Statistical Proof of Racial Discrimination in the Use of Peremptory Challenges: The Impact and Promise of the Miller-El Line of Cases As Reflected in the Experience of One Philadelphia Capital Case

• Author: David C. Baldus - Catherine M. Grosso - Robert Dunham - George Woodworth - Richard Newell
• Position: Professor, The University of Iowa College of Law - Associate Professor, Michigan State University College of Law - Assistant Federal Defender in the Capital Habeas Unit of the office of the Federal Public Defender for the Middle District of Pennsylvania and Adjunct Professor of Law at the Villanova University School of Law - Professor Emeritus,...
• Pages: 1425-1465

1425

Statistical Proof of Racial Discrimination

in the Use of Peremptory Challenges: The

Impact and Promise of the Miller-El Line

of Cases As Reflected in the Experience of

One Philadelphia Capital Case

David C. Baldus, Catherine M. Grosso, Robert Dunham,

George Woodworth & Richard Newell

I. INTRODUCTION .................................................................................... 1427

II. BACKGROUND ...................................................................................... 1429

A. THE BATSON EVIDENTIARY FRAMEWORK ........................................ 1429

B. DISPARATE TREATMENT ISSUES IN THE BATSON EVIDENTIARY

FRAMEWORK .................................................................................. 1430

III. FROM MILLER-EL I THROUGH SNYDER .................................................. 1435

A. THE MANY CASES OF THOMAS JOE MILLER-EL ................................ 1436

B. CONTINUED ATTENTION TO THE ANALYTICAL MODEL: JOHNSON V.

CALIFORNIA (2005) & SNYDER V. LOUISIANA (2008) .................. 1438

C. THE EMERGENT ANALYTIC MODEL ................................................. 1439

IV. A CASE IN POINT: COMMONWEALTH V. HAROLD WILSON ....................... 1446

A. PROCEDURAL AND EVIDENTIARY OVERVIEW ..................................... 1446

B. STATISTICAL EVIDENCE PRESENTED IN THE CASE ............................. 1452

1. The Rule of Relevancy ......................................................... 1452

 The late Joseph B. Tye Professor, The University of Io wa College of Law. Professor

Baldus passed away in June 2011. He prepared an early but important draft of this paper before

his death.

 Associate Professor, Michigan State University College of Law.

 Assistant Federal Defender in the Capital Habeas Unit of the office of the Federal

Public Defender for the Middle District of Pennsylvania and Adjunct Professor of Law at the

Villanova University School of Law. He was counsel of record and litigated the Bat son claim in

Commonwealth v. Harold Wilson.

 Professor Emeritus, Department of Statistics and Actuarial Science, The University of

Iowa.

 Research Associate, The University of Iowa College of Law.

1426 IOWA LAW REVIEW [Vol. 97:1425

2. A Representative Sample of Relevant Cases ....................... 1454

3. Valid and Complete Data on All Relevant Variables ......... 1454

C. VALID MEASURES OF THE PRACTICAL AND STATISTICAL

SIGNIFICANCE OF BLACK VENIRE MEMBER RACE DISPARITIES ........... 1455

1. Unadjusted Black Venire Member Race Disparities .......... 1455

2. Adjustments for Race-Neutral Factors One at a Time ....... 1457

3. Race Disparities Estimated After Adjustment for Venire-

Member Characteristics Simultaneously in a Logistic

Regression Analysis .............................................................. 1459

V. CONCLUSION ....................................................................................... 1465

2012] STATISTICAL PROOF OF RACIAL DISCRIMINATION 1427

I. INTRODUCTION

The jurisprudence that has developed in the last twenty-five years under

Batson v. Kentucky may be fairly described as indeterminate, unprincipled,

and generally ineffective.1 Scholarly literature points to a variety of reasons

for this state of affairs.2 This Article focuses on one source of the problem—

the lack of clarity in the law concerning the evidentiary framework

(methodology) needed for a reliable analysis of statistical evidence in Batson

cases. United States Supreme Court decisions beginning with Miller-El v.

Cockrell (2003) and continuing through Miller-El v. Dretke (2005), Johnson v.

California (2005), and Snyder v. Louisiana (2008) clarified a number of issues

related to the use of statistical evidence and laid the foundation for the

development of a more rigorous and principled methodology for use in

1. Batson v. Kentucky, 476 U.S. 79 (1986). The probl ems apply equally to the progeny of

Batson, including Georgia v. McCollum, 505 U.S. 42 (1992) (extending Batson to strikes exercised

by defense counsel), and J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (extending Batson

to gender discrimination). A large body of literature concludes that Batson did not eliminate

the discriminatory exercise of peremptory challenges. See, e.g., Shari Seidman Diamond, Leslie

Ellis & Elisabeth Schmidt, Realistic Responses to the Limitations of Batson v. Kentucky, 7 CORNELL

J.L. & PUB. POL’Y 77, 80–83 (1997) (collecting articles raising this concern); Nancy S. Marder,

Beyond Gender: Peremptory Challenges and the Roles of the Jury, 73 TEX. L. REV. 1041, 1122–2 3

(1995) (noting that prosecutors offer “irrational” reasons to justify discriminatory strikes and

judges often accept these reasons); Kenneth J. Melilli, Batson in Practice: What We Have Learne d

About Batson and Peremptory Challenges, 71 NOTRE DAME L. REV. 447 (1996) (analyzing the

implementation of Batson in federal and state courts between 1986 and 1993 and concluding

that it had not eliminated discrimination); Mary R. Rose, A Voir Dire of Voir Dire: Listening to

Jurors’ Views Regarding the Peremptory Challenge, 78 CHI.-KENT L. REV. 1061, 1062–65 (2003)

(discussing articles that report continuing discrimination); Samuel R. Sommers & Michael I.

Norton, Race-Based Judgments, Race-Neutral Justifications: Exp erimental Examination of Peremptory Use

and the Batson Challenge Procedure, 31 LAW & HUM. BEHAV. 261 (2007) (reporting the findings of

experimental research testing and challenging the presumptions underlying Batson).

2. In his concurrence to Batson, Justice Marshall pointed out that Batson claims would be

difficult to state and equally difficult to evaluate. Batson, 476 U.S. at 105–06 (Marshall, J.,

concurring). Scholars also have noted that the Court’s failure to provide guidance for the

judicial review of Batson claims leads to inconsistent standards across jurisdictions. See, e.g., Sheri

Lynn Johnson, Batson Ethics for Prosecutors and Trial Court Judges, 73 CHI.-KENT L. REV. 475, 476

(1998) (noting that the Court was “short on the details of proper behavior and ambiguous with

respect to the nature of the wrong it was redressing”); Nancy S. Marder, Justice Stevens, the

Peremptory Challenge, and the Jury, 74 FORDHAM L. REV. 1683, 1707–08 (2006) (noting the

problem of inconsistencies across jurisdictions); Charles J. Ogletree, Just Say No!: A Proposal To

Eliminate Racially Discriminatory Uses of Peremptory Challenges, 31 AM. CRIM. L. REV. 1099, 1105–10

(1994) (providing examples of lower courts applying Batson inconsistently); Brian J. Serr &

Mark Maney, Racism, Peremptory Challenges, and the Democratic Jury: The Jurisprudence of a Delicate

Balance, 79 J. CRIM. L. & CRIMINOLOGY 1, 27–28 (1988). Others have noted that the challenge

of reviewing race-neutral reasons effectively has led to a “ charade” where meeting the burden,

and defeating the Batson claim, requires little effort. Marder, supra, at 1706 (“Batson is so easy to

circumvent that it allows a charade in the courtroom.”); see also Jere W. Morehead, When a

Peremptory Challenge Is No Longer Peremptory: Batson’s Unfortunate Failure to Eradicate Invidious

Discrimination from Jury Selection, 43 DEPAUL L. REV. 625, 634 (1994) (explaining that

evidentiary requirements protect most attorneys from a finding of unacceptable peremptory

challenges).