Tuesday, June 14, 2005

Dissecting Miller-El

As many folks know, yesterday the U.S. Supreme Court ruled 6-3 in favor of Thomas Miller-El, who is on Texas' death row. Miller-El argued that Dallas County prosecutors wrongly struck prospective black jurors from serving on his jury because they would be less inclined to vote for a death sentence.

Both the majority opinion, written by Justice Souter, and the dissent, written by Justice Thomas, are interesting. But what is even more interesting is an opinion written by Juster Breyer that concurred with the majority, but went much further.

Justice Breyer would eliminate the practice of preemptory jury strikes altogether. "The right to a jury free of discriminatory taint is constitutionally protected," Breyer wrote. "The right to use peremptory challenges is not."

Some background: As part of Miller-El's case, his lawyers raised the existence of a handbook that was used by Dallas County prosecutors when training new assistant district attorneys. The 18-page training manual, written way back in 1969, was shocking in its bigotry.

The manual had the following advice for new prosecutors when selecting a jury:

"You are not looking for a fair juror, but rather a strong, biased and sometimes hypocritical individual who believes that defendants are different from them in kind rather than degree."

"You are not looking for any member of a minority group which may subject him to oppression – they almost always empathize with the accused."

"You are not looking for the free-thinkers or flower children."

"Look for physical afflictions. These people usually sympathize with the accused."

"I don't like women jurors because I can't trust them."

"Young women too often sympathize with the defendant; old women wearing too much makeup are usually unstable and therefore are bad State's jurors."

"Extremely overweight people, especially women and young men, indicates a lack of self-discipline and often times instability. I like the lean and hungry look."

"People from the east or west coasts often make bad jurors."

"Intellectuals such as teachers etc. generally are too liberal and contemplative to make good State's jurors."

"Jewish veniremen generally make poor State's jurors. Jews have a history of oppression and generally empathize with the accused."


In light of this, the only thing we should find surprising about Monday's ruling is that it wasn't unanimous.

9 comments:

zoe kentucky said...

I really don't understand how it wasn't unanimous-- that's totally batshit crazy!!!!!

Tom McKenna said...

Ummmm... maybe you oughta read the dissent and see how the majority ignored the AEDPA in considering evidence the state court was not presented with. The majority just ignored Congresses' intent to limit their review to claims that had been made in state courts. Most of the things the majority complains about were never litigated at the state level. In other words, the supremes just did another end-run around democracy by doing their own thing despite "we the people" telling them not to.

By the way, the defendant's factual guilt is beyond doubt-- he's getting another bite at the apple because of this crazy notion that a trial should be more about promoting some social agenda than about whether THIS defendant did THIS crime and what punishment is appropriate.

David Elliot said...

Note how, in his above message, Tom ignores the issue that is central to this case: The allegation of discrimination in jury selection based on race.

Instead, he would join Thomas, Scalia and Rehnquist in procedurally defaulting the case based on AEDPA.

But since when does procedure trump substance? Well, since AEDPA, he would argue. But in a death penalty case, the question can be fairly asked, "SHOULD procedure trump substance?"

For example: Say a person who is factually innocent (and I am not claiming innocence in this case, but bear with me) is wrongly convicted and sentenced to death. Suppose he receives a constitutionally fair trial. Is it therefore right to execute him because no procedures were violated? Or because his appeals got procedurally defaulted (say, due to missed deadlines).

If it is right, what does this say about our criminal justice system? What does it say about our values as Americans? What, ultimately, does it say about us?

One irony: If Dallas County prosecutors had played fair, Miller-El would have been executed years ago and we wouldn't be having this debate. This is a case, therefore, where proponents of the death penalty should be arguing for fair play.

Peregrinus said...

Help me out here, somebody.

I'm a former Public Defender, who won more than my share of felony trials. I am firmly opposed to the death penalty, in any and all cases, but I'm also deeply concerned about the rule of law.

Is there anything at all in the record that indicates that the hideous excerpts from that manual were actually read by the prosecutors in this case? Were the prosecutors involved trained with it as a text? What, aside from the composition of the jury, was the court relying on here to show racial bias?

I know, I know, RTFOpinion. I have read what's available, but maybe not closely enough. Can anyone give me some reason from the record to assume racism was a factor?

I am loathe to assume anything about anyone's character without something more than a statistical coincidence. To call someone a racist; the worst kind of racist and a traitor to his oath at the bar, is pretty divisive stuff.

If these prosecutors lost sight of their duty to uphold justice in favor of merely "winning" a conviction, (which seems to be the attitude of that Turner Diary of an instruction manual) then they're worse than racists - they're murderous shysters unfit to serve as officers of the court.

If, on the other hand, the Court is assuming that they are striking jurors merely to "win" rather than to seek the truth, then they are laying a heavy calumny - a blood libel on them in the abscence of solid evidence.

David Elliot said...

Peregrinus makes an interesting and thoughtful comment, and I appreciate it. He read the majority opinion and he asks for evidence that the infamous prosecutors' manual influenced this particular case directly.

I, admittedly, have none. The majority opinion does seem to believe that the jury selection process overall did indeed unconstitutionally exclude minority jurors, but this argument alone does not address Peregrinus' argument.

Instead, I might go in a different direction. Check out Justice Breyer's concurrence, in which he said it is time to exclude peremptory strikes altogether. What would be the harm in that?

Peregrinus said...

Hmmm. I suppose I would say that I used pre-empts for reasons that I couldn't quite explain.

Sometimes you just get a feeling about a juror. Of course, you can't say to a judge, "He looked at my client like a cross-eyed cat on mouse-herding day" and get anything done, so you'd have to make up a quick ration of equine excrement to justify your instincts.

Think of it this way. Voir Dire is an excercise in prejudice. That's right - we use classifications, experience, and gawdhelpus - stereotypes to try to guess what a juror's operating assumptions might be BEFORE (pre...) he adjudicates (...judice.) Once he's worked his way into the jury room, there's no stopping him, be he sinner or saint.

So why not just abolish pre-empts? Because they are the way in which trial counsel can excercise the benefit of their experience. The whole adversarial system is based on the idea that lawyers like to win, and if they work hard at presenting their side's case (within the bounds of honesty and ethics) some rough approximation of Justice might tumble out. If the Defense strikes those it suspects of being vindictive, and the state (or Commomwealth - tip o' hat to Tom) strikes those it suspects of being anarchist symps, then we have some chance of producing a decently balanced jury.

Without that, I predict that the number of hung juries will double, at least, as those who come in to deliberations with unmoveable, hidebound opinions bull-headedly stymie jury after jury. And hung juries slow the system, costing money and delaying justice. Very bad things, both.

Anonymous said...

That's an interesting prediction, that it would gum up the works; it's also a testable one. Ever been a pilot project, a multilateral comparison, anything like that, that would supply relevant evidence on the point?

I'm inclined to think myself that slowing down the system would be a boon. All too many ignobles processed efficiently into oblivion by responsible burghers minding their instructions, compromising civilly, and trying to get home for the weekend.

Peregrinus said...

Boy, do I EVER know what you mean. Before I went to Law School, I had the mixed fortune to be called as a juror on an Armed Robbery case. The rest of the jurors just wanted to wrap deliberations as quickly as possible. The over-aerobicized yuppie bottle blond kept whinging about the fact that we weren't going fast enough - she had to pick up her kid from soccer practice!

Still, slowing up the system is a bad thing for defendants. Many of my clients couldn't make bail, so they sat in the klink until trial. Some sat for months, despite my best efforts at expediting the situation. Some sat so long, they served more time than they would have if they'd taken the prosecution's original offer.

As to your other question (a very good 'un, too!) It'd be a hard experiment to devise, I suspect. Who wants to make his client the test subject? I don't think there are any jurisdictions that don't allow pre-empts in felony cases (could be wrong) so it'd be tough to do a study.

It seems to me though, that most people eliminated on pre-empt are those most likely to be partisans, and thus least likely to facilitate deliberations.

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