The Leadership Conference on Civil and Human Rights

The CIVIL RIGHTS MONITOR is a quarterly publication that reports on civil rights issues pending before the three branches of government. The Monitor also provides a historical context within which to assess current civil rights issues. Back issues of the Monitor are available through this site. Browse or search the archives

Winter 2004

Supreme Court Clarifies Habeas Corpus Rules1 

Miller-El v. Cockrell, No. 01-7662

 

Introduction

On February 25, 2003, the Supreme Court lowered the barriers faced by inmates seeking to challenge their criminal convictions by making it easier to appeal the denial of federal habeas corpus relief.  Clarifying complex procedural rules, the Court, in an 8 to 1 decision in Miller-El v. Cockrell, ruled that inmates need not prove they will succeed on their habeas corpus appeals in order to have their appeals heard.  Rather, inmates must only make a substantial showing of the denial of a constitutional right in order to be granted a certificate of appealability, the prerequisite to having their appeals considered.

At the same time, the Court gave new life to its nearly two-decade old Batson v. Kentucky decision that barred the use of racially biased strikes in the jury selection process. Critically examining evidence that prosecutors in Miller-El's murder trial had excluded African American jurors because of their race, the Court reversed the Fifth Circuit's decision and sent the case back to the lower courts to carefully consider Miller-El's claims.  

Procedural Background

When Dallas County prosecutors used peremptory challenges (challenges without stated reasons) to strike 10 of the 11 African-Americans eligible to serve on his jury, petitioner Thomas Joe Miller-El moved to strike the jury on equal protection grounds. Despite the introduction of extensive evidence in support of the motion, the trial judge denied relief, finding no evidence of systematic exclusion of African-Americans, as required by then-controlling precedent in Swain v. Alabama.  The jury subsequently found Miller-El guilty of capital murder, and he was sentenced to death.

While Miller-El's appeal was pending, the U.S. Supreme Court established, in Batson v. Kentucky, a three-part process for evaluating equal protection claims such as the one he had raised: (1) whether the defendant had made a prima facie showing that a peremptory challenge had been exercised on the basis of race; (2) if that showing was made, whether the prosecution had offered a race-neutral basis for striking the juror in question; and (3) in light of the parties' submissions, whether the defendant had shown purposeful discrimination.

On remand in light of Batson, the trial court concluded that Miller-El had failed to satisfy the first prong of the Batson test because the evidence did not raise even an inference of racial motivation in the prosecutors' use of peremptory challenges. The court also determined that the state would have prevailed on steps two and three because the prosecutors had proffered credible, race-neutral explanations for the African-Americans excluded such that petitioner could not prove purposeful discrimination.

Following the denial of Miller-El's state habeas petition, he filed a federal habeas petition. The district court denied relief on the habeas claim, citing deference to the state court's findings, and subsequently denied Miller-El's motion for a certificate of appealability ("COA") of the denial of habeas relief. Miller-El renewed his request with the U.S. Court of Appeals for the Fifth Circuit, which also denied his application, finding that Miller-El had failed to make the required "substantial showing of the denial of a constitutional right."   Both the district court and the Fifth Circuit concluded that Congress's Antiterrorism and Effective Death Penalty Act of 1996, which imposed limitation on death row appeals, barred any grant of relief in Miller-El's case.

Miller-El then petitioned the Supreme Court for review, claiming numerous errors by the lower courts.  The Supreme Court granted his writ on the sole issue of whether the Court of Appeals erred in denying a certificate of appealability and in evaluating petitioner's claim under Batson v. Kentucky.  

Legal Background

In Swain v. Alabama, the Court specifically held that a prosecutor could not use peremptory strikes, which allow a party to remove a member of the venire without articulating a specific reason for the removal, to exclude African-American jurors simply because of their race.  In order to establish purposeful discrimination under Swain, a defendant was required to show that the prosecutor had discriminated in numerous cases.  It was not sufficient for the defendant to show discrimination only in his or her own case.  Not surprisingly, this onerous burden of proof made it nearly impossible for a defendant to establish purposeful discrimination.

In Batson v. Kentucky, the Supreme Court acknowledged the harshness of the Swain burden of proof and "reject[ed] this evidentiary formulation as inconsistent with standards that have been developed since Swain" for establishing discrimination.  Instead, the Court concluded that a defendant could establish purposeful discrimination by showing discrimination in his or her own case.

As noted, the Court developed a three-step process for establishing purposeful discrimination in the use of peremptory strikes. A number of post-Batson cases have involved analysis of the final Batson step-the trial court's consideration of all of the evidence to determine whether there was purposeful discrimination.

Miller-El first argued that there was a pattern and practice of racial discrimination in the selection of the jury by the district attorney's office, introducing evidence of the following:

• Written discriminatory policies, including a 1963 treatise on jury selection prepared by a top aide to then-Dallas County District Attorney, which warned prosecutors to avoid "Jews, Negroes, Dagos, Mexicans, or a member of any minority race [from sitting] on a jury no matter how rich or how well educated," and a treatise written in 1969 but included in all training manuals for prosecutors until at least the early 1980s, which stated that minority jurors were undesirable because they "empathize with the accused";
• Statistical studies, including one showing that in capital cases between 1980 and 1986, prosecutors used peremptory strikes against 90.3 percent of the qualified African-American venire members;
• Testimony of judges and lawyers, who stated that it was common knowledge that Dallas County prosecutors routinely excluded minorities from jury service in the mid-1980s; and
• Evidence that prosecutors in his case engaged in racially discriminatory selection practices in cases they tried immediately before and after his case.  One of the cases was overturned as a result of this discrimination.

In addition to the evidence of systemic discrimination, Miller-El offered evidence showing discrimination in his own case, arguing that:

• The prosecutor in his case had used peremptory strikes to remove 10 of the 11 African-American venire members.  The only African-American who was allowed to serve on the jury opined that people who committed murder should be slowly tortured to death.  The prosecution also noted the race and gender of every selected juror and all jurors who were struck by either side.  
  
• The prosecutor used the "jury shuffle" process, which allowed a party to rearrange the order of the venire members in an attempt to eliminate African-American
• White and African-American venire members were questioned in blatantly disparate ways.
• The prosecutor's proffered race neutral reasons for the use of peremptory strikes was a pretext for discrimination.  One of the prosecutor's reasons for using the peremptory strikes against African-Americans venire members was their alleged "hesitancy" to apply the death penalty.  While acknowledging that an unwillingness to impose the death penalty was a legitimate reason for striking a juror in a capital case, Miller-El noted that Caucasian jurors who expressed similar misgivings with regard to the death penalty were not questioned further and were not struck.  
  

The state made the following arguments:

• White and African-American venire members had different views on the death penalty and these differing views justified striking the African-American venire members.  The state also contended that all venire members were questioned in the same way and that any difference in questioning was a result of the venire members' views on the death penalty and not a result of their race.  
  
• The trial judge's finding of no discrimination was entitled to great deference as it was supported by the voir dire record.  The state argued that the trial judge considered all relevant evidence properly before him and reasonably determined that Miller-El had failed to prove discrimination.  
  

Majority Opinion

Justice Kennedy delivered the opinion of the Court, joined by Chief Justice Rehnquist, and Justices Stevens, O'Connor, Scalia, Souter, Ginsburg, and Breyer.  Justice Scalia filed a concurring opinion. The lone dissent was filed by Justice Thomas.

Justice Kennedy began with a discussion of the relevant jurisdictional issues.  Importantly, a petitioner does not have to demonstrate that he or she will succeed on the merits.  In fact, the Court noted "that a COA will issue in some instances where there is no certainty of ultimate relief."

Because Miller-El had raised a Batson violation, resolving his COA application required the Court to conduct a "preliminary, though not definitive, consideration" of Batson's three-step analysis. With the state now conceding that Miller-El established a prima facie case of discrimination, and with Miller-El conceding that the state proffered race-neutral reasons for its use of the peremptory strikes, the only disputed issue was whether, in light of all of the evidence, Miller-El established purposeful discrimination.  

The Court noted that an important consideration in determining whether the evidence indicated purposeful discrimination "[was] the persuasiveness of the prosecutor's justification for his [or her] peremptory strike."  The more implausible the justification, the more likely that the prosecutor discriminated.  In determining the credibility of the prosecutor's reasons for using the peremptory strikes, the trial court is given substantial deference because it has the opportunity to observe the parties.

The Court cautioned that while deference should be given, a reviewing court should not abandon its duty to review the trial court's findings.  When determining whether a COA should be granted, the Court concluded that "any evidence demonstrating that, despite the neutral explanation of the prosecution, the peremptory strikes in the final analysis were race based" supports the granting of a COA.  Only after the COA is granted and the appeals court considers the merits of the case, will the court determine "whether the trial court's determination of the prosecutor's neutrality with respect to race was objectively unreasonable and has been rebutted by clear and convincing evidence to the contrary."

On review of the record to date, the Court concluded that it had "no difficulty" finding that a COA should have been issued. The Court concluded that both the district court and the Fifth Circuit had erred in deferring to the state court's evaluation of the prosecutors' and jurors' demeanor without fully considering Miller-El's evidence. Moreover, the Fifth Circuit, which required Miller-El to show by clear and convincing evidence that the state court's decision was objectively unreasonable, had used "too demanding of a standard" for determining whether the COA should be granted.

On review of the record, the Court found that much of the evidence presented by Miller-El supported his discrimination claim.  Miller-El's statistical evidence alone, the Court stated, raised doubts regarding the prosecution's use of peremptory strikes.  Finding the lower courts' interpretations of Miller-El's evidence of disparate questioning to be "dismissive and strained," the Court stated, "Disparate questioning did occur."

The Court also agreed with Miller-El that there was evidence that the reasons given by the prosecution for striking black venire members were equally applicable to some white venire members who were not struck, making "debatable" the district court's conclusion that no purposeful discrimination occurred. The Court also noted that the use of the jury shuffle, although not directly related to the discriminatory use of peremptory strikes, lent further support to Miller-El's contention that the prosecution was attempting to strike the minority members of the venire.  Finally, the Court gave some weight to Miller-El's evidence of historical discrimination.

Throughout its analysis of Miller-El's evidence, the Court noted that it was conducting only a preliminary analysis of Miller-El's evidence and acknowledged that, ultimately, the state might be correct in its representation that Miller-El would be unable to substantiate this evidence and satisfy his burden of proof.   Nevertheless, the only issue before the Court was whether the district court's opinion was debatable, and the Court concluded that it was.

Concurring Opinion

In his concurrence, Justice Scalia wrote that the weakness in Miller-El's case was that he was unable to show that the unchallenged Caucasian members of the venire were similarly situated to the African-American members who were challenged.  Although ultimately concluding that the merits of Miller-El's case were debatable, Justice Scalia also noted that this determination was "far removed from a judgment that the State's explanation for its peremptory strikes were implausible."  

Dissenting Opinion

In Justice Thomas's view, by contrast, Miller-El was required to show, by clear and convincing evidence, that African-American members of the venire were struck because of their race, and that Miller-El had "not presented anything remotely resembling 'clear and convincing' evidence of purposeful discrimination."  

Justice Thomas summarily dismissed Miller-El's evidence of historical discrimination by the Dallas District Attorney's Office and his evidence regarding the prosecutor's use of the jury shuffle, finding that this evidence did "very little for petitioner."

While Justice Thomas conceded that Miller-El had provided some evidence that one African-American member of the venire was struck even though his answers were the same as those given by the Caucasian members of the venire, he found that this "sliver of evidence" was not enough to establish purposeful discrimination by clear and convincing evidence.

With respect to Miller-El's evidence of disparate questioning, Justice Thomas found that any difference in the questioning was due only to the venire members' already disclosed views on the death penalty and was not due to race.

Concluding that Miller-El's evidence was mere speculation, Justice Thomas found that he had not shown that the district court's opinion was debatable and had not shown, by clear and convincing evidence, that the peremptory strikes were used in a discriminatory fashion to exclude African-American members of the venire, making proper the denial of the application for a COA.

Conclusion

By forcefully stating that it "had no difficulty" finding that Miller-El had carried his burden entitling him to appeal, the Supreme Court sent a strong message to lower courts that they must carefully scrutinize claims of racial bias during the jury selection process.  Just as importantly, the Court signaled that the limitations placed on inmates' habeas corpus rights by Congress in its 1996 Antiterrorism and Effective Death Penalty Act do not mean that the courts can abdicate their role in vigilantly examining claims of constitutional error in criminal cases.