Peremptory Challenges and Racial Discrimination: The Effects of Miller-El v. Cockrell

Georgetown Journal of Legal Ethics, The, Summer 2004 by Johnstone, Mattie, Zachariah, Joshua M

Miller-El v. Cockrell states that courts should make an effort to emphasize more than just the prosecutor's demeanor in determining credibility, and proffers suggestions for how to determine whether a lawyer's explanation is credible.104 One such method is comparative juror analysis, whereby the court analyzes the record to see whether prospective jurors, who otherwise have similar characteristics or provided similar answers during voir dire, were treated differently on the basis of race.105 The Miller-El decision also made clear that although the trial court is given great deference in making determinations about credibility and discriminatory intent, reviewing courts still have the opportunity to look at the record and make determinations about the credibility of a lawyer's explanation.106

B. MILLER-EL'S IMPACT

Given the procedural posture of the case, the issue of racially motivated peremptory challenges was not squarely before the Court in Miller-El.,107 Since Miller-El's COA claim rested on a Batson violation, resolution of his COA application required a "preliminary, though not definitive, consideration of the three-step framework mandated by Batson and reaffirmed in . . . later precedents."108 Thus the Court merely considered the Batson claim without ruling on it, and therefore did not engage in the sort of deeper substantive analysis on the merits that would have allowed the Court to clear some of the muddy waters that have followed in the wake of the Batson decision.109 However, although Miller-El involved only a threshold analysis of whether a COA should have issued in the federal habeas corpus proceedings, the Court's analysis tracks the three-stage Batson process and was expressly concerned with the third stage of that process, thereby providing some clarification of Batson.110

The Court's threshold analysis in Miller-El provided some clear signals as to how courts ought to interpret Batson challenges. The strongest signal the Court sent was a re-affirmation that the "critical question" in determining proof of purposeful discrimination at the third and crucial step in the in Batson process is the "persuasiveness of the prosecutor's justification for his peremptory strike," that is, "whether the trial court finds the prosecutor's race-neutral explanations to be credible."111 The Court then offered several means of measuring credibility,112 but acknowledges that "the best evidence will often be the demeanor of the attorney who exercises the challenge."113 Thus, the Court recognized that "[t]he credibility of the prosecutor's explanation goes to the heart of the equal protection analysis."114 Because credibility is crucial to determining the constitutionality of peremptory challenges, it is disturbing to think that in relying on, credibility, "Batson and its progeny have proven to be less an obstacle to, discrimination than a roadmap to it.115

The Court further stressed the centrality of the credibility question by emphasizing that the trial court has a duty to proceed to step three in the Batson process to answer that question.116 The Court had previously stated that "[o]nce the prosecutor offers a race-neutral basis for his exercise of peremptory challenges, the trial court then has the duty to determine if the defendant has established purposeful discrimination."117 In addition to its emphasis on credibility, the Miller-El Court addressed the allocation of burdens of production and persuasion in Batson proceedings.118 By clarifying this allocation and affirming the duty of courts to reach step three and engage in credibility analysis, the Court provided clear signposts for lower courts in navigating the Batson process.