A Death Penalty Case the Supreme Court May Review Shows the Dysfunction of the Federal Judiciary When It Comes to Capital Punishment

Today, June 24, the Supreme Court will decide whether to take up - for the second time in as many years -- the nineteen-year-old Texas capital case of Miller-El v. Cockrell. Let us hope that it does so.

It is rare indeed for the Court to take up the same case twice. But this would be a terrific opportunity to make an exception. This capital case perfectly illustrates how our fatally flawed death penalty system can lead to terrible injustice. Choosing to review it, then, would in a sense allow review of the system itself.

It might also prick the consciences of death penalty justices who still think the system can operate in a fair manner. For Miller-El's fate has been anything but fair and just.

The Death Penalty Dynamic That Miller-El Illustrates So Well

For the last 30 years, the death penalty has been a cancer eating away at the integrity of the federal judiciary.

The corrosion started no later than 1972, when the Supreme Court decided, in Furman v. Georgia, by the slimmest of margins - 5-4 - to strike down every state capital punishment statute in the country. When the Supreme Court overrides elected officials in such a significant way, it has a special obligation to provide a strong and coherent rationale. Yet in Furman, not one of the five justices in the majority agreed with a single one of the others about the constitutional basis for taking this extraordinary step.

And the corrosion continued after 1976, when, in Gregg v. Georgia, the Court reinstated the death penalty, while at the same time promising that the judiciary would actively police how the states implemented capital punishment. What followed was a war between liberal judges, who used the promise of regulation to completely paralyze the system of capital punishment, and conservative judges, who never really believed in the Court's promise of careful regulation and did little or nothing to honor that mandate.

Over time, this dynamic has brought out the worst in countless jurists, liberal and conservative alike. And it has torn apart courts, including the Supreme Court -- eroding the sense of trust and common purpose that is essential to the collegial enterprise that is appellate judging.

Nor has the bruising judicial combat over the issue yielded any noticeable progress. We are no closer now, than we were a generation ago, to producing an accurate, equitable, and just system for choosing who shall die at the hands of the state.

To see the destructive dynamic at work one need look no further than Miller-El.

The Serious Constitutional Issues that Miller-El Raises

Miller-El is an African-American man who was convicted and sentenced to die by the State of Texas, before a nearly all-white jury. The central issue in Miller-El's case is how the prosecutors used their peremptory challenges - that is, the challenges with which prosecutors can automatically eliminate jurors without having to give a reason for doing so.

Miller-El argues that the prosecutors used their challenges to eliminate potential African-American jurors -- skewing the racial composition of the jury to make a conviction and death sentence more likely. The Constitution prohibits that kind of race discrimination, as the Supreme Court explained in a case called Batson v. Kentucky.

A quick look at the facts suggests that Miller-El has a pretty good case. The prosecution used peremptory challenges to remove 91% of the potential African-American jurors from the jury pool, but only 13% of the potential white jurors. So the statistical argument alone is quite strong.

It turns out that, before the Batson decision came along, the prosecutors' office that tried Miller-El used to have a policy of deliberately taking African-Americans off capital case juries. They even had a training manual instructing prosecutors in this unlawful strategy. And it seems that at least one of the prosecutors in Miller-El's case was in the office during the time this manual was being used. So he had presumably been trained to commit this very kind of constitutional violation - trained, that is, to discriminate.

Some pretty strange stuff happened during jury selection, too. This county in Texas has a practice known as jury "shuffling." This is a procedure by which one side or the other can change ("shuffle") the order in which prospective jurors will be called for examination for possible seating on the case. In other words, say you are the prosecutor and you don't like the batch of jurors sitting in the front row of the jury pool, you can call for a shuffle and change the seating order for the entire pool.

In Miller-El's case, the prosecution shuffled the jury twice. And it just so happens they called for a shuffle exactly when the front row of the jury pool -- meaning the next set of prospective jurors -- had a number of African-Americans in it. There was also evidence presented that the prosecutor's office admitted to having used the jury shuffle to eliminate blacks in the past.

The prosecutors' questioning of prospective jurors also raised questions about racial motive. When they were questioning African-American jurors, the prosecutors seemed to work a whole lot harder to elicit potentially disqualifying answers, than when they were questioning prospective white jurors.

Though the Evidence Was Strong, the Courts Were Wrongly Unimpressed by It

Now, you might think that judges would have been reasonably impressed with all of this evidence - and especially, all of it taken together. While this evidence was circumstantial, in the sense that no prosecutor confessed to discrimination, it was very, very strong. And it all led to the same conclusion: The prosecutors - exactly as had been taught in that county for decades - had manipulated Miller-El's jury to eliminate the African-Americans.

But in fact, just the opposite was true: The courts seemed entirely unimpressed with this telling evidence. Indeed, the state court that first heard Miller-El's Batson claim did not even think he had raised even the barest inference that the prosecutors had eliminated jurors on account of their race.

In short, despite all that evidence, this judge somehow didn't think Miller-El had even made it past the starting gate to be able to begin his challenge.

The Basics of A Batson Challenge: Understanding The Three Steps

To appreciate the significance of this judge's finding, it is necessary to understand the basics of how a Batson challenge - that is, an accusation that the prosecutor is using peremptory strikes in a racist way - actually works.

The Batson analysis has three steps. In step one, the defendant claiming discrimination must make out a "prima facie" case. Basically, this is a technical way of saying that the defendant has to present some evidence - not very much - raising an inference that the prosecutor using race as a basis for striking jurors.

Usually, a defendant makes this showing simply on the basis of a statistical disparity between the prosecutor's use of challenges against African-American and white jurors - such as the 91% to 13% disparity in Miller-El's case.

If a defendant completes step one, then in step two, the burden shifts to the prosecutor. The prosecutor must advance race-neutral explanations for each of the peremptory strikes that the defendant has challenged as racially motivated. He might say, for instance, "The defendant claims I struck that potential juror because she is African-American. But actually, I was concerned that her job as a psychologist would make her too sympathetic to defendants."

If the prosecutor advances such race-neutral reasons, in step three, the burden shifts back to the defendant to show that, in fact, the prosecutor's was intentionally using race as the basis for his jury strikes, regardless of his explanations. Typically, this is done by showing that the prosecutor's explanations are implausible and, hence, merely a pretext camouflaging the prosecutor's real motive. (Suppose, for instance, that the prosecutor who eliminated the African-American psychologist did not eliminate a white clinical social worker.)

If the defendant succeeds in his showing, the court can then craft a remedy to address the violation.

The Court's Rejection of the Batson Challenge in Miller-El's Case

Now, let's return to Miller-El's case, and see how the Batson inquiry played out there.

As noted above, the initial Texas state court that reviewed the case concluded that Miller-El -- despite the statistical disparity and despite the evidence of an actual past prosecutorial policy of targeting African-American jurors for elimination -- had failed even to pass step one. Recall that this step was merely the presentation of a "prima facie" case - some evidence, but not much evidence, that race motivated the strikes.

Moreover, the court added that Miller-El still would have lost his challenge, even if he had gotten past step one, and into step two (race-neutral explanations) and step three (showing that the explanations were pretexts. The court pointed out that the prosecutor had come forward with race-neutral explanations - mainly, that the African-American jurors who were taken off the jury panel had too many doubts about the death penalty. And the court said that Miller-El had failed to show that these explanations were pretextual.

Compounding the Lower Court's Mistake: No Certificate of Appealability

Eventually, Miller-El's case made its way through the rest of the Texas state court system, and up to the United States Court of Appeals for the Fifth Circuit on a writ of habeas corpus.

Along the way, not a single court held for Miller-El; all of the Texas courts, and the federal district court, held for the prosecution. The result (under arcane procedural rules) was that the Court of Appeals did not have authority even to review the case unless it was willing to grant a "Certificate of Appealability" (COA).

To get a COA, a defendant has to have raised a claim about which, at a minimum, reasonable minds can differ. And in Miller-El's case, the Fifth Circuit decided, remarkably, that Miller-El's claim was so weak it failed to meet even this standard.

Reasonable minds couldn't differ, according to the Court; every reasonable person, the Circuit felt, would see that Miller-El should lose.

The Supreme Court Reviews Miller-El and Reverses the Fifth Circuit's Ruling

Fortunately, more than a few of the Supreme Court's reasonable minds felt differently. The Court granted review in Miller-El's case. And last year, not only did the Court reverse the Fifth Circuit, it did so resoundingly, by an 8-1 vote. (This kind of near unanimity is almost unheard of in death penalty cases, which traditionally have divided the Court, often rancorously.)

As a technical matter, the only issue decided by Justice Anthony Kennedy's majority opinion was whether Miller-El had presented sufficient evidence of a Batson violation to warrant the issuance of a COA. But the underlying message of Kennedy's detailed and emphatic opinion was broader.

Carefully parsing and weighing the evidence, Kennedy sent a message to the Fifth Circuit, to the courts of Texas, and to courts everywhere. The message was this: Don't turn a blind eye to the kind of deeply troubling evidence of racial prejudice that Miller-El amassed.

In Kennedy's view, the raw numbers, the prosecutorial policy of discrimination, the jury shuffling, and the suspicious questioning all strongly supported Miller-El's claim. And while Kennedy recognized that on habeas corpus review, the findings of the state trial court (which had believed the prosecutor's explanations) are ordinarily accorded substantial deference, he concluded that much less deference was due in Miller-El's case.

Why? In part, Kennedy explained, because the judgment of this particular Texas trial court was significantly impeached by the fact that it had made a "clear error" in holding that Miller-El had failed to satisfy even step one of the Batson analysis, when he plainly had. (Indeed, even Texas itself conceded that point when the case reached the Supreme Court.)

The Later Fifth Circuit Proceedings: Following the Dissent, Not the Court

The upshot of the Court's decision was that the case went back to the Fifth Circuit, and a COA was issued. In sending the case back, however, Justice Kennedy not-so-subtly hinted (but did not order) that Miller-El ought to get a new trial, one that would occur in front of a properly selected jury.

The Fifth Circuit then had to decide what it would have decided had it properly granted the COA in the first place: Did Miller-El prove his Batson challenge? Amazingly, it said no. And it thus did not give him the new trial Justice Kennedy plainly believed he ought to have.

Not only did the Fifth Circuit fail to take Kennedy's hint, it also - and this is far worse, from the standpoint of judicial integrity - entirely ignored his logic. Indeed, its opinion adopts the analysis of the lone Supreme Court dissenter in Miller-El's case, Clarence Thomas.

How the Opinion Tracked Thomas's Dissent, and Ignored Kennedy's Majority View

Two quick examples make the point, although they do not begin to exhaust the material.

First, recall that Justice Kennedy clearly indicated that the state trial court's findings should be viewed skeptically in light of its clearly erroneous view of the evidence - a view of the evidence Kennedy described as "strained" and inappropriately "dismissive."

Despite this warning that the trial court findings did not deserve much deference, the Fifth Circuit granted it extreme deference. Specifically, it adopted the trial court's finding discounting the importance of the prior prosecutorial policy of intentionally and openly using jury strikes to remove African-Americans.

Second, recall that - among other factors -- Justice Kennedy found very probative of discrimination the prosecutors' use of jury shuffling. And note that he was especially concerned by the use of this gambit exactly when it looked like more African-Americans would get seated on the jury.

Despite this emphasis on the value of the jury shuffling evidence, the Fifth Circuit - like Justice Thomas before it -- as much as ignored that evidence. In doing so, it pointed out - just as Justice Thomas had done -- a fact of which Justice Kennedy was well-aware: that Miller-El's lawyer had also called for jury shuffling.

But the Fifth Circuit completely missed (or chose to ignore) Kennedy's point. There is nothing intrinsically wrong with calling for a jury shuffle. Thus, the fact that Miller-El's lawyer called for several shuffles does not mean he did anything wrong. (And even if the defense lawyer was doing something wrong, that does not excuse the prosecutor from his obligations).

Rather, Kennedy's point was that the Miller-El prosecutor chose to call for a jury shuffle at a particularly suspicious time - right when a group of African-American jurors were at the front of the jury pool. He also noted the evidence that this prosecutor's office had misused the shuffle in the past. The fact that Miller-El's lawyer also called for shuffling in no way makes the timing of the prosecutor's shuffles less suspicious. Again, whatever the defense may have done, it cannot negate racial discrimination by the prosecution - which, if it occurred, violation the Constitution.

Fifth Circuit Defiance Provides a Strong Reason for Supreme Court Review

The point here is not that no court could conceivably rule against Miller-El. Rather, the point is that the Fifth Circuit's decision -- by contradicting the reasoning of the Supreme Court majority and parroting the reasoning of the solo dissenter -- comes perilously close to defiance of the Court.

Such near-defiance, what might be called bad faith judging, is damaging under any circumstance. It is especially damaging in the context of the death penalty -- and other hot button issues -- where the integrity of the judiciary is most cruelly tested. (It must be added on this score that conservatives have been right to cry foul when liberal judges have engaged in similar quasi-defiance to frustrate the death penalty).

More broadly, the Fifth Circuit's will also have the effect, if it is left standing, of nullifying the Supreme Court's central message in its Miller-El decision. And that message urgently needs to be heard: The Court was right to stress that the judiciary at every level should be more vigilant in policing prosecutorial abuse of the peremptory challenge system.

If the Court grants review a second time, it will send a new, and equally important message - one that cannot be repeated often enough. The message is this: Courts are ultimately judged by their fair-mindedness and the integrity of their reasoning. That is a test they cannot afford to flunk.