THE SUPREME COURT heard oral arguments recently in the case of Miller-El v. Cockrell, the latest death penalty appeal from Texas's hyperactive execution factory. At issue in this case is how obviously discriminatory jury selection needs to be before the Constitution requires that a capital murder conviction be thrown out. Prospective jurors cannot constitutionally be struck from a jury pool because of their race. The question is how large a fig leaf prosecutors need to defend a capital trial at which African Americans were systematically excluded from jury service.
Thomas Joe Miller-El was convicted of a brutal murder in Dallas in 1986. His trial took place against the backdrop of a long history of conscious efforts by city prosecutors to keep blacks off juries. A 1963 training manual for prosecutors stated: "Do not take Jews, Negroes, Dagos, Mexicans, or a member of any minority race on a jury, no matter how rich or well educated." A 1969 update said prosecutors should bar from juries "any member of a minority group which may subject him to oppression" and warned that "minority races almost always empathize with the Defendant." While this was no longer stated policy by the time of Mr. Miller-El's trial, veterans of the office testified that at least some prosecutors still observed an unwritten norm of keeping blacks out of the jury box. A study by the Dallas Morning News at the time of Mr. Miller-El's trial found that prosecutors had eliminated 92 percent of African Americans using peremptory challenges, which enable parties to remove otherwise qualified jurors, in 100 trials studied.
And the exclusion of blacks is precisely what happened in Mr. Miller-El's case. A pair of prosecutors -- who also helped prosecute other cases in which courts later found discriminatory jury selection -- appeared to manipulate the rules to minimize the chances of blacks being chosen. And they then used peremptory strikes to eliminate 10 of 11 qualified black jurors. The only African American they allowed on the jury was a man who said that lethal injection is "too quick. They don't feel the pain. . . . What I call punishment is back to the old Indian days. . . . Pour some honey on them and stake them out over an ant bed." The state contends that the jurors were struck on the basis not of race but of their statements in questionnaires and in individual interviews. But Mr. Miller-El's attorneys argue that the prospective black jurors were questioned differently from how the others were questioned, and that comparable answers caused blacks to be struck and others not.
As a general matter, courts ask only that prosecutors identify a reason for a strike that is valid and race-neutral. And the lower courts that have reviewed this case have taken Texas's word that it was the prospective jurors' statements, not their race, that prompted these strikes. This is clearly wrong. We don't doubt that if the court focuses narrowly on what took place in the jury questioning, this case will be a close one. But given the pervasive intentional exclusion of blacks from the jury pool in Dallas that was the norm even as Mr. Miller-El's trial was held, focusing so narrowly seems willfully naive. Against this backdrop, it should be entirely clear to a reasonable person what happened here -- and the court would do a terrible disservice to blind itself to the reality or to pretend that it is okay.