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

    No. 01-7662

In The

Supreme Court of the Unfteh states

Thomas Joe Miller-El ,

v.
Petitioner,

Janie Cockrell,
Director, Texas Department of Criminal Justice, 

Institutional Division,
Respondent.

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

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

WOMEN VOTERS OF THE UNITED STATES 
AS AMICI CURIAE IN SUPPORT OF PETITIONER

Elaine R. Jones 
Director-Counsel

Norman J. Chachkin 
James L. Cott 

*George Kendall 
Deborah Fins 
Miriam Gohara 
Naacp Legal Defense and 

Educational Fund, In c . 
99 Hudson Street, 16th Floor 
New York, NY 10013-2897 
(212) 965-2200

Attorneys for Amici Curiae 
* Counsel o f Record



-1-

TABLE OF CONTENTS

Table of Authorities .................................................................ii

Interest of Amici Curiae ........................................................  1

Summary o f the A rgum ent..................................   3

ARGUM ENT.............................................    4

I. The Practice of Excluding African-
Americans from Juries Undermines
Justice and the Appearance of Ju s tic e .........4

A. The Crucial Role of Juries in a
Democratic Society ............................ 4

B. Race-Based Exclusions Harm
Jurors as Well as Defendants ........... 5

C. Racial Discrimination in Jury
Selection Discredits the Entire 
Judicial System ...................................7

II. The Lower Courts’ Refusal to Recognize
Discrimination in This Case Flouts
This Court’s Mandate to End Race
Discrimination in Jury Selection ...............  11

A. From Strauder to Batson: The 
Struggle to End Governmental 
Exclusion of African-Americans 
from Jury Service .......................... 11

Page



- i i -

TABLE OF CONTENTS (continued)

B. The Evidence of Purposeful
Discrimination in this Case is 
O verwhelm ing .............. 14

C. The Lower Courts’ Patently
Inadequate Review .............................17

1. The State Court D ecisions.........18

2. The Federal Court Decisions . . .  21

D. Batson Requires Consideration of
All Relevant Evidence of 
D iscrim ination...................................23

III. The Importance of Fulfilling Batson’s
Promise ............     24

C onclusion.................................  ......................................... 28

Table of Authorities

Federal Cases:

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

Arlington Heights v. Metropolitan Housing Development 
Corp., 429 U.S. 252 (1977)

Page

24



- l i i -

Table of Authorities (continued)
Page

Federal Cases (continued)

Avery v. Georgia,
345 U.S. 559 (1953).................... ......... 12, 14, 23

Batson v. Kentucky,
476 U.S. 7 9 (1 9 8 6 )......................

Balzac v. Porto Rico,
258 U.S. 298 (1922)............................................. 6

Carter v. Jury Commission,
396 U.S. 320(1970).......................................... 1,6

Coulter v. Gilmore,
155 F.3d 912 (7th Cir. 1998) ...... ...................... 26

Duncan v. Louisiana,
391 U.S. 145 (1968)............................................. 4

Edmonson v. Leesville Concrete Co.,
500 U.S. 614(1991)..................... ....................1,6

Georgia v. McCollum,
505 U.S. 42 (1992).................... . .......1,5, 11,23

Glasser v. United States,
315 U.S. 60 (1 9 4 2 )...... ................

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

........................ 4

....................... 11



-IV-

Table of Authorities (continued)
Page

Federal Cases (continued)

Hernandez v. New York,
500 U.S. 352(1991)............................................  13

Horton v. Zant,
941 F.2d 1449 (11th Cir. 1991) ...... ................. 13

J.E.B. v. Alabama ex rel. T.B.,
511 U.S. 127(1994)..........................................  2 ,7

Jones v. Davis,
835 F.2d 835 (11th Cir. 1988) ..................... . 13

McCleskey v. Kemp,
481 U.S. 279(1987)................................................5

Miller-el v. Johnson,
261 F.3d 445 (5th Cir. 2001) ............................. 21

Miller v. Lockhart,
65 F.3d 676 (8th Cir. 1995) ...............................  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) 6, 24, 28



-V-

Table of Authorities (continued)
Page

Federal Cases (continued)

Purkett v. Elem,
514 U.S. 765 (1995)...............................  14, 26, 27

Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133 (2000)..............................................24

Riley v. Taylor,
211 F.3d 261 (3rd Cir. 2001) ............................. 26

Rose v. Mitchell,
443 U.S. 545 (1979)..........................................  5, 8

Strauder v. West Virginia,
100 U.S. 303 (1880)................................. 4, 11, 12

Swain v. Alabama,
380 U.S. 202 (1965)..................................... passim

Taylor v. Louisiana,
419 U.S. 522(1975)..........................................  4 ,5

Thiel v. Southern Pacific Co.,
328 U.S. 217 (1946)................................................5

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

Turner v. Murray,
476 U.S. 28 (1986)..................................................5



-VI-

Table of Authorities (continued)
Page

Federal Cases (continued)

Washington v. Davis,
462U.S. 229 (1976)............................................. 24

Whitus v. Georgia,
385 U.S. 545 (1967)................................. ..........  12

Witherspoon v. Illinois,
391 U.S. 510 (1968)........................... ...................5

State Cases:

Burnett v. State,
27 S.W.3d 454 (Ark. App. 2 0 0 0 )........................26

Chambers v. State,
784 S.W.2d 29 (Tex. Crim. App. 1989) ........... 16

Ex parte Haliburton,
755 S.W.2d 131 (Tex. Crim. App. 1988) ......... 15

Miller-El v. State,
748 S.W.2d 459 (1992).......................................  19

Miller-el v. State,
790 S.W.2d 351 (Tex. App. - Dallas 1990, 
pet. refd) ............................................................... 16

People v. Morales,
719N.E.2d261 (111. App. 1999) 26



- V l l -

Robinson v. State,
773 So.2d 943 (Miss. App. June 27 ,2000).............27

State v. Antwine,
743 S.W.2d 51 (Mo. 1987) ................................  19

State v. Givens,
776 So. 2d 443 (La. 2001).................................. 26

Docketed Cases:

Miller-el v. Johnson,
No. 3:96-CV- 1992-H (N.D. Tex. June 5,
2000) ..................................... 17

Miller-el v. State,
No. 69-677 (Tex. Crim. App.
Sept. 16, 1992) ......................................................20

Other Authorities:

After 30 Years, Conviction in Medgar Evers' Murder
Case (ABC NEWS, Feb. 5, 1994) ...................  10

Ken Armstrong & Steve Mills, Death Row Justice
Derailed, Chi. Trib.,Nov. 14, 1999, Sec. 1,
p. 1 6 ................................................................

Table of Authorities (continued)
Page

State Cases (continued)

8



- V l l l -

Table of Authorities (continued)
Page

Other Authorities (continued)

David C. Baldus, et al., The Use o f Peremptory
Challenges in Capital Murder Trials: A 
Legal and Empirical Analysis, 3 U. Pa. J.
Const. L. 3 (2001) ............................................... 25

Belated Justice in Mississippi, The Baltimore Sun, Feb.
8, 1994, at 14A .....................................................9

Bill Berlow, Beckwith's Old Story Sheds Light On
Today's Racial Mistrust, The Tallahassee 
Democrat, Jan. 26, 2001 ...................................... 9

Leonard Cavise, The Batson Doctrine: The Supreme
Court's Utter Failure to Meet the Challenges o f  
Discrimination in Jury Selection, 1999 Wis. L. 
Rev. 501 (1999) ..... .............. ........... ...........  24,25

Patrick Chura, Prolepsis and Anachronism: Emmett
Till and the Historicity o f  To Kill A Mockingbird,
Southern Literary Journal (Spring 2000) ... 8

Christina Cheaklos, Mississippi's 30-Year Murder
Mystery, The Atlanta Journal and Constitution, 
Feb.5, 1994...........................................................10

Tanya E. Coke, Lady Justice May Be Blind, But Is She
A Soul Sister? Race-Neutrality and the Ideal o f  
Representative Juries, 69 N.Y.U. L. Rev. 327 
(May,1994).................................. ...................... . 10



Tim Dare, Lawyers, Ethics, and To Kill a Mockingbird,
25 Philosophy and Literature 131 (2001)............8

Bob Dylan & Jacques Levy, Hurricane (1975) .................... 9

Paul Finkelman & Stephen E. Gottlieb, eds., Toward
A Usable Past (1991) ........................................... 26

The Hurricane (Paramount Pictures 1999).............................. 9

Sheri Lynn Johnson, Batson Ethics fo r  Prosecutors 
and Trial Court Judges, 73 Chi.-Kent L. Rev.
475 (1998) ...................................................................25

Stephen King, The Green Mile (1997).....................................8

Harper Lee, To Kill A Mockingbird (1960)............................ 8

Steve McGonigle, Race Bias Pervades Jury Selection: 
Prosecutors Routinely Bar Blacks, Study 
Finds, Dallas Morning News, March 9,
1986.........................................................................7,16

Charles J. Ogletree, Just Say No!: A Proposal to 
Eliminate Racially Discriminatory Uses o f 
Peremptory Challenges, 31 Am. Crim. L.
Rev. 1099 (1994) ........................................................26

Robert Reinhold, After the Riots: After Police Beating
Verdict, Another Trial fo r  the Jurors, N.Y. Times, 
May 9, 1992 ...............................................................  10

-ix-

Table of Authorities (continued)
Page

Other Authorities (continued)



-X-

Table of Authorities (continued)
Page

Other Authorities (continued)

Richard A. Serrano & Carlos V. Lozano, Jury Picked fo r  
King Trial; No Blacks Chosen, L.A.Times, Mar. 3,
1992 .................................... ............. ..........................  10

Mildred Taylor, Let the Circle Be Unbroken (1981) ......... 8

Ed Timms & Steve McGonigle, A Pattern o f Exclusion: 
Blacks Rejected from Juries in Capital Cases,
Dallas Morning News, Dec. 21, 1986 ........ ............  16

Carroll Van West, Perpetuating the Myth o f America: 
Scottsboro and its Interpreters, South Atlantic 
Quarterly, 36-48 (Winterl981) ........... ......................8



1

INTEREST OF AM ICI 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 purpose includes rendering legal aid without cost 
to African-Americans suffering injustice by reason of 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, 416 U.S. 79 (1986), Edmonson v. Leesville 
Concrete Co., 500 U.S. 614 (1991), and Georgia v. McCollum, 
505 U.S. 42 (1992).

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

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.



2

advocacy. The League is organized in one thousand 
communities and in every state, with more than 120,000 
members and supporters nationwide.

Founded in 1920 as an outgrowth of 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 
of 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.

The question before this Court -  whether the lower 
courts erred in failing to find a violation of Batson when 
presented with overwhelming evidence that prosecutors had 
used race-based peremptory challenges systematically to 
exclude African-Americans from the jury which convicted and 
sentenced the African-American petitioner to death -  presents 
an important issue concerning the administration of criminal 
justice. Amici believe their experience with the issue of racial 
discrimination in jury selection has yielded lessons that could 
be useful to the Court in resolving this appeal.



3

Justice and the perception of justice in the criminal 
justice system are essential to the maintenance of order in a 
democratic society. Functionally and symbolically, juries stand 
as a safeguard against the State’s misuse of its powers to 
confine or execute its citizens. Racial discrimination in the 
selection of juries injures not only the defendant and the 
African-American citizenry who are excluded from service, but 
the entire community. Cynicism and disrespect for the law are 
the predictable results when courts condone blatant 
discrimination in the courtroom.

The facts of this case present an egregious example of 
just the type of government manipulation of the jury that denies 
justice and breeds disrespect for the law. The Dallas County 
District Attorney’s office routinely and deliberately excluded 
African-Americans from jury service through peremptory 
strikes at the time this case was tried and in preceding years. 
The prosecutors followed this practice in choosing the jury in 
this capital case. State courts found that the same prosecutors 
who systematically struck African-Americans from the jury in 
this case had discriminated in the same way in other trials both 
before and after petitioner’s trial. Yet instead of putting the 
prosecutors’ strikes in context and weighing their assertions of 
racial neutrality against evidence that bespeaks discrimination, 
the courts below refused to consider such evidence.

The record here makes clear that this Court’s 
determination to end invidious racial discrimination in the 
selection of juries remains unfulfilled in some jurisdictions. To 
assure that there is an adequate and certain check on the biased 
use of peremptory challenges to exclude African-Americans 
from juries, the Court needs to restate what would seem a self- 
evident proposition: — that in determining whether invidious

SUMMARY OF THE ARGUMENT



4

racial discrimination has occurred, judges must consider all of 
the facts and circumstances that might shed light on the issue.

ARGUMENT

I.

The Practice of Excluding African-Americans from 
Juries Undermines Justice and the Appearance of 
Justice

A. The Crucial Role of Juries in a Democratic
Society

This case is of great significance because juries are both 
a real and symbolic bulwark against the State’s misuse of its 
powers to confine or execute its citizens. “The petit jury has 
occupied a central position in our system of justice by 
safeguarding a person accused of crime against the arbitrary 
exercise of power by prosecutor or judge.” Batson, 476 U.S. at 
86. It is “an inestimable safeguard against the corrupt or 
overzealous prosecutor and against the compliant, biased, or 
eccentric judge,” Duncan v. Louisiana, 391 U.S. 145, 156 
(1968), “a prized shield against oppression,” Glasser v. United 
States, 315 U.S. 60, 84 (1942), that “fence[s] round and 
interpose[s] barriers on every side against the approaches of 
arbitrary power,” id. at 84-85.

The jury also serves as the defendant’s primary 
protection against the invidious influence of race in the decision 
whether he lives or dies. “[I]t is the jury that is a criminal 
defendant's fundamental ‘protection of life and liberty against 
race or color prejudice.’ Strauder v. West Virginia, 100 U.S. 
303, 309 (1880). Specifically, a capital sentencing jury 
representative of a criminal defendant's community assures a 
‘"diffused impartiality,"’ Taylor v. Louisiana, 419 U.S. 522,



5

530 (1975) (quoting Thiel v. Southern Pacific Co., 328 U.S. 
217, 227 (1946) (Frankfurter, J„ dissenting)), in the jury's task 
of ‘expressing] the conscience of the community on the 
ultimate question of life or death,’ Witherspoon v. Illinois, 391 
U.S. 510, 519 (1968)." McCleskey v. Kemp, 481 U.S. 279, 310 
(1987) (footnotes omitted); see also Turner v. Murray, 476 U.S. 
28, 35 (1986) (“Because of the range of discretion entrusted to 
a jury in a capital sentencing hearing, there is a unique 
opportunity for racial prejudice to operate but remain 
undetected. . . .The risk of racial prejudice infecting a capital 
sentencing proceeding is especially serious in light of the 
complete finality of the death sentence.”).

The risk of error in capital cases is not theoretical. 
Racial prejudice can influence jurors’ determinations not only 
on the ultimate question of life and death, but on the issue of 
guilt itself. “It is by now clear that conscious and unconscious 
racism can affect the way white jurors perceive minority 
defendants and the facts presented at their trials, perhaps 
determining the verdict of guilt or innocence.” Georgia v. 
McCollum, 505 U.S. at 69 (O’Connor, J., dissenting). “[R]acial 
discrimination in the selection of jurors ‘casts doubt on the 
integrity of the judicial process,’ Rose v. Mitchell, 443 U.S. 545, 
556 (1979), and places the fairness of a criminal proceeding in 
doubt.” Powers v. Ohio, 499 U.S. 400, 411 (1991).

B. Race-Based Exclusions Harm Jurors as
Well as Defendants

As this Court has made abundantly clear, the harm from 
discriminatory exclusions of African-American jurors is not to 
the defendant alone. When particular segments of the 
community are excluded from serving on juries, they are 
excluded from participating in an institution that stands at the 
heart of our democracy. To be told that you are unfit because



6

of your race to judge your fellow citizens is to be told 
unequivocally that you are a second-class citizen. Your voice is 
not considered to be a voice of common sense to be interposed 
between the government and the accused. Your intelligence, 
your ability to be fair, your life experiences, your understanding 
of your society, and your integrity are all denigrated. “People 
excluded from juries because of their race are as much 
aggrieved as those indicted and tried by juries chosen under a 
system of racial exclusion.” Carter v. Jury Commission, 396 
U.S. 320, 329 (1970).

‘“The jury system postulates a conscious duty of 
participation in the machinery of justice.. . .  One of its greatest 
benefits is in the security it gives the people that they, as jurors 
actual or possible, being part of the judicial system of the 
country can prevent its arbitrary use or abuse.’” Powers v. Ohio, 
499 U.S. at 406 (quoting Balzac v. Porto Rico, 258 U.S. 298, 
310 (1922)). For people who are excluded from jury 
participation, there is no such security, but doubt and mistrust 
that the system is functioning in a fair and impartial manner.

The fact that prosecutors have long used peremptory 
challenges to purge juries of African-Americans is not news in 
the African-American community. When an African-American 
is struck from a jury, he or she is aware that the strike may be 
racially motivated. “[T]he injury caused by the discrimination 
is made more severe because the government permits it to occur 
within the courthouse itself,” Edmonson v. Leesville Concrete 
Co., 500 U.S. at 628, the place where even-handed justice is 
supposed to reign. When the exclusion comes not just in a 
governmental forum, but at the instance of the government’s 
representative himself, the injury is further compounded.



7

Such exclusions have led to the belief that what occurs 
in the courthouse is not justice, but “white man’s justice.”2 
Indeed, African-American citizens interviewed by the Dallas 
Morning News at the time of Petitioner’s trial spoke of the 
injury such discrimination causes. “Blacks called for jury 
service say the absence of blacks on juries causes them to 
question whether the judicial system is color-blind.” Id. One 
such potential juror said she felt “intimidated” after she and 
five other African-American jurors were eliminated by the 
State, resulting in an all-white jury. Id. A former prosecutor and 
Dallas county’s first African-American judge said, “[A]s 
honest, law-abiding citizens who believe in God and the 
American way and pay our taxes to send our children to school, 
we’re still told we’re not anything of value.” Id.

C. Racial Discrimination in Jury Selection
Discredits the Entire Judicial System

Society has a paramount interest in maintaining 
confidence in its criminal justice system. A democratic society 
depends on the shared belief of its members that the system is 
fair and impartial, that verdicts are objective and reliable, and 
that punishments meted out are punishments deserved. “Wise 
observers have long understood that the appearance of justice is 
as important as its reality.” J.E.B. v. Alabama ex rel. T.B., 511 
U.S. at 155 (Scalia, J., dissenting).

2 See, e.g., Steve McGonigle, Race Bias Pervades Jury Selection: 
Prosecutors Routinely Bar Blacks, Study Finds DALLAS MORNING NEWS, 
March 9, 1986 at A l, Cert. App. 11, at 8 (“Many families of defendants 
leave the courtroom believing they have witnessed ‘white man’s justice,’ 
said Peter Lesser, a defense attorney and a Democratic candidate for district 
attorney.”) [Citations to items in the Appendices to Petition for Writ of 
Certiorari appear in the form, “Cert. App. [number of appendix], at [page 
number.]”



8

It is not only African-Americans who equate racial 
discrimination in the courtroom with a denial of justice. This 
Court has repeatedly observed that “[r]ace discrimination within 
the courtroom raises serious questions as to the fairness of the 
proceedings conducted there. Racial bias mars the integrity of 
the judicial system, and prevents the idea of democratic 
government from becoming a reality.” Rose v. Mitchell, 443 
U.S. at 556.

Indeed, one of the strongest and most enduring symbols 
of injustice in this country is the trial of an African-American 
defendant by an all-white jury. “To Kill a Mockingbird,”3 
although a work of fiction,4 seared into the American 
consciousness the grim reality of inequity in racially 
exclusionary tribunals. Although that story took place in 1930s 
America, the all-white jury is, unfortunately, not a relic of an 
unenlightened past,5 nor is it perceived to be. Rubin

3 H a r per  L e e , T o  K il l  A M o c k in g b ir d  233 (1960); see also Tim Dare, 
Lawyers, Ethics, and To Kill a Mockingbird, 25 PHILOSOPHY AND 
L it e r a t u r e  131 (2001) (“These courts were governed not by presumptions 
of equality and innocence, but by prejudice and bigotry. Atticus’s plea to 
the jury had been ignored and Tom had been convicted and killed as a 
result.”). More recent works of fiction that have included the theme of the 
biased all-white jury include Steph en  K in g , T h e  G r e e n  M il e  (1997).

4 Although fiction, the book in fact was influenced by historical events. See 
Carroll Van West, Perpetuating the Myth o f America: Scottsboro and its 
Interpreters, SOUTH ATLANTIC QUARTERLY, 36-48 (Winter 1981) (indicating 
To Kill A Mockingbird was strongly influenced by the Scottsboro case and 
the Emmett Till murder); see also Patrick Chura, Prolepsis and 
Anachronism: Emmett Till and the Historicity o f To Kill A Mockingbird, 
So u t h e r n  L iter a r y  Jo u r n a l , 1-26 (Spring 2000).

5 For example, a recent study by the Chicago Tribune found that 22% of all 
African-Americans sentenced to death in Illinois between 1977 and the time 
of the survey in November, 1999 were condemned by all-white juries. Ken 
Armstrong & SteveMiUs, Death Row Justice Derailed, Chi.Trib., N ov. 14, 
1999, Sec. l,p . 16.



9

“Hurricane” Carter’s conviction by an all-white jury was the 
subject of both a popular song (Hurricane, co-written and 
performed by Bob Dylan),6 and a recent movie (T h e  
H u r r ic a n e  (Paramount Pictures 1999)).

There continues to be widespread public suspicion about 
the fairness and accuracy of verdicts in criminal cases where 
all-or nearly all-white juries are impaneled in communities with 
significant minority populations.7 As Justice Thomas noted

6 Here comes the story of the Hurricane,
The man the authorities came to blame 
For somethin' that he never done.
Put in a prison cell, but one time he could-a been

The champion of the world.
*  *  *

And though they could not produce the gun,
The D.A. said he was the one who did the deed
And the all-white jury agreed.

* * *
To see him obviously framed
Couldn't help but make me feel ashamed to live in a land 
Where justice is a game.

(.Hurricane, by Bob Dylan and Jacques Levy Copyright 
© 1975 Ram's Horn Music).

7 The insidious history of white juries sitting in judgment of black 
defendants represents only part of the basis for the pervasive distrust of 
unrepresentative juries. On the other side of the coin are cases in which 
white juries have acquitted white defendants accused of crime against 
African-Americans, like the famous murders of Emmett Till and Medgar 
Evers, and many others whose names never became known beyond their 
own small towns. When Byron De La Beckwith was re-indicted and, in 
1994, finally convicted of murdering Medgar Evers, news reports and 
editorials concerning the conviction highlighted the fact that the verdict was 
returned by a mixed jury, a sign of social progress. See, e.g., Belated Justice 
in Mississippi, Th e  BALTIMORE SUN, Feb. 8, 1994, at 14A (“De La 
Beckwith was tried twice by all-white juries during the 1960s, with both



10

recently, “the public, in general, continues to believe that the 
makeup of juries can matter in certain instances. Consider, for 
example, how the press reports criminal trials. Major 
newspapers regularly note the number of whites and blacks that

cases ending in hung juries. This time, eight of the 12 jurors were black- a 
direct result of the civil rights movement Mr. Evers gave his life for- and 
their decision carried a measure of credibility that all previous proceedings 
lacked.”); After 30 Years, Conviction in Medgar Evers ’ Murder Case (ABC 
NEWS, Feb. 5, 1994) (“A racially mixed jury did today what two all-white 
juries refused to do more than a generation ago: they convicted a white man, 
a segregationist. . . Byron De La Beckwith, of the crime.”); Bill Berlow, 
Beckwith’s Old Story Sheds Light On Today’s Racial Mistrust, Th e  
T a l l a h a s s e e  D e m o c r a t , Jan. 26, 2001, at A l; Christina Cheaklos, 
Mississippi’s 30-Year Murder Mystery, THE ATLANTA JOURNAL AND 
C o n s t it u t io n , Feb. 5,1994, at A l (“Today, the jury deciding Beckwith’s 
fate is made up of eight blacks and four whites, testament to the change 
since two all-white juries failed to reach verdicts in 1964.”). Despite the 
progress signaled by the Evers case, juries that excluded African-Americans 
were, at the same time, prominent in the news. The Rodney King case is a 
prime example. The jury which presided over the trial of the officers was 
composed of ten whites, one Asian-American, and one Latina. See Richard 
A. Serrano & Carlos V. Lozano, Jury Picked for King Trial; No Blacks 
Chosen, L.A. TIMES, Mar. 3, 1992, at A l, A19. On April 29,1992, the jury 
acquitted police officers charged with beating King of all charges. The 
outcome shocked people throughout the nation, who had viewed a videotape 
of the beating on television. Riots erupted all over Los Angeles in large 
measure because the public perceived the jury, devoid of African 
Americans, as lacking legitimacy. See Robert Reinhold, After the Riots: 
After Police Beating Verdict, Another Trial fo r  the Jurors, N.Y. TIMES, May 
9, 1992, at A l ; see also Tanya E. Coke, Lady Justice May Be Blind, But Is 
She A Soul Sister? Race-Neutrality and the Ideal o f Representative Juries, 
69 N.Y.U. L. Re v . 327 (May, 1994) (“Conventional wisdom has it that Los 
Angeles burned in the spring of 1992 because of a damning videotape and 
a verdict of not guilty. The more precise source of public rage, however, 
was that the jury which acquitted four white police officers of beating black 
motorist Rodney King included no African Americans.”). The King verdict 
cemented in the minds of many the idea that even at the end of the 
Twentieth Century, jury exclusion and racially-biased verdicts were a 
reality.



11

sit on juries in important cases. Their editors and readers 
apparently recognize that conscious and unconscious prejudice 
persists in our society, and that it may influence some juries. 
Common experience and common sense confirm this 
understanding.” Georgia v. McCollum, 505 U.S. at 61 
(Thomas, J., dissenting).8

For all these reasons, state conduct that unlawfully 
manipulates a jury in a capital case so that minority juror 
participation is either token or non-existent raises profoundly 
important issues.

II.

The Lower Courts’ Refusal to Recognize 
Discrimination in This Case Flouts This Court’s 
Mandate to End Race Discrimination in Jury 
Selection

This case presents not only strong proof that intentional 
discrimination marred the selection of petitioner’s jury but also 
a disturbing scenario of the lower courts’ ignoring both this 
evidence and controlling law in concluding that no Equal 
Protection violation occurred.

A. From Strauder to Batson: The Struggle to
End Governmental Exclusion of African- 
Americans from Jury Service

o
In the five years after this Court’s decision in McCollum, (from June 1, 

1992 to June 1, 1997) a computer search found virtually the same number 
of references to “all-white” jury (192) in the New York Times, the Chicago 
Tribune and the Los Angeles Times as Justice Thomas did at the time of 
Batson. In the succeeding five years (June 1, 1997 to April 8, 2002) that 
number was reduced, but remained substantial (114).



12

Since the adoption of the post-Civil War amendments 
promising equal protection of the laws to the newly-freed 
slaves, race-based exclusion from juries has been used to 
eviscerate that promise. It has undermined both justice and the 
perception of justice. As old, more direct methods of racial 
discrimination were held unlawful, new, more subtle ones took 
their place. Explicit laws forbidding African-Americans to sit 
on juries, see, e.g., Strauder v. West Virginia, 100 U.S. 303, 
were replaced with a variety of discretionary systems that 
enabled officials to exclude African-Americans simply by 
refusing to select them for venires. After the Court repeatedly 
made clear that exclusion from venires by any means — whether 
by statute or practice — would not be tolerated, see, e.g., Avery 
v. Georgia, 345 U.S. 559 (1953); Whitus v. Georgia, 385 U.S. 
545 (1967), officials determined to prevent African-Americans 
from actually serving on juries turned to the peremptory 
challenge. Batson v. Kentucky, 476 U.S. 79 (1986).

At each step along this path, officials have continually 
asserted that the absence of African-Americans from juries was 
not the result of purposeful discrimination, but was based on 
lawful reasons: there were no qualified African-Americans, 
Neal v. Delaware, 103 U.S. 370 (1880); none who qualified 
were known to State officials charged with composing venire 
lists, Norris v. Alabama 294 U.S. 587 (1935); their views and 
beliefs made them less impartial, and thus legitimately subject 
to peremptory strikes, Swain v. Alabama, 380 U.S. 202 (1965).

With regard to exclusion from jury lists and venires, 
this Court rejected such views and held repeatedly that 
assertions that African-Americans were universally unfit for 
jury service — or nearly so — were nothing more than 
expressions of racial prejudice. See, e.g., Norris v. Alabama, 
294 U.S. 587. Even in the face of sworn testimony from state 
trial judges, jury commissioners and other officials found 
“credible” by state court judges, the Court made clear that it 
would not turn a blind eye to the truth of racial prejudice and



13

discrimination that permeated American life and the American 
court system. “[A] finding of no discrimination was simply too 
incredible to be accepted by this Court.” Hernandez v. New 
York, 500 U.S. 352, 369 (1991).

In the course of these “unceasing efforts to eradicate 
racial discrimination,” Batson, 476 U.S. at 85, however, the 
Court stumbled. When it held in Swain that only proof of 
systematic and complete exclusion of African-Americans from 
juries over an extended period of time would suffice to prove 
intent to discriminate in the use of peremptory challenges, it 
erected what proved to be an insurmountable burden of proof. 
For the next twenty years, racial discrimination remained a 
notorious feature of jury selection in many American 
courtrooms.9 The fact that African-Americans were virtually 
openly excluded from participation in a system of justice 
purporting to promise equality and fairness bred cynicism and 
distrust.

When this Court decided Batson, its manifest intent was 
to bring to an end -  once and for all -  these practices and to 
restore integrity to the system. Those harmed by discriminatory 
peremptory striking could now prove their cause without need 
to conduct an exhaustive investigation into numerous other

9 This is demonstrated by successful Swain challenges in the late 1980's and 
the 1990's. See, e.g., Horton v. Zant, 941 F.2d 1449, 1455-60 (11th Cir. 
1991 )(Swain test satisfied where evidence showed prosecution struck 90% 
of African American jurors in capital cases in addition to other evidence 
showing prosecutor took steps to lessen minority participation in jury 
system); Miller v. Lockhart, 65 F.3d 676, 680-82 (8th Cir. 1995)(Swam test 
satisfied where prosecutor used ten strikes against African American jurors 
in instant case and other evidence showed African Americans excluded 
peremptorily in large numbers in five year period preceding Miller’s trial); 
Jones v. Davis, 835 F.2d 835, 838-40 (11th Cir. 1988)(testimony of six 
practicing attorneys showed black jurors routinely struck by prosecutors in 
jurisdiction; Swain standard satisfied).



14

cases. The pervasive exclusion of African-Americans from 
juries — known to all but not “provable” in the courts — was 
to cease.

But cases like petitioner’s show why it has not ended 
and will not end without this Court’s decisive intervention. 
“Those of a mind to discriminate”10 found the Achilles heel in 
Batson, the mask behind which continued discrimination could 
hide —  the “facially neutral” explanation for a peremptory 
strike. In too many cases, African American jurors continued to 
be excluded in large numbers, and some trial and appellate 
courts not only credited nearly any reason given by the 
prosecution as a purportedly race-neutral justification but also 
held that it trumped all other proof suggesting racial 
discrimination.11 It is clear to us that the trial bench and 
reviewing courts need a clear admonition from this Court that 
a facially neutral explanation for a strike may be a necessary but 
is not a sufficient defense in the face of strong evidence of 
purposeful racial discrimination.12

B . The Evidence of Purposeful Discrimination
in this Case is Overwhelming

10Batson, 476 U.S. at 96 (quoting Avery v. Georgia, 345 U.S. at 562).

11 See infra pp. 21 - 23.

12 This case is distinguishable from Purkett v. Elem, 514 U.S. 765 
(1995)(per curiam), wherein the Court addressed the prosecutor’s burden of 
production at stage two of the three-step Batson inquiry, as well as the issue 
of the deference a federal habeas court must extend to state court fact­
finding on the credibility of such offerings. This case does not concern those 
questions but rather presents only the question of the scope of evidence the 
court must consider at stage three after the prosecution has met its stage two 
burden of production.



15

In our view, it is hard to imagine a ease with stronger 
proof that a prosecutor intended to discriminate, absent an 
explicit confession from the prosecutor. Without rehashing in 
detail all of the evidence produced below7, which will be 
presented in petitioner’s brief, it is important to summarize the 
evidence:

1. The office of the prosecutor made it an explicit policy 
to exclude African-Americans from juries, evidenced in its 
training manual, memos used in training, and the testimony of 
former prosecutors.13

2. The office had a history of vastly disproportionate 
exclusion of African-Americans from both felony and capital 
juries. Uncontroverted evidence showed that in a study of 100 
randomly selected felony trials between 1983 and 1984 (shortly 
before petitioner’s trial), 405 of 467 (87%) of African- 
Americans qualified to serve were excluded by prosecutors 
using peremptories. African-Americans were excluded from 
juries at almost five times the rate of whites. Eighty percent 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 jurors. 72% of juries had no 13

13 Although written in the late 1960s, the memo which was incorporated 
into the manual is known to have remained in the manual at least as late as 
the early 1980s. Ex parte Haliburton, 755 S.W. 2d 131, 133 n. 4 (Tex. 
Crim. App. 1988). The manual stated: “Who you select, and what you 
qualify the panel on will depend on the type of crime, the age, the color and 
sex of the Defendant. . . ” Cert. App. 8, at 301 (emphasis added). “You are 
not looking for any member of a minority group which may subject him to 
oppression.” Id. at 303. An earlier version used more straightforward and 
offensive language, calling for the exclusion of “Jews, Negroes, Dagos, 
Mexicans, or a member of any minority race.” Cert. App. 11, at 100. That 
the policy was still in effect at the time of petitioner’s trial was shown by the 
contemporaneous testimony of judges and lawyers who said it was widely 
known in the local legal community that the Dallas County district attorneys 
used peremptory strikes to exclude African-Americans.



16

African-Americans. 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.14

In a study of capital trials in Dallas County from 1980 - 
1986, the evidence, again uncontroverted, showed that of 180 
jurors in 15 trials, only 5 (3%) were African-American. Of the 
remaining 57 African-Americans qualified to serve, 56 (98%) 
were excluded by prosecutors using peremptory challenges. 
Four of the five African-Americans sentenced to death were 
sentenced by all-white juries. Qualified African-Americans had 
a one in twelve chance of being selected for a jury, while whites 
had a one in three chance.15

3. The prosecutors used 10 of 14 peremptory challenges 
to exclude 91% of qualified African-Americans from 
petitioner’s jury. Cert. App. 5, at 6.

4. The specific prosecutors who exercised the 
challenges at issue in petitioner’s case were found to have 
intentionally discriminated in other trials preceding and 
following this case. 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, pet. ref’d).16

14 See Steve McGonigle, Race Bias Pervades Jury Selection: Prosecutors 
Routinely Bar Blacks, Study Finds DALLAS MORNING N e w s , March 9,1986 
at A l, Cert. App. 11, at 1.

15 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, Cert. App. 13, at 36.

16 The prosecutor in charge of jury selection had joined the District 
Attorney’s office in 1973. He testified in Chambers that he had “never” 
stricken a potential juror solely on the basis of race. Chambers v. State, 184 
S.W.2d at 31. The state court refused to credit this testimony.



17

5. The prosecutors acted to exclude African-Americans 
from petitioner’s jury before they knew anything about them. 
Before a word of voir dire was uttered in this case, before juror 
questionnaires were even completed, the prosecutors attempted 
to reduce the number of African-Americans on the panel by 
“shuffling” the panels. When the permitted number of shuffles 
failed to achieve their goal, they requested an additional one, 
citing violation of a rule the trial judge had never seen cited, let 
alone enforced, in twenty-five years in the county. See V.D. 
Vol. IV 1792-93.

6. The prosecutors coded the jury cards in petitioner’s 
case by race. See Supplemental Briefing on Batson/Swain 
Claim Based on Previously Unavailable Evidence (filed 
December8,1977), Miller-El v. Johnson, No. 3:96-CV-1992-H 
(N.D. Tex.), Exhibit 1, at 1-56.

7. The prosecutors questioned African-American jurors 
differently than white jurors in petitioner’s case. See 
Petitioner’s Brief.

8. The reasons that the prosecutors proffered for 
striking African-American jurors from petitioner’s jury applied 
to white jurors who were not struck.17

C. The Lower Courts’ Patently Inadequate
Review

There is simply no way to accept as “reasonable” — as 
did the lower courts — the trial court’s holding that there was no 
discrimination in this case. In early 1986, it was widely known 
that Dallas County prosecuting attorneys used peremptory 
challenges to keep African-Americans off juries, but the courts

17 Only these last two categories of evidence were contested by the State. 
See Petitioner’s Brief for a detailed analysis of the voir dire.



18

apparently believed that Swain immunized their actions. Once 
Batson lifted that immunity, it was plain the courts could now 
provide relief to petitioner. But relief was not granted because 
the courts failed to apply the clearly established law requiring 
consideration of the compelling pattern and practice evidence 
in the record as bearing on the question whether petitioner had 
shown that the strikes constituted racially-biased conduct.

1. The State Court Decisions

The decision in Batson “requires] trial courts to be 
sensitive to the racially discriminatory use of peremptory 
challenges.” Batson, 476 U.S. at 99. But sensitivity requires an 
open mind and an unflinching eye. Regrettably, in our view the 
trial court here displayed neither.

It is difficult to tell whether the trial judge simply 
misunderstood Batson, or was so unreceptive to a claim of 
racial discrimination that he refused to consider compelling 
facts in support of the claim.18 Whatever the reason, the trial 
judge went so far as to hold, at the conclusion of the Batson 
remand hearing, that petitioner had failed to make out a prima 
facie case, even after the Texas Court of Criminal Appeals had

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.” (Def. Exh. 1 at 146) (emphasis added).



19

explicitly held as a matter of law that one had been proven.19 
Miller-El v. State, 748 S.W.2d 459, 460 (1992).

At the Batson hearing, petitioner asked the trial judge to 
admit all of the evidence adduced at the pre-trial Swain hearing 
for consideration of the Batson claim. The State objected, 
arguing that all of the evidence of systematic exclusion should 
be excluded because it was now irrelevant: under Batson, the 
only evidence that was admissible was evidence about the 
individual trial in which the claim was raised. See 
Respondent’s Opposition to Writ o f Certiorari App. A, at 8-10. 
Neither office policy nor a pattern of behavior in prior or 
subsequent cases could be considered. Essentially, what this 
Court had intended as a relaxing of the Swain standard was 
turned on its head: although Batson held that difficult-to-obtain 
proof of complete and systematic discrimination was no longer

19 The last section of the trial judge’s opinion (“Findings of Fact and 
Conclusions of Law on Disputed Issues”) is divided into two sections: “A. 
Prima Facie Case” and “B. Reasonableness of the State’s Explanations.” 
Under the “Prima Facie Case” section, the trial judge held: “The evidence 
did not even raise an inference of racial motivation in the use of the State’s 
peremptory challenges.” Reply to Respondent's Brief In Opposition, App. 
1, at 4. In an introduction to the “Reasonableness of the State’s 
Explanations” section, the trial judge wrote, “Because this court does not 
wish to unduly delay the progress of the appeal of this case, it required the 
State to produce explanations for the exercise of all of her [sic?] peremptory 
challenges, notwithstanding the court’s belief in the correctness of its ruling 
on the prima facie showing issue.” Id., at 6. It also appears that the trial 
judge collapsed the first and second steps in Batson, allowing the 
prosecutor’s “race neutral” explanations to negate a finding of a prima facie 
case. The trial judge cited a 1987 opinion from the Supreme Court of 
Missouri which seemed to endorse such a procedure, directing trial judges 
“to consider the prosecutor’s explanations as part of the process of 
determining whether a defendant has established a prima facie case of 
racially discriminatory use of peremptory challenges.” Id. at 5 {citing State 
v. Antwine, 743 S.W.2d 51, 64 (Mo. 1987) (en banc)).



20

required to prove discrimination in an individual case, the State 
contended that Batson barred the petitioner from using evidence 
of systematic discrimination as proof of discrimination in an 
individual case involving the same actors.

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 
Respondent’s Opposition to Writ o f Certiorari App. A, at 11. 
His written decision recites the evidence he considered — the 
“raw numbers” of strikes used (which he believed were 
counterbalanced by the fact that one African-American was 
allowed to sit); the “entire voir dire process” and “the 
explanations for the [strikes] . . . offered at trial and at the 
retrospective Batson hearing.” Reply to Respondent's Brief In 
Opposition, App. 1, at 5. The pattern and practice evidence is 
omitted from the list, and not mentioned anywhere else. Thus, 
all the information about who the actors were, what they had 
been doing, and the impact of those actions vanished. Viewing 
the case in total isolation, the trial judge concluded that no 
discrimination had occurred.

On appeal, the Court of Criminal Appeals looked at the 
record to determine whether the prosecutor had, as the trial 
court found, proffered facially race-neutral explanations for the 
strikes of African-Americans. Since it found that he had, and 
there was support in the record for those explanations, the 
Court of Criminal Appeals went no further. The reality of what 
everyone knew had occurred in Dallas County in the 1980s 
simply dropped out of the case. The Court of Criminal Appeals 
did not even acknowledge that the trial judge had completely 
ignored its own finding that petitioner had proven a prima facie 
case of discrimination. Miller-el v. State, No. 69-677 (Tex. 
Crim. App. Sept. 16, 1992).



21

2. The Federal Court Decisions

The federal district court and the Fifth Circuit both 
relied on the Findings and Recommendation of the United 
States Magistrate Judge. Miller-el v. Johnson, No. 3:96-CV- 
1992-H (N.D. Tex. June 5, 2000); Miller-el v. Johnson, 261 
F.3d 445 (5th Cir. 2001). In that report, the Magistrate Judge 
began by noting that it would be “an understatement” to 
characterize the evidence supporting the Batson claim as 
“copious and multifaceted.” Cert. App. 5, at 12. Elsewhere, he 
concluded that “Petitioner has adduced a considerable amount 
of evidence showing that the Dallas County District Attorney’s 
office had an unofficial policy of excluding African-Americans 
from jury service in years past. There is no other explanation 
for the appalling statistics brought to light by the Dallas 
Morning News in March 1986.” Cert. App. 5, at 20 (emphasis 
supplied). Nonetheless, because of his mistaken view of a 
proper Batson analysis, he recommended that relief be denied 
in this case.

The Magistrate Judge held that 1) evidence that the 
prosecutors were found to have discriminated in other cases is 
not relevant to whether they might be offering pretextual 
reasons for strikes in this case, but “is only relevant to 
determining whether petitioner has established a prima facie 
case under Batsonf20 2) evidence that the prosecutor 
systematically questioned African-American jurors differently 
than white jurors is irrelevant unless the specific line of 20

20 The fact that the specific prosecutors whose intentions were being 
assessed had been found by other courts to have intentionally discriminated 
was not relevant, in his view, in determining whether their reasons for 
striking 10 African-Americans in petitioner’s case were sincere or 
pretextual. Cert. App. 5, at 13.



22

questioning led to the exclusion of African-Americans;21 and 3) 
in a disparate treatment analysis, if review of the voir dire of 
each struck African-American juror revealed some difference, 
no matter how minor, from comparable white jurors who were 
seated, the court need not look further to see whether the overall 
pattern of excluding many African-Americans who varied in 
only minor ways from white jurors supported a finding of 
discrimination.22

Under the Magistrate Judge’s analysis, evidence one 
normally considers to be determinative in discerning the intent 
of an actor — evidence of an explicit policy governing the 
actions at issue, prior and subsequent behavior in similar 
circumstances by the specific actors involved, behavior in the 
case at hand that reveals the presence of intent — is 
“irrelevant” to an evaluation of intent. Evidence of a pattern

21 The Magistrate Judge did not dispute that all African-American jurors 
(and anti-death penalty white jurors) were questioned so as to make them 
vulnerable to exclusion on the issue of minimum punishment. The fact that 
the prosecutor was able to exclude 10 African-Americans without resort to 
the minimum punishment issue does not negate this fact. Although it may 
not be dispositive of the issue, the evidence certainly casts light on the 
prosecutors’ determination to exclude African-Americans by whatever 
means necessary.

22 The Magistrate Judge deferred to the “credibility determinationjs]” of the 
state trial judge on the disparate treatment issue. Cert. App. 5, at 16. But as 
we have seen, the trial judge did not consider, when making those 
determinations, that the District Attorney’s office had a policy of 
discrimination nor that there were “appalling” statistics proving widespread 
discrimination by the office. He made the determinations in the context of 
his own disinclination to believe that discrimination had occurred. 
Moreover, the Magistrate Judge simply ignored the fact that the prosecutor 
often gave multiple explanations for a strike, some of which were 
demonstrably pretextual, i.e., they depended not on “demeanor” issues like 
“hesitancy” but on simple facts (e.g., whether a juror was Catholic) which 
applied equally to African-American jurors who were struck and white 
jurors who were not.



23

and practice of discrimination is confined to consideration of 
whether a prima facie case has been proven. The Magistrate 
Judge replaced the “crippling burden of p roof’ denounced by 
this Court in Batson, 476 U.S. at 92, with another one that 
purports to come from Batson itself.

D. Batson Requires Consideration of All
Relevant Evidence of Discrimination

Although Batson set out a three-part procedure for 
analyzing claims of discriminatory use of peremptory 
challenges, it is clear that the Court did not intend those “steps” 
to be isolated and unrelated inquiries, with evidence confined to 
one step or another. Nor did it envision the piecemeal 
examination of individual voir dires, each in isolation from the 
other, as a sufficient evaluation of the presence of 
discrimination.

The Court recognized that the exercise of peremptory 
challenges provides the opportunity to carry out the “conscious 
and unconscious prejudice [that] persists in our society,” 
Georgia v. McCollum, 505 U.S. at 61 (Thomas, J., dissenting). 
“[T]he defendant is entitled to rely on the fact, as to which there 
can be no dispute, that peremptory challenges constitute a jury 
selection practice that permits ‘those to discriminate who are of 
a mind to discriminate.’” Batson, 476U.S. at 96 (quoting Aver}’ 
v. Georgia, 345 U.S. at 562).

Although the Court’s discussion in Batson of the kind 
of evidence that would be relevant to proof of discrimination 
came in the portion of the opinion discussing proof of a prima 
facie case, it in no way hinted, implied, insinuated, or suggested 
-- let alone stated — that such proof of discrimination should not 
be considered when deciding the ultimate question of w'hether 
discrimination occurred.



24

The Court has long observed that proof of purposeful 
discrimination can come from many sources. “In deciding if the 
defendant has carried his burden of persuasion, a court must 
undertake a ‘sensitive inquiry into such circumstantial and 
direct evidence of intent as may be available.’ Arlington 
Heights v. Metropolitan Housing Development Corp., 429 U.S. 
252, 266 (1977). Circumstantial evidence of invidious intent 
may include proof of disproportionate impact. Washington v. 
Davis, 462 U.S.[229] at 242 [(1976)].” Batson, 476 U.S. at 93. 
A defendant may rely on “any . . .  relevant circumstances” and 
“a combination of factors” in establishing a claim of jury 
discrimination. Courts should consider “all relevant 
circumstances” in deciding whether the defendant has made the 
requisite showing. Batson, 476 U.S. at 96-97.23

It is clear this settled rule was not applied in this case; 
if it had been, the only reasonable conclusion would be that 
Petitioner met his burden of showing that racial bias motivated 
the striking of the excluded African American jurors.

III.

The Importance of Fulfilling Batson’s Promise

Our final point is that the Court has more work to do to 
ensure the realization of Batson’s promise. As the Court 
recognized six years after Batson was decided, “[d]espite the 
clarity of . . . [our] commands to eliminate the taint of racial 
discrimination in the administration of justice, allegations of 
bias in the jury selection process persist.” Powers v. Ohio, 499 
U.S. at 402. Commentators have attributed the persistence of

23Indeed, in a different context, the Court recently confirmed the application 
of this approach in age discrimination cases. See Reeves v. Sanderson 
Plumbing Products, Inc., 530 U.S. 133 (2000).



25

such claims to the “toothlessness” of Batson.24 But amici 
believe that the fault lies not with the decision itself, but with 
the misapprehension by the lower courts of its commands.

Despite Batson’s goal of eradicating racial
discrimination in jury selection, some lower courts have 
accepted questionable “race-neutral” reasons for the exclusion 
of African-American prospective jurors;25 they have atomized 
their analyses in a juror-by-juror discussion, refusing to look at 
the voir dire as a whole, thus allowing “race-neutral” reasons to

24 See, e.g., Leonard Cavise, The Batson Doctrine: The Supreme Court’s 
Utter Failure to Meet the Challenges of Discrimination in Jury Selection, 
1999 Wis. L. Rev . 501 (1999) (“Only the most overtly discriminatory or 
impolitic lawyer can be caught in Batson’s toothless bite and, even then, the 
wound will be only superficial.”); Charles J. Ogletree, Just Say No!: A 
Proposal to Eliminate Racially Discriminatory Uses o f Peremptory 
Challenges, 31 Am. Crim. L. Rev. 1099, 1104 (1994) (arguing that the 
Batson line of cases “was misguided from the outset because it failed to 
appreciate the ‘interest litigants have in continuing to discriminate by race 
and gender if they can get away with it[]’”); See, e.g., David C. Baldus, et 
al., The Use o f Peremptory Challenges in Capital Murder Trials: A Legal 
and Empirical Analysis, 3 U. Pa. J. CONST. L. 3, 81 (2001) (noting Supreme 
Court decisions prohibiting race or gender-based peremptory strikes have 
had “at best [] only a marginal impact on the peremptory strike strategies of 
each side” in Philadelphia, possibly because counsel for both sides “have 
little expectation that the courts will sustain a claim of discrimination even 
if it is based on solid evidence”); see id. (presenting statistical data reporting 
the prosecutorial strike rates pre- and post-Batson against black and non­
black venire members, and concluding that a sharp upswing in the use of 
peremptory strikes against black venire members post-Batson may reflect 
the perception that the decision would have little actual clout).

25 For a compilation of examples, see Sheri Lynn Johnson, Batson Ethics for 
Prosecutors and Trial Court Judges, 73 C h i .-Ke n t L. Re v . 475, 489-90, 
493-49 (1998) and Cavise, supra, n. 24, at 531-35, 553.



26

justify patterns of striking virtually all black veniremembers;26 
and, in cases like petitioner’s, they have refused to consider 
extensive evidence bearing on the issue of the prosecutor’s 
intent.27

But other courts have found in Batson ample tools to 
hold prosecutors accountable for their race-based exclusions. 
For example, the Seventh Circuit had no trouble recognizing 
that Batson required the consideration of all evidence in a case. 
Coulter v. Gilmore, 155 F.3d 912, 921 (7th Cir. 1998) (“The 
Batson decision makes it clear that, one way or another, a trial 
court must consider all relevant circumstances before it issues 
a final ruling on a defendant’s motion.”).28 The Third Circuit 
has recognized that a history of discrimination by the 
prosecutor’s office is probative. Riley v. Taylor, 277 F.3d at 
283-84. Other courts have found disparate treatment despite a 
lack of total identity in juror responses.29 Still others have

“6 See Charles J. Ogletree, Supreme Court Jury Discrimination Cases and 
State Court Compliance, Resistance and Innovation, in TOWARD A USABLE 
PAST 339, 349 (Paul Finkelman & Stephen E. Gottlieb eds., 1991) at 352 
(“State trial courts frequently accept prosecutorial explanations that, 
although somewhat plausible, have a disparate effect on minorities and 
therefore may become convenient excuses for rationalizing challenges 
against minorities.”).

27 See e.g., Riley v. Taylor, 277 F.3d 261, 283-84 (3rd Cir. 2001)(en banc).

28 See also, e.g., State v. Givens, 776 So. 2d 443, 449 (La. 2001) (holding 
that a defendant “may offer any facts relevant to the question of the 
prosecutor's discriminatory intent.. .[which] include, but are not limited to, 
a pattern of strikes . . . against members of a suspect class, . . .  the 
composition of the venire and of the jury finally empaneled, and any other 
disparate impact upon the suspect class”).

29 See, e.g., Burnett v. State, 27 S.W.3d 454 (Ark. App. 2000); People v. 
Morales, 719 N.E.2d 261 (111. App. 1999).



27

refused to credit reasons as “race-neutral” because of the pattern 
of strikes in a particular case.30

Given the overwhelming and unrebutted evidence in this 
record of purposeful exclusion of African American jurors in 
Dallas over a significant period of time, as well as the Court’s 
unbroken line of cases dating back more than 100 years prior to 
the trial in this case that clearly condemns such behavior, we 
can only conclude that the judges who made the findings in this 
case — both the state trial judge and the Magistrate Judge — 
could not bring themselves to apply the law that plainly required 
that this evidence be considered at Batson’s stage three. They 
acted as if the history of jury discrimination documented in 
scores of opinions from this Court, did not exist, as if behavior 
was not evidence of intent, as if no action had any relationship 
to any other — as if they had walked into what was plainly a

30 Robinson v. State, 773 So.2d 943, 949 (Miss. App., June 27, 2000) 
(“[B]ased on our review of this record, we find the reasons offered by the 
State to be so contrived, so strained, and so improbable, that we are 
persuaded that they unquestionably fall within the range of those 
‘implausible or fantastic justifications’ mentioned in Purkett v. Elem that 
ought to ‘be found to be pretexts for purposeful discrimination.’ Purkett v. 
Elem, 514 U.S. 765, 768 (1995).”). In Robinson, 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 the 
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) juror lived in a high crime area; 4) sleeping 
during voir dire; 5) not providing answers on the questionnaire that created 
uncertainty about ties to the community; 6) serving on a jury that acquitted. 
The Court found that although some of the proffered reasons for striking 
some of the jurors had been found to be race-neutral by prior case law, 
“there is no requirement that every challenge be clearly objectionable in 
order to conclude that the State was impermissibly making a calculated 
effort to exclude as many African-Americans as could reasonably be done 
from the jury.” Robinson, 773 So.2d at 950. Viewing the totality of the 
circumstances, the Court concluded that Batson was violated. Id.



28

forest and saw only leaves. Like others throughout the sordid 
history of race-based exclusions of African-American citizens 
from jury service, they were apparently incapable of looking 
behind the mask of racial neutrality worn by those of a mind to 
discriminate. Their blindness invites cynicism and anger from 
those who saw — and see — the reality of Dallas County in the 
1980s: the defendants who watched African-Americans being 
struck, one after another, from their juries; the African- 
American citizens who arrived for jury duty only to be sent 
home humiliated and intimidated; the reporters who watched 
and gathered evidence of the system at work; and all the readers 
of the articles that so graphically portrayed the nefarious 
behavior of the prosecutors.

The decisions below are thus seriously flawed. They 
failed to heed this Court’s declaration in Batson that 
“[ejxclusion of black citizens from service as jurors constitutes 
a primary example of the evil the Fourteenth Amendment was 
designed to cure.” Batson, 476 U.S. at 85. Vigorous and 
faithful application of the Court’s teaching is the least that can 
be expected of state and federal judges who take the oath of 
office and swear to uphold the Constitution of the United States. 
The Court must make clear in this case that it shares that 
expectation.

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,499U .S.at430(Rehnquist,C.J.,dissenting). Petitioner’s 
was just such a jury.



29

Despite clear and emphatic statements condemning race 
discrimination in the selection of juries in this Court’s decisions 
since 1879, prosecutors in Dallas County in 1986 openly 
followed a policy of excluding African-Americans through the 
use of peremptory challenges.

As our nation’s history aptly demonstrates, 
discrimination injury selection will continue unless this Court 
reaffirms in clear and emphatic language that review of a 
Batson claim is not a shell game, but the exercise of steadfast 
and resolute judicial commitment to ending race-based 
exclusions of African-American citizens from participation in 
the American judicial process.

Petitioner’s conviction and sentence of death should be 
reversed.

Respectfully submitted,

Elaine R. Jones 
Director-Counsel 
Theodore M. Shaw 
Norman J. Chachkin 
James L. Cott 

*George H. Kendall 
Deborah Fins 
Mir ia m s . Gohara 
NAACP Legal Defense and 
Educational Fund, Inc .
99 Hudson St., 16th Floor 
New York, NY 10013-2897 
(212) 965-2200

Dated: May 28, 2002

Attorneys for Amici Curiae 
* Counsel o f Record