Miller-El v. Dretke Brief Amici Curiae in Support of Petitioner

    No. 03-9659

In  T h e

uprrmr Court uf tfyr Untied s ta te s
T h o m a s  J o e  M il l e r -E l ,

Petitioner,
v.

D o u g  D r e t k e ,
Director, Texas Department of Criminal Justice, 

Institutional Division,
Respondent.

On Petition for Writ of Certiorari to the 
United States Court of Appeals for the Fifth Circuit

BRIEF OF THE NAACP LEGAL DEFENSE AND  
EDUCATIONAL FUND, INC., LEAGUE OF 

W OM EN VOTERS OF THE UNITED STATES and 
COM M ON CAUSE, INC., AS A M IC I CURIAE  

IN SUPPORT OF PETITIONER

T h e o d o r e  M . Sh a w  
Director-Counsel
N o r m a n  J. C h a c h k in  
D e b o r a h  F ins 
M ir ia m  G o h a r a  

^C h r ist in a  Sw a r n s  
N a a c p  L e g a l  D e f e n s e  a n d  

E d u c a t io n a l  F u n d , In c . 
99 Hudson Street, 16th Floor 
New York, NY 10013-2897 
(212) 965-2200 
Attorneys for Amici Curiae 

* Counsel o f  Record



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TABLE OF CONTENTS

Table o f Authorities . ................................................................ ii

Interest o f Amici C uriae ................................................   1

Introduction and Summary of A rgum ent................................3

ARGUM ENT.............................................................................5

I. The Panel’s Reasons For Dismissing the 
“Historical” Evidence O f Discrimination 
Deprive History Of Its Proper Probative 
Weight In Batson Analysis And Should
Be Disapproved By This Court ..................................5

A. The Panel Below Discounted the 
Historical Evidence For Indefensible 
Reasons, Including An Unwarranted 
Degree Of Deference To The State 
Court’s Slighting Consideration Of
I t ........................................................................ 7

B. The Panel Disregarded Historical 
Evidence That Is Critical In 
Evaluating The Prosecutors’
Assertions That Their Strikes Were
Not Discriminatory ...................................... 10

II. The Panel’s Evaluation Of the Evidence In 
This Case Flouts This Court’s Intentions in 
Batson And Perpetuates The Discrimination
The Court Sought To End ........................................ 11

Page



- i i -

TABLE OF CONTENTS (continued)

Conclusion........................................... .................................1 7

Table of Authorities

Cases:

Page

Alexander v. Louisiana,
405 U.S. 625 (1972)................. ................... 1

Avery v. Georgia,
345 U.S. 559,562(1953).........................................  11

Batson v. Kentucky,
476 U.S. 79 (1986)............................................. passim

Carter v. Jury Commission,
396 U.S. 320(1970)...................    1

Chambers v. State,
784 S.W.2d 29 (Tex. Crim. App. 1989) ...............  13

Edmonson v. Leesville Concrete Co.,
500 U.S. 614(1991)......................................................1

Georgia v. McCollum,
505 U.S. 42 (1992) .................................................. . . 1

Ham v. South Carolina,
409 U.S. 524 (1973)......................................................1



- i n -

Table of Authorities (continued)

Cases (continued):

Hill v. Texas,
316 U.S. 400 (1942)................................................... 7

J.E.B. v. Alabama ex. rel. T.B.,
511 U.S. 127(1994).....................................................2

Johnson v. California,
540 U .S .___(2004).......................................................1

Miller-El v. Cockrell,
537 U.S. 322 (2003)...........................................passim

Miller-El v. Dretke,
361 F.3d 849 (5th Cir. 2 0 0 4 ) ............................passim

Miller-El v. State,
748 S.W.2d 459 (1988) ...............................................9

Miller-El (Dorothy Jean) v. State,
790 S.W.2d 351 (Tex. App. - Dallas 1990)........... 13

Neal v. Delaware,
103 U.S. 370 (1880).................................................  12

Norris v. Alabama,
294 U.S. 587 (1935).................................................  12

Powers v. Ohio,
499 U.S. 400(1991)..........................................   18

Page



-IV-

Table of Authorities (continued)

Cases (continued):

Purkett v. Elem,
514 U.S. 765 (1995)..................................................  17

Robinson v. State,
773 So.2d 943, 949 (Miss. App. 2000) .................  17

Swain v. Alabama,
380 U.S. 202(1965)....................................... 1, 11, 12

Turner v. Fouche,
396 U.S. 346(1970)  .........................................1

Other Authorities

Ed Timms & Steve McGonigle,
A Pattern o f  Exclusion: Blacks Rejected 
from Juries in Capital Cases,
D a l l a s  M o r n in g  N e w s , Dec. 21,1986 ......... 13,14

Steve McGonigle,
Race Bias Pervades Jury Selection:
Prosecutors Routinely Bar Blacks, Study 
Finds, D a l l a s  M o r n in g  N e w s ,
March 9, 1986 ..........................................................  14

Page



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Interest of A m id Curiae1

The NAACP Legal Defense and Educational Fund, Inc. 
(LDF), is a non-profit corporation formed to assist African- 
Americans in securing their rights by the prosecution of 
lawsuits. Its purposes include rendering legal aid without cost 
to African-Americans suffering injustice by reason o f race who 
are unable, on account of poverty, to employ legal counsel on 
their own. For many years, its attorneys have represented 
parties and it has participated as amicus curiae in this Court, in 
the lower federal courts, and in state courts.

The LDF has a long-standing concern with the influence of 
racial discrimination on the criminal justice system in general, 
and on jury selection in particular. We represented the 
defendants in, inter alia, Swain v. Alabama, 380 U.S. 202 
(1965), Alexander v. Louisiana, 405 U.S. 625 (1972) and Ham 
v. South Carolina, 409 U.S. 524 (1973); pioneered in the 
affirmative use of civil actions to end jury discrimination, 
Carter v. Jury Commission, 396 U.S. 320 (1970), Turner v. 
Fouche, 396 U.S. 346 (1970); and appeared as amicus curiae 
in Batson v. Kentucky, 476 U.S. 79 (1986), Edmonson v. 
Leesville Concrete Co., 500 U.S. 614 (1991), Georgia v. 
McCollum, 505 U.S. 42 (1992), Johnson v. California, 540
U .S .___(2004), and in the prior proceedings in this case,
Miller-El v. Cockrell, 537 U.S. 322 (2003).

The League of Women Voters of the United States is a 
nonpartisan, community-based political organization that 
encourages the informed and active participation of citizens in 
government and influences public policy through education and 
advocacy. The League is organized in one thousand

1 Letters of consent by the parties to the filing of this brief have been lodged 
with the Clerk of this Court. No counsel for any party authored this brief in 
whole or in part, and no person or entity other than amici made any monetary 
contribution to the preparation or submission of this brief.



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communities and in every state, with more than 120,000 
members and supporters nationwide.

Founded in 1920 as an outgrowth o f the 72-year struggle to 
win voting rights for women in the United States, the League 
has always worked to promote the values and processes of 
representative government. Working for open, accountable, and 
responsive government at every level; assuring citizen 
participation; and protecting individual liberties established by 
the Constitution— all reflect the deeply held convictions of the 
League of Women Voters.

The League of Women Voters believes that democratic 
government depends upon the informed and active participation 
o f its citizens. Racial discrimination to block citizen 
participation in government offends the core values of the 
League and the American system of representative government. 
We believe that no person should suffer the effects of legal or 
administrative discrimination. The League participated as 
amicus curiae in J.E.B. v. Alabama ex. rel. T.B., 511 U.S. 127 
(1994), the case that prohibited the exercise of peremptory 
challenges based on the gender of the juror, and in the earlier 
proceedings here, Miller-El, 537 U.S. 322.

Common Cause, Inc. was founded in 1970 as a nonpartisan 
advocacy organization that seeks to further the public interest. 
Common Cause has 250,000 members and supporters across 
the country and has organizations in 38 states, with a national 
office in Washington, DC.

Common Cause has worked throughout its 34-year history 
to ensure that the processes of government in all three branches 
are fair, open, and accountable to the public. It believes that 
racial discrimination in the selection of a jury, one of the 
fundamental processes o f government, undermines our system 
of justice and, more broadly, the underpinnings of our 
democratic form of government.



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Amici submit that their perspectives on the broad systemic 
and governmental implications of racial discrimination injury 
selection differ from the immediate concerns of the parties and 
will be valuable to the Court in appraising the issues presented.

Introduction and Summary of Argument

Amici urge the Court both to grant certiorari in this case, 
and also ultimately to grant Miller-El relief in his favor.

Batson v. Kentucky and this Court’s earlier decision in the 
present case, Miller-El v. Cockrell, required courts to give 
genuine attention to cleansing the criminal justice process of 
the taint of racial discrimination injury selection. The response 
of the Fifth Circuit panel on remand in this matter, however, 
was to articulate new formulas— hardly differentiable from the 
old ones that this Court condemned — that excused patent 
race-based exclusion of an entire group of citizens from jury 
service.

The decision below constitutes a dangerous precedent that 
can only invite cynicism and disrespect for the law. Despite 
clear guidance from this Court about the relevance o f Miller- 
E l’s evidence of discrimination and the proper way of 
analyzing it, the court below conducted an analysis that 
dismisses, miscasts, and minimizes that evidence, diluting its 
full weight by disaggregating it and focusing the inquiry on 
determining whether each isolated piece of evidence, taken 
alone, proves discrimination.

The result is that the panel dismissed proof of 
discrimination which can be characterized only as undeniable. 
The historic and continuing racially biased jury-packing 
behavior of the prosecutors in Miller-El’s case was not at all 
subtle or discreet; it was open and notorious. Despite this 
Court’s explicit directive to consider it, the panel substituted a



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curt dismissal of that history as inconsequential for its earlier 
view that it was irrelevant.2 As wrong as this was in Miller-El’s 
case, it also signals the failure of the panel to comprehend this 
Court’s determination to end racial bias injury selection. The 
only way to put the history of racial discrimination in criminal 
justice behind us in this country is to acknowledge its reality 
and remedy its wrongs insofar as those remain correctable, not 
to write it off as insignificant.

Amici urge this Court to grant review and to reverse the 
decision below, which perpetuates racial discrimination by 
turning a blind eye to its manifest reality. Racial discrimination 
in the selection of juries injures not only the defendant and the 
African-American (or other) citizens who are excluded from 
service, but the entire community and the very authority of 
government. Justice and the perception o f justice in the 
criminal justice system are essential to the maintenance of order 
in a democratic society. If courts condone glaring racial

2 “The Supreme Court stated that proof ‘that the culture of the District 
Attorney's Office in the past was suffused with bias against African- 
Americans injury selection’ is ‘relevant to the extent it casts doubt on the 
legitimacy of the motives underlying the State's actions’ in Miller- El’s case. 
Miller-El, 537 U.S. at 347 . . . .  In this case, however, the relevancy of this 
evidence is less significant because Miller-El has already met the burden 
under the first step of Batson and now must prove actual pretext in his case. 
This historical evidence is relevant to the extent that it could undermine the 
credibility of the prosecutors’ race-neutral reasons. Here, however, as 
explained below the race-neutral reasons are solidly supported by the record 
and in accordance with the prosecutors’ legitimate efforts to get a jury of 
individuals open to imposing the death penalty. The state court, in the best 
position to make a factual credibility determination, heard the historical 
evidence and determined the prosecutors' race-neutral reasons for the 
peremptory strikes to be genuine. Under our standard of review, we must 
presume this specific determination is correct and accordingly the general 
historical evidence does not prove by clear and convincing evidence that the 
state court's finding of the absence of purposeful discrimination in 
Miller-El's jury selection was incorrect.” Miller-El v. Dretke, 361 F.3d 849, 
855 (5th Cir. 2004).



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discrimination in the courtroom, they teach the inevitable 
lesson that law is insincere or inept in its repeated avowals to 
afford equal justice to all.

When citizens of a defendant’s race are disproportionately 
excluded from serving on his jury by the government officials 
prosecuting him, a legitimate perception o f injustice arises. 
That perception cannot be dispelled by a perfunctory judicial 
review of his complaint of discrimination that inquires merely 
—  as the panel did below — whether the prosecutors’ 
articulated justifications for excluding each individual minority 
juror, viewed out o f context, are plausible. A more critical 
examination of the prosecutors’ actions, which considers all 
probative information about the circumstances o f their 
exclusionary behavior and the record of the actors engaging in 
it, is essential. This Court said as much in Miller-El’s case last 
Term, and it should grant review again to make clear that it 
meant what it said.

The proof of racial discrimination in this case is as strong 
as courts are ever likely to see. Amici urge the Court to send an 
unequivocal message to the lower courts that such 
discrimination violates Batson and will not be tolerated.

ARGUMENT

I. THE PANEL’S REASONS FOR DISMISSING THE 
“HISTORICAL” EVIDENCE OF DISCRIMINATION 
DEPRIVE HISTORY OF ITS PROPER PROBATIVE 
WEIGHT IN BA TSON ANALYSIS AND SHOULD BE 
DISAPPROVED BY THIS COURT

At his capital trial in 1986, Miller-El objected to the 
prosecution’s use of peremptory strikes “to exclude 10 of the 
11 African-Americans eligible to serve” on his jury. Miller-El, 
537 U.S. at 326. As this Court held, and as the State does not 
contest, “[a] comparative analysis of the venire demonstrates 
that African-Americans were excluded from petitioner’s jury in



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a ratio significantly higher than Caucasians were.” Id. at 331. 
The prosecution used its peremptory strikes to exclude 91% of 
eligible African-Americans from Miller-El’s jury, compared to 
13% of eligible non-African Americans. Id. As this Court 
recognized last year, “[hjappenstance is unlikely to produce this 
disparity,” id. at 342.

The issue to be determined by the state trial court under 
Batson v. Kentucky, A16 U.S. 79 (1986), was whether this 
disproportionate exclusion of African-Americans was race- 
based and therefore discriminatory or was the coincidental 
result of other factors. At a pre-trial hearing and again at a 
post-trial Batson remand hearing, Miller-El presented 
“extensive evidence” in support of his claim that the 
prosecutors’ strikes were discriminatory. Miller-El, 537 U.S. 
at 328. The credibility of the prosecutors’ race-neutral 
explanations for their strikes had to be assessed in light of all 
these “facts and circumstances,” including those presented in 
support of a prima facie  case. Id. at 340. Since the trial judge 
expressed doubt about the relevance of any evidence beyond 
the voir dire itself and never discussed any other evidence in 
reaching his decision,3 id. at 329, it is highly unlikely that such 
evidence entered into his decision-making.

In habeas proceedings, although deference is due to the trial 
court’s findings, “a federal court can disagree with a state 
court’s credibility determination and . . .  conclude the decision 
was unreasonable or that the factual premise was incorrect by 
clear and convincing evidence.” Miller-El, 537 U.S. at 340. 
Here, as this Court recognized, “the culture of the District

3 The state trial judge admitted the evidence “in an abundance of caution” 
but made clear that he was not required to give it any weight whatsoever in 
his decision. See Joint Appendix in Miller-El v. Cockrell at 844 (hereinafter 
“J.A.”). His written decision recites the evidence he considered — the “raw 
numbers” of strikes used; the “entire voir dire process” and “the explanations 
for the [strikes]. . .  offered at trial and at the retrospective Batson hearing.” 
J.A. at 876. The pattern and practice evidence is omitted from the list, and 
not mentioned anywhere else.



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Attorney’s Office in the past was suffused with bias against 
African-Americans injury selection.” Id. at 347. To ignore that 
ugly chapter of history does not erase it, but perpetuates it, 
creating the risk that it will be repeated as prosecutors realize 
that courts will not grant defendants relief from such 
misconduct. Yet the Court of Appeals on remand brushed the 
historical evidence aside through reasoning that would render 
such evidence o f no avail in any case (see infra § I.A.) and 
despite its strong probative force (see infra § I.B). Had it given 
the historical evidence proper consideration, it would have been 
compelled to reach a different result — a holding that the 
prosecutors’ strikes were based on race (see infra § 13).

Despite its duty to do so, the court below never examined 
the extensive evidence submitted by Petitioner outside the facts 
o f the trial itself to determine what light it might shed on the 
prosecutors’ assertions that they had not discriminated. Its 
reasoning for dismissing the evidence is fundamentally 
unsound. An analysis which includes the evidence would have 
reached a different result — a holding that the prosecutors’ 
strikes were based on race.

A. The Panel Below Discounted The Historical 
Evidence For Indefensible Reasons, Including An 
Unwarranted Degree Of Deference To The State 
Court’s Slighting Consideration Of It

It should be noted at the outset that although the history of 
excluding African-Americans from jury service in Dallas 
extends back many generations before Miller-El’s trial, {see, 
e.g., Hill v. Texas, 316 U.S. 400 (1942)), the “historical” 
evidence of discrimination presented by Miller-El extended up 
through the time of his trial and beyond. The powerful 
testimonial and statistical proof of a pattern and practice of 
discrimination included the five-yearperiod immediately before 
Miller-El’s trial. (See infra pp. 13-14). This was not ancient 
history. The “historical” evidence related to the policy and 
practice of the office prosecuting Miller-El during the period of



8

time when the particular prosecutors in his case were being 
trained and trying cases, and when Miller-El himself was tried.

The court below dismissed this evidence on grounds that 
make federal judicial enforcement of Batson virtually an 
illusion. First, although it acknowledged that in theory 
“historical evidence is relevant to the extent that it could 
undermine the credibility of the prosecutors’ race-neutral 
reasons” for peremptory strikes, 361 F.3d at 855 (emphasis 
supplied), it never considered whether the historical evidence 
actually does undermine the prosecutors’ credibility in this 
case. Rather, upon finding that “the race-neutral reasons 
[proffered by the prosecutors] are solidly supported by the 
record and in accordance with the prosecutors’ legitimate 
efforts to get a jury of individuals open to imposing the death 
penalty,” id., the panel treated these findings as obviating any 
need to determine whether the purported race-neutral reasons 
were pretextual in light of all of the evidence.

In other words, if  prosecutors —  even those trained and 
accustomed to accomplishing racial discrimination in precisely 
this fashion —  have sufficient ingenuity to develop “solid” 
arguments to support their explanation for peremptorily 
challenging a venireperson, and if the explanation “accord[s]” 
with some legitimate prosecutorial aim injury selection, there 
is no necessity for reviewing courts to consider other evidence 
that might undermine the credibility of the explanation thus 
“supported,” even when that other evidence was ignored 
entirely by the trial court, see supra note 3. This first ground 
for the holding below is akin to saying that “The prosecutor has 
produced some solid evidence that his motives are as he 
professes. We need not consider any evidence that they are not, 
because we already have evidence that they are.”

Second, the court below reasoned that, because the trial 
judge “heard” the historical evidence and still found the 
prosecutors’ race-neutral reasons to be “genuine,” that evidence 
is insufficient to prove that the trial judge’s finding of non­
discrimination was incorrect (see supra note 2). By this



9

reasoning, reversals of any finding made after an evidentiary 
contest would be inconceivable: any evidence a trial court 
“hears” could not be considered as undercutting a trial court’s 
findings, no matter that the evidence was not taken into account 
in the trial court’s analysis nor how clearly erroneous its 
findings might be in light of the evidence.

Such complete and unquestioning deference disregards this 
Court’s explicit admonition that “deference does not imply 
abandonment or abdication of judicial review.” Miller-El, 527 
U.S. at 340. And it is particularly unwarranted in a case where 
the trial judge never discussed the evidence at issue, id. at 329, 
and specifically indicated at the time he admitted it that he 
might not give it any weight at all.4

Moreover, the trial judge to whom the court of appeals is 
deferring is the only jurist among the more than a dozen that 
have reviewed this case whose comprehension of Batson is so 
deficient that he did not find a prima facie case of 
discrimination5 —  and even refused to do so on remand from 
a state appellate decision holding that such a prima facie case 
had been proven. Miller-El v. State, 748 S.W.2d 459,460 (Tex. 
Cr. App. 1988).6 It is difficult to tell whether he simply 
misunderstood Batson or was so unreceptive to a claim of 
racial discrimination that he declined to consider compelling

4 See J.A. at 844.

5 Even the State conceded in the prior proceedings in this Court that Miller- 
El had proven a prima facie case of discrimination. See Miller-El, 537 U.S. 
at 338.

6 Not only did the trial judge not believe that a prima facie case had been 
proven, but he went so far as to hold that the extensive evidence presented 
“did not even raise an inference of racial motivation in the use of the state’s 
peremptory challenges.” Miller-El, 537 U.S. at 329 (emphasis added).



10

facts in support of the claim.7 Either possibility casts doubt on 
his ability to weigh the evidence properly and make a legally 
correct finding under Batson. A more critical eye ought to be 
focused on a judge’s findings when so glaring an error appears 
and was noted by this Court. But a critical perspective is 
wholly absent from the opinion below.

B. The Panel Disregarded Historical Evidence That Is 
Critical In Evaluating The Prosecutors’ Assertions 
That Their Strikes Were Not Discriminatory

Amici will not review in detail all o f the historical evidence 
presented to the trial court and discussed in this Court’s prior 
opinion. A brief recapitulation of the evidence is set out at 
pages 12-14 below. But it is instructive to consider one 
example of the way in which disregarding that evidence can 
distort a court’s assessment of the credibility o f a prosecutor’s 
purported non-racial reasons for his strikes —  specifically, the 
prosecutors’ explanations that jurors were struck because of 
attitudes concerning the death penalty.

The historical evidence shows that in the years immediately 
preceding Miller-El’s trial, Dallas County prosecutors 
disproportionately struck African-Americans not just from 
Miller-El’s jury, not just from the juries of other capitally 
charged African-Americans, not just from the juries of non- 
African-American capitally charged defendants, but from all 
felony cases fore// defendants. (See infra p. 14.) Consistently 
with the training materials used in the Dallas District 
Attorney’s office, African-American prospective jurors were 
excluded by the prosecutors across the board, in cases where

7 At the conclusion of the original Swain hearing, after being presented with 
the training manual, the testimony of former prosecutors, the statistical 
evidence of exclusion, and testimony from judges and defense lawyers in 
support of the claim, the trial judge stated there was “no evidence presented 
to me that indicated any systematic exclusion of blacks as a matter of policy 
by the District Attorney’s office.” J.A. at 813 (emphasis added).



11

death-qualification was relevant and was conducted and in 
cases where it was not.8

By assessing the strikes in Miller-El’s trial in isolation from 
what had happened in a multitude of other trials, the panel 
below ignored evidence that substantially undermined the 
prosecutors’ explanations of their behavior in this case. 
“Death-qualification” fails as a nondiscriminatory explanation 
when exclusion by prosecutors consistently occurs in cases 
where death-qualification is neither necessary nor conducted.

By refusing to take account of this (and other) extensive, 
powerful evidence of racial discrimination in evaluating the 
prosecutor’s explanations for using 10 of 14 peremptory 
challenges to exclude 91% of qualified African-Americans 
from Miller-El’s jury, the panel undermined its own ability to 
reach any reasoned or realistic conclusion on the ultimate, 
critical issue of prosecutorial motivation. Worse, its ruling 
signals to those who “are of a mind to discriminate,” Batson, 
416 U.S. at 96 (quoting Avery v. Georgia, 345 U.S. 559, 562 
(1953)), that they can do so with impunity. This extraordinary 
procedure is self-evidently perverse: it calls for Batson courts 
to close their eyes to evidence o f pandemic, system-wide race 
prejudice that would have been judicially detectable under 
Swain v. Alabama.

II. THE PANEL’S EVALUATION OF THE EVIDENCE 
IN THIS CASE FLOUTS THIS COURT’S 
INTENTIONS IN BATSON AND PERPETUATES 
THE DISCRIMINATION THE COURT SOUGHT TO 
END

8 This was shown by the testimony of prosecutors who worked in the office 
during the relevant period of time, as well as and testimony of judges and 
defense lawyers observing prosecutors in the courtroom



12

This Court aspired, through its decision in Batson, to end 
the pervasive and pernicious practice o f excluding African- 
Americans from participation in the jury system. Batson was 
meant to stop the notorious practice of many state officials who 
professed a complete absence of racial motivation for their 
exclusionary actions but consistently discovered a whole host 
of reasons why African-Americans were unfit to serve.9 When 
a court, such as the one below, feigns adherence to the rule of 
Batson but flouts its command through a “dismissive and 
strained” analysis of the evidence, Miller-El, 537 U.S. at 344, 
it is countenancing the continuation of that practice.

It is hard to imagine a Batson case with more overwhelming 
proof of discrimination than this one. As we have earlier 
pointed out, the panel below managed to overlook the obvious 
only because it ignored significant evidence, miscast the 
evidence it did consider, applied incorrect legal standards in 
assessing the latter evidence, and never looked at the body of 
evidence as a whole.

An analysis that weighed all of the evidence cumulatively 
to determine whether the exclusion of 91 % of eligible African- 
Americans from Miller-El’s jury was the product o f racial 
discrimination would have framed the question more or less 
this way: With what degree of confidence can we say that these 
exclusions stemmed from a discriminatory motive and were not 
simply coincidental when we consider the evidence that

(1) the identical prosecutors exercising the strikes had been
found to have discriminated in other cases in the same time

9 See, e.g., Neal v. Delaware, 103 U.S. 370, 397 (1880) (there were no 
qualified African-Americans); Norris v. Alabama, 294 U.S. 587, 598-99 
(1935) (none who qualified were known to State officials charged with 
composing venire lists); Swain v. Alabama, 380 U.S. 202,221 (1965) (their 
views and beliefs made them less impartial, and thus legitimately subject to 
peremptory strikes).



13

period, including the case of Miller-El’s co-defendant;10 
and (2) the tool they were found to have used to 
discriminate in one of those cases was used in this case;11 
and (3) they race-coded their jury7 cards in this case, Miller- 
El, 537 U.S. at 346; and (4) their office made it an explicit 
policy to exclude African-Americans from juries, as 
evidenced in its training manual, memos used in training, 
and the testimony of former prosecutors and judges, id. at 
335; and (5) the prosecutors in Miller-El’s case joined the 
office and were trained in the art of jury selection at a time 
“when assistant district attorneys received formal training 
in excluding minorities from juries,” id. at 347; and (6) 
there was testimony that the policy was still in effect at the 
time of Miller-El’s trial, id. at 334-35; and (7) all o f the 
other African-American capital defendants against whom 
the same prosecutor’s office obtained death sentences in the 
prior five years were tried by all-white juries;12 and (8) in 
that same time period, out of 180 jurors in 15 capital trials, 
only 5 (3%) were African-American, while 56 of 57 
African-Americans qualified to serve on those juries but 
excluded (98%) were barred by prosecutors using

10 Chambers v. State, 784 S.W.2d 29 (Tex. Crim. App. 1989); (Dorothy 
Jean) Miller-El v. State, 790 S.W.2d 351 (Tex. App. - Dallas 1990),petition 
for discretionary review refused (Oct. 17, 1990).

11 “Indeed, while petitioner’s appeal was pending before the Texas Court of 
Criminal Appeals, that court found a Batson violation where this precise line 
of disparate questioning on mandatory minimums was employed by one of 
the same prosecutors who tried the instant case. Chambers v. State, 784 
S.W.2d 29, 31 (Tex. Crim. App. 1989).” Miller-El, 537 U.S. at 345.

12 See Ed Timms & Steve McGonigle, A Pattern o f Exclusion: Blacks 
Rejected from Juries in Capital Cases, Dallas Morning News, Dec. 21, 
1986 at A l, J.A. at 815.



14

peremptory challenges;13 and (9) although the stated 
explanation for excluding African-Americans in Miller-El’s 
case (i. e., that those excluded were weak on the death 
penalty) applied only to capital cases, a study of 100 
randomly selected felony trials between 1983 and 1984, 
where views on the death penalty were not at issue, 
indicated that 87% o f African-Americans qualified to serve 
were excluded by prosecutors using peremptories;14 15 and 
(10) the prosecutors acted to exclude African-Americans 
from Miller-El’s jury on sight —  before they were even 
questioned — by “shuffling” the panels, Miller-El, 537 
U.S. at 333-34, 346; and (11) there was testimony that 
prosecutors had used “shuffling” in the past “to manipulate 
the racial composition of the jury,” id. at 346; and (12) the 
prosecutors questioned African-American jurors differently 
than white jurors in Miller-El’s case both on the issue 
resulting in exclusion, id. at 332, 343, and on other issues, 
id. at 332, 344;15 and (13) the reasons given for striking 
African-American jurors “pertained just as well to some

13 Qualified African-Americans had a one in twelve chance of being selected 
for a capital jury, while whites had a one in three chance. Timms & 
McGonigle, supra note 12, J.A. at 815-16.

14 African Americans were excluded from felony juries at almost five times 
the rate of whites); 80% of African-American felony defendants were tried 
by all-white juries; although African Americans comprised 18% of the 
county, they were less than 4% of felony case jurors; 72% of felony juries 
had no African Americans; and a qualified African American had only a 
one- in-ten chance of serving on a jury, while a white had a one-in-two 
chance; see Steve McGonigle, Race Bias Pervades Jury Selection: 
Prosecutors Routinely Bar Blacks, Study Finds DALLAS MORNING NEWS, 
March 9, 1986 at A l, J.A. at 698-99, 702-03.

15 In prior proceedings, this Court “question[ed] the Court of Appeals’ . . .  
dismissive and strained interpretation of petitioner’s evidence of disparate 
questioning,” Miller-El at 344. The Court unequivocally held that “disparate 
questioning did occur.” Id. As Miller-El points out in his Petition for Writ 
of Certiorari, the Court of Appeals, despite this holding, still failed to find 
that disparate questioning occurred. Petition for Writ of Certiorari at 15-20.



15

white jurors who were not challenged and who did serve on
the jury,” id. at 343?

If one takes at all seriously the constitutional obligation of 
courts to root out discrimination in their own precinct, and if 
one looks at all of the evidence, there is no rational way to 
reach a conclusion other than that the exclusion of 91% of 
eligible African-Americans from Miller-El’s jury resulted from 
discrimination and not coincidence.

The court below failed to reach this conclusion not only 
because it refused to look at the evidence as a whole, and not 
only because it improperly discounted the evidence o f a 
continuous pattern and practice of discrimination by the 
prosecutors’ office, but also because it incorrectly evaluated 
the evidence of jury shuffling, of disparate questioning, and of 
the seating of similarly situated white jurors. Its analysis on 
these latter issues is characterized by faulty reasoning and the 
erection o f impossibly high— and erroneous —  legal standards 
for proof of discrimination.

The panel below completely dismissed the evidence relating 
to the shuffling of the jury, even though this Court noted that 
“[o]n at least two occasions the prosecution requested shuffles 
when there were a predominate number of African-Americans 
in the front o f the panel.” Milier-El, 537 U.S. at 334. 
“Shuffling” is apractice which “permits parties to rearrange the 
order in which members of the venire are examined,” 
increasing or decreasing the likelihood that they might be 
empaneled by moving them into or out of the group to be 
questioned or dismissed. Id. at 333. Shuffling occurs “with no 
information about the prospective jurors other than their 
appearance.” Id. at 333-34. In this case, the prosecutors not 
only shuffled the jury but also attempted to nullify a defense 
shuffle that moved African Americans forward, id., citing 
violation of a rule the trial judge had never seen cited, let alone 
enforced, in twenty-five years in the county. See J.A. at 64-65.



16

The panel below offhandedly dismissed the prosecutors’ 
use of the jury shuffle as evidence of intent to discriminate, 
citing the fact that Miller-El’s lawyers also requested jury 
shuffles. The court doesn’t explain how the defendant’s request 
for a shuffle bears on the issue of what the prosecutors' 
intentions were in requesting shuffles. Its apparent equation of 
defense and prosecution shuffles reflects a disturbing confusion 
about the effect of shuffles at Miller-El’s trial.

An attempt by an African-American defendant on trial for 
his life to make possible the inclusion o f members of his own 
race on his jury cannot be equated with an attempt by the State 
to exclude such persons solely on the basis of their race. Miller- 
El’s requested shuffles would have left in the pool African- 
Americans whose competence to serve would then be 
determined through voir dire, and who still would be subj ect to 
strikes by the prosecution or the defense. The State’s shuffle 
permanently excluded African-Americans from the jury pool 
prior to any questioning and regardless o f their qualifications. 
If the State successfully precluded participation by a group of 
people because of their race, in part through the use of the 
shuffle, the trial jury that convicted Miller-El was 
unconstitutionally  composed and that conviction 
unconstitutionally obtained, no matter what motivated the 
defendant’s request for shuffles.16

Miller-El’s petition for certiorari contains specific examples 
o f the panel’s misleading analysis of the voir dire questioning 
o f African-American and white jurors, and we need not 
rehearse that subject here. (See Petition for Writ o f Certiorari 
at 20-26.) We write briefly on this issue only to raise concerns

16 The court below may have been mistakenly viewing the defense shuffles 
as a discriminatory attempt to exclude white people— but that is a statistical 
impossibility given the demographics. Even were the question a closer one, 
any concern about defense-sought shuffles cannot conceivably justify 
allowing Miller-El to be executed after conviction by a jury from which all 
African-American venirepersons were excluded by the prosecution’s 
discriminatory shuffle and discriminatory peremptory strikes.



17

about what appears to be the lower court’s standard for 
considering prospective jurors to be “similarly situated.”

The court appears to be setting a standard that is impossible 
to meet: African-American and white jurors must be identical 
in every respect; they must use identical language to explain 
their thoughts and feelings, 361 F.3d at 859, and all of the 
possible race-neutral reasons for excluding them must exist in 
the same combination, id. at 859-60. Since this Court has said 
that virtually any race-neutral explanation is legitimate, Purkett 
v. Elem, 514 U.S. 765, 767-68 (1995) {per curiam), under the 
approach taken below, a prosecutor could always evade a 
finding that jurors were similarly situated by carefully varying 
the race-neutral reasons articulated for various peremptory 
challenges, knowing that prospective jurors would not be 
considered “similarly situated” unless they had the same jobs, 
lived in the same neighborhoods, had children (or not) of the 
same ages, had spouses with the same jobs, had the same 
personal experiences with law enforcement (etc.), in the same 
combination.17 No Batson challenge could ever succeed under 
such a standard, and this Court has never set such a standard.

17 We only need one case to illustrate the variety of reasons prosecutors have 
employed to justify peremptory strikes against African Americans. In 
Robinson v. State, 773 So.2d 943, 949 (Miss. App. 2000), the State used 7 
of 10 peremptory challenges to exclude prospective African-American 
jurors. Reasons proffered by the prosecution were 1) perceived hostility to 
the prosecution; 2) possible irresponsibility evidenced by the fact that 
questionnaires showed the jurors had children but were not married, 
although the prosecutor did not know whether the jurors were divorced or 
had children out of wedlock; 3) residence in a high crime area; 4) sleeping 
during voir dire; 5) not providing answers on the questionnaire, thereby 
creating uncertainty about ties to the community; 6) serving on a jury that 
acquitted. In Robinson, the court considered the totality of the evidence and 
concluded that Batson had been violated.



18

Conclusion

“Notwithstanding history, precedent, and the significant 
benefits of the peremptory challenge system, it is intolerably 
offensive for the State to imprison a person on the basis of a 
conviction rendered by a jury from which members of that 
person’s minority race were carefully excluded.” Powers v. 
Ohio, 499 U.S. 400, 430 (1991) (Rehnquist, C.J., dissenting). 
Miller-El’s was just such a jury.

The harm in this case is not just to Miller-El, but also to the 
African-Americans struck from jury service in this case, the 
African-American community in Dallas that lived through 
years of exclusion from jury service by the State, and the 
system of justice itself, which has been tainted by the 
discrimination injected by the prosecutors.

This Court’s decision a year ago in Miller-El gave hope that 
the courts, following the Court’s guidance, would take 
seriously their responsibility to scrutinize and remedy claims of 
racial discrimination in jury selection. The Court’s opinion 
recognized the stark reality of the administration of criminal 
justice in Dallas in the 1980's, when Miller-El’s trial took 
place. As the Court saw and said, “the culture of the District 
Attorney’s Office in the past was suffused with bias against 
African-Americans injury selection.” Miller-El, 537 U.S. at 
347. The opinion of the court below on remand, which 
minimizes, rationalizes and ignores that reality, must not be the 
last word. Amici respectfully urge that the decision below be 
reversed or vacated, and relief granted to the Petitioner Miller- 
El.



19

Dated: May 28, 2004

Respectfully submitted,

T h e o d o r e  M . Sh a w  
Director-Counsel 
N o r m a n  J. C h a c h k in  

*C h r jst in a  Sw a r n s  
D e b o r a h  F ins  
M ir ia m  S. G o h a r a  
NAACP Le g a l  D e f e n s e  a n d  

E d u c a t io n a l  F u n d , In c . 
99 Hudson St., 16th Floor 
New York, NY 10013-2897 
(212) 965-2200

Attorneys for Amici Curiae

* Counsel o f Record