An Unusual Dissent By Justice Clarence Thomas In a Case Alleging the Use of Race-Based Challenges During Jury Selection Shows His Willful Blindness On Race Issues

On February 23 of this year, in the case of Miller-El v. Cockrell, the Supreme Court ruled, 8-1, that a death row inmate, Thomas Joe Miller-El, could appeal an adverse ruling in his case. Miller-El sought to argue on appeal that the prosecution in his trial had used peremptory challenges to unconstitutionally exclude African-Americans from the jury. (The Texas federal district judge who conducted his trial had rejected that claim.)

When prosecutors and defense counsel use their peremptory challenges to jury selection, they do not have to state their reason, unlike when they attempt to challenge certain jurors "for cause." Nevertheless, Batson v. Kentucky made clear that the use of peremptory challenges in a racially discriminatory way is unconstitutional.

Thus, the material issue in Miller-El was whether, on the particular evidentiary record at issue, the particular defendant had made a sufficient showing of racial discrimination with respect to the use of peremptory challenges. (The appeal right, in this instance, turns on the defendant's raising a "substantial" constitutional question.) Eight members of the Court thought he had; Justice Thomas disagreed.

What was the root of the disagreement? To uncover it, it's important first to explore the evidence that convinced eight Justices, but not Justice Thomas.

Evidence of Discriminatory Intent: "Jury Shuffles" and "For Cause" Challenges

In 1986, Miller-El was indicted by the State of Texas for capital murder. He pleaded not guilty. The evidence strongly suggested that the jury selection process in his case was racially discriminatory.

It started with the "jury shuffles." Texas law authorizes a "jury shuffle" process in which either the State or the defense may, without explanation, demand that the jury pool list be re-ordered. (For reasons particular to Texas, potential jurors are much more likely to be selected if they are toward the top of the list.)

On two occasions, the prosecution requested a jury shuffle when a substantial number of African-Americans were at the top of the list. On another occasion, the prosecution went so far as to lodge a formal complaint after the defense requested a reshuffling that moved prospective African-Americans jurors forward.

After the jury list was set, it was time for "for cause" challenges - in which jurors can be struck if the prosecution or defense can convince the jury that they should not serve due to bias or another disqualification. The record showed that the prosecution questioned African-Americans in a different way - in order to essentially manufacture pretexts on which to exclude these jurors for cause.

For example, when the prosecution was questioning African-Americans as to their views on the death penalty, it was ten times more likely to preface its questions with descriptions of graphic details of the lethal injection process. That type of preface was, of course, designed to convince African-American jurors that they could not apply the death penalty - and a potential juror who cannot apply the death penalty cannot serve in a capital case such as Miller-El's.

Pursuant to this type of disparate interrogation, the prosecution moved to have 60% of the African-Americans who were questioned removed for cause.

The Discrimination Itself: Peremptory Challenges Eliminate 91% of African-Americans

Once the list was set, and "for cause" challenges had been conducted, it was time for peremptory challenges to the final jury pool. Eleven members of the final jury pool were African-American, and thirty-one were not. The prosecution used its peremptory challenges to strike ten of the eleven African-Americans - that is, 91% - from the jury. In contrast, it used its peremptories to exclude only four of the other thirty-one potential jurors - that is, merely 13%--from the jury.

Put another way, although African-Americans comprised a quarter of the members of the relevant jury pool, the prosecution used almost three-quarters of its peremptory challenges to strike potential African-American jurors.

Moreover, this was hardly a fluke; evidence showed it was more like par for the course. A 1986 Dallas Morning News study of 100 randomly selected felony jury trials had shown that prosecutors from this office eliminated 92% of eligible African-Americans through the use of peremptory strikes.

The echoing statistics are quite eerie - the same office that had a habit of eliminating 92% of eligible African-Americans, ran true to form in Miller-El's case, by eliminating 91% of eligible African-Americans. Miller-El's case didn't just fit the pattern, it virtually perfectly exemplified it.

As a result of this discriminatory pattern, according to the study, although African-Americans were 18% of the Dallas County population during the year of Miller-El's trial, African-Americans were fewer than 4% of jurors in felony trials.

The Historical and Institutional Context That Indicates Discriminatory Intent

Finally, for those who might be tempted to see all this evidence as coincidental, additional evidence suggested, to the contrary, that it was entirely intentional. Statistical evidence is entirely appropriate to use in a Batson challenge; after all, since peremptory challenges by definition need not be explained when they are lodged, statistical evidence is often exactly what defendants have to work with. Here, however, there was more than a damning pattern of statistical evidence to support a finding of discrimination.

The prosecutor's office at issue had an acknowledged history of using its peremptory challenges in a racially discriminatory manner. For instance, a 1963 manual instructed prosecutors not to "take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated." A later manual informed that racial minorities should be excluded from the jury given that they "almost always" empathize with the defendant.

This evidence convinced eight Justices that Miller-El should be allowed to appeal. So why didn't it convince Justice Thomas - who concluded that Miller-El had "not presented anything remotely resembling" a sufficient showing of racial discrimination?

Justice Thomas Ignored the Cumulative Power of the Evidentiary Record

Justice Thomas's problem, in short, was myopia. He analyzed each piece of evidence Miller-El had offered as if it existed in a vacuum. In so doing, he ignored both the inter-relationships between the various pieces of evidence adduced by Miller-El, and their cumulative power. Proceeding tree by tree, Thomas missed the forest altogether.

First, Justice Thomas decided to analyze Miller-El's case independent of its context - the context of all the other cases in which the Dallas County Prosecutor's office had used peremptory challenges. But the other cases were clearly relevant.

Again, peremptory challenges need not be explained when they are lodged. They are also unlikely to be honestly explained when they are challenged: What prosecutor is going to fess up to racism? So with prosecutors unlikely to confess their intent, it has to be shown by circumstantial evidence - including statistical evidence. Did the prosecutors make the strikes with discriminatory intent? To decide that, the practices of the office culture they came from are relevant; this, after all, is the office that trained them.

Second, Justice Thomas decided to analyze the use of peremptory challenges independent of the prosecutor's use of jury shuffling. In a way, this was even more unusual, and wrong, than ignoring the practices of the prosecutors' office, since jury shuffling was part of the chronology of Miller-El's particular case. Judges do sometimes exclude evidence from other cases. But they rarely exclude evidence from earlier proceeds in the case itself - such as the jury shuffling.

Justice Thomas offered another reason to ignore jury-shuffling - that the defense allegedly used the tactic itself to eliminate Whites from the jury - but that reason was irrelevant. How could defense wrongdoing somehow negate evidence of prosecutorial wrongdoing? Batson prohibits the government from rigging juries along racial lines and the "you did it too" response is no excuse.

Willful Blindness and Irrational Formalism

In the end, Justice Thomas's weak reasons for ignoring the overwhelming evidence in Miller-El's case - evidence, remember, that convinced even hardcore conservatives Rehnquist and Scalia - suggest more than myopia. They suggest willful blindness on his part to racial injustice.

Some of this blindness seems to come from a compulsive formalism on Thomas's part. Thomas rejected the evidence of race-specific manipulation of the jury shuffling procedure as irrelevant because it did not directly involve the use of peremptory challenges. But so what?

Circumstantial, "indirect" evidence counts too, especially in Batson challenges. Is a prosecutor who intentionally sought to manipulate the jury shuffle, so as to ensure that African-Americans were not on the jury, going to suddenly take the high road and refrain from such discriminatory tactics when it comes to the use of peremptories? It seems highly unlikely.

What about the evidence that African-Americans were questioned differently than Whites on their death penalty views - in a way that encouraged them to express the very kind of death penalty opposition that would get them kicked off the jury? Justice Thomas gave it short shrift.

Dismissing this evidence, he pointed to the fact that African-Americans had disproportionately indicated an opposition to the death penalty on their juror questionnaires as the real reason that they faced more intense questioning. But even if true, that still wouldn't explain the nature of the questioning.

If the prosecution had truly been trying to ferret out "stealth" anti-death penalty jurors, it should have used the "lethal injection" preface on Whites and African-Americans alike. If, instead, it was trying to get rid of African-American jurors by convincing them to oppose the death penalty, its strategy was well-suited to its racist goal.

Indeed, even black potential jurors who expressed support for the death penalty were also subjected to the graphic description - perhaps in the hope they would change their minds. As much as Justice Thomas tried to explain away this damning fact in his dissent, he could not.

The Problem with Justice Thomas's Dissent: An Implausibly Narrow View of Evidence

In the end, Justice Thomas analyzed Miller-El's evidence far too narrowly. He approached each bit of information as if it was all that existed, and consequently failed to discern the broad pattern of discrimination exhibited by the evidence taken as a whole.

In so doing, he treated history as if it were mere anachronism; prior conduct by the same prosecutors, in the same case, as irrelevant; and blatantly racially disparate questioning of jurors - where some were asked different, and more slanted questions than others - as if it meant nothing. Worst of all, he treated the fact that African-Americans were seven times more likely than Whites to be the target of peremptory challenges as little more than happenstance.

Justice Thomas' strained reading of the record in Miller-El was one that even the Court's conservative justices could not sign on to. It is as aberrant as that fact indicates - and sadly, it constitutes willful neglect, by the Court's only African-American justice, of the way in which race continues to plague the criminal justice system, and society at large.