spin — an interpretation — based on a few reversals of death penalty opinions from Texas. I could just as easily write: "The Supreme Court has repeatedly commended the Texas appellate courts and the Fifth Circuit for affirming the death sentences of dozens and dozens of capital defendants over the last decade." There have, after all, been far more refusals by the Supreme Court to intervene than reversals, and my spinning that into a "commendation" is just as accurate as someone spinning Miller-El into an "admonition."

The reason I haven't picked sides as between Justice Souter's and Justice Thomas' characterizations of, and conclusions from, the specific record in Miller-El is that I haven't read the record. They both (at least constructively, through their law clerks) have, as have the Fifth Circuit and Texas state-court appellate judges. Whoever is applying Batson is, by definition, drawing a conclusion as to the subjective intention of the prosecutors who exercised the peremptory strikes. But the closer you are to the trial judge's position, the more information (objective and subjective) you're going to have, and the more accurate your conclusion is likely to be.

When you say "if this case doesn't present a Batson violation, no case does," you're drawing a subjective conclusion from various judges' attempts to articulate the "totality of the circumstances" that they reviewed, and then you're comparing that to other hypothetical cases. Well, heck, I could indeed point to other cases that quite arguably have stronger circumstances — for example, the capital convictions of black defendants by all-white juries that came out of Dallas County when the ballyhooed "manual" was still official policy and the prosecutors could be shown to have actually read it. But regardless, all of us who haven't read the record are second-guessing second-guesses of second-guessers.

If forced to do so, I'd probably side with Justice Thomas' characterization of the record from this specific case as being more persuasive. But I really don't want to argue that position, and I certainly agree that reasonable people can draw (and have drawn) different conclusions in good faith, both directly from that record and from various judges' characterizations of it.

So my criticism really is not of the result reached by Justice Souter and the Justices who joined in his opinion. It's of the process.

Note that Justice Souter and Justice Thomas don't disagree about what kind of factors the trial judge and the reviewing courts should have considered. They disagree about the respective weight that should be accorded to them — the composition of the pool, the "trick questions" (a description that implies a value judgment) of the prosecution, the significance of the manual, or for that matter (although they don't mention this), the fact that Texas sided with the Confederacy in the civil war and was part of an ugly history of institutionalized racism.

If the lower courts considered appropriate factors, then their having given them different weights on the specific facts of one case is just not a reason for the Supreme Court to take and reverse a case. And it injects delay, uncertainty, confusion, and randomness when they do so selectively, because their analysis of the specific facts of one case, and their assigning of relative weights to the facts in it, isn't useful for other lawyers or judges in making future evaluations of or predictions about the facts in other cases.

They never had an official prosecutors' manual in Houston, for example, that suggested that prosecutors ought to strike blacks, hispanics, and Jews from death penalty juries. Exactly how much does that matter in the next Batson challenge that's made, or reviewed, in Houston (the so-called "world capital of the death factory")? I dunno. Do you? Is it offset by the fact that Houston convicts more capital defendants per annum than Dallas does? Then how about the next capital case from Berkeley-on-the-Colorado (a/k/a Austin)? Miller-El doesn't tell us, and can't tell us, how to perform those calculations. There's no tabulation like "Okay, ten-year-out-of-date manual counts for 18 points, twelve-year-out-of-date manual counts for only 16, but that Filipino who made it onto the Miller-El jury counts for minus-3 in the matrix."

The only thing anyone can be certain of is that Justice Souter, joined by five other Justices, looked at the Miller-El record and drew different conclusions from it than three other Supreme Court Justices and every other state and federal trial and appellate judge who also looked at that record. Which tells me, if I'm representing a defendant, that there's a random-but-somewhat-better chance that my Batson challenge might ultimately win in the Supreme Court. But it doesn't tell me why, and it doesn't give me anything specific to use in the lower trial or appellate courts, and I'm unlikely to risk their wrath by just saying to those judges (as the press has), "Hey, you guys better loosen up, or the Supreme Court's gonna bust you again like they did in Miller-El."

(15) TP made the following comment | Jun 15, 2005 3:34:43 PM | Permalink


I did not mean to imply that this opinion constitutes the admonishments. But I respectfully disagree that the Texas courts have not been reversed -- the Fifth Circuit twice in one case, if memory serves -- a significant number of times by the SCT. Now, obviously, they have been affirmed more often than not, but that's something of a straw man, because I doubt anyone would suggest otherwise.

I think there are enough instances -- and the merits of the opinions thereto -- of appellate courts in Texas being reversed in capital cases by the SCT to qualify as something of a pattern. I understand if you do not.

Re the merits of your position, I believe I understand your argument. But I still think its boils down to the point that the SCT should not have reversed this factual determination because no other appellate court did. And I am simply not persuaded by that argument.

Sometimes, even multiple appellate courts can get it wrong, and if they do, then the higher court has every right to examine the factual determinations made and decide if they were proper -- all while granting the appropriate deference to lower court determinations. I still maintain that your position makes deference absolute, and the concept of meaningful review of factual issues almost empty.

And I still don't understand how your conception of this case can be disentangled from your perception of the correct state of the facts. I'm just not sure how an opinion on the merits of the SCT's review of this case can be extricated from a view on the merits of the substantive questions.

(In case it isn't clear, Beldar, let me restate that I mean no disrespect and have great esteem for your blog and your opinions in general; I just happen to disagree with you on this one)

(16) Beldar made the following comment | Jun 15, 2005 3:52:53 PM | Permalink

TP, your comments are always respectful (usually moreso than is due), civil, and welcome here, and your esteem is reciprocated!

One last bit, though, from Rule 10 of the United States Supreme Court, and I'll let us agree to disagree:

A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.

"Rarely" isn't "never," of course, and I'd agree that "mere" correction of an erroneous factual finding is especially important in a death penalty case. And maybe that's all that Miller-El was. But as a practical matter, even ignoring the AEDPA (as Justice Souter and I have both largely done), the Supreme Court can't, and doesn't, correct all erroneous factual findings even in death cases. And if indeed that's all that happened here, I'd have preferred Justice Souter to write a one-line opinion saying, "I've reviewed this record, and the federal district judge's factual conclusion as to whether the totality of the circumstances showed illegal discrimination was 'clearly erroneous.'" Then Justice Thomas could have written, "I dissent because I disagree with the majority's review of the record." And those two one-liners would have provided absolutely as much useful guidance (i.e., not very much) to the lower courts and lawyers who practice in them as what actually will appear in the law books.

(17) GC made the following comment | Jun 17, 2005 6:24:22 AM | Permalink

Nations and states are similar to individuals, whether we like it or not and are and should be held to the same standards. If the individual commits a crime there should be consequences. Once a murderer always a murderer. Once a bigot always a bigot..Texas is a victim of its own history from slavery to Jim Crowe and recent biases in rulings. The only perfect punishment for its past crimes is that it becomes a majority minority state. Until that happens Texas would always be judged for its past and present racism!

(18) Dave II made the following comment | Jun 17, 2005 12:56:01 PM | Permalink

Wow. As a resident of Texas who has also lived in other states, I really don't think that last comment by GC should stand. "Once a bigot, always a bigot." That represents the worst sort of stereotyping: to condemn all the fine, hard-working, and decent people in a state based on the sins of past generations. That sort of statement is simply ridiculous.

(19) Glenn made the following comment | Jun 20, 2005 6:21:10 PM | Permalink

I find GC's attempt to conflate murder and bigotry interesting. Nobody would deny bigotry is a bad thing, and bigotry has undoubtedly led to murders. But to put them side by side in the spectrum of bad acts is hyperbole to say the very least.

The U.S. Constitution goes out of its way to forbid holding sons accountable for the sins of their fathers. Seems CG thinks corruption of blood might actually be a viable legal principle in spite of the Founder's wisdom. While we are at it, maybe we should make racial bigotry a capital crime. I mean, some opinions just can't be tolerated in a tolerant society, eh?

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