LOCATION:United States Court of Appeals for the Ninth Circuit
DOCKET NO.: 01-7662
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Fifth Circuit
CITATION: 537 US 322 (2003)
ARGUED: Oct 16, 2002
DECIDED: Feb 25, 2003
Gena Bunn – for respondent
Gena A. Bunn – Capital Litigation Division, Assistant Attorney General, Austin, Texas, argued the cause for the respondent
Seth P. Waxman – Argued the cause for the petitioner
Facts of the case
When Dallas County prosecutors used peremptory strikes to exclude 10 of the 11 African-Americans eligible to serve on the jury at Thomas Miller-El’s capital murder trial, he moved to strike the jury on the ground that the exclusions violated equal protection. The trial judge denied relief, finding no evidence indicating a systematic exclusion of African-Americans. Subsequently, the jury found Miller-El guilty, and he was sentenced to death. After Miller-El’s direct appeal and state habeas corpus petitions were denied, he filed a federal habeas corpus petition. The Federal District Court denied Miller-El’s application for a certificate of appealability (COA) in deference to the state courts’ acceptance of the prosecutors’ race-neutral justifications for striking the potential jurors. The Court of Appeals also denied the COA, finding that Miller-El failed to present clear and convincing evidence to the contrary.
Must an inmate demonstrate that a state court’s finding of the absence of purposeful discrimination was incorrect by clear and convincing evidence in order for a court of appeals to issue a certificate of appealability?
Media for Miller-El v. Cockrell
Audio Transcription for Opinion Announcement – February 25, 2003 in Miller-El v. Cockrell
William H. Rehnquist:
The opinion of the Court in No. 01-7662, Miller-El versus Cockrell will be announced by Justice Kennedy.
Anthony M. Kennedy:
In 1986, two Dallas County Assistant District Attorneys in a state criminal trial used preemptory strikes to exclude ten of the eleven African-Americans eligible to serve on the jury, and that jury tried the petitioner, Thomas Joe Miller-El.
During the ensuing 17 years, petitioner has been unsuccessful in establishing that his conviction and his death sentence must be vacated because the jury selection procedures violated the Equal Protection Clause and the holding of this Court in Batson versus Kentucky.
The claim now arises in a federal petition for writ of habeas corpus.
The United States District Court determined that petitioner failed to establish a constitutional violation warranting habeas relief and after losing in the District Court, the petitioner wanted to appeal but federal statutes require before that appeal can be taken that an appellant judge issue a certificate of appealability and in this small universe of the law, that is called a COA.
The Court of Appeals for the Fifth Circuit denied a COA and that denial is the subject of our decision today.
We have no difficulty concluding that a COA should have issued.
The critical question in the case is the so-called third step of the Batson analysis and that is asking whether or not the petitioner has proved purposeful discrimination and this in turn, depends on the persuasiveness of the prosecutorial justification for the preemptory strikes.
That issue often comes down to whether the trial court finds the prosecutors raised neutral explanations for the strikes were credible.
Credibility can be measured by among other factors, the prosecutor’s demeanor, by how reasonable or how improbable the explanations were, and by whether the prefered rationale had some basis in accepted trial strategy.
In this case, the petitioner presented extensive evidence that the prosecutor’s justifications might not be credible.
Statistical evidence alone raises some debate as to whether the prosecution acted with a race-based reason when striking prospective jurors.
The prosecutors used their preemptory strikes to exclude 91% of the eligible African-American venire members and only one served on the petitioner’s jury.
In total, ten of the prosecutor’s fourteen preemptory strikes were used against African-Americans.
Happenstance is unlikely to produce this disparity.
We questioned the Court of Appeals the dismissive and strained interpretation of the petitioner’s evidence of disparate questioning.
Petitioner argues that the prosecutor’s sole purpose in using disparate questioning was to elicit response from the African-American veneri members that reflected an opposition to the death penalty or an unwillingness to impose a minimum sentence, and this is more than a remote possibility.
Disparate questioning did occur, and in our view, a fair interpretation of the record on this threshold examination in the COA analysis is that the prosecutor’s designed their questions to elicit responses that would justify the removal of African-Americans from the veneri panel.
Another concern is a text of practice known as a jury shuffle, and this procedure permits parties to rearrange the orders in which the member of the veneri are examined so as to increase the likelihood that visually preferable members will be moved forward in the room and empaneled, and with no information about the prospective jurors other than their appearance, the party requesting the procedure literally shuffles the juror cards and the venire members are then reseated in the new order, and jurors who are shuffled from the front to the back of the panel are less likely to be questioned or to serve on the panel.
We agree with the petitioner that the use of the jury shuffle is a matter of further concern in all the circumstances of this case as set forth in the opinion.
Finally in what we again, emphasize is just a threshold examination, we accord some weight to petitioner’s historical evidence of racial discrimination by the District Attorney’s office.
It reveals that the culture of the District Attorney’s office, at least in a period before the case was tried, was suffused with bias against African-Americans in jury selection.
This evidence of course is relevant to the extent it casts doubt on the legitimacy of the motives underlying the state’s action in this particular case.
To secure habeas relief, petitioner must demonstrate that the State Court’s finding of the absence of purposeful discrimination was incorrect and he must demonstrate that by clear and convincing evidence, and he must also show that the corresponding factual determinations of the District Court were objectively unreasonable in light of the record before the Court.
State represents to us the petitioner will not be able to satisfy his burden and that may or may not be the case.
It is not, however, the question before us.
The COA inquiry asked only if the District Court decision was debatable.
Our threshold examination convinces us that it was.
The judgment of the Fifth Circuit is reversed and the case is remanded for further proceedings consistent with this opinion.
Justice Scalia has filed a concurring opinion and Justice Thomas has filed a dissenting opinion.