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Was justice served?
Jury selection practices questioned in Miller-El v. Cockrell

12 March 2003

“Do not take Jews, Negroes, Dagos, Mexicans, or a member of any minority race on a jury, no matter how rich or how well educated,” read a 1963 memo circulated within the district attorney’s office in Dallas County, Texas. Later, the language changed:

A prosecutor’s training manual in the mid-1980s counseled, “What to look for in a jury: you are not looking for any member of a minority group.”

A study of 100 randomly selected felony trials, conducted by the Dallas Morning News in the mid-’80s, showed the effect of such practices: “A qualified black juror,” it wrote, “has a 1 in 10 chance of serving on a jury, compared to a 1 in 2 chance for a Caucasian.”

It was in this venue that Thomas Miller-El — a black man accused of capital murder in the death of a hotel clerk during a robbery — was tried in 1986. And it was these practices that the Supreme Court questioned in Miller-El v. Cockrell, a decision rendered on Feb. 25.

In an 8-1 ruling (Justice Clarence Thomas dissenting), the court noted the percentages of jurors removed by peremptory strikes during Miller-El’s trial (91 percent of eligible black jurors vs. 13 percent of whites). Justice Kennedy, writing for the majority, also cited several questionable practices used in the trial: the prosecution’s use of two different scripts — one for whites, the other for blacks — when questioning potential jurors about the death penalty; and its use of jury shuffling, a practice unique to Texas law, to rearrange the order in which members of the jury pool were examined (effectively eliminating a number of blacks).

The high court did not rule on the merits of the case, but ordered the 5th Circuit Court of Appeals to hear Miller-El’s appeal. Members of the Death Penalty Clinic, a privately funded Boalt Hall program that helped with the case, had hoped that the court would rule on the substance. But “the language of the opinion was so strong, it just seemed as if the Supreme Court was writing a letter to individual judges of the 5th Circuit,” says Professor Charles Weisselberg, one of two attorneys at the clinic.