Monday, October 14, 2002

Supreme Court I've now posted descriptions and predictions for all 4 cases to be argued this week. Go here (including links there) for the first three. The last one, Miller-El v. Cockrell, I'd discussed earlier here back when it was scheduled for the Term's first day. Here's a few more words on it.

It's about the burdens of proof, when it comes to proving that a prosecutor struck a prospective juror because of race rather than because of some legitimate reason. To do such a thing is unlawful. For years, in order to prove such a thing, a defendant had to show first that the prosecutor's office had a pattern of such racially-motivated strikes; and once such a pattern was shown, the prosecutor had a heavy burden (i.e., a difficult time) in showing that the particular strike in question was nonetheless race-neutral. Think of this model (e.g., Swain v. AL) as a steam locomotive: hard for the defendant to start and get up to speed, but hard for the prosecutor to stop once it's up to speed. Then -- in what was widely hailed as a victory for defendants -- the Supreme Court decided in Batson v. KY that a defendant didn't have to start by showing such a pattern; a jury-strike could be reviewed to determine whether it was race-motivated, even without such a historical pattern of prosecutorial racism, but the prosecutor's burden in showing a race-neutral reason was not so heavy under this new standard. Think of this as a Vespa -- easy for the defendant to start up, but not as much momentum as a steam locomotive.

In this case, Miller-El wants to be driving the locomotive, because he says he's got the evidence of historical pattern (so it should, he says, be very hard for the prosecutor to rebut his claim of racial motivation). The U.S. Court of Appeals says that the Vespa is all there is, anymore; no steam locomotives to be had these days, and the prosecutor had enough counter-evidence of his good (race-neutral) motivations to stop a little old Vespa. My prediction of an AFFIRMANCE -- i.e., a victory for the prosecutor -- is largely just rough number-counting. I can't get to 5 for reversal. Cynicism, or awareness of certain recurring patterns -- call it what you will. There is, of course, a possibility that I'm wrong, and if so it would likely be because of complex procedural issues about "certificates of appealability" that I don't have time to get into right now.

After this (on Wednesday of this week), no more arguments until Nov. 4.

posted by sam 8:00 AM 0 comments

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