Death Row Redux

In the recent dispute between Supreme Court justices over the question of race discrimination in jury selection, we find two warring camps of legal theory. By issuing its order to give one death row prisoner a new trial in Texas, the court majority seems to be forging a legal theory that can advance the long, good fight for racial justice. On the other side are some truly dangerous leanings.

In the logical dispute between a six-Justice majority led by David H. Souter and a three-Justice dissent led by Clarence Thomas we find the majority holding prosecutors strictly to account for the reasons they actually give when explaining under oath why they exercised peremptory strikes against black candidates for jury duty. What the prosecutor actually says about his or her reasons is what the majority tests for soundness. On the dissenting side, however, we find that when prosecutors give faulty reasons explaining why they were thinking non-racially, Justice Thomas asks the Supreme Court to look deeper into the record to see if more plausible non-racial accounts might be found.

In death penalty cases, which logical method seems better for the Supreme Court to adopt: demanding that prosecutors give coherent reasons the first time when asked to show why their peremptory strikes were not racially motivated? Or shall we instead allow prosecutors to get close enough for government work, assuring them that the ruling minds of the judicial system will be standing by to find better race-neutral accounts if needed?

Or here's another question. When a black man sitting on death row wants to appeal his death sentence because he feels that black jurors were banned from his trial BECAUSE they were black, should we allow that death row prisoner to introduce jury cards, questionnaires, and testimony used to select the jury? For the majority opinion in the case of Texas death row inmate Thomas Miller-El, the answer is clearly yes, the prisoner is entitled to carry with him on appeal the jury selection documents that were used at his trial. But for the dissenting minority, access to jury selection docs should be limited on appeal.

Justice Thomas argues that once a trial is over, and the death penalty has been awarded, then death row prisoners can only re-try issues and documents that they found relevant during jury selection itself. If after the trial is over a more complete review of the jury selection process yields new arguments for finding race discrimination, the minority view would tell the death prisoner, sorry, too late.

Thomas argues that trial judgments should not be reversible on the basis of new issues found in fuller review of jury selection materials. If defendants fail to discern the best case for race discrimination the first time around, it is simply "unrealistic" to expect the trial court to know what was never pointed out, and if the trail court didn't know it at the time, then it can't be revisited on appeal.

On the other hand, the majority opinion argues that a court may be held accountable for making the best possible ruling based on the complete record at hand, whether the judge actually takes the time to know it or not. Death row prisoners therefore have the right to go over everything once again with a fine toothed comb.

Working in the legacy of the late Justice Thurgood Marshall, the majority of the Supreme Court seems to appreciate the care that has to be taken with logical analysis when you set out to find patterns of race bias. Sophisticated players in the race bias game are quite often difficult to catch. In a culture of race bias the players may not be fully aware of the bias they are exercising. In a concurring opinion by Justice Breyer, the Supreme Court reminds us what Marshall predicted: that so long as peremptory strikes are used in jury selection, there will never be a failsafe method to disable their usefulness to racial bias.