RACE-BASED JURY SELECTION AND THE SUPREME COURT:
A New Grant Of Review Recalls The Lessons Of A Divisive Earlier Ruling

By EDWARD LAZARUS

Tuesday, Feb. 19, 2002

On Friday, the Supreme Court granted review in the case of Thomas J. Miller-El. Miller-El, a death row inmate in Texas, contends that his prosecutors intentionally kept blacks from serving on his jury.

It is widely expected that the Justices accepted the Miller-El case in order to clarify their 1986 ruling in Batson v. Kentucky. That landmark decision outlawed what had been a common practice among prosecutors - the practice of using peremptory challenges to eliminate blacks from juries. (Peremptory challenges, unlike "cause" challenges, allow a party to get a juror stricken from the jury panel without offering a reason for doing so.) The prosecutors' practice arose either out of unadorned racial bias, or because black jurors were, as a group, considered overly sympathetic to defendants.

In the Miller-El case, prosecutors challenged 10 out of 11 potential black jurors (Miller-El is also black). Moreover, the one black juror to whom prosecutors raised no objection had told the court that he viewed execution as "too quick" a method of punishment for murderers. "Pour some honey on them and stake them out over an ant bed," he said.

The key to Miller-El, however, is not Batson alone. In preparing their case for the Supreme Court, Miller-El's lawyers would be well advised to search the archives of the Library of Congress. There, some important internal Court papers can be found. They describe the Justices' deliberations in an obscure case that was argued at the Court 14 years ago. No opinion was issued except a terse one-sentence declaration that the Justices had deadlocked. But much more went on behind the scenes.

Enforcing Batson - Or Not

At the time that case, Tompkins v. Texas, was decided state courts were, in effect, ignoring Batson - which required judges to crack down on prosecutors who sought to manipulate the racial profile of juries. Tompkins challenged the Justices to put a stop to the way state judges were flouting Batson's command.

But with Justice O'Connor recused from the case, the Justices deadlocked 4-4 as to what to do. As a result, widespread disregard of Batson by state judges continued, and the rights of those affected by the misconduct of prosecutors kept on being violated.

For Miller-El's lawyers, Tompkins must be viewed as a cautionary tale. It is an example of how even seemingly self-evident propositions can never be taken for granted when courts, even the Supreme Court, are confronted with death penalty cases.

One might think the Justices, whether or not they had agreed with the Batson decision, would at least agree that, as Court precedent, it ought to be enforced. But that is not how the Tompkins case turned out.

The Facts of Tompkins v. Texas

Phillip Tompkins, a borderline mentally retarded black man, was driving around Houston, Texas smoking dope when he decided that he needed some money. To that end, Tompkins rear-ended a car driven by a young woman named Mary Berry, and abducted her when she stopped to survey the damage to her car.

Tompkins then drove Berry to a remote location, tied her to a tree, stuffed part of a bed sheet in her mouth, and went off to Berry's bank to use her automatic teller card. While Tompkins withdrew $1000, Berry choked to death on the gag.

The panel of prospective jurors for Tompkins trial included 13 blacks. The prosecutor struck 8 of the 13 "for cause," advancing a specific reason why each of the 8 should be disqualified. The prosecutor then eliminated the 5 remaining blacks using peremptory challenges, for which he did not give - nor was he required to give - a reason.

As a result, Tompkins was tried by an all-white Texas jury. The jury convicted him of capital murder - specifically, intentional murder committed in the course of a robbery - and sentenced him to death.

Applying Batson's Three-Step Framework

In the Batson case, decided prior to Tompkins, the Supreme Court had established a method for evaluating whether a prosecutor, in exercising the power to excuse jurors, had improperly target a racial group for elimination. The method had three steps.

First, the defendant raising a Batson claim had to meet an initial burden of showing a suspicious pattern in the prosecutor's jury selection technique. Second, if a defendant met this burden, then the prosecutor had to come forward with a race-neutral and case related justification for why he or she struck each of the jurors at issue. Third and finally, it was the role of the trial court to assess the prosecutor's race-neutral and case-related explanations to determine whether they were genuine or, instead, a pretext for racial discrimination.

Phillip Tompkins readily carried his initial burden of showing a suspicious pattern in the prosecutor's method of jury selection. After all, the prosecutor eliminated every single black from the jury panel.

Then the prosecutor came forward with her explanations. But several of these did not ring true. For example, she claimed to have eliminated one juror because she worried that he was illiterate, even though the record showed no such thing.

The prosecutor also claimed to have eliminated another juror because he was a postal worker. At first, she testified that she'd had bad luck with postal workers as jurors. However, on cross-examination she admitted that, in fact, she'd had quite good luck with postal workers in past cases. In any event, she could not explain how the juror's status as a postal worker was a "case-related" justification for eliminating the juror - as Batson requires.

How the Texas Courts, One After Another, Acknowledged Yet Ignored Batson's Test

The state trial court recognized that the prosecutor's proffered justifications did not hold water. Still, the court refused to grant Tompkins a new trial. Instead, the court decided to look at the record for itself and come up with its own explanations for why the prosecutor might have wanted to strike the black jurors. On that basis, the court affirmed Tompkins's conviction and death sentence.

The Texas Court of Criminal Appeals, in turn, recognized that the trial court's methodology was fundamentally flawed. Under Batson, the very essence of the trial court's responsibility was to examine the prosecutor's actual proffered explanations and test their credibility - not to make up rationalizations on the prosecutor's behalf, as the trial court had in fact done.

Yet the court of appeals also affirmed Tompkins's conviction and sentence. It agreed with the trial court that the prosecutor's actual justifications made little sense. Yet the court of appeals announced that it was not in the business of assessing credibility and concluded that, because it was unable to independently evaluate the credibility of the prosecutor's explanations, it would simply accept them as true.

So it was that the case came to the Supreme Court. One might have thought, under the circumstances, that a clear majority of the Justices would have agreed that the approach of the Texas courts seriously compromised the potential effectiveness of Batson. After all, in the Texas system, Batson's three-step method for judges to police prosecutors had effectively been turned into a way for judges to protect prosecutors from themselves, instead. But it was not to be.

In Deliberations, Five Justices Initially Agree to Enforce Batson - But Not For Long

At their secret conference after oral arguments, five of the Justices - liberals William Brennan, Thurgood Marshall, Harry Blackmun, John Paul Stevens, and moderate Anthony Kennedy - voted the same way. The five agreed that Batson required a reversal of Tompkins's conviction and sentence. None of them could fathom the prosecutor's he-was-a-postal-worker excuse for one of the strikes. And, in any case, the Texas courts had made a hash of the proper Batson analysis.

Inside the Court, however, a poisonous atmosphere envelops almost all the capital cases. For decades, they have been the bloodiest battleground between the liberal and conservative wings of the Court. The conservatives accuse the liberals of bending the Constitution to suit their purely moral beliefs; the liberals accuse the conservatives of coldly ignoring the basic rights of capital defendants. As a result, deliberations over capital cases - the cases that arguably deserve the most painstaking treatment - are often the least thorough and well-reasoned of all.

Justice Kennedy Reverses Himself, But His Reasons Do Not Persuade

Amid that atmosphere, a silent pressure built. The pressure, exerted by the conservative Justices, was on Justice Kennedy, and it seems to have driven him to revisit his vote in Tompkins's case. While the legal issue in Tompkins's case might have been clearcut, it was also clear to the Justices that a victory for Tompkins would mean that a convicted murderer would escape death row (at least until a new trial was held, at any rate). And so, six months after oral argument in Tompkins, Kennedy circulated a short memo announcing that he had changed his mind.

Kennedy did not defend the prosecutor's explanations (which he had ridiculed previously). Instead, like the Texas trial court, Kennedy set aside the methodology established in Batson, and announced that he had reviewed the trial record himself, and that he could imagine non-race-based reasons why a prosecutor might not have wanted these particular blacks on the jury. Like the Texas courts, he effectively became an apologist for the prosecutor Batson had charged him with scrutinizing.

Kennedy did not explain why his personal review of the record was relevant under Batson. Nor did he explain how his assessment of the record could possibly substitute for the illogical and inconsistent explanations the prosecutor actually had advanced, when the goal of Batson was to get at the question whether that particular prosecutor was using those particular explanations as a guise for racial bias.

A Second Chance for Justice Kennedy to Revisit A Key Jury Selection Issue

One of the perks of being a Justice is that you never have to explain yourself. But Kennedy's change of heart meant everything to Tompkins, whose conviction and death sentence would now be affirmed without published opinion by an equally divided court. (This is the Court's custom under such circumstances). For their trouble, Tompkins and his attorneys received a one-sentence ruling noting the Court's split.

When the Miller-El case comes before the Court, perhaps Justice Kennedy will think back fourteen years to his about-face in the Tompkins case. It is possible that he may ask himself whether, if he had only maintained the courage of his original convictions, state courts long ago would have become more vigilant in observing the protections Batson provides.

Justices do not always get second chances to correct their mistakes. One can only hope that Kennedy makes the most of his.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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