Something has gone wrong with jury selection in Mississippi, and the Fifth Circuit is to blame

What good is a constitution if judges refuse to follow it?

The judges of the Fifth Circuit appear incapable of distinguishing between an opinion of the Supreme Court and Justice Clarence Thomas' dissents. (Photo by James Leynse/Corbis via Getty Images)
The judges of the Fifth Circuit appear incapable of distinguishing between an opinion of the Supreme Court and Justice Clarence Thomas' dissents. (Photo by James Leynse/Corbis via Getty Images)

More than three decades ago, in a case called Batson v. Kentucky, the Supreme Court laid out the means by which judges should sniff out race discrimination in jury selection and prevent prosecutors from excluding African Americans from juries. Ever since then, a federal appeals court that oversees three conservative Southern states has fought a quiet war against Batson — and against the basic constitutional principle that Americans should not be excluded from jury service because of their race.

As Judge Gregg Costa, a member of the United States Court of Appeals for the Fifth Circuit, explains in a dissenting opinion published last month “it appears that only two of the hundreds of Batson decisions in our circuit have ever found” that a prosecutor’s decision to strike a juror from a jury pool “was discriminatory” (though “a few others” vacated convictions on procedural grounds).

There are only two possible explanations for this pattern. It could be that the states of Texas, Louisiana, and Mississippi — the three states overseen by the Fifth Circuit — have virtually flawless records, and the judges and prosecutors within those states have practically eliminated racial jury discrimination in regions that used to be ground zero for Jim Crow. The more likely possibility, however, is that the federal appeals court tasked with defending the Constitution in these three states has abdicated its responsibility to prevent jury discrimination.

Judge Costa’s dissent in Chamberlin v. Fisherand the majority opinion that it responds to, is the latest chapter in what appears to be a concerted effort by the Fifth Circuit to neutralize Batson and leave convictions in place even if they are the product of racial jury discrimination.


In many jurisdictions, prosecutors and defense attorneys are both allowed a certain number of “peremptory challenges,” which allow lawyers to strike a member of the jury pool for more or less any reason they want — peremptory strikes are exercised for reasons as serious as a a potential juror’s views on the death penalty or as frivolous as the fact that a lawyer does not like a potential juror’s hat.

Under Batson, however, a prosecutor may not strike a potential juror because of the juror’s race. Batson also lays out a three-step process that courts should use to determine whether a particular strike was racially motivated. After a criminal defendant raises a colorable claim that a particular individual was struck because of their race, the prosecutor must offer a race-neutral reason why they chose to exclude that potential juror. It’s then up to the judge to decide whether they believe that reason.

As a practical matter, Batson is often a paper tiger. Prosecutors nearly always furnish an explanation for why they removed a potential juror other than blurting out, “I don’t like the juror’s race.” Moreover, judges are not mind readers who can easily determine when a prosecutor is lying.

Nevertheless, the Supreme Court gave Batson some heft in a pair of cases that also arose out of the Fifth Circuit. More than fifteen years ago, the justices tried to correct the Fifth Circuit’s non-compliance with Batson in a pair of cases both involving a man named Thomas Joe Miller-El. If Chamberlin is any indication, this lesson did not take.


Mr. Miller-El was sentenced to die after Texas prosecutors “used peremptory strikes to exclude 10 of the 11 African-Americans eligible to serve on the jury.” Significantly, when the prosecution was asked to explain some of these strikes, it offered explanations that also applied to some of the white jurors. Yet the black jurors were struck while similar white jurors were allowed to be seated.

In Miller-El’s second trip to the Supreme Court, a case known as Miller-El v. Dretke, the Court explained that “if a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination.” Just as significantly, the Supreme Court held that prosecutors are bound by their explanation for why they chose to strike a particular juror — and that courts are not free to go hunting for other reasons, legitimate or otherwise, as to why a minority juror may have been removed.

When illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.

The reason for this rule is fairly clear. “Potential jurors,” Justice David Souter wrote for the Court, “are not products of a set of cookie cutters.” There will always be some meaningful difference between any two jurors, and a judge who is given enough time to look for differences between a minority juror struck from the pool and another white juror permitted to remain — a different response on a juror questionnaire, a different family or job background, or even a difference in how the two individuals dressed — will always be able to find something.

Nevertheless, in Chamberlina majority of the Fifth Circuit held that Batson challenges fail if an appeals court can imagine a reason that could have justified striking the black juror while keeping a white one.

The similarities between Chamberlin and Miller-El are striking. The prosecution struck seven of the first eight black potential jurors that it had the opportunity to challenge, while accepting seven of the first eight white jurors. In total, Judge Costa explains in his dissent, the prosecution “exercised 62% of its strikes on black jurors, despite black jurors making up only 31% of qualified prospective jurors.”


Moreover, when asked to explain why it struck two specific African Americans from the jury, the prosecution claimed that it did so because it did not like those individuals’ answers to “questions 30, 34, and 35” on the juror questionnaire — claiming that the black potential jurors’ answers to these questions may indicate that they would be reluctant to hand down a death sentence.

The problem with this explanation is that another juror, who is white, gave the exact same responses to these three questions. And yet this white person was not struck.

Nevertheless, as Judge Edith Clement wrote for a majority of the Fifth Circuit, the prosecution’s actions did not violate Batson because there was another possible explanation for the decision to strike the two black jurors and keep the white one. Though all three jurors had the same response to the three questions flagged by the prosecution, they had different responses to question 53 — a question that the prosecution did not point to to explain why the black jurors were struck — and the white juror’s response to question 53 could explain the decision to keep that juror.

If you are experiencing whiplash right now, you should be. The holding of Miller-El was that “a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives.” Miller-El was a decision of the Supreme Court of the United States, which, as its name implies, is supreme over the United States Court of Appeals for the Fifth Circuit.

And yet, in Chamberlina majority of the Fifth Circuit held that prosecutors do not need to stand or fall on the plausibility of the reasons they give. A prosecution can be saved, under the Fifth Circuit’s new rule, if appeals court judges are able to find something in the record that distinguishes the seated white juror from an excluded black juror.

The good news for victims of race discrimination in the Fifth Circuit is that Judge Clement is unlikely to be the final word on this case. As Judge Costa notes in his dissent, Clement’s opinion is at odds with decisions by the Seventh, Ninth, and Eleventh Circuit. And the Supreme Court typically steps in to resolve disagreements among lower federal appeals courts.

But even if the Supreme Court does hand down a swift, summary reversal of the Fifth Circuit’s error in Chamberlinit is far from clear that the judges on this appeals court will take the hint. For three decades, the Fifth Circuit has behaved as if racial jury discrimination simply does not exist in the states of Texas, Louisiana, and Mississippi. It’s behaved this way, moreover, despite the fact that the Supreme Court explicitly stated in the second Miller-El case that there is “widely known evidence of the general policy of the Dallas County District Attorney’s Office to exclude black [jury pool] members from juries at the time Miller-El’s jury was selected.”

Ultimately, the Constitution means very little if strategically-placed judges are determined not to follow it.