(Slip Opinion) OCTOBER TERM, 2004 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MILLER-EL v. DRETKE, DIRECTOR, TEXAS DEPART-
MENT OF CRIMINAL JUSTICE, CORRECTIONAL IN-
STITUTIONS DIVISION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 03–9659. Argued December 6, 2004—Decided June 13, 2005
When Dallas County prosecutors used peremptory strikes against 10 of
the 11 qualified black venire members during jury selection for peti-
tioner Miller-El’s capital murder trial, he objected, claiming that the
strikes were based on race and could not be presumed legitimate
since the District Attorney’s Office had a history of excluding blacks
from criminal juries. The trial court denied his request for a new
jury, and his trial ended with a death sentence. While his appeal was
pending, this Court decided, in Batson v. Kentucky, 476 U. S. 79, that
discrimination by a prosecutor in selecting a defendant’s jury violated
the Fourteenth Amendment. On remand, the trial court reviewed the
voir dire record, heard prosecutor Macaluso’s justifications for the
strikes that were not explained during voir dire, and found no show-
ing that prospective black jurors were struck because of their race.
The State Court of Criminal Appeals affirmed. Subsequently, the
Federal District Court denied Miller-El federal habeas relief, and the
Fifth Circuit denied a certificate of appealability. This Court re-
versed, finding that the merits of Miller-El’s Batson claim were, at
least, debatable by jurists of reason. Miller-El v. Cockrell, 537 U. S.
322. The Fifth Circuit granted a certificate of appealability but re-
jected Miller-El’s Batson claim on the merits.
Held: Miller-El is entitled to prevail on his Batson claim and, thus, en-
titled to habeas relief. Pp. 3–33.
(a) “[T]his Court consistently and repeatedly has reaffirmed that
racial discrimination by the State in jury selection offends the Equal
Protection Clause.” Georgia v. McCollum, 505 U. S. 42, 44. The rub
2 MILLER-EL v. DRETKE
Syllabus
has been the practical difficulty of ferreting out discrimination in se-
lections discretionary by nature and subject to a myriad of legitimate
influences. The Batson Court held that a defendant can make out a
prima facie case of discriminatory jury selection by “the totality of the
relevant facts” about a prosecutor’s conduct during the defendant’s
own trial. 476 U. S., at 94. Once that showing is made, the burden
shifts to the State to come forward with a neutral explanation, id., at
97, and the trial court must determine if the defendant has shown
“purposeful discrimination,” id., at 98, in light of “all relevant cir-
cumstances,” id., at 96–97. Since this case is on review of a denial of
habeas relief under 28 U. S. C. §2254, and since the Texas trial
court’s prior determination that the State’s race-neutral explanations
were true is a factual determination, Miller-El may obtain relief only
by showing the trial court’s conclusion to be “an unreasonable deter-
mination of the facts in light of the evidence presented in the State
court proceeding,” §2254(e)(1). Pp. 3–6.
(b) The prosecutors used peremptory strikes to exclude 91% of the
eligible black venire panelists, a disparity unlikely to have been pro-
duced by happenstance. Miller-El v. Cockrell, 537 U. S, at 342. More
powerful than the bare statistics are side-by-side comparisons of
some black venire panelists who were struck and white ones who
were not. If a prosecutor’s proffered reason for striking a black pan-
elist applies just as well to a white panelist allowed to serve, that is
evidence tending to prove purposeful discrimination. The details of
two panel member comparisons bear out this Court’s observation, id.,
at 343, that the prosecution’s reason for exercising peremptory
strikes against some black panel members appeared to apply equally
to some white jurors. There are strong similarities and some differ-
ences between Billy Jean Fields, a black venireman who expressed
unwavering support for the death penalty but was struck, and simi-
larly situated nonblack jurors; but the differences seem far from sig-
nificant, particularly when reading Fields’s voir dire testimony in its
entirety. Upon that reading, Fields should have been an ideal juror
in the eyes of a prosecutor seeking a death sentence, and the prosecu-
tors’ explanations for the strike, that Fields would not vote for death
if rehabilitation were possible, a mischaracterization of his testi-
mony, cannot reasonably be accepted when there were nonblack veni-
remen expressing comparable views on rehabilitation who were not
struck. The prosecution’s reason that Fields’s brother had prior con-
victions is not creditable in light of its failure to enquire about the
matter. The prosecution’s proffered reasons for striking Joe Warren,
another black venireman, are comparably unlikely. The fact that the
reason for striking him, that he thought death was an easy way out
and defendants should be made to suffer more, also applied to non-
Cite as: 545 U. S. ____ (2005) 3
Syllabus
black panel members who were selected is evidence of pretext. The
suggestion of pretext is not, moreover, mitigated by Macaluso’s ex-
planation that Warren was struck when the State could afford to be
liberal in using its 10 remaining peremptory challenges. Were that
the explanation for striking Warren and later accepting similar panel
members, prosecutors would have struck white panel member Jen-
kins, who was examined and accepted before Warren despite her
similar views. Macaluso’s explanation also weakens any suggestion
that the State’s acceptance of Woods, the one black juror, shows that
race was not in play. When he was selected as the eighth juror, the
State had used 11 of its 15 peremptory challenges, 7 on black panel
members; and the record shows that at least 3 of the remaining ve-
nire panel opposed capital punishment. Because the prosecutors had
to exercise prudent restraint, the late-stage decision to accept a black
panel member willing to impose the death penalty does not neutral-
ize the early-stage decision to challenge a comparable venireman,
Warren. The Fifth Circuit’s substituted reason for the elimination,
Warren’s general ambivalence about the penalty, was erroneous as a
matter of fact and law. As to fact, Macaluso said nothing about gen-
eral ambivalence, and Warren’s answer to several questions was that
he could impose the death penalty. As for law, the Batson rule pro-
vides the prosecutor an opportunity to give the reason for striking a
juror and requires the judge to assess the reason’s plausibility in
light of all of the evidence, but it does not does not call for a mere ex-
ercise in thinking up any rational basis. Because a prosecutor is re-
sponsible for the reason he gave, the Fifth Circuit’s substitution of a
reason for excluding Warren does nothing to satisfy the prosecutors’
burden of stating a racially neutral explanation for their own actions.
Comparing Warren’s strike with the treatment of panel members
with similar views supports a conclusion that race was significant in
determining who was challenged and who was not. Pp. 6–19.
(c) The prosecution’s broader patterns of practice during jury selec-
tion also support the case for discrimination. Texas law permits ei-
ther side to shuffle the cards bearing panel member names to rear-
range the order in which they are questioned. Members seated in the
back may escape voir dire, for those not questioned by the end of each
week are dismissed. Here, the prosecution shuffled the cards when a
number of black members were seated at the front of the panel at the
beginning of the second week. The third week, they shuffled when
the first four members were black, placing them in the back. After
the defense reshuffled the cards, and the black members reappeared
in the front, the court denied the prosecution’s request for another
shuffle. No racially neutral reason for the shuffling has ever been of-
fered, and nothing stops the suspicion of discriminatory intent from
4 MILLER-EL v. DRETKE
Syllabus
rising to an inference. The contrasting voir dire questions posed re-
spectively to black and nonblack panel members also indicate that
the State was trying to avoid black jurors. Prosecutors gave a bland
description of the death penalty to 94% of white venire panel mem-
bers before asking about the individual’s feelings on the subject, but
used a script describing imposition of the death penalty in graphic
terms for 53% of the black venire members. The argument that
prosecutors used the graphic script to weed out ambivalent panel
members simply does not fit the facts. Black venire members were
more likely to receive that script regardless of their expressions of
certainty or ambivalence about the death penalty, and the State’s
chosen explanation failed for four out of the eight black panel mem-
bers who received it: two received it after clearly stating their opposi-
tion to the death penalty and two received it even though they unam-
biguously favored that penalty. The State’s explanation misses the
mark four out of five times with regard to the nonblacks who received
the graphic description. Ambivalent black panel members were also
more likely to receive the graphic script than nonblack ambivalent
ones. The State’s attempt at a race-neutral rationalization fails to
explain what the prosecutors did. The explanation that the prosecu-
tors’ first object was to use the graphic script to make a case for ex-
cluding black panel members opposed to, or ambivalent about, the
death penalty is more persuasive than the State’s explanation, and
the reasonable inference is that race was the major consideration
when the prosecution chose to follow the graphic script. The same is
true for another kind of disparate questioning. The prosecutors
asked all black panel members opposed to, or ambivalent about, the
death penalty how low a sentence they would consider imposing for
murder without telling them that the State requires a 5-year mini-
mum, but prosecutors did not put that question to most white panel
members who had expressed similar views. The final body of evidence
confirming the conclusion here is that the Dallas County District At-
torney’s Office had, for decades, followed a specific policy of system-
atically excluding blacks from juries. The Miller-El prosecutors’
notes of the race of each panel member show that they took direction
from a jury selection manual that included racial stereotypes.
Pp. 19–31.
(d) The Fifth Circuit’s conclusion that Miller-El failed to show by
clear and convincing evidence that the state court’s no-discrimination
finding was wrong is as unsupportable as the “dismissive and
strained interpretation” of his evidence that this Court disapproved
when deciding that he was entitled to a certificate of appealability,
Miller-El, supra, at 344. Ten of the eleven black venire members
were peremptorily struck. At least two of them were ostensibly ac-
Cite as: 545 U. S. ____ (2005) 5
Syllabus
ceptable to prosecutors seeking the death penalty. The prosecutors’
chosen race-neutral reasons for the strikes do not hold up and are so
far at odds with the evidence that pretext is the fair conclusion. The
selection process was replete with evidence that prosecutors were se-
lecting and rejecting potential jurors because of race. And the prose-
cutors took their cues from a manual on jury selection with an em-
phasis on race. It blinks reality to deny that the State struck Fields
and Warren because they were black. The facts correlate to nothing
as well as to race. The state court’s contrary conclusion was unrea-
sonable as well as erroneous. Pp. 32–33.
361 F. 3d 849, reversed and remanded.
SOUTER, J., delivered the opinion of the Court, in which STEVENS,
O’CONNOR, KENNEDY, GINSBURG, and BREYER, JJ., joined. BREYER, J.,
filed a concurring opinion. THOMAS, J., filed a dissenting opinion, in
which REHNQUIST, C. J., and SCALIA, J., joined.
Cite as: 545 U. S. ____ (2005) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 03–9659
_________________
THOMAS JOE MILLER-EL, PETITIONER v. DOUG
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 13, 2005]
JUSTICE SOUTER delivered the opinion of the Court.
Two years ago, we ordered that a certificate of appeal-
ability, under 28 U. S. C. §2253(c), be issued to habeas
petitioner Miller-El, affording review of the District
Court’s rejection of the claim that prosecutors in his capi-
tal murder trial made peremptory strikes of potential
jurors based on race. Today we find Miller-El entitled to
prevail on that claim and order relief under §2254.
I
In the course of robbing a Holiday Inn in Dallas, Texas
in late 1985, Miller-El and his accomplices bound and
gagged two hotel employees, whom Miller-El then shot,
killing one and severely injuring the other. During jury
selection in Miller-El’s trial for capital murder, prosecu-
tors used peremptory strikes against 10 qualified black
venire members. Miller-El objected that the strikes were
based on race and could not be presumed legitimate, given
a history of excluding black members from criminal juries
by the Dallas County District Attorney’s Office. The trial
2 MILLER-EL v. DRETKE
Opinion of the Court
court received evidence of the practice alleged but found
no “systematic exclusion of blacks as a matter of policy” by
that office, App. 882–883, and therefore no entitlement to
relief under Swain v. Alabama, 380 U. S. 202 (1965), the
case then defining and marking the limits of relief from
racially biased jury selection. The court denied Miller-El’s
request to pick a new jury, and the trial ended with his
death sentence for capital murder.
While an appeal was pending, this Court decided Batson
v. Kentucky, 476 U. S. 79 (1986), which replaced Swain’s
threshold requirement to prove systemic discrimination
under a Fourteenth Amendment jury claim, with the rule
that discrimination by the prosecutor in selecting the
defendant’s jury sufficed to establish the constitutional
violation. The Texas Court of Criminal Appeals then
remanded the matter to the trial court to determine
whether Miller-El could show that prosecutors in his case
peremptorily struck prospective black jurors because of
race. Miller-El v. State, 748 S. W. 2d 459 (1988).
The trial court found no such demonstration. After
reviewing the voir dire record of the explanations given for
some of the challenged strikes, and after hearing one of
the prosecutors, Paul Macaluso, give his justification for
those previously unexplained, the trial court accepted the
stated race-neutral reasons for the strikes, which the
judge called “completely credible [and] sufficient” as the
grounds for a finding of “no purposeful discrimination.”
Findings of Fact and Conclusions of Law Upon Remand
from the Court of Criminal Appeals in State v. Miller-El,
No. 8668–NL (5th Crim. Dist. Ct., Dallas County, Tex.,
Jan. 13, 1989), pp. 5–6, App. 928–929. The Court of
Criminal Appeals affirmed, stating it found “ample sup-
port” in the voir dire record for the race-neutral explana-
tions offered by prosecutors for the peremptory strikes.
Miller-El v. State, No. 69,677 (Sept. 16, 1992) (per curiam),
p. 2, App. 931.
Cite as: 545 U. S. ____ (2005) 3
Opinion of the Court
Miller-El then sought habeas relief under 28 U. S. C.
§2254, again pressing his Batson claim, among others not
now before us. The District Court denied relief, Miller-El
v. Johnson, Civil No. 3:96–CV–1992–H (ND Tex., June 5,
2000), App. 987, and the Court of Appeals for the Fifth
Circuit precluded appeal by denying a certificate of ap-
pealability, Miller-El v. Johnson, 261 F. 3d 445 (2001).
We granted certiorari to consider whether Miller-El was
entitled to review on the Batson claim, Miller-El v.
Cockrell, 534 U. S. 1122 (2002), and reversed the Court of
Appeals. After examining the record of Miller-El’s exten-
sive evidence of purposeful discrimination by the Dallas
County District Attorney’s Office before and during his
trial, we found an appeal was in order, since the merits of
the Batson claim were, at the least, debatable by jurists of
reason. Miller-El v. Cockrell, 537 U. S. 322 (2003). After
granting a certificate of appealability, the Fifth Circuit
rejected Miller-El’s Batson claim on the merits. 361 F. 3d
849 (2004). We again granted certiorari, 542 U. S. 936
(2004), and again we reverse.
II
A
“It is well known that prejudices often exist against
particular classes in the community, which sway the
judgment of jurors, and which, therefore, operate in some
cases to deny to persons of those classes the full enjoyment
of that protection which others enjoy.” Strauder v. West
Virginia, 100 U. S. 303, 309 (1880); see also Batson v.
Kentucky, supra, at 86. Defendants are harmed, of course,
when racial discrimination in jury selection compromises
the right of trial by impartial jury, Strauder v. West Vir-
ginia, supra, at 308, but racial minorities are harmed
more generally, for prosecutors drawing racial lines in
picking juries establish “state-sponsored group stereotypes
rooted in, and reflective of, historical prejudice,” J. E. B. v.
4 MILLER-EL v. DRETKE
Opinion of the Court
Alabama ex rel. T. B., 511 U. S. 127, 128 (1994).
Nor is the harm confined to minorities. When the gov-
ernment’s choice of jurors is tainted with racial bias, that
“overt wrong . . . casts doubt over the obligation of the
parties, the jury, and indeed the court to adhere to the law
throughout the trial . . . .” Powers v. Ohio, 499 U. S. 400,
412 (1991). That is, the very integrity of the courts is
jeopardized when a prosecutor’s discrimination “invites
cynicism respecting the jury’s neutrality,” id., at 412, and
undermines public confidence in adjudication, Georgia v.
McCollum, 505 U. S. 42, 49 (1992); Edmonson v. Leesville
Concrete Co., 500 U. S. 614, 628 (1991); Batson v. Ken-
tucky, supra, at 87. So, “[f]or more than a century, this
Court consistently and repeatedly has reaffirmed that
racial discrimination by the State in jury selection offends
the Equal Protection Clause.” Georgia v. McCollum,
supra, at 44; see Strauder v. West Virginia, supra, at 308,
310; Norris v. Alabama, 294 U. S. 587, 596 (1935); Swain
v. Alabama, supra, at 223–224; Batson v. Kentucky, supra,
at 84; Powers v. Ohio, supra, at 404.
The rub has been the practical difficulty of ferreting out
discrimination in selections discretionary by nature, and
choices subject to myriad legitimate influences, whatever
the race of the individuals on the panel from which jurors
are selected. In Swain v. Alabama, we tackled the prob-
lem of “the quantum of proof necessary” to show purpose-
ful discrimination, 380 U. S., at 205, with an eye to pre-
serving each side’s historical prerogative to make a
peremptory strike or challenge, the very nature of which is
traditionally “without a reason stated,” id., at 220. The
Swain Court tried to relate peremptory challenge to equal
protection by presuming the legitimacy of prosecutors’
strikes except in the face of a longstanding pattern of
discrimination: when “in case after case, whatever the
circumstances,” no blacks served on juries, then “giving
even the widest leeway to the operation of irrational but
Cite as: 545 U. S. ____ (2005) 5
Opinion of the Court
trial-related suspicions and antagonisms, it would appear
that the purposes of the peremptory challenge [were]
being perverted.” Id., at 223–224.
Swain’s demand to make out a continuity of discrimina-
tion over time, however, turned out to be difficult to the
point of unworkable, and in Batson v. Kentucky, we recog-
nized that this requirement to show an extended pattern
imposed a “crippling burden of proof” that left prosecutors’
use of peremptories “largely immune from constitutional
scrutiny.” 476 U. S., at 92–93. By Batson’s day, the law
implementing equal protection elsewhere had evolved into
less discouraging standards for assessing a claim of pur-
poseful discrimination, id., at 93–95 (citing, e.g., Washing-
ton v. Davis, 426 U. S. 229 (1976), and Arlington Heights
v. Metropolitan Housing Development Corp., 429 U. S. 252
(1977)), and we accordingly held that a defendant could
make out a prima facie case of discriminatory jury selec-
tion by “the totality of the relevant facts” about a prosecu-
tor’s conduct during the defendant’s own trial. Batson v.
Kentucky, 476 U. S., at 94, 96. “Once the defendant makes
a prima facie showing, the burden shifts to the State to
come forward with a neutral explanation for challenging
. . . jurors” within an arguably targeted class. Id., at 97.
Although there may be “any number of bases on which a
prosecutor reasonably [might] believe that it is desirable
to strike a juror who is not excusable for cause . . . , the
prosecutor must give a clear and reasonably specific ex-
planation of his legitimate reasons for exercising the
challeng[e].” Id., at 98, n. 20 (internal quotation marks
omitted). “The trial court then will have the duty to de-
termine if the defendant has established purposeful dis-
crimination.” Id., at 98.
Although the move from Swain to Batson left a defen-
dant free to challenge the prosecution without having to
cast Swain’s wide net, the net was not entirely consigned
to history, for Batson’s individualized focus came with a
6 MILLER-EL v. DRETKE
Opinion of the Court
weakness of its own owing to its very emphasis on the
particular reasons a prosecutor might give. If any facially
neutral reason sufficed to answer a Batson challenge, then
Batson would not amount to much more than Swain.
Some stated reasons are false, and although some false
reasons are shown up within the four corners of a given
case, sometimes a court may not be sure unless it looks
beyond the case at hand. Hence Batson’s explanation that
a defendant may rely on “all relevant circumstances” to
raise an inference of purposeful discrimination. 476 U. S.,
at 96–97.
B
This case comes to us on review of a denial of habeas
relief sought under 28 U. S. C. §2254, following the Texas
trial court’s prior determination of fact that the State’s
race-neutral explanations were true, see Purkett v. Elem,
514 U. S. 765, 769 (1995) (per curiam); Batson v. Kentucky,
supra, at 98, n. 21.
Under the Antiterrorism and Effective Death Penalty
Act of 1996, Miller-El may obtain relief only by showing
the Texas conclusion to be “an unreasonable determina-
tion of the facts in light of the evidence presented in the
State court proceeding.” 28 U. S. C. §2254(d)(2). Thus we
presume the Texas court’s factual findings to be sound
unless Miller-El rebuts the “presumption of correctness by
clear and convincing evidence.” §2254(e)(1). The standard
is demanding but not insatiable; as we said the last time
this case was here, “[d]eference does not by definition
preclude relief.” Miller-El v. Cockrell, 537 U. S., at 340.
III
A
The numbers describing the prosecution’s use of per-
emptories are remarkable. Out of 20 black members of
the 108-person venire panel for Miller-El’s trial, only 1
Cite as: 545 U. S. ____ (2005) 7
Opinion of the Court
served. Although 9 were excused for cause or by agree-
ment, 10 were peremptorily struck by the prosecution. Id.,
at 331. “The prosecutors used their peremptory strikes to
exclude 91% of the eligible African-American venire mem-
bers . . . . Happenstance is unlikely to produce this dispar-
ity.” Id., at 342.
More powerful than these bare statistics, however, are
side-by-side comparisons of some black venire panelists
who were struck and white panelists allowed to serve. 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 to be considered at Batson’s
third step. Cf. Reeves v. Sanderson Plumbing Products,
Inc., 530 U. S. 133, 147 (2000) (in employment discrimina-
tion cases, “[p]roof that the defendant’s explanation is
unworthy of credence is simply one form of circumstantial
evidence that is probative of intentional discrimination,
and it may be quite persuasive”). While we did not de-
velop a comparative juror analysis last time, we did note
that the prosecution’s reasons for exercising peremptory
strikes against some black panel members appeared
equally on point as to some white jurors who served.
Miller-El v. Cockrell, supra, at 343.1 The details of two
panel member comparisons bear this out.2
——————
1 While many of these explanations were offered contemporaneously,
“the state trial court had no occasion to judge the credibility of these
explanations at that time because our equal protection jurisprudence
then, dictated by Swain, did not require it.” Miller-El v. Cockrell, 537
U. S., at 343. Other evidence was presented in the Batson v. Kentucky,
476 U. S. 79 (1986), hearing, but this was offered two years after trial
and “was subject to the usual risks of imprecision and distortion from
the passage of time.” 537 U. S., at 343.
2 The dissent contends that comparisons of black and nonblack venire
panelists, along with Miller-El’s arguments about the prosecution’s
disparate questioning of black and nonblack panelists and its use of
jury shuffles, are not properly before this Court, not having been “put
8 MILLER-EL v. DRETKE
Opinion of the Court
The prosecution used its second peremptory strike to
exclude Billy Jean Fields, a black man who expressed
unwavering support for the death penalty. On the ques-
tionnaire filled out by all panel members before individual
examination on the stand, Fields said that he believed in
capital punishment, Joint Lodging 14, and during ques-
tioning he disclosed his belief that the State acts on God’s
behalf when it imposes the death penalty. “Therefore, if
the State exacts death, then that’s what it should be.”
App. 174. He testified that he had no religious or philoso-
phical reservations about the death penalty and that the
death penalty deterred crime. Id., at 174–175. He twice
averred, without apparent hesitation, that he could sit on
Miller-El’s jury and make a decision to impose this pen-
alty. Id., at 176–177.
Although at one point in the questioning, Fields indi-
cated that the possibility of rehabilitation might be rele-
vant to the likelihood that a defendant would commit
future acts of violence, id., at 183, he responded to ensuing
questions by saying that although he believed anyone
could be rehabilitated, this belief would not stand in the
——————
before the Texas courts.” Post, at 7 (opinion of THOMAS, J.). But the
dissent conflates the difference between evidence that must be pre-
sented to the state courts to be considered by federal courts in habeas
proceedings and theories about that evidence. See 28 U. S. C.
§2254(d)(2) (state court factfinding must be assessed “in light of the
evidence presented in the State court proceeding”); Miller-El v.
Cockrell, 537 U. S. 322, 348 (2003) (habeas petitioner must show
unreasonability “in light of the record before the [state] court”). There
can be no question that the transcript of voir dire, recording the evi-
dence on which Miller-El bases his arguments and on which we base
our result, was before the state courts, nor does the dissent contend
that Miller-El did not “fairly presen[t]” his Batson claim to the state
courts. Picard v. Connor, 404 U. S. 270, 275 (1971).
Only as to the juror questionnaires and information cards is there
question about what was before the state courts. Unlike the dissent,
see post, at 9–10, we reach no decision about whether the limitation on
evidence in §2254(d)(2) is waiveable. See infra, at 23–24, n. 15.
Cite as: 545 U. S. ____ (2005) 9
Opinion of the Court
way of a decision to impose the death penalty:
“[B]ased on what you [the prosecutor] said as far as
the crime goes, there are only two things that could be
rendered, death or life in prison. If for some reason
the testimony didn’t warrant death, then life impris-
onment would give an individual an opportunity to
rehabilitate. But, you know, you said that the jurors
didn’t have the opportunity to make a personal deci-
sion in the matter with reference to what I thought or
felt, but it was just based on the questions according
to the way the law has been handed down.” Id., at
185 (alteration omitted).
Fields also noted on his questionnaire that his brother
had a criminal history. Joint Lodging 13. During ques-
tioning, the prosecution went into this, too:
“Q Could you tell me a little bit about that?
“A He was arrested and convicted on [a] number of
occasions for possession of a controlled substance.
“Q Was that here in Dallas?
“A Yes.
“Q Was he involved in any trials or anything like
that?
“A I suppose of sorts. I don’t really know too much
about it.
“Q Was he ever convicted?
“A Yeah, he served time.
“Q Do you feel that that would in any way interfere
with your service on this jury at all?
“A No.” App. 190.
Fields was struck peremptorily by the prosecution, with
prosecutor James Nelson offering a race-neutral reason:
“[W]e . . . have concern with reference to some of his
statements as to the death penalty in that he said
that he could only give death if he thought a person
10 MILLER-EL v. DRETKE
Opinion of the Court
could not be rehabilitated and he later made the
comment that any person could be rehabilitated if
they find God or are introduced to God and the fact
that we have a concern that his religious feelings may
affect his jury service in this case.” Id., at 197 (altera-
tion omitted).
Thus, Nelson simply mischaracterized Fields’s testi-
mony. He represented that Fields said he would not vote
for death if rehabilitation was possible, whereas Fields
unequivocally stated that he could impose the death pen-
alty regardless of the possibility of rehabilitation. Perhaps
Nelson misunderstood, but unless he had an ulterior
reason for keeping Fields off the jury we think he would
have proceeded differently. In light of Fields’s outspoken
support for the death penalty, we expect the prosecutor
would have cleared up any misunderstanding by asking
further questions before getting to the point of exercising a
strike.
If, indeed, Fields’s thoughts on rehabilitation did make
the prosecutor uneasy, he should have worried about a
number of white panel members he accepted with no
evident reservations. Sandra Hearn said that she believed
in the death penalty “if a criminal cannot be rehabilitated
and continues to commit the same type of crime.” Id., at
429.3 Hearn went so far as to express doubt that at the
penalty phase of a capital case she could conclude that a
convicted murderer “would probably commit some crimi-
nal acts of violence in the future.” Id., at 440. “People
change,” she said, making it hard to assess the risk of
someone’s future dangerousness. “[T]he evidence would
——————
3 Hearn could give the death penalty for murder if the defendant had
committed a prior offense of robbery, in which case she would judge
“according to the situation,” App. 430, and she thought the death
penalty might be appropriate for offenses like “[e]xtreme child abuse,”
ibid.
Cite as: 545 U. S. ____ (2005) 11
Opinion of the Court
have to be awful strong.” Ibid. But the prosecution did
not respond to Hearn the way it did to Fields, and without
delving into her views about rehabilitation with any fur-
ther question, it raised no objection to her serving on the
jury. White panelist Mary Witt said she would take the
possibility of rehabilitation into account in deciding at the
penalty phase of the trial about a defendant’s probability
of future dangerousness, 6 Record of Voir Dire 2433 (here-
inafter Record), but the prosecutors asked her no further
question about her views on reformation, and they ac-
cepted her as a juror. Id., at 2464–2465.4 Latino venire-
man Fernando Gutierrez, who served on the jury, said
that he would consider the death penalty for someone who
could not be rehabilitated, App. 777, but the prosecutors
did not question him further about this view. In sum,
nonblack jurors whose remarks on rehabilitation could
well have signaled a limit on their willingness to impose a
death sentence were not questioned further and drew no
objection, but the prosecution expressed apprehension
about a black juror’s belief in the possibility of reformation
even though he repeatedly stated his approval of the death
penalty and testified that he could impose it according to
——————
4 Witt ultimately did not serve because she was peremptorily struck
by the defense. 6 Record 2465. The fact that Witt and other venire
members discussed here were peremptorily struck by the defense is not
relevant to our point. For each of them, the defense did not make a
decision to exercise a peremptory until after the prosecution decided
whether to accept or reject, so each was accepted by the prosecution
before being ultimately struck by the defense. And the underlying
question is not what the defense thought about these jurors but
whether the State was concerned about views on rehabilitation when
the venireperson was not black.
The dissent offers other reasons why these nonblack panel members
who expressed views on rehabilitation similar to Fields’s were other-
wise more acceptable to the prosecution than he was. See post, at 21–
24. In doing so, the dissent focuses on reasons the prosecution itself did
not offer. See infra, at 19.
12 MILLER-EL v. DRETKE
Opinion of the Court
state legal standards even when the alternative sentence
of life imprisonment would give a defendant (like everyone
else in the world) the opportunity to reform.5
The unlikelihood that his position on rehabilitation had
anything to do with the peremptory strike of Fields is
underscored by the prosecution’s response after Miller-El’s
lawyer pointed out that the prosecutor had misrepre-
sented Fields’s responses on the subject. A moment ear-
lier the prosecutor had finished his misdescription of
Fields’s views on potential rehabilitation with the words,
“Those are our reasons for exercising our . . . strike at this
time.” Id., at 197. When defense counsel called him on his
misstatement, he neither defended what he said nor with-
drew the strike. Id., at 198. Instead, he suddenly came up
with Fields’s brother’s prior conviction as another reason
for the strike. Id., at 199.
It would be difficult to credit the State’s new explana-
tion, which reeks of afterthought. While the Court of
Appeals tried to bolster it with the observation that no
seated juror was in Fields’s position with respect to his
brother, 361 F. 3d, at 859–860, the court’s readiness to
accept the State’s substitute reason ignores not only its
pretextual timing but the other reasons rendering it im-
plausible. Fields’s testimony indicated he was not close to
his brother, App. 190 (“I don’t really know too much about
it”), and the prosecution asked nothing further about the
influence his brother’s history might have had on Fields,
as it probably would have done if the family history had
actually mattered. See, e.g., Ex parte Travis, 776 So. 2d
874, 881 (Ala. 2000) (“[T]he State’s failure to engage in
any meaningful voir dire examination on a subject the
State alleges it is concerned about is evidence suggesting
——————
5 Prosecutors did exercise peremptory strikes on Penny Crowson and
Charlotte Whaley, who expressed views about rehabilitation similar to
those of Witt and Gutierrez. App. 554, 715.
Cite as: 545 U. S. ____ (2005) 13
Opinion of the Court
that the explanation is a sham and a pretext for discrimi-
nation”). There is no good reason to doubt that the State’s
afterthought about Fields’s brother was anything but
makeweight.
The Court of Appeals’s judgment on the Fields strike is
unsupportable for the same reason the State’s first expla-
nation is itself unsupportable. The Appeals Court’s de-
scription of Fields’s voir dire testimony mentioned only his
statements that everyone could be rehabilitated, failing to
note that Fields affirmed that he could give the death
penalty if the law and evidence called for it, regardless of
the possibility of divine grace. The Court of Appeals made
no mention of the fact that the prosecution mischaracter-
ized Fields as saying he could not give death if rehabilita-
tion were possible. 361 F. 3d, at 856.
In sum, when we look for nonblack jurors similarly
situated to Fields, we find strong similarities as well as
some differences.6 But the differences seem far from
significant, particularly when we read Fields’s voir dire
testimony in its entirety. Upon that reading, Fields
should have been an ideal juror in the eyes of a prosecutor
seeking a death sentence, and the prosecutors’ explana-
tions for the strike cannot reasonably be accepted. See
——————
6 The dissent contends that there are no white panelists similarly
situated to Fields and to panel member Joe Warren because
“ ‘ “[s]imilarly situated” does not mean matching any one of several
reasons the prosecution gave for striking a potential juror—it means
matching all of them.’ ” Post, at 19 (quoting Miller-El v. Cockrell, 537
U. S., at 362–363 (THOMAS, J., dissenting)). None of our cases an-
nounces a rule that no comparison is probative unless the situation of
the individuals compared is identical in all respects, and there is no
reason to accept one. Nothing in the combination of Fields’s statements
about rehabilitation and his brother’s history discredits our grounds for
inferring that these purported reasons were pretextual. A per se rule
that a defendant cannot win a Batson claim unless there is an exactly
identical white juror would leave Batson inoperable; potential jurors
are not products of a set of cookie cutters.
14 MILLER-EL v. DRETKE
Opinion of the Court
Miller-El v. Cockrell, 537 U. S., at 339 (the credibility
of reasons given can be measured by “how reasonable, or
how improbable, the explanations are; and by whether
the proffered rationale has some basis in accepted trial
strategy”).
The prosecution’s proffered reasons for striking Joe
Warren, another black venireman, are comparably
unlikely. Warren gave this answer when he was asked
what the death penalty accomplished:
“I don’t know. It’s really hard to say because I know
sometimes you feel that it might help to deter crime
and then you feel that the person is not really suffer-
ing. You’re taking the suffering away from him. So
it’s like I said, sometimes you have mixed feelings
about whether or not this is punishment or, you know,
you’re relieving personal punishment.” App. 205; 3
Record 1532.
The prosecution said nothing about these remarks when it
struck Warren from the panel, but prosecutor Paul
Macaluso referred to this answer as the first of his reasons
when he testified at the later Batson hearing:
“I thought [Warren’s statements on voir dire] were in-
consistent responses. At one point he says, you know,
on a case-by-case basis and at another point he said,
well, I think—I got the impression, at least, that he
suggested that the death penalty was an easy way
out, that they should be made to suffer more.” App.
909.
On the face of it, the explanation is reasonable from the
State’s point of view, but its plausibility is severely under-
cut by the prosecution’s failure to object to other panel
members who expressed views much like Warren’s. Kevin
Duke, who served on the jury, said, “sometimes death
would be better to me than—being in prison would be like
Cite as: 545 U. S. ____ (2005) 15
Opinion of the Court
dying every day and, if you were in prison for life with no
hope of parole, I[’d] just as soon have it over with than be
in prison for the rest of your life.” Id., at 372. Troy
Woods, the one black panelist to serve as juror, said that
capital punishment “is too easy. I think that’s a quick
relief. . . . I feel like [hard labor is] more of a punishment
than putting them to sleep.” Id., at 408. Sandra Jenkins,
whom the State accepted (but who was then struck by the
defense) testified that she thought “a harsher treatment is
life imprisonment with no parole.” Id., at 542. Leta Gi-
rard, accepted by the State (but also struck by the defense)
gave her opinion that “living sometimes is a worse—is
worse to me than dying would be.” Id., at 624. The fact
that Macaluso’s reason also applied to these other panel
members, most of them white, none of them struck, is
evidence of pretext.
The suggestion of pretext is not, moreover, mitigated
much by Macaluso’s explanation that Warren was struck
when the State had 10 peremptory challenges left and
could afford to be liberal in using them. Id., at 908. If
that were the explanation for striking Warren and later
accepting panel members who thought death would be too
easy, the prosecutors should have struck Sandra Jenkins,
whom they examined and accepted before Warren. In-
deed, the disparate treatment is the more remarkable for
the fact that the prosecutors repeatedly questioned War-
ren on his capacity and willingness to impose a sentence of
death and elicited statements of his ability to do so if the
evidence supported that result and the answer to each
special question was yes, id., at 202.2, 202.3, 205, 207,
whereas the record before us discloses no attempt to de-
termine whether Jenkins would be able to vote for death
in spite of her view that it was easy on the convict, id., at
541–546. Yet the prosecutors accepted the white panel
member Jenkins and struck the black venireman Warren.
Macaluso’s explanation that the prosecutors grew more
16 MILLER-EL v. DRETKE
Opinion of the Court
sparing with peremptory challenges as the jury selection
wore on does, however, weaken any suggestion that the
State’s acceptance of Woods, the one black juror, shows
that race was not in play. Woods was the eighth juror,
qualified in the fifth week of jury selection. Joint Lodging
125. When the State accepted him, 11 of its 15 peremp-
tory strikes were gone, 7 of them used to strike black
panel members. Id., at 137. The juror questionnaires
show that at least three members of the venire panel yet
to be questioned on the stand were opposed to capital
punishment, Janice Mackey, id., at 79; Paul Bailey, id., at
63; and Anna Keaton, id., at 55.7 With at least three
remaining panel members highly undesirable to the State,
the prosecutors had to exercise prudent restraint in using
strikes. This late-stage decision to accept a black panel
member willing to impose a death sentence does not,
therefore, neutralize the early-stage decision to challenge
a comparable venireman, Warren. In fact, if the prosecu-
tors were going to accept any black juror to obscure the
otherwise consistent pattern of opposition to seating one,
the time to do so was getting late.8
——————
7 Each of them was black and each was peremptorily struck by the
State after Woods’s acceptance. It is unclear whether the prosecutors
knew they were black prior to the voir dire questioning on the stand,
though there is some indication that they did: prosecutors noted the
race of each panelist on all of the juror cards, Miller-El v. Cockrell, 537
U. S., at 347, even for those panelists who were never questioned
individually because the week ended before it was their turn.
8 Nor is pretextual indication mitigated by Macaluso’s further reason
that Warren had a brother-in-law convicted of a crime having to do
with food stamps for which he had to make restitution. App. 910.
Macaluso never questioned Warren about his errant relative at all; as
with Fields’s brother, the failure to ask undermines the persuasiveness
of the claimed concern. And Warren’s brother’s criminal history was
comparable to those of relatives of other panel members not struck by
prosecutors. Cheryl Davis’s husband had been convicted of theft and
received seven years’ probation. Id., at 695–696. Chatta Nix’s brother
was involved in white-collar fraud. Id., at 613–614. Noad Vickery’s
Cite as: 545 U. S. ____ (2005) 17
Opinion of the Court
The Court of Appeals pretermitted these difficulties by
stating that the prosecution’s reason for striking Warren
was a more general ambivalence about the penalty and his
ability to impose it, 361 F. 3d, at 856–857 (and the dissent
presses that explanation here, post, at 14–17). But this
rationalization was erroneous as a matter of fact and as a
matter of law.
As to fact, Macaluso said nothing about any general
ambivalence. He simply alluded to the possibility that
Warren might think the death penalty too easy on some
defendants, saying nothing about Warren’s ability to
impose the penalty when it appeared to be warranted.9
On the contrary, though Warren had indeed questioned
the extent to which the death penalty served a purpose in
society, App. 205, he explained his position in response to
the very next question: it was not any qualm about impos-
ing what society generally deems its harshest punishment,
but his concern that the death penalty might not be severe
enough, ibid. When Warren was asked whether he could
impose the death penalty he said he thought he could;
when told that answering yes to the special issue ques-
tions would be tantamount to voting for death he said he
could give yes answers if the evidence supported them.
——————
sister served time in a penitentiary several decades ago. Id., at 240–
241.
9 But even if Macaluso actually had explained that he exercised the
strike because Warren was diffident about imposing death, it would
have been hard to square that explanation with the prosecution’s
tolerance for a number of ambivalent white panel members. Juror
Marie Mazza, for example, admitted some concern about what her
associates might think of her if she sat on a jury that called for the
death penalty. Id., at 354–355. Ronald Salsini, accepted by the prose-
cution but then struck by the defense, worried that if he gave the death
penalty he might have a “problem” in the future with having done so.
Id., at 593. Witt, another panel member accepted by the State but
struck by the defense, said she did not know if she could give that
sentence. 6 Record 2423.
18 MILLER-EL v. DRETKE
Opinion of the Court
Id., at 207.10
As for law, the rule in Batson provides an opportunity to
the prosecutor to give the reason for striking the juror,
and it requires the judge to assess the plausibility of that
reason in light of all evidence with a bearing on it. 476
U. S., at 96–97; Miller-El v. Cockrell, 537 U. S., at 339. It
is true that peremptories are often the subjects of instinct,
Batson v. Kentucky, 476 U. S., at 106 (Marshall, J., con-
curring), and it can sometimes be hard to say what the
reason is. But 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 Court of Appeals’s and the dissent’s substi-
tution of a reason for eliminating Warren does nothing to
——————
10 The Court of Appeals also found ambivalence in Warren’s state-
ment, when asked how he felt generally about the death penalty, that,
“there are some cases where I would agree, you know, and there are
others that I don’t.” App. 202.2 (quoted in 361 F. 3d 849, 857 (CA5
2004)). But a look at Warren’s next answers shows what he meant.
The sorts of cases where he would impose it were those where “maybe
things happen that could have been avoided,” such as where there is a
choice not to kill, but he would not impose it for killing “in self[-]defense
sometimes.” App. 202.2–202.3. Where the death penalty is sought for
murder committed at the same time as another felony, Warren thought
that it “depends on the case and the circumstances involved at the
time.” Id., at 204. None of these responses is exceptionable. A number
of venire members not struck by the State, including some seated on
the jury, offered some version of the uncontroversial, and responsible,
view that imposition of the death penalty ought to depend on the
circumstances. See Joint Lodging 176 (Marie Mazza, a seated juror);
id., at 223 (Filemon Zablan, a seated juror); App. 548 (Colleen Moses,
struck by the defense); id., at 618 (Mary Witt, struck by the defense);
11–(B) Record 4455–4456 (Max O’Dell, struck by the defense).
Cite as: 545 U. S. ____ (2005) 19
Opinion of the Court
satisfy the prosecutors’ burden of stating a racially neutral
explanation for their own actions.
The whole of the voir dire testimony subject to consid-
eration casts the prosecution’s reasons for striking Warren
in an implausible light. Comparing his strike with the
treatment of panel members who expressed similar views
supports a conclusion that race was significant in deter-
mining who was challenged and who was not.11
B
The case for discrimination goes beyond these compari-
sons to include broader patterns of practice during the
jury selection. The prosecution’s shuffling of the venire
panel, its enquiry into views on the death penalty, its
questioning about minimum acceptable sentences: all
——————
11 There were other black members of the venire struck purportedly
because of some ambivalence, about the death penalty or their capacity
to impose it, who Miller-El argues must actually have been struck
because of race, none of them having expressed any more ambivalence
than white jurors Mazza and Hearn. We think these are closer calls,
however. Edwin Rand said at points that he could impose the death
penalty, but he also said “right now I say I can, but tomorrow I might
not.” App. 265 (alterations omitted). Wayman Kennedy testified that
he could impose the death penalty, but on his questionnaire and voir
dire, he was more specific, saying that he believed in the death penalty
for mass murder. Id., at 317; Joint Lodging 46. (Arguably Fernando
Gutierrez, accepted by the prosecution, expressed a similar view when
he offered as an example of a defendant who merited the death penalty
a “criminally insane” person who could not be rehabilitated. App. 777.
But perhaps prosecutors took Gutierrez to mean this only as an exam-
ple.) Roderick Bozeman stated that he thought he could vote for the
death penalty but he didn’t really know. Id., at 145. Finally, Carrol
Boggess expressed uncertainty whether she could go through with
giving the death penalty, id., at 298–299, although she later averred
that she could, id., at 302–304.
We do not decide whether there were white jurors who expressed
ambivalence just as much as these black members of the venire panel.
There is no need to go into these instances, for the prosecutors’ treat-
ment of Fields and Warren supports stronger arguments that Batson
was violated.
20 MILLER-EL v. DRETKE
Opinion of the Court
indicate decisions probably based on race. Finally, the
appearance of discrimination is confirmed by widely
known evidence of the general policy of the Dallas County
District Attorney’s Office to exclude black venire members
from juries at the time Miller-El’s jury was selected.
The first clue to the prosecutors’ intentions, distinct
from the peremptory challenges themselves, is their resort
during voir dire to a procedure known in Texas as the jury
shuffle. In the State’s criminal practice, either side may
literally reshuffle the cards bearing panel members’
names, thus rearranging the order in which members of a
venire panel are seated and reached for questioning.12
Once the order is established, the panel members seated
at the back are likely to escape voir dire altogether, for
those not questioned by the end of the week are dismissed.
As we previously explained,
“the prosecution’s decision to seek a jury shuffle when
a predominant number of African-Americans were
seated in the front of the panel, along with its decision
to delay a formal objection to the defense’s shuffle un-
til after the new racial composition was revealed,
raise a suspicion that the State sought to exclude Af-
rican-Americans from the jury. Our concerns are am-
plified by the fact that the state court also had before
it, and apparently ignored, testimony demonstrating
that the Dallas County District Attorney’s Office had,
by its own admission, used this process to manipulate
the racial composition of the jury in the past.” Miller-
El v. Cockrell, supra, at 346.
In this case, the prosecution and then the defense shuf-
——————
12 The procedure is conducted under Tex. Code Crim. Proc. Ann., Art.
35.11 (Vernon Supp. 2004–2005). While that statute says that the
court clerk is to conduct a shuffle on the request of either party, the
transcripts in this case make clear that each side did its own shuffles.
See, e.g., App. 124.
Cite as: 545 U. S. ____ (2005) 21
Opinion of the Court
fled the cards at the beginning of the first week of voir
dire; the record does not reflect the changes in order. App.
113–114. At the beginning of the second week, when a
number of black members were seated at the front of the
panel, the prosecution shuffled.13 2 Record 836–837. At
the beginning of the third week, the first four panel mem-
bers were black. The prosecution shuffled, and these
black panel members ended up at the back. Then the
defense shuffled, and the black panel members again
appeared at the front. The prosecution requested another
shuffle, but the trial court refused. App. 124–132. Fi-
nally, the defense shuffled at the beginning of the fourth
and fifth weeks of voir dire; the record does not reflect the
panel’s racial composition before or after those shuffles.
Id., at 621–622; 9 Record 3585.
The State notes in its brief that there might be racially
neutral reasons for shuffling the jury, Brief for Respon-
dent 36–37, and we suppose there might be. But no ra-
cially neutral reason has ever been offered in this case,
and nothing stops the suspicion of discriminatory intent
from rising to an inference.14
The next body of evidence that the State was trying to
avoid black jurors is the contrasting voir dire questions
posed respectively to black and nonblack panel members,
on two different subjects. First, there were the prosecu-
tors’ statements preceding questions about a potential
——————
13 Of the first 10 panel members before the prosecution shuffled, 4
were black. Of the second 10, 3 were black. Of the third 10, 2 were
black, and only 1 black was among the last 10 panel members. 2
Record 837.
14 The Court of Appeals declined to give much weight to the evidence
of racially motivated jury shuffles because “Miller-El shuffled the jury
five times and the prosecutors shuffled the jury only twice.” 361 F. 3d,
at 855. But Miller-El’s shuffles are flatly irrelevant to the question
whether prosecutors’ shuffles revealed a desire to exclude blacks. (The
Appeals Court’s statement was also inaccurate: the prosecution shuf-
fled the jury three times.)
22 MILLER-EL v. DRETKE
Opinion of the Court
juror’s thoughts on capital punishment. Some of these
prefatory statements were cast in general terms, but some
followed the so-called graphic script, describing the
method of execution in rhetorical and clinical detail. It is
intended, Miller-El contends, to prompt some expression of
hesitation to consider the death penalty and thus to elicit
plausibly neutral grounds for a peremptory strike of a
potential juror subjected to it, if not a strike for cause. If
the graphic script is given to a higher proportion of blacks
than whites, this is evidence that prosecutors more often
wanted blacks off the jury, absent some neutral and ex-
tenuating explanation.
As we pointed out last time, for 94% of white venire
panel members, prosecutors gave a bland description of
the death penalty before asking about the individual’s
feelings on the subject. Miller-El v. Cockrell, 537 U. S., at
332. The abstract account went something like this:
“I feel like it [is] only fair that we tell you our position
in this case. The State of Texas . . . is actively seeking
the death penalty in this case for Thomas Joe Miller-
El. We anticipate that we will be able to present to a
jury the quantity and type of evidence necessary to
convict him of capital murder and the quantity and
type of evidence sufficient to allow a jury to answer
these three questions over here in the affirmative. A
yes answer to each of those questions results in an
automatic death penalty from Judge McDowell.” App.
564–565.
Only 6% of white venire panelists, but 53% of those who
were black, heard a different description of the death
penalty before being asked their feelings about it. This is
an example of the graphic script:
“I feel like you have a right to know right up front
what our position is. Mr. Kinne, Mr. Macaluso and
myself, representing the people of Dallas County and
Cite as: 545 U. S. ____ (2005) 23
Opinion of the Court
the state of Texas, are actively seeking the death pen-
alty for Thomas Joe Miller-El. . . .
“We do that with the anticipation that, when the
death penalty is assessed, at some point Mr. Thomas
Joe Miller-El—the man sitting right down there—will
be taken to Huntsville and will be put on death row
and at some point taken to the death house and
placed on a gurney and injected with a lethal sub-
stance until he is dead as a result of the proceedings
that we have in this court on this case. So that’s basi-
cally our position going into this thing.” Id., at 572–
573.
The State concedes that this disparate questioning did
occur but argues that use of the graphic script turned not
on a panelist’s race but on expressed ambivalence about
the death penalty in the preliminary questionnaire.15
——————
15 So far as we can tell from the voluminous record before us, many of
the juror questionnaires, along with juror information cards, were
added to the habeas record after the filing of the petition in the District
Court. See Supplemental Briefing on Batson/Swain Claim Based on
Previously Unavailable Evidence, Record in No. 00–10784 (CA5), p.
2494. The State raised no objection to receipt of the supplemental
material in the District Court or the Fifth Circuit, and in this Court the
State has joined with Miller-El in proposing that we consider this
material, by providing additional copies in a joint lodging (apparently
as an alternative to a more costly printing as part of the joint appen-
dix). Neither party has referred to the provision that the reasonable-
ness of the state-court determination be judged by the evidence before
the state court, 28 U. S. C. §2254(d)(2), and it is not clear to what
extent the lodged material expands upon what the state judge knew;
the same judge presided over the voir dire, the Swain hearing, and the
Batson hearing, and the jury questionnaires were subjects of reference
at the voir dire. The last time this case was here the State expressly
relied on the questionnaires for one of its arguments, Brief for Respon-
dent in Miller-El v. Cockrell, O. T. 2002, No. 01–7662, p. 17, and
although it objected to the Court’s consideration of some other evidence
not before the state courts, id., at 28–29, it did not object either to
questionnaires or juror cards. This time around, the State again relies
24 MILLER-EL v. DRETKE
Opinion of the Court
Prosecutors were trying, the argument goes, to weed out
noncommittal or uncertain jurors, not black jurors. And
while some white venire members expressed opposition to
the death penalty on their questionnaires, they were not
read the graphic script because their feelings were already
clear. The State says that giving the graphic script to
these panel members would only have antagonized them.
Brief for Respondent 27–32.
This argument, however, first advanced in dissent when
the case was last here, Miller-El v. Cockrell, supra, at
364–368 (opinion of THOMAS, J.), and later adopted by the
State and the Court of Appeals, simply does not fit the
facts. Looking at the answers on the questionnaires, and
at voir dire testimony expressly discussing answers on the
questionnaires,16 we find that black venire members were
more likely than nonblacks to receive the graphic script
regardless of their expressions of certainty or ambivalence
about the death penalty, and the State’s chosen explana-
tion for the graphic script fails in the cases of four out of
the eight black panel members who received it.17 Two of
——————
on the jury questionnaires for its argument that the prosecution’s
disparate questioning was not based on race. We have no occasion here
to reach any question about waiver under §2254(d)(2).
It is worth noting that if we excluded the lodged material in this case,
the State’s arguments would fare even worse than they do. The panel
members’ cards and answers to the questionnaires were the only items
of information that the prosecutors had about them, other than their
appearances, before reaching the point of choosing whether to employ
the graphic script; if we excluded consideration of the questionnaires,
the State would be left with no basis even to argue extenuation of the
extreme racial disparity in the use of the graphic script.
16 We confine our analysis to these sources because the questionnaires
and any testimony about their answers provided the only information
available to prosecutors about venire members’ views on the death
penalty before they decided whether to use the graphic script.
17 The dissent has conducted a similar statistical analysis that it con-
tends supports the State’s argument that the graphic script was used to
expose the true feelings of jurors who professed ambivalence about the
Cite as: 545 U. S. ____ (2005) 25
Opinion of the Court
them, Janice Mackey and Anna Keaton, clearly stated
opposition to the death penalty but they received the
graphic script,18 while the black panel members Wayman
Kennedy and Jeannette Butler were unambiguously in
favor19 but got the graphic description anyway.20 The
State’s explanation does even worse in the instances of the
——————
death penalty on their questionnaires. See post, at 24–31. A few
examples suffice to show that the dissent’s conclusions rest on charac-
terizations of panel members’ questionnaire responses that we consider
implausible. In the dissent’s analysis, for example, Keaton and Mackey
were ambivalent, despite Keaton’s questionnaire response that she did
not believe in the death penalty and felt it was not for her to punish
anyone, Joint Lodging 55, and Mackey’s response that “[t]hou shall
[n]ot kill,” id., at 79. But we believe neither can be fairly characterized
as someone who might turn out to be a juror acceptable to the State
upon pointed questioning. The dissent also characterizes the question-
naires of Vivian Sztybel, Filemon Zablan, and Dominick Desinise as
revealing ambivalence. But Sztybel’s questionnaire stated that she
believed in the death penalty “[i]f a person is found guilty of murder or
other crime . . . without a valid defense” because “[t]hey may continue
to do this again and again.” Id., at 184. She also reported that she had
no moral, religious, or personal belief that would prevent her from
imposing the death penalty. Ibid. Zablan stated on the questionnaire
that he was able to impose the death penalty and that he supported it
“[i]f it’s the law and if the crime fits such punishment.” Id., at 223.
Desinise reported in voir dire that he had stated in the questionnaire
his opposition to the death penalty. App. 573.
18 App. 728 (Mackey); id., at 769 (Keaton).
19 Kennedy said that he believed in the death penalty but would apply
it only in an extreme case such as one involving multiple murders.
Joint Lodging 46. There is no ambivalence in his questionnaire re-
sponses. Butler’s questionnaire is not available, but she affirmed in
voir dire that she had said on her questionnaire that she believed in the
death penalty, that she had no moral, religious, or personal beliefs that
would prevent her from imposing the death penalty, and that she had
reported on her questionnaire that she “believe[d] in the death penalty
only when a crime has been committed concerning a child such as
beating to death or some form of harsh physical abuse and when an
innocent victim’s life is taken.” 4 Record 1874; see also id., at 1906–
1907.
20 App. 579 (Butler); id., at 317 (Kennedy).
26 MILLER-EL v. DRETKE
Opinion of the Court
five nonblacks who received the graphic script, missing
the mark four times out of five: Vivian Sztybel and File-
mon Zablan received it,21 although each was unambigu-
ously in favor of the death penalty,22 while Dominick
Desinise and Clara Evans unambiguously opposed it23 but
were given the graphic version.24
The State’s purported rationale fails again if we look
only to the treatment of ambivalent panel members, am-
bivalent black individuals having been more likely to
receive the graphic description than ambivalent non-
blacks. Three nonblack members of the venire indicated
ambivalence to the death penalty on their question-
naires;25 only one of them, Fernando Gutierrez, received
the graphic script.26 But of the four black panel mem-
bers who expressed ambivalence,27 all got the graphic
treatment.28
The State’s attempt at a race-neutral rationalization
——————
21 Id., at 640–641 (Sztybel); id., at 748 (Zablan).
22 Joint Lodging 184 (Sztybel); id., at 223 (Zablan).
23 Neither questionnaire is available, but Desinise and Evans both
confirmed on voir dire that on the questionnaire they stated their
opposition to the death penalty. App. 573 (Desinise), id., at 626–628
(Evans).
24 Id., at 573 (Desinise); id., at 626 (Evans).
25 In answering the question whether she had moral, religious, or
personal beliefs that might prevent her from giving the death penalty,
Colleen Moses confirmed at voir dire that she said, “I don’t know. It
would depend.” 3 Record 1141. Noad Vickery confirmed at voir dire
that he reported on the questionnaire that he was not sure what he
believed about the death penalty. 4 id., at 1611. Fernando Gutierrez
reported on the questionnaire that he believed in the death penalty for
some crimes but answered “yes” to the question whether he had moral,
religious, or personal beliefs that might prevent him from imposing it.
Joint Lodging 231.
26 App. 775 (Gutierrez); id., at 547 (Moses); 4 Record 1569 (Vickery).
27 These were Linda Baker, Joint Lodging 71; Paul Bailey, id., at 63;
Carrol Boggess, id., at 38; and Troy Woods, id., at 207.
28 App. 294 (Boggess); id., at 652–653 (Baker); id., at 405–406
(Woods), id., at 737 (Bailey).
Cite as: 545 U. S. ____ (2005) 27
Opinion of the Court
thus simply fails to explain what the prosecutors did. But
if we posit instead that the prosecutors’ first object was to
use the graphic script to make a case for excluding black
panel members opposed to or ambivalent about the death
penalty, there is a much tighter fit of fact and explana-
tion.29 Of the 10 nonblacks whose questionnaires ex-
pressed ambivalence or opposition,30 only 30% received the
graphic treatment.31 But of the seven blacks who ex-
pressed ambivalence or opposition,32 86% heard the
graphic script.33 As between the State’s ambivalence
explanation and Miller-El’s racial one, race is much the
better, and the reasonable inference is that race was the
major consideration when the prosecution chose to follow
the graphic script.
The same is true for another kind of disparate question-
ing, which might fairly be called trickery. The prosecutors
asked members of the panel how low a sentence they
would consider imposing for murder. Most potential
jurors were first told that Texas law provided for a mini-
——————
29 The dissent posits that prosecutors did not use the graphic script
with panel members opposed to the death penalty because it would only
have antagonized them. See post, at 29. No answer is offered to the
question why a prosecutor would take care with the feelings of a panel
member he would excuse for cause or strike yet would antagonize an
ambivalent member whose feelings he wanted to smoke out, but who
might turn out to be an acceptable juror.
30 These were John Nelson, 2 Record 625; James Holtz, id., at 1022;
Moses, 3 id., at 1141; Linda Berk, id., at 1445, 1450; Desinise, App.
573; Vickery, 4 Record 1610; Gene Hinson, App. 576; Girard, id., at 624;
Evans, id., at 627–628; Gutierrez, Joint Lodging 231.
31 These were Desinise, App. 573; Evans, id., at 626; and Gutierrez,
id., at 775.
32 These were Jerry Mosley, 7 Record 2658; Baker, id., at 71; Bailey,
id., at 63; Keaton, id., at 55; Mackey, id., at 79; Boggess, id., at 38; and
Woods, id., at 207.
33 Only Mosley did not. App. 630.
28 MILLER-EL v. DRETKE
Opinion of the Court
mum term of five years, but some members of the panel
were not, and if a panel member then insisted on a mini-
mum above five years, the prosecutor would suppress his
normal preference for tough jurors and claim cause to
strike. Two Terms ago, we described how this disparate
questioning was correlated with race:
“Ninety-four percent of whites were informed of the
statutory minimum sentence, compared [with] only
twelve and a half percent of African-Americans. No
explanation is proffered for the statistical disparity.
Pierre v. Louisiana, 306 U. S. 354, 361–362 (1939)
(‘ “The fact that the testimony . . . was not challenged
by evidence appropriately direct, cannot be brushed
aside.” Had there been evidence obtainable to contra-
dict and disprove the testimony offered by petitioner,
it cannot be assumed that the State would have re-
frained from introducing it’ (quoting Norris v. Ala-
bama, 294 U. S. 587, 594–595 (1935))). Indeed, while
petitioner’s appeal was pending before the Texas
Court of Criminal Appeals, that court found a Batson
violation where this precise line of disparate question-
ing on mandatory minimums was employed by one of
the same prosecutors who tried the instant case.
Chambers v. State, 784 S. W. 2d 29, 31 (Tex. Crim.
App. 1989).” Miller-El v. Cockrell, 537 U. S., at 345.
The State concedes that the manipulative minimum
punishment questioning was used to create cause to
strike, Brief for Respondent 33, and n. 26, but now it offers
the extenuation that prosecutors omitted the 5-year in-
formation not on the basis of race, but on stated opposition
to the death penalty, or ambivalence about it, on the ques-
tionnaires and in the voir dire testimony. Id., at 34–35.
On the State’s identification of black panel members
Cite as: 545 U. S. ____ (2005) 29
Opinion of the Court
opposed or ambivalent, all were asked the trick question.34
But the State’s rationale flatly fails to explain why most
white panel members who expressed similar opposition or
ambivalence were not subjected to it. It is entirely true, as
the State argues, id., at 35, that prosecutors struck a
number of nonblack members of the panel (as well as
black members) for cause or by agreement before they
reached the point in the standard voir dire sequence to
question about minimum punishment. But this is no
answer; 8 of the 11 nonblack individuals who voiced oppo-
sition or ambivalence were asked about the acceptable
minimum only after being told what state law required.35
——————
34 The State puts the number of black panel members who expressed
opposition or ambivalence at seven, and each received the minimum
punishment ruse. Bozeman, id., at 162; Fields, id., at 187–188; War-
ren, id., at 213–214; Rand, id., at 270; Boggess, id., at 306–307; Ken-
nedy, id., at 327–328; and Baker, id., at 654. Woods, the State argues,
had been revealed through questioning as a supporter of the death
penalty, and accordingly he was told that five years was the statutory
minimum. As explained supra, at 7–18, Fields and Warren were
neither ambivalent nor opposed; on our analysis of black venire mem-
bers opposed or ambivalent, all received the trick question, along with
two proponents of capital punishment.
35 Moses confirmed at voir dire that she reported on her questionnaire
that she did not know the answer to Question 58, 3 Record 1141,
although she did express support for the death penalty, App. 548. She
was not subjected to the manipulative script. Id., at 547. Crowson said
that if there was a chance at rehabilitation she probably would not go
with death. Id., at 554. The prosecution used a peremptory strike
against her but did not employ the manipulative minimum punishment
script. 3 Record 1232. Vickery said he did not know how he felt about
the death penalty, 4 id., at 1572, but was not subjected to the manipu-
lative script, id., at 1582. Salsini thought he would have a problem in
the future if he voted to impose a death sentence, App. 593, but he was
not subjected to the script, id., at 595. Mazza was worried about what
other people would think if she imposed the death penalty, id., at 354–
355, but was not subjected to the script, id., at 356. Witt said she did
not know if she could give the death penalty, 6 Record 2423, but was
not subjected to the script, id., at 2439. Whaley thought that she could
not give the death penalty without proof of premeditation, even though
30 MILLER-EL v. DRETKE
Opinion of the Court
Hence, only 27% of nonblacks questioned on the subject
who expressed these views were subjected to the trick
question, as against 100% of black members. Once again,
the implication of race in the prosecutors’ choice of ques-
tioning cannot be explained away.36
There is a final body of evidence that confirms this
conclusion. We know that for decades leading up to the
time this case was tried prosecutors in the Dallas County
office had followed a specific policy of systematically ex-
cluding blacks from juries, as we explained the last time
the case was here.
——————
Texas law did not require it, 10 id., at 3750, but she was not subjected
to the script, id., at 3768. Hearn said that the death penalty should be
given only to those who could not be rehabilitated, App. 429, but she
was not subjected to the script, id., at 441. The three nonblacks who
expressed ambivalence or opposition and were subjected to the script
were James Holtz, id., at 538; Margaret Gibson, id., at 514; and Fer-
nando Gutierrez, 11–(B) Record 4397.
36 The dissent reaches a different statistical result that supports the
State’s explanation. See post, at 31–33. There are two flaws in its
calculations. First, it excises from its calculations panel members who
were struck for cause or by agreement, on the theory that prosecutors
knew they could be rid of those panel members without resorting to the
minimum punishment ruse. See post, at 31–32. But the prosecution’s
calculation about whether to ask these manipulative questions occurred
before prosecutors asked the trial court to strike panel members for
cause and, frequently, before prosecutors and defense counsel would
have reached agreement about removal. It is unlikely that prosecutors
were so assured of being able to remove certain panel members for
cause or by agreement that they would forgo the chance to create
additional grounds for removal by employing the minimum-punishment
ruse. Second, as with its analysis of the panelists receiving the graphic
script, the dissent characterizes certain panel members in ways that in
our judgment are unconvincing. For example, for purposes of the
minimum-punishment analysis, the dissent considers Colleen Moses
and Noad Vickery to be panelists so favorable to the prosecution that
there was no need to resort to the minimum-punishment ruse, post, at
32, yet the dissent acknowledged Moses’s and Vickery’s ambivalent
questionnaire responses in its discussion of the graphic script, post, at
29.
Cite as: 545 U. S. ____ (2005) 31
Opinion of the Court
“Although most of the witnesses [presented at the
Swain hearing in 1986] denied the existence of a sys-
tematic policy to exclude African-Americans, others
disagreed. A Dallas County district judge testified
that, when he had served in the District Attorney’s
Office from the late-1950’s to early-1960’s, his supe-
rior warned him that he would be fired if he permitted
any African-Americans to serve on a jury. Similarly,
another Dallas County district judge and former as-
sistant district attorney from 1976 to 1978 testified
that he believed the office had a systematic policy of
excluding African-Americans from juries.
“Of more importance, the defense presented evi-
dence that the District Attorney’s Office had adopted
a formal policy to exclude minorities from jury ser-
vice. . . . A manual entitled ‘Jury Selection in a
Criminal Case’ [sometimes known as the Sparling
Manual] was distributed to prosecutors. It contained
an article authored by a former prosecutor (and later
a judge) under the direction of his superiors in the
District Attorney’s Office, outlining the reasoning for
excluding minorities from jury service. Although the
manual was written in 1968, it remained in circula-
tion until 1976, if not later, and was available at least
to one of the prosecutors in Miller-El’s trial.” Miller-
El v. Cockrell, 537 U. S., at 334–335.37
Prosecutors here “marked the race of each prospective
juror on their juror cards.” Id., at 347.38
——————
37 The material omitted from the quotation includes an excerpt from a
1963 circular given to prosecutors in the District Attorney’s Office,
which the State points out was not in evidence in the state trial court.
The Sparling Manual, however, was before the state court.
38 The State claimed at oral argument that prosecutors could have
been tracking jurors’ races to be sure of avoiding a Batson violation. Tr.
of Oral Arg. 44. Batson, of course, was decided the month after Miller-
32 MILLER-EL v. DRETKE
Opinion of the Court
The Court of Appeals concluded that Miller-El failed to
show by clear and convincing evidence that the state
court’s finding of no discrimination was wrong, whether
his evidence was viewed collectively or separately. 361
F. 3d, at 862. We find this conclusion as unsupportable as
the “dismissive and strained interpretation” of his evi-
dence that we disapproved when we decided Miller-El was
entitled to a certificate of appealability. See Miller-El v.
Cockrell, supra, at 344. It is true, of course, that at some
points the significance of Miller-El’s evidence is open to
judgment calls, but when this evidence on the issues
raised is viewed cumulatively its direction is too powerful
to conclude anything but discrimination.
In the course of drawing a jury to try a black defendant,
10 of the 11 qualified black venire panel members were
peremptorily struck. At least two of them, Fields and
Warren, were ostensibly acceptable to prosecutors seeking
a death verdict, and Fields was ideal. The prosecutors’
chosen race-neutral reasons for the strikes do not hold up
and are so far at odds with the evidence that pretext is the
fair conclusion, indicating the very discrimination the
explanations were meant to deny.
The strikes that drew these incredible explanations
occurred in a selection process replete with evidence that
the prosecutors were selecting and rejecting potential
jurors because of race. At least two of the jury shuffles
conducted by the State make no sense except as efforts to
delay consideration of black jury panelists to the end of
the week, when they might not even be reached. The
State has in fact never offered any other explanation. Nor
has the State denied that disparate lines of questioning
were pursued: 53% of black panelists but only 3% of non-
blacks were questioned with a graphic script meant to
induce qualms about applying the death penalty (and thus
——————
El was tried.
Cite as: 545 U. S. ____ (2005) 33
Opinion of the Court
explain a strike), and 100% of blacks but only 27% of
nonblacks were subjected to a trick question about the
minimum acceptable penalty for murder, meant to induce
a disqualifying answer. The State’s attempts to explain
the prosecutors’ questioning of particular witnesses on
nonracial grounds fit the evidence less well than the ra-
cially discriminatory hypothesis.
If anything more is needed for an undeniable explana-
tion of what was going on, history supplies it. The prose-
cutors took their cues from a 20-year old manual of tips on
jury selection, as shown by their notes of the race of each
potential juror. By the time a jury was chosen, the State
had peremptorily challenged 12% of qualified nonblack
panel members, but eliminated 91% of the black ones.
It blinks reality to deny that the State struck Fields and
Warren, included in that 91%, because they were black.
The strikes correlate with no fact as well as they correlate
with race, and they occurred during a selection infected by
shuffling and disparate questioning that race explains
better than any race-neutral reason advanced by the
State. The State’s pretextual positions confirm Miller-El’s
claim, and the prosecutors’ own notes proclaim that the
Sparling Manual’s emphasis on race was on their minds
when they considered every potential juror.
The state court’s conclusion that the prosecutors’ strikes
of Fields and Warren were not racially determined is
shown up as wrong to a clear and convincing degree; the
state court’s conclusion was unreasonable as well as erro-
neous. The judgment of the Court of Appeals is reversed,
and the case is remanded for entry of judgment for peti-
tioner together with orders of appropriate relief.
It is so ordered.
Cite as: 545 U. S. ____ (2005) 1
BREYER, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 03–9659
_________________
THOMAS JOE MILLER-EL, PETITIONER v. DOUG
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 13, 2005]
JUSTICE BREYER, concurring.
In Batson v. Kentucky, 476 U. S. 79 (1986), the Court
adopted a burden-shifting rule designed to ferret out the
unconstitutional use of race in jury selection. In his sepa-
rate opinion, Justice Thurgood Marshall predicted that the
Court’s rule would not achieve its goal. The only way to
“end the racial discrimination that peremptories inject
into the jury-selection process,” he concluded, was to
“eliminat[e] peremptory challenges entirely.” Id., at 102–
103 (concurring opinion). Today’s case reinforces Justice
Marshall’s concerns.
I
To begin with, this case illustrates the practical prob-
lems of proof that Justice Marshall described. As the
Court’s opinion makes clear, Miller-El marshaled exten-
sive evidence of racial bias. But despite the strength of his
claim, Miller-El’s challenge has resulted in 17 years of
largely unsuccessful and protracted litigation—including 8
different judicial proceedings and 8 different judicial
opinions, and involving 23 judges, of whom 6 found the
Batson standard violated and 16 the contrary.
The complexity of this process reflects the difficulty of
2 MILLER-EL v. DRETKE
BREYER, J., concurring
finding a legal test that will objectively measure the in-
herently subjective reasons that underlie use of a peremp-
tory challenge. Batson seeks to square this circle by (1)
requiring defendants to establish a prima facie case of
discrimination, (2) asking prosecutors then to offer a race-
neutral explanation for their use of the peremptory, and
then (3) requiring defendants to prove that the neutral
reason offered is pretextual. See ante, at 5. But Batson
embodies defects intrinsic to the task.
At Batson’s first step, litigants remain free to misuse
peremptory challenges as long as the strikes fall below the
prima facie threshold level. See 476 U. S., at 105 (Mar-
shall, J., concurring). At Batson’s second step, prosecutors
need only tender a neutral reason, not a “persuasive, or
even plausible” one. Purkett v. Elem, 514 U. S. 765, 768
(1995) (per curiam); see also id., at 766 (“ ‘mustaches and
the beards look suspicious’ ”). And most importantly, at
step three, Batson asks judges to engage in the awkward,
sometime hopeless, task of second-guessing a prosecutor’s
instinctive judgment—the underlying basis for which may
be invisible even to the prosecutor exercising the chal-
lenge. See 476 U. S., at 106 (Marshall, J., concurring)
(noting that the unconscious internalization of racial
stereotypes may lead litigants more easily to conclude
“that a prospective black juror is ‘sullen,’ or ‘distant,’ ”
even though that characterization would not have sprung
to mind had the prospective juror been white); see also
Page, Batson’s Blind-Spot: Unconscious Stereotyping and
the Peremptory Challenge, 85 B. U. L. Rev. 155, 161
(2005) (“ ‘[s]ubtle forms of bias are automatic, unconscious,
and unintentional’ ” and ‘ “escape notice, even the notice of
those enacting the bias’ ” (quoting Fiske, What’s in a Cate-
gory?: Responsibility, Intent, and the Avoidability of Bias
Against Outgroups, in The Social Psychology of Good and
Evil 127 (A. Miller ed. 2004))). In such circumstances, it
may be impossible for trial courts to discern if a “ ‘seat-of-
Cite as: 545 U. S. ____ (2005) 3
BREYER, J., concurring
the-pants’ ” peremptory challenge reflects a “ ‘seat-of-the-
pants’ ” racial stereotype. Batson, 476 U. S., at 106 (Mar-
shall, J., concurring) (quoting id., at 138 (REHNQUIST, J.,
dissenting)).
Given the inevitably clumsy fit between any objectively
measurable standard and the subjective decisionmaking
at issue, I am not surprised to find studies and anecdotal
reports suggesting that, despite Batson, the discrimina-
tory use of peremptory challenges remains a problem.
See, e.g., Baldus, Woodworth, Zuckerman, Weiner, &
Broffitt, The Use of Peremptory Challenges in Capital
Murder Trials: A Legal and Empirical Analysis, 3 U. Pa. J.
Const. L. 3, 52–53, 73, n. 197 (2001) (in 317 capital trials
in Philadelphia between 1981 and 1997, prosecutors
struck 51% of black jurors and 26% of nonblack jurors;
defense counsel struck 26% of black jurors and 54% of
nonblack jurors; and race-based uses of prosecutorial
peremptories declined by only 2% after Batson); Rose, The
Peremptory Challenge Accused of Race or Gender Dis-
crimination? Some Data from One County, 23 Law and
Human Behavior 695, 698–699 (1999) (in one North Caro-
lina county, 71% of excused black jurors were removed by
the prosecution; 81% of excused white jurors were re-
moved by the defense); Tucker, In Moore’s Trials, Ex-
cluded Jurors Fit Racial Pattern, Washington Post, Apr. 2,
2001, p. A1 (in D. C. murder case spanning four trials,
prosecutors excused 41 blacks or other minorities and 6
whites; defense counsel struck 29 whites and 13 black
venire members); Mize, A Legal Discrimination; Juries
Are Not Supposed to be Picked on the Basis of Race and
Sex, But It Happens All the Time, Washington Post, Oct.
8, 2000, p. B8 (authored by judge on the D. C. Superior
Court); see also Melilli, Batson in Practice: What We Have
Learned About Batson and Peremptory Challenges, 71
Notre Dame L. Rev. 447, 462–464 (1996) (finding Batson
challenges’ success rates lower where peremptories were
4 MILLER-EL v. DRETKE
BREYER, J., concurring
used to strike black, rather than white, potential jurors);
Brand, The Supreme Court, Equal Protection and Jury
Selection: Denying That Race Still Matters, 1994 Wis.
L. Rev. 511, 583–589 (examining judicial decisions and
concluding that few Batson challenges succeed); Note,
Batson v. Kentucky and J. E. B. v. Alabama ex rel. T. B.: Is
the Peremptory Challenge Still Preeminent?, 36 Boston
College L. Rev. 161, 189, and n. 303 (1994) (same);
Montoya, The Future of the Post-Batson Peremptory Chal-
lenge: Voir Dire by Questionnaire and the “Blind” Peremp-
tory Challenge, 29 U. Mich. J. L. Reform 981, 1006,
nn. 126–127, 1035 (1996) (reporting attorneys’ views on
the difficulty of proving Batson claims).
II
Practical problems of proof to the side, peremptory
challenges seem increasingly anomalous in our judicial
system. On the one hand, the Court has widened and
deepened Batson’s basic constitutional rule. It has applied
Batson’s antidiscrimination test to the use of peremptories
by criminal defendants, Georgia v. McCollum, 505 U. S. 42
(1992), by private litigants in civil cases, Edmonson v.
Leesville Concrete Co., 500 U. S. 614 (1991), and by prosecu-
tors where the defendant and the excluded juror are of
different races, Powers v. Ohio, 499 U. S. 400 (1991). It
has recognized that the Constitution protects not just de-
fendants, but the jurors themselves. Id., at 409. And it has
held that equal protection principles prohibit excusing
jurors on account of gender. See J. E. B. v. Alabama ex rel.
T. B., 511 U. S. 127 (1994). Some lower courts have ex-
tended Batson’s rule to religious affiliation as well. See,
e.g., United States v. Brown, 352 F. 3d 654, 668–669 (CA2
2003); State v. Hodge, 248 Conn. 207, 244–246, 726 A. 2d
531, 553 (1999); United States v. Stafford, 136 F. 3d 1109,
1114 (CA7 1998) (suggesting same); see also Davis v.
Minnesota, 511 U. S. 1115, 1117 (1994) (THOMAS, J., dis-
Cite as: 545 U. S. ____ (2005) 5
BREYER, J., concurring
senting from denial of certiorari). But see Casarez v.
State, 913 S. W. 2d 468, 496 (Tex. Crim. App. 1994) (en
banc) (declining to extend Batson to religious affiliation);
State v. Davis, 504 N. W. 2d 767, 771 (Minn. 1993) (same).
On the other hand, the use of race- and gender-based
stereotypes in the jury-selection process seems better
organized and more systematized than ever before. See,
e.g., Post, A Loaded Box of Stereotypes: Despite ‘Batson,’
Race, Gender Play Big Roles in Jury Selection., Nat. L. J.,
Apr. 25, 2005, pp. 1, 18 (discussing common reliance on
race and gender in jury selection). For example, one jury-
selection guide counsels attorneys to perform a “demo-
graphic analysis” that assigns numerical points to charac-
teristics such as age, occupation, and marital status—in
addition to race as well as gender. See V. Starr & A.
McCormick, Jury Selection 193–200 (3d ed. 2001). Thus,
in a hypothetical dispute between a white landlord and an
African-American tenant, the authors suggest awarding
two points to an African-American venire member while
subtracting one point from her white counterpart. Id., at
197–199.
For example, a bar journal article counsels lawyers to
“rate” potential jurors “demographically (age, gender,
marital status, etc.) and mark who would be under stereo-
typical circumstances [their] natural enemies and allies.”
Drake, The Art of Litigating: Deselecting Jurors Like the
Pros, 34 Md. Bar J. 18, 22 (Mar.–Apr. 2001) (emphasis in
original).
For example, materials from a legal convention, while
noting that “nationality” is less important than “once was
thought,” and emphasizing that “the answers a prospec-
tive juror gives to questions are much more valuable,” still
point out that “[s]tereotypically” those of “Italian, French,
and Spanish” origin “are thought to be pro-plaintiff as well
as other minorities, such as Mexican and Jewish[;]
[p]ersons of German, Scandinavian, Swedish, Finnish,
6 MILLER-EL v. DRETKE
BREYER, J., concurring
Dutch, Nordic, British, Scottish, Oriental, and Russian
origin are thought to be better for the defense”; African-
Americans “have always been considered good for the
plaintiff,” and “[m]ore politically conservative minorities
will be more likely to lean toward defendants.” Blue,
Mirroring, Proxemics, Nonverbal Communication and
Other Psychological Tools, Advocacy Track—Psychology of
Trial, Association of Trial Lawyers of America Annual
Convention Reference Materials, 1 Ann. 2001 ATLA–CLE
153, available at WESTLAW, ATLA–CLE database (June
8, 2005).
For example, a trial consulting firm advertises a new
jury-selection technology: “Whether you are trying a civil
case or a criminal case, SmartJURY™ has likely deter-
mined the exact demographics (age, race, gender, educa-
tion, occupation, marital status, number of children, relig-
ion, and income) of the type of jurors you should select and
the type you should strike.” SmartJURY Product Infor-
mation, http://www.cts-america.com/smartjury_pi.asp (as
visited June 8, 2005, and available in Clerk of Court’s case
file).
These examples reflect a professional effort to fulfill the
lawyer’s obligation to help his or her client. Cf. J. E. B.,
supra, at 148–149 (O’CONNOR, J., concurring) (observing
that jurors’ race and gender may inform their perspective).
Nevertheless, the outcome in terms of jury selection is the
same as it would be were the motive less benign. And as
long as that is so, the law’s antidiscrimination command
and a peremptory jury-selection system that permits or
encourages the use of stereotypes work at cross-purposes.
Finally, a jury system without peremptories is no longer
unthinkable. Members of the legal profession have begun
serious consideration of that possibility. See, e.g., Allen v.
Florida, 596 So. 2d 1083, 1088–1089 (Fla. App. 1992)
(Hubbart, J., concurring); Broderick, Why the Peremptory
Challenge Should Be Abolished, 65 Temp. L. Rev. 369
Cite as: 545 U. S. ____ (2005) 7
BREYER, J., concurring
(1992) (authored by Senior Judge on the U. S. District
Court for the Eastern District of Pennsylvania); Hoffman,
Peremptory Challenges Should be Abolished: A Trial
Judge’s Perspective, 64 U. Chi. L. Rev. 809 (1997) (au-
thored by a Colorado state-court judge); Altschuler, The
Supreme Court and the Jury: Voir Dire, Peremptory Chal-
lenges, and the Review of Jury Verdicts, 56 U. Chi. L. Rev.
153, 199–211 (1989); Amar, Reinventing Juries: Ten Sug-
gested Reforms, 28 U. C. D. L. Rev. 1169, 1182–1183
(1995); Melilli, 71 Notre Dame L. Rev., at 502–503; Page,
85 B. U. L. Rev., at 245–246. And England, a common-law
jurisdiction that has eliminated peremptory challenges,
continues to administer fair trials based largely on ran-
dom jury selection. See Criminal Justice Act, 1988, ch. 33,
§118(1), 22 Halsbury’s Statutes 357 (4th ed. 2003 reissue)
(U. K.); see also 2 Jury Service in Victoria, Final Report,
ch. 5, p. 165 (Dec. 1997) (1993 study of English barristers
showed majority support for system without peremptory
challenges).
III
I recognize that peremptory challenges have a long
historical pedigree. They may help to reassure a party of
the fairness of the jury. But long ago, Blackstone recog-
nized the peremptory challenge as an “arbitrary and
capricious species of [a] challenge.” 4 W. Blackstone,
Commentaries on the Laws of England 346 (1769). If used
to express stereotypical judgments about race, gender,
religion, or national origin, peremptory challenges betray
the jury’s democratic origins and undermine its represen-
tative function. See 1 A. de Tocqueville, Democracy in
America 287 (H. Reeve transl. 1900) (“[T]he institution of
the jury raises the people . . . to the bench of judicial au-
thority [and] invests [them] with the direction of society”);
A. Amar, The Bill of Rights 94–96 (1998) (describing the
Founders’ vision of juries as venues for democratic partici-
8 MILLER-EL v. DRETKE
BREYER, J., concurring
pation); see also Stevens, Foreword, Symposium: The Jury
at a Crossroad: The American Experience, 78 Chi.-Kent
L. Rev. 907, 907–908 (2003) (citizens should not be denied
the opportunity to serve as jurors unless an impartial
judge states a reason for the denial, as with a strike for
cause). The “scientific” use of peremptory challenges may
also contribute to public cynicism about the fairness of the
jury system and its role in American government. See,
e.g., S. O’Connor, Juries: They May Be Broke, But We Can
Fix Them, Chautauqua Institution Lecture, July 6, 1995.
And, of course, the right to a jury free of discriminatory
taint is constitutionally protected—the right to use per-
emptory challenges is not. See Stilson v. United States,
250 U. S. 583, 586 (1919); see also Ross v. Oklahoma, 487
U. S. 81, 88 (1988) (defendant’s loss of a peremptory chal-
lenge does not violate his right to an impartial jury).
Justice Goldberg, dissenting in Swain v. Alabama, 380
U. S. 202 (1965), wrote, “Were it necessary to make an
absolute choice between the right of a defendant to have a
jury chosen in conformity with the requirements of the
Fourteenth Amendment and the right to challenge per-
emptorily, the Constitution compels a choice of the for-
mer.” Id., at 244; see also Batson, 476 U. S., at 107 (Mar-
shall, J., concurring) (same); Edmonson, 500 U. S., at 630
(KENNEDY, J.) (“[I]f race stereotypes are the price for
acceptance of a jury panel as fair, the price is too high to
meet the standard of the Constitution”). This case sug-
gests the need to confront that choice. In light of the
considerations I have mentioned, I believe it necessary to
reconsider Batson’s test and the peremptory challenge
system as a whole. With that qualification, I join the
Court’s opinion.
Cite as: 545 U. S. ____ (2005) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 03–9659
_________________
THOMAS JOE MILLER-EL, PETITIONER v. DOUG
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 13, 2005]
JUSTICE THOMAS, with whom THE CHIEF JUSTICE and
JUSTICE SCALIA join, dissenting.
In the early morning hours of November 16, 1985, peti-
tioner Thomas Joe Miller-El and an accomplice, Kennard
Flowers, robbed a Holiday Inn in Dallas, Texas. Miller-El
and Flowers bound and gagged hotel employees Donald
Hall and Doug Walker, and then laid them face down on
the floor. When Flowers refused to shoot them, Miller-El
shot each twice in the back, killing Walker and rendering
Hall a paraplegic. Miller-El was convicted of capital mur-
der by a jury composed of seven white females, two white
males, a black male, a Filipino male, and a Hispanic male.
For nearly 20 years now, Miller-El has contended that
prosecutors peremptorily struck potential jurors on the
basis of race. In that time, seven state and six federal
judges have reviewed the evidence and found no error.
This Court concludes otherwise, because it relies on evi-
dence never presented to the Texas state courts. That
evidence does not, much less “clear[ly] and convincing[ly],”
show that the State racially discriminated against poten-
tial jurors. 28 U. S. C. §2254(e)(1). However, we ought not
even to consider it: In deciding whether to grant Miller-El
relief, we may look only to “the evidence presented in the
2 MILLER-EL v. DRETKE
THOMAS, J., dissenting
State court proceeding.” §2254(d)(2). The majority ig-
nores that restriction on our review to grant Miller-El
relief. I respectfully dissent.
I
Miller-El requests federal habeas relief from a state-
court judgment, and hence our review is controlled by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 110 Stat. 1214. Because Miller-El’s claim of
racial discrimination in jury selection was adjudicated on
the merits in Texas state court, AEDPA directs that a writ
of habeas corpus “shall not be granted” unless the state
court’s decision “was based on an unreasonable determina-
tion of the facts in light of the evidence presented in the
State court proceeding.” 28 U. S. C. §2254(d)(2) (emphasis
added).
To obtain habeas relief, then, Miller-El must show that,
based on the evidence before the Texas state courts, the
only reasonable conclusion was that prosecutors had
racially discriminated against prospective jurors. He has
not even come close to such a showing. The state courts
held two hearings, but despite ample opportunity, Miller-
El presented little evidence that discrimination occurred
during jury selection. In view of the evidence actually
presented to the Texas courts, their conclusion that the
State did not discriminate was eminently reasonable. As a
close look at the state-court proceedings reveals, the ma-
jority relies almost entirely on evidence that Miller-El has
never presented to any Texas state court.
A
Jury selection in Miller-El’s trial took place over five
weeks in February and March 1986. During the process,
19 of the 20 blacks on the 108-person venire panel were
not seated on the jury: 3 were dismissed for cause, 6 were
dismissed by the parties’ agreement, and 10 were peremp-
Cite as: 545 U. S. ____ (2005) 3
THOMAS, J., dissenting
torily struck by prosecutors. Miller-El objected to 8 of
these 10 strikes, asserting that the prosecutors were
discriminating against black veniremen. Each time, the
prosecutors proffered a race-neutral, case-related reason
for exercising the challenge, and the trial court permitted
the venireman to be removed. The remaining black veni-
reman, Troy Woods, served on the jury that convicted
Miller-El.
At the completion of voir dire, Miller-El moved to strike
the jury under this Court’s decision in Swain v. Alabama,
380 U. S. 202 (1965), which required Miller-El to prove
“systematic exclusion of black persons through the use of
peremptories over a period of time.” Powers v. Ohio, 499
U. S. 400, 405 (1991). At the pretrial Swain hearing in
March 1986, Miller-El presented three types of documen-
tary evidence: the juror questionnaires of the 10 black
veniremen struck by the State; excerpts from a series of
newspaper articles on racial bias in jury selection; and a
manual on jury selection in criminal cases authored by a
former Dallas County prosecutor. The voir dire transcript
was part of the official record. Miller-El, however, intro-
duced none of the other 98 juror questionnaires, no juror
cards, and no evidence related to jury shuffling. See ante,
at 23–24, n. 15.
Miller-El also presented nine witnesses, five of whom
had spent time as prosecutors in the Dallas County Dis-
trict Attorney’s (D. A.) Office and five of whom were cur-
rent or former judges in Dallas County. Their testimony
made three things clear. First, the D. A.’s Office had
never officially sanctioned or promoted racial discrimina-
tion in jury selection, as several witnesses testified, in-
cluding the county’s Chief Public Defender as well as one
of the first black prosecutors to serve in the D. A.’s Office.
App. 842 (Baraka); id., at 846–848 (Tait); id., at 860
(Entz); id., at 864 (Kinkeade). Second, witnesses testified
that, despite the absence of any official policy, individual
4 MILLER-EL v. DRETKE
THOMAS, J., dissenting
prosecutors had almost certainly excluded blacks in par-
ticular cases. Id., at 830, 833 (Hampton); id., at 841–842
(Baraka); id., at 846–848 (Tait); id., at 863–864
(Kinkeade). Third and most important, no witness testi-
fied that the prosecutors in Miller-El’s trial—Norman
Kinne, Paul Macaluso, and Jim Nelson—had ever engaged
in racially discriminatory jury selection. Id., at 843 (Ba-
raka); id., at 859 (Entz); id., at 863 (Kinkeade). The trial
court concluded that, although racial discrimination “may
have been done by individual prosecutors in individual
cases[,]” there was no evidence of “any systematic exclu-
sion of blacks as a matter of policy by the District Attor-
ney’s office.” Id., at 882–883.
Miller-El was then tried, convicted, and sentenced to
death. While his appeal was pending, this Court decided
Batson v. Kentucky, 476 U. S. 79 (1986). Batson an-
nounced a new three-step process for evaluating claims
that a prosecutor used peremptory challenges to strike
prospective jurors because of their race:
“First, a defendant must make a prima facie showing
that a peremptory challenge has been exercised on the
basis of race[; s]econd, if that showing has been made,
the prosecution must offer a race-neutral basis for
striking the juror in question[; and t]hird, in light of
the parties’ submissions, the trial court must deter-
mine whether the defendant has shown purposeful
discrimination.” Miller-El v. Cockrell, 537 U. S. 322,
328–329 (2003) (Miller-El I).
The Texas Court of Criminal Appeals remanded Miller-
El’s case for a hearing to be held under Batson.
B
At the Batson hearing in May 1988, before the same
judge who had presided over his trial, Miller-El sought to
establish that prosecutors at his trial had struck potential
Cite as: 545 U. S. ____ (2005) 5
THOMAS, J., dissenting
jurors on the basis of their race. To make his prima facie
case, Miller-El reintroduced some of what he had pre-
sented two years earlier at the Swain hearing: the testi-
mony of the nine witnesses, the 10 juror questionnaires,
and the excerpted newspaper articles. App. 893–895. The
court instructed the State to explain its strikes. Id., at
898–899. Of the 10 peremptory strikes at issue, prosecu-
tors had already explained 8 at trial in response to Miller-
El’s objections. The State therefore called Paul Macaluso,
one of the prosecutors who had conducted the voir dire, to
testify regarding his reasons for striking veniremen Paul
Bailey and Joe Warren.
Macaluso testified that he had struck Bailey because
Bailey seemed firmly opposed to the death penalty, even
though Bailey tempered his stance during voir dire. Id., at
905–906. This was accurate. Bailey expressed forceful
opposition to the death penalty when questioned by
Macaluso. See, e.g., 11–(A) Record of Voir Dire 4110 (here-
inafter Record) (“I don’t believe in capital punishment.
Like I said on [my juror questionnaire], I don’t believe
anyone has the right to take another person’s life”); id., at
4112 (saying that he felt “[v]ery strongly” that the State
should not impose the death penalty). Later, however,
when questioned by defense counsel, Bailey said that he
could impose the death penalty if the State proved the
necessary aggravating circumstances. Id., at 4148–4150,
4152. When the trial court overruled the State’s challenge
for cause, the State exercised a peremptory challenge. Id.,
at 4168.
Macaluso next testified that he dismissed venireman
Warren because Warren gave inconsistent answers re-
garding his ability to apply the death penalty and because
Warren’s brother had been recently convicted. App. 908–
910. Macaluso conceded that Warren was not as clearly
unfavorable to the State as Bailey. Id., at 911. Neverthe-
less, Macaluso struck Warren because it was early in the
6 MILLER-EL v. DRETKE
THOMAS, J., dissenting
jury selection process and the State had plenty of remain-
ing peremptories with which it could remove marginal
jurors. Macaluso candidly stated that he might not have
removed Warren if fewer peremptories had been available.
Id., at 910.
After the State presented nonracial, case-related rea-
sons for all its strikes, the focus shifted to Batson’s third
step: whether Miller-El had “carried his burden of proving
purposeful discrimination.” Purkett v. Elem, 514 U. S.
765, 768 (1995) (per curiam); Batson, supra, at 97–98. At
this point, Miller-El stood on his Swain evidence. App.
921. That evidence bore on whether some Dallas County
prosecutors had discriminated generally in past years;
none of the evidence indicated that the prosecutors at
Miller-El’s trial—Kinne, Macaluso, and Nelson—had
discriminated in the selection of Miller-El’s jury. More-
over, none of this generalized evidence came close to dem-
onstrating that the State’s explanations were pretextual in
Miller-El’s particular trial. Miller-El did not even attempt
to rebut the State’s racially neutral reasons at the hear-
ing. He presented no evidence and made no arguments.
Id., at 919–922.
Nevertheless, the majority concludes that the trial judge
was unreasonable in finding as a factual matter that the
State did not discriminate against black veniremen. Ante,
at 33. That is not so “in light of the evidence presented in
the State court proceeding.” 28 U. S. C. §2254(d)(2). From
the scanty evidence presented to the trial court, “it is at
least reasonable to conclude” that purposeful discrimina-
tion did not occur, “which means that the state court’s
determination to that effect must stand.” Early v. Packer,
537 U. S. 3, 11 (2002) (per curiam).
II
Not even the majority is willing to argue that the evi-
dence before the state court shows that the State dis-
Cite as: 545 U. S. ____ (2005) 7
THOMAS, J., dissenting
criminated against black veniremen. Instead, it bases its
decision on juror questionnaires and juror cards that
Miller-El’s new attorneys unearthed during his federal
habeas proceedings and that he never presented to the
state courts.1 Ante, at 23–24, n. 15. Worse still, the ma-
jority marshals those documents in support of theories
that Miller-El never argued to the state courts. AEDPA
does not permit habeas petitioners to engage in this sort of
sandbagging of state courts.
A
The majority discusses four types of evidence: (1) the
alleged similarity between black veniremen who were
struck by the prosecution and white veniremen who were
not; (2) the apparent disparate questioning of black and
white veniremen with respect to their views on the death
penalty and their ability to impose the minimum punish-
ment; (3) the use of the “jury shuffle” by the prosecution;
and (4) evidence of historical discrimination by the D. A.’s
Office in the selection of juries. Only the last was ever put
before the Texas courts—and it does not prove that any
constitutional violation occurred at Miller-El’s trial. The
majority’s discussion of the other types of evidence relies
on documents like juror questionnaires and juror cards
that were added to the record before the District Court.
The majority’s willingness to reach outside the state-
court record and embrace evidence never presented to the
Texas state courts is hard to fathom. AEDPA mandates
that the reasonableness of a state court’s factual findings
be assessed “in light of the evidence presented in the State
court proceeding,” 28 U. S. C. §2254(d)(2), and also circum-
scribes the ability of federal habeas litigants to present
——————
1 The supplemental material appears in a joint lodging submitted by
the parties. It includes the State’s copies of questionnaires for 12
prospective jurors (11 of whom served at Miller-El’s trial), and the
State’s juror cards for all 108 members of the venire panel.
8 MILLER-EL v. DRETKE
THOMAS, J., dissenting
evidence that they “failed to develop” before the state
courts. §2254(e)(2); Williams v. Taylor, 529 U. S. 420, 429–
430 (2000). Miller-El did not argue disparate treatment or
disparate questioning at the Batson hearing, so he had no
reason to submit the juror questionnaires or cards to the
trial court. However, Miller-El could have developed and
presented all of that evidence at the Batson hearing.2
Consequently, he must satisfy §2254(e)(2)’s requirements
to adduce the evidence in federal court—something he
cannot do. Williams, supra, at 437 (“Federal courts sitting
in habeas are not an alternative forum for trying facts and
issues which a prisoner made insufficient effort to pursue
in state proceedings”). For instance, there is no doubt that
Miller-El’s supplemental material could have been “previ-
ously discovered through the exercise of due diligence.”
§2254(e)(2)(A)(ii).
Just last Term, we summarily reversed the Court of
Appeals for the Sixth Circuit for doing what the Court
does here: granting habeas relief on the basis of evidence
not presented to the state court. See Holland v. Jackson,
542 U. S. ___, ___ (2004) (per curiam). We reaffirmed “that
whether a state court’s decision was unreasonable must be
assessed in light of the record the court had before it.” Id.,
at ___ (slip op., at 3); see also Miller-El I, 537 U. S., at 348
(“[P]etitioner must demonstrate that a state court’s . . .
factual determination was ‘objectively unreasonable’ in
light of the record before the court”). In an about-face, the
——————
2 The juror questionnaires had been in Miller-El’s possession since
before the 1986 Swain hearing; Miller-El’s attorneys used them during
the voir dire. But because Miller-El did not argue disparate treatment
or questioning at the Batson hearing, Miller-El’s attorneys had no
reason to submit the questionnaires to the trial court. The juror cards
could have been requested at any point under the Texas Public Infor-
mation Act. See Supplemental Briefing on Batson/Swain Claim Based
on Previously Unavailable Evidence, Record in No. 00–10784 (CA5), p.
2494.
Cite as: 545 U. S. ____ (2005) 9
THOMAS, J., dissenting
majority now reverses the Court of Appeals for the Fifth
Circuit for failing to grant habeas relief on the basis of
evidence not before the state court. By crediting evidence
that Miller-El never placed before the state courts, the
majority flouts AEDPA’s plain terms and encourages
habeas applicants to attack state judgments collaterally
with evidence never tested by the original triers of fact.
B
The majority presents three arguments for ignoring
AEDPA’s requirement that the state-court decision be
unreasonable “in light of the evidence presented in the
State court proceeding.” 28 U. S. C. §2254(d)(2). None is
persuasive.
1
First, without briefing or argument on the question, the
majority hints that we may ignore AEDPA’s limitation on
the record under §2254(d)(2) because the parties have
ignored it. Ante, at 23–24, n. 15. The majority then
quickly retreats and expressly does not decide the ques-
tion. Ibid. But its retreat is as inexplicable as its ad-
vance: Unless §2254(d)(2) is waivable and the parties have
waived it, the majority cannot consider evidence outside
the state-court proceedings, as it concededly does.
The majority’s venture beyond the state-court record is
indefensible. Even if §2254(d) is not jurisdictional, but see
Lindh v. Murphy, 521 U. S. 320, 343–344 (1997)
(REHNQUIST, C. J., dissenting), “it shares the most salient
characteristic of jurisdictional statutes: Its commands are
addressed to courts rather than to individuals,” id., at 344.
Section 2254(d) speaks directly to federal courts when it
states that a habeas application by a state prisoner “shall
not be granted” except under the specified conditions.
(Emphasis added); ibid. (REHNQUIST, C. J., dissenting).
The strictures of §2254(d) are not discretionary or waiv-
10 MILLER-EL v. DRETKE
THOMAS, J., dissenting
able. Through AEDPA, Congress sought to ensure that
federal courts would defer to the judgments of state courts,
not the wishes of litigants.
Nevertheless, there is no need to decide whether
§2254(d)(2) may be waived, for the State has not waived it.
Contrary to the majority’s assertions, ante, at 23–24, n. 15,
the State has argued that §2254(d)(2) bars our review of
certain evidence not before the state trial court, Brief for
Respondent 41–42, just as it did in its last appearance, see
Brief for Respondent in Miller-El I, O. T. 2002, No. 01–
7662, pp. 28–29, 39. The majority is correct that the State
has not argued §2254(d)(2) precludes consideration of the
juror questionnaires and juror cards in particular, ante, at
23–24, n. 15, but the majority does not assert that the
State may selectively invoke §2254(d)(2) to cherry-pick
only favorable evidence that lies outside the state-court
record.
2
The majority next suggests that the supplemental mate-
rial, particularly the juror questionnaires, might not ex-
pand on what the state trial court knew, since “the same
judge presided over the voir dire, the Swain hearing, and
the Batson hearing, and the jury questionnaires were
subjects of reference at the voir dire.” Ante, at 23–24,
n. 15. This is incorrect. At the Batson hearing, Miller-El
introduced into evidence only the questionnaires of the 10
black veniremen peremptorily struck by the State. App.
893–895. The questionnaires of the other 98 veniremen—
including many on which the majority relies—were never
introduced into evidence or otherwise placed before the
trial judge. Miller-El and the State had copies; the trial
judge did not.
Yet the majority insinuates that the questionnaires
effectively were before the state court because they “were
subjects of reference at the voir dire.” Ante, at 23–24,
Cite as: 545 U. S. ____ (2005) 11
THOMAS, J., dissenting
n. 15. That is extremely misleading on the facts of this
case. Although counsel for Miller-El and the State ques-
tioned witnesses partially on the basis of their question-
naire responses, the lawyers’ references to questionnaires
were scattered and sporadic. Even the majority does not
attempt to show that the specific questionnaire responses
on which it relies were called to the trial court’s attention.
Clearly they were not called to the trial court’s attention
at the only time that mattered: the Batson hearing.
The majority’s insinuation is doubly misleading when
coupled with its insistence that “the transcript of voir dire
. . . was before the state courts.” Ante, at 7–8, n. 2. Miller-
El’s arguments gave the state court no reason to go leafing
through the voir dire transcript. What is more, voir dire
at Miller-El’s trial lasted five weeks, and the transcript
occupies 11 volumes numbering 4,662 pages. To think
that two years after the fact a trial court should dredge up
on its own initiative passing references to unseen ques-
tionnaires—references buried in a more than 4,600-page
transcript no less—is unrealistic. That is why §2254(d)(2)
demands that state courts be taken to task only on the
basis of evidence “presented in the State court proceed-
ing.” The 98 questionnaires before the parties, unlike the
10 questionnaires that Miller-El entered into evidence,
were not “presented” to the state court.
The majority also asserts that by considering the ques-
tionnaires, it is only attempting to help the State. After
all, the State claims that any disparate questioning and
treatment of black and white veniremen resulted from
their questionnaires, not their respective races. As the
majority sees it, if the questionnaires are not properly
before us, then the State cannot substantiate its defense.
This is a startling repudiation of both Batson and
AEDPA. A strong presumption of validity attaches to a
trial court’s factual finding at Batson’s third step, Her-
nandez v. New York, 500 U. S. 352, 364 (1991) (plurality
12 MILLER-EL v. DRETKE
THOMAS, J., dissenting
opinion); id., at 372 (O’CONNOR, J., concurring in judg-
ment); see also Batson, 476 U. S., at 98, n. 21, and that
presumption is doubly strong when the Batson finding is
under collateral attack in habeas, Miller-El I, 537 U. S., at
340. Thus, it is Miller-El’s burden to prove racial dis-
crimination under Batson, and it is his burden to prove it
by clear and convincing evidence under AEDPA. Without
the questionnaires never submitted to the trial court,
Miller-El comes nowhere near establishing that race
motivated any disparate questioning or treatment, which
is precisely why the majority must strain to include the
questionnaires within the state-court record.
That Miller-El needs the juror questionnaires could not
be clearer in light of how the Batson hearing unfolded.
After offering racially neutral reasons for all of its strikes,
the State could have remained silent—as Miller-El did.
However, the State pointed out, among other things, that
any disparate questioning of black and white veniremen
was based on answers given on the juror questionnaires or
during the voir dire process. App. 920–921. The State
further noted that Miller-El had never alleged disparate
treatment of black and white veniremen. Id., at 921. Be-
cause Miller-El did not dispute the State’s assertions, there
was no need for the State to enter the juror questionnaires
into the record. There was nothing to argue about. Miller-
El had presented only generalized evidence of historical
discrimination by the D. A.’s Office, which no one believes
was sufficient in itself to prove a Batson violation. That is
why Miller-El, not the State, marshaled supplemental
material during his federal habeas proceedings. Without
that evidence, he cannot prove now what he never at-
tempted to prove 17 years ago: that the State’s justifications
for its strikes were a pretext for discrimination.
3
Finally, the majority suggests that the 2-year delay
Cite as: 545 U. S. ____ (2005) 13
THOMAS, J., dissenting
between the voir dire and the post-trial Batson hearing is
reason for weakened deference. See ante, at 7, n. 1. This
is an argument not for setting aside §2254(d)(2)’s limit on
the record, but for relaxing the level of deference due state
courts’ factual findings under §§2254(d)(2) and (e)(1). The
presumption of correctness afforded factual findings on
habeas review, however, does not depend on the manner
in which the trial court reaches its factual findings, for
reasons I have explained before. Miller-El I, supra, at
357–359 (dissenting opinion). The majority leaves those
arguments unanswered.
The majority’s own argument is implausible on its face:
“ ‘[T]he usual risks of imprecision and distortion from the
passage of time’ ” are far greater after 17 years than after
2. Ante, at 7, n. 1 (quoting Miller-El I, supra, at 343). The
majority has it just backward. The passage of time, as
AEDPA requires and as this Court has held, counsels in
favor of more deference, not less. At least the trial court,
unlike this Court, had the benefit of gauging the wit-
nesses’ and prosecutors’ credibility at both the Swain and
Batson hearings. Miller-El I, supra, at 339 (“Deference is
necessary because a reviewing court, which analyzes only
the transcripts from voir dire, is not as well positioned as
the trial court is to make credibility determinations”); see
also Hernandez, supra, at 364 (plurality opinion); Batson,
supra, at 98, n. 21.
III
Even taken on its own terms, Miller-El’s cumulative
evidence does not come remotely close to clearly and con-
vincingly establishing that the state court’s factual finding
was unreasonable. I discuss in turn Miller-El’s four types
of evidence: (1) the alleged disparate treatment and (2)
disparate questioning of black and white veniremen; (3)
the prosecution’s jury shuffles; and (4) historical discrimi-
nation by the D. A.’s Office in the selection of juries.
14 MILLER-EL v. DRETKE
THOMAS, J., dissenting
Although each type of evidence “is open to judgment calls,”
ante, at 32, the majority finds that a succession of unper-
suasive arguments amounts to a compelling case. In the
end, the majority’s opinion is its own best refutation: It
strains to demonstrate what should instead be patently
obvious.
A
The majority devotes the bulk of its opinion to a side-by-
side comparison of white panelists who were allowed to
serve and two black panelists who were struck, Billy Jean
Fields and Joe Warren. Ante, at 7–19. The majority
argues that the prosecution’s reasons for striking Fields
and Warren apply equally to whites who were permitted
to serve, and thus those reasons must have been pretex-
tual. The voir dire transcript reveals that the majority is
mistaken.
It is worth noting at the outset, however, that Miller-
El’s and the Court’s claims have always been a moving
target. Of the 20 black veniremen at Miller-El’s trial, 9
were struck for cause or by the parties’ agreement, and 1
served on the jury. Miller-El claimed at the Batson hear-
ing that all 10 remaining black veniremen were dismissed
on account of race. That number dropped to 7 on appeal,
and then again to 6 during his federal habeas proceedings.
Of those 6 black veniremen, this Court once found debat-
able that the entire lot was struck based on race. Miller-
El I, supra, at 343. However, 4 (Carrol Boggess, Roderick
Bozeman, Wayman Kennedy, and Edwin Rand) were
dismissed for reasons other than race, as the majority
effectively concedes. Ante, at 19, n. 11; Miller-El I, supra,
at 351–354 (SCALIA, J., concurring).
The majority now focuses exclusively on Fields and
Warren. But Warren was obviously equivocal about the
death penalty. In the end, the majority’s case reduces to a
single venireman, Fields, and its reading of a 20-year-old
Cite as: 545 U. S. ____ (2005) 15
THOMAS, J., dissenting
voir dire transcript that is ambiguous at best. This is the
antithesis of clear and convincing evidence.
1
From the outset of questioning, Warren did not specify
when he would vote to impose the death penalty. When
asked by prosecutor Paul Macaluso about his ability to
impose the death penalty, Warren stated, “[T]here are
some cases where I would agree, you know, and there are
others that I don’t.” 3 Record 1526. Macaluso then ex-
plained at length the types of crimes that qualified as
capital murder under Texas law, and asked whether War-
ren would be able to impose the death penalty for those
types of heinous crimes. Id., at 1527–1530. Warren con-
tinued to hedge: “I would say it depends on the case and
the circumstances involved at the time.” Id., at 1530. He
offered no sense of the circumstances that would lead him
to conclude that the death penalty was an appropriate
punishment.
Macaluso then changed tack and asked whether Warren
believed that the death penalty accomplished any social
purpose. Id., at 1531–1532. Once again, Warren proved
impossible to pin down: “Yes and no. Sometimes I think it
does and sometimes I think it don’t. Sometimes you have
mixed feelings about things like that.” Id., at 1532.
Macaluso then focused on what the death penalty accom-
plished in those cases where Warren believed it useful.
Ibid. Even then, Warren expressed no firm view:
“I don’t know. It’s really hard to say because I know
sometimes you feel that it might help to deter crime
and then you feel that the person is not really suffer-
ing. You’re taking the suffering away from him. So
it’s like I said, sometimes you have mixed feelings
about whether or not this is punishment or, you know,
you’re relieving personal punishment.” Ibid.
16 MILLER-EL v. DRETKE
THOMAS, J., dissenting
While Warren’s ambivalence was driven by his uncer-
tainty that the death penalty was severe enough, ante, at
17, that is beside the point. Throughout the examination,
Warren gave no indication whether or when he would
prefer the death penalty to other forms of punishment,
specifically life imprisonment. 3 Record 1532–1533. To
prosecutors seeking the death penalty, the reason for
Warren’s ambivalence was irrelevant.
At voir dire, there was no dispute that the prosecution
struck Warren not for his race, but for his ambivalence on
the death penalty. Miller-El’s attorneys did not object to
the State’s strikes of Warren or Paul Bailey, though they
objected to the removal of every other black venireman.
Both Bailey and Warren shared the same characteristic: It
was not clear, based on their questionnaires and voir dire
testimony, that they could impose the death penalty. See
supra, at 5. In fact, Bailey was so clearly struck for non-
racial reasons that Miller-El has never objected to his
removal at any stage in this case.
There also was no question at the Batson hearing why
the prosecution struck Warren. Macaluso testified:
“I thought [Warren’s statements on voir dire] were in-
consistent responses. At one point he says, you know,
on a case-by-case basis and at another point he said,
well, I think—I got the impression, at least, that he
suggested that the death penalty was an easy way
out, that they should be made to suffer more.” App.
909.
In addition, Macaluso noted that Warren’s brother re-
cently had been convicted for a crime involving food
stamps. Id., at 909–910. This suggested that Warren
might be more sympathetic to defendants than other
jurors. Macaluso was quite candid that Warren was not
as obviously disfavorable to the State as Bailey, and
Macaluso stated that he might not have exercised a per-
Cite as: 545 U. S. ____ (2005) 17
THOMAS, J., dissenting
emptory against Warren later in jury selection. Id., at
910–911. But Macaluso used only his 6th of 15 peremp-
tory challenges against Warren.
According to the majority, Macaluso testified that he
struck Warren for his statement that the death penalty
was “ ‘an easy way out,’ ” ante, at 14 (quoting App. 909),
and not for his ambivalence about the death penalty, ante,
at 17. This grossly mischaracterizes the record. Macaluso
specifically testified at the Batson hearing that he was
troubled by the “inconsisten[cy]” of Warren’s responses.
App. 909 (emphasis added). Macaluso was speaking of
Warren’s ambivalence about the death penalty, a reason
wholly unrelated to race. This was Macaluso’s “stated
reason,” and Macaluso ought to “stand or fall on the plau-
sibility” of this reason—not one concocted by the majority.
Ante, at 18.
The majority points to four other panel members—
Kevin Duke, Troy Woods, Sandra Jenkins, and Leta Gi-
rard—who supposedly expressed views much like War-
ren’s, but who were not struck by the State. Ante, at 14–
15. According to the majority, this is evidence of pretext.
But the majority’s premise is faulty. None of these veni-
remen was as difficult to pin down on the death penalty as
Warren. For instance, Duke supported the death penalty.
App. 373 (“I’ve always believed in having the death pen-
alty. I think it serves a purpose”); ibid. (“I mean, it’s a sad
thing to see, to have to kill someone, but they shouldn’t
have done the things that they did. Sometimes they de-
serve to be killed”); id., at 394 (“If I feel that I can answer
all three of these [special-issue] questions yes and I feel
that he’s done a crime worthy of the death penalty, yes, I
will give the death penalty”). By contrast, Warren never
expressed a firm view one way or the other.
Troy Woods, who was black and who served on the jury,
was even more supportive of the death penalty than Duke.
The majority suggests that prosecutors might have al-
18 MILLER-EL v. DRETKE
THOMAS, J., dissenting
lowed Woods to serve on the jury because they were run-
ning low on peremptories or they wanted to obscure a
pattern of discrimination. Ante, at 16. That such rank
conjecture can serve as “clear and convincing evidence” is
error in its own right, but it is also belied by the record.
Woods said that capital punishment was “too quick” be-
cause defendants “don’t feel the pain.” App. 409. When
asked what sort of punishment defendants ought to re-
ceive, Woods said that he would “[p]our some honey on
them and stake them out over an ant bed.” Ibid. He
testified that he would mete out such sentences because if
defendants “survive for a length of time, that would be
enough punishment and . . . they wouldn’t do it again.”
Id., at 410 (alteration omitted). Woods also testified that
he was a lifelong believer in the death penalty, id., at 410–
411; that he could impose death generally as a juror, id.,
at 413; and that he could impose death for murder during
the course of a robbery, the specific crime of which Miller-
El stood accused, ibid. It is beyond cavil why the State
accepted Woods as a juror: He could impose the punish-
ment sought by the State.
Nevertheless, even assuming that any of these venire-
men expressed views similar to Warren’s, Duke, Woods,
and Girard were questioned much later in the jury selec-
tion process, when the State had fewer peremptories to
spare. Only Sandra Jenkins was questioned early in the
voir dire process, and thus only Jenkins was even argua-
bly similarly situated to Warren. However, Jenkins and
Warren were different in important respects. Jenkins
expressed no doubt whatsoever about the death penalty.
She testified that she had researched the death penalty in
high school, and she said in response to questioning by
both parties that she strongly believed in the death pen-
alty’s value as a deterrent to crime. 3 Record 1074–1075,
1103–1104. This alone explains why the State accepted
Jenkins as a juror, while Miller-El struck her. In addition,
Cite as: 545 U. S. ____ (2005) 19
THOMAS, J., dissenting
Jenkins did not have a relative who had been convicted of
a crime, but Warren did. At the Batson hearing, Macaluso
testified that he struck Warren both for Warren’s inconsis-
tent responses regarding the death penalty and for his
brother’s conviction. Supra, at 5.
The majority thinks it can prove pretext by pointing to
white veniremen who match only one of the State’s prof-
fered reasons for striking Warren. Ante, at 14–15. This
defies logic. “ ‘Similarly situated’ does not mean matching
any one of several reasons the prosecution gave for strik-
ing a potential juror—it means matching all of them.”
Miller-El I, 537 U. S., at 362–363 (THOMAS, J., dissenting);
cf. Newport News Shipbuilding & Dry Dock Co. v. EEOC,
462 U. S. 669, 683 (1983) (Title VII of the Civil Rights Act of
1964 discrimination occurs when an employee is treated
“‘ “in a manner which but for that person’s sex would be
different” ’ ” (quoting Los Angeles Dept. of Water and Power
v. Manhart, 435 U. S. 702, 711 (1978))). Given limited
peremptories, prosecutors often must focus on the poten-
tial jurors most likely to disfavor their case. By ignoring
the totality of reasons that a prosecutor strikes any par-
ticular venireman, it is the majority that treats potential
jurors as “products of a set of cookie cutters,” ante, at 13,
n. 6—as if potential jurors who share only some among
many traits must be treated the same to avoid a Batson
violation. Of course jurors must not be “identical in all
respects” to gauge pretext, ante, at 13, n. 6, but to isolate
race as a variable, the jurors must be comparable in all
respects that the prosecutor proffers as important. This
does not mean “that a defendant cannot win a Batson
claim unless there is an exactly identical white juror.”
Ibid. It means that a defendant cannot support a Batson
claim by comparing veniremen of different races unless
the veniremen are truly similar.
20 MILLER-EL v. DRETKE
THOMAS, J., dissenting
2
The second black venireman on whom the majority
relies is Billy Jean Fields. Fields expressed support for
the death penalty, App. 174–175, but Fields also expressed
views that called into question his ability to impose the
death penalty. Fields was a deeply religious man, id., at
173–174, 192–194, and prosecutors feared that his reli-
gious convictions might make him reluctant to impose the
death penalty. Those fears were confirmed by Fields’ view
that all people could be rehabilitated if introduced to God,
a fear that had special force considering the special-issue
questions necessary to impose the death penalty in Texas.
One of those questions asked whether there was a prob-
ability that the defendant would engage in future violence
that threatened society. When they reached this question,
Macaluso and Fields had the following exchange:
“[MACALUSO:] What does that word probability mean
to you in that connotation?
“[FIELDS:] Well, it means is there a possibility that [a
defendant] will continue to lead this type of life, will
he be rehabilitated or does he intend to make this a
life-long ambition.
“[MACALUSO:] Let me ask you, Mr. Fields, do you feel
as though some people simply cannot be rehabilitated?
“[FIELDS:] No.
“[MACALUSO:] You think everyone can be rehabilitated?
“[FIELDS:] Yes.” Id., at 183–184.
Thus, Fields indicated that the possibility of rehabilitation
was ever-present and relevant to whether a defendant
might commit future acts of violence. In light of that view,
it is understandable that prosecutors doubted whether he
could vote to impose the death penalty.
Fields did testify that he could impose the death pen-
alty, even on a defendant who could be rehabilitated. Id.,
Cite as: 545 U. S. ____ (2005) 21
THOMAS, J., dissenting
at 185. For the majority, this shows that the State’s rea-
son was pretextual. Ante, at 10. But of course Fields said
that he could fairly consider the death penalty—if he had
answered otherwise, he would have been challengeable for
cause. The point is that Fields’ earlier answers cast sig-
nificant doubt on whether he could impose the death
penalty. The very purpose of peremptory strikes is to
allow parties to remove potential jurors whom they sus-
pect, but cannot prove, may exhibit a particular bias. See
Swain, 380 U. S., at 220; J. E. B. v. Alabama ex rel. T. B.,
511 U. S. 127, 148 (1994) (O’CONNOR, J., concurring). Based
on Fields’ voir dire testimony, it was perfectly reasonable
for prosecutors to suspect that Fields might be swayed by
a penitent defendant’s testimony.3 The prosecutors may
have been worried for nothing about Fields’ religious
sentiments, but that does not mean they were instead
worried about Fields’ race.
As with Warren, the majority attempts to point to simi-
larly situated nonblack veniremen who were not struck by
the State, but its efforts again miss their mark for several
——————
3 The majority argues that prosecutors mischaracterized Fields’ tes-
timony when they struck him. Ante, at 10. This is partially true but
wholly irrelevant. When Miller-El’s counsel suggested that Fields’
strike was related to race, prosecutor Jim Nelson responded:
“[W]e’re certainly not exercising a preemptory strike on Mr. Fields
because of his race in this case, but we do have concern with reference
to some of his statements as to the death penalty in that he said that he
could only give death if he thought a person could not be rehabilitated
and he later made the comment that any person could be rehabilitated
if they find God or are introduced to God and the fact that we have a
concern that his religious feelings may affect his jury service in this
case.” App. 197 (alteration omitted).
Nelson partially misstated Fields’ testimony. Fields had not said
that he would give the death penalty only if a person was beyond
rehabilitation, id., at 185, but he had said that any person could be
rehabilitated if introduced to God, id., at 184. This is precisely why
prosecutors were concerned that Fields’ “religious feelings [might]
affect his jury service.” Id., at 197.
22 MILLER-EL v. DRETKE
THOMAS, J., dissenting
reasons. First, the majority would do better to begin with
white veniremen who were struck by the State. For in-
stance, it skips over Penny Crowson, a white panelist who
expressed a firm belief in the death penalty, but who also
stated that she probably would not impose the death
penalty if she believed there was a chance the defendant
could be rehabilitated. Ante, at 12, n. 5; 3 Record 1211.
The State struck Crowson, which demonstrates that it
“was concerned about views on rehabilitation when the
venireperson was not black.” Ante, at 11, n. 4.
Second, the nonblack veniremen to whom the majority
points—Sandra Hearn, Mary Witt, and Fernando
Gutierrez—were more favorable to the State than Fields
for various reasons.4 For instance, Sandra Hearn was
adamant about the value of the death penalty for callous
crimes. App. 430, 451–452. Miller-El, of course, shot in
cold blood two men who were lying before him bound and
gagged. In addition, Hearn’s father was a special agent
for the Federal Bureau of Investigation, and her job put
her in daily contact with police officers for whom she
expressed the utmost admiration. Id., at 445–446, 457–
460. This is likely why the State accepted Hearn and
Miller-El challenged her for cause. Id., at 447, 467.
In fact, on appeal Miller-El’s counsel had this to say
about Hearn: “If ever—if ever—there was a Venireperson
that should have been excluded for cause from the Jury in
——————
4 In explaining why veniremen Hearn, Witt, and Gutierrez were more
favorable to the State than Fields, the majority faults me for “focus[ing]
on reasons the prosecution itself did not offer.” Ante, at 11, n. 4. The
majority’s complaint is hard to understand. The State accepted Hearn,
Witt, and Gutierrez. Although it is apparent from the voir dire tran-
script why the State wanted to seat these veniremen on the jury, it was
never required to “offer” its reasons for doing so. If the majority instead
means that I focus on whether these veniremen opposed the death
penalty and whether they had relatives with significant criminal
histories, those are precisely the reasons offered by the State for its
strike of Fields.
Cite as: 545 U. S. ____ (2005) 23
THOMAS, J., dissenting
this case, or any capital Murder Jury, it was Venirewoman
HEARN. It is hoped that the Lord will save us from fu-
ture jurors with her type of thinking and beliefs.” Id., at
1015 (emphasis added and alteration omitted); see also id.,
at 1010. This same juror whom Miller-El’s counsel once
found so repugnant has been transformed by the major-
ity’s revisionist history into a defense-prone juror just as
objectionable to the State as Fields. Ante, at 10–11.
Mary Witt did not even have the same views on reha-
bilitation as Fields: She testified to the commonplace view
that some, but not all, people can be rehabilitated. 6
Record 2461. Moreover, Witt expressed strong support for
the death penalty. Id., at 2414–2416, 2443–2444. She
testified that the death penalty was appropriate for the
crime of murder in the course of a robbery, id., at 2428, or
for a convict who was released from prison and committed
murder (Miller-El previously had twice spent time in
prison for armed robberies), id., at 2462–2463. This is
likely why the State accepted Witt and Miller-El struck
her. Id., at 2464–2465. Finally, Fernando Gutierrez
testified that he could impose the death penalty for brutal
crimes. 11–(B) Record 4391–4392. In fact, the only issue
during voir dire was whether Gutierrez could apply Texas’
more lenient penalties, not its more severe ones. Id., at
4398–4399, 4413–4414, 4431. The court questioned
Gutierrez at length, and ultimately he was accepted by
both parties and seated on the jury. Id., at 4439–4449.
Third, Hearn, Witt, and Gutierrez were not similarly
situated to Fields even apart from their views on the death
penalty. Fields was dismissed not only for his pro-defense
views on rehabilitation, but also because his brother had
several drug convictions and had served time in prison.
App. 190, 199. Hearn, Witt, and Gutierrez did not have
relatives with significant criminal histories. Thus, there
was an additional race-neutral reason to dismiss Fields
that simply was not true of the other jurors. Surely the
24 MILLER-EL v. DRETKE
THOMAS, J., dissenting
State did not need to expend peremptories on all venire-
men who expressed some faith in rehabilitation to avoid
violating Batson.
The majority dismisses as “makeweight” the State’s
justification as to Fields’ brother, ante, at 13, but it is the
majority’s arguments that are contrived. The State ques-
tioned Fields during voir dire about his brother’s drug
offenses, where the offenses occurred, whether his brother
had been tried, whether his brother had been convicted,
and whether his brother’s criminal history would affect
Fields’ ability to serve on the jury. App. 190. The State
did not fail to engage in a “ ‘meaningful voir dire examina-
tion,’ ” as the majority contends. Ante, at 12 (quoting Ex
parte Travis, 776 So. 2d 874, 881 (Ala. 2000)).
The majority also contends that the State’s justification
as to Fields’ brother illustrates pretext, because the State
first pointed to Fields’ views on rehabilitation as the
reason for its strike. Ante, at 12. The timing of the
State’s explanation was unexceptional. In context, the
State discussed Fields’ brother at essentially the same
time it discussed Fields’ religious views. The entire ex-
change between the State and counsel for Miller-El took
place in a couple of minutes at most. App. 197–199.
Thus, to call the State’s second reason an “afterthought,”
ante, at 12, ignores what is obvious even from a cold
record: that the State simply offered both of its reasons in
quick succession.
B
Miller-El’s claims of disparate questioning also do not fit
the facts. Miller-El argues, and the majority accepts, that
the prosecution asked different questions at voir dire of
black and nonblack veniremen on two subjects: (1) the
manner of execution and (2) the minimum punishment
allowed by state law. The last time this case was here, I
refuted Miller-El’s claim that the prosecutors’ disparate
Cite as: 545 U. S. ____ (2005) 25
THOMAS, J., dissenting
questioning evinced racial bias, and explained why it did
not even entitle him to a certificate of appealability.
Miller-El I, 537 U. S., at 363–370 (dissenting opinion).
This time, the majority has shifted gears, claiming that
a different set of jurors demonstrates the State’s racial
bias. The majority’s new claim is just as flawed as its last.
The State questioned panelists differently when their
questionnaire responses indicated ambivalence about the
death penalty. Any racial disparity in questioning re-
sulted from the reality that more nonblack veniremen
favored the death penalty and were willing to impose it.
1
While most veniremen were given a generic description
of the death penalty at the outset of their voir dire exami-
nations, some were questioned with a “graphic script” that
detailed Texas’ method of execution. Ante, at 22. Accord-
ing to Miller-El and the majority, prosecutors used the
graphic script to create cause for removing black venire-
men who were ambivalent about or opposed to the death
penalty. Ante, at 27. This is incorrect.
The jury questionnaires asked two questions directly
relevant to the death penalty. Question 56 asked, “Do you
believe in the death penalty?” It offered panelists the
chance to circle “yes” or “no,” and then asked them to
“[p]lease explain your answer” in the provided space. E.g.,
Joint Lodging 6. Question 58 asked, “Do you have any
moral, religious, or personal beliefs that would prevent
you from returning a verdict which would ultimately
result in the execution of another human being?” and
offered panelists only the chance to circle “yes” or “no.”
Ibid.
According to the State, those veniremen who took a
consistent stand on the death penalty—either for or
against it—did not receive the graphic script. These pro-
spective jurors either answered “no” to question 56 and
26 MILLER-EL v. DRETKE
THOMAS, J., dissenting
“yes” to question 58 (meaning they did not believe in the
death penalty and had qualms about imposing it), or
answered “yes” to question 56 and “no” to question 58
(meaning they did believe in the death penalty and had no
qualms about imposing it). Only those potential jurors
who answered inconsistently, thereby indicating ambiva-
lence about the death penalty, received the graphic script.
The questionnaires bear out this distinction. Fifteen
blacks were questioned during voir dire. Only eight of
them—or 53%—received the graphic script. All eight had
given ambivalent questionnaire answers regarding their
ability to impose the death penalty. There is no question
that veniremen Baker, Bailey, Boggess, Woods, and Butler
were ambivalent in their questionnaire answers. See ante,
at 26, n. 27; 4 Record 1874–1875.5 The majority claims
that Keaton, Kennedy, and Mackey were not ambivalent,
ante, at 24–25, and nn. 17, 19, but their questionnaire
answers show otherwise. For instance, Keaton circled “no”
for question 56, indicating she did not believe in the death
penalty, and wrote, “It’s not for me to punished [sic] any-
one.” Joint Lodging 55. However, she then circled “no” for
question 58, indicating that she had no qualms about
imposing the death penalty. Ibid. Likewise, Mackey
indicated she did not believe in the death penalty and
wrote “Thou Shall Not Kill” in the explanation space. Id.,
at 79. Mackey then said that she had no qualms, religious
or otherwise, about imposing the death penalty, even
though she had just quoted one of the Ten Command-
ments. Ibid. Keaton’s and Mackey’s answers cannot be
——————
5 The majority’s own recitation of the voir dire transcript captures
Butler’s ambivalence. Ante, at 25, n. 19. Butler said both that she had
no qualms about imposing the death penalty, 4 Record 1906–1907, and
that she would impose the death penalty “only when a crime has been
committed concerning a child such as beating to death or some form of
harsh physical abuse and when an innocent victim’s life is taken,” id.,
at 1874.
Cite as: 545 U. S. ____ (2005) 27
THOMAS, J., dissenting
reconciled, and the majority makes no attempt to do so.
Ante, at 24–25, n. 17. Kennedy wrote on his questionnaire
that he would impose the death penalty “[o]nly in extreme
cases, such as multiple murders.” Joint Lodging 46. This
left prosecutors uncertain about whether Kennedy could
impose the death penalty on Miller-El, who had murdered
only one person (though he had paralyzed another).
Of the seven blacks who did not receive the graphic
script, six took a stand on the death penalty—either for or
against it—in their questionnaires. There was no need to
use the graphic script to clarify their positions. Venire-
men Bozeman, Fields, Rand, and Warren all answered
“yes” to question 56 (indicating that they believed in the
death penalty) and “no” to question 58 (indicating that
they had no qualms about imposing it).6 Id., at 6 (Boze-
man); id., at 14 (Fields); id., at 30 (Rand); id., at 22 (War-
ren). Venireman Mosley was the opposite: He said that he
was opposed to the death penalty, 7 Record 2656, 2681,
and that he definitely could not impose it, id., at 2669–
2670. The same appears true of venireman Smith, 2 id.,
at 927–928, who was so adamantly opposed to the death
penalty throughout her voir dire that she was struck for
cause. Id., at 1006. The only apparent exception is veni-
reman Carter. She said that she believed in the death
penalty, but wrote on the questionnaire, “Yes and no. It
would depend on what the person had done.” 4 id., at
1993. She then answered “ ‘[y]es’ ” to question 58, indicat-
ing that she had some difficulties with imposing the death
penalty. Ibid. Despite her ambivalence, Carter did not
receive the full graphic script. Prosecutors told her only
that Miller-El “[would] be executed by lethal injection at
Huntsville.” Id., at 1952.
——————
6 The State’s concerns with Fields and Warren stemmed not from
their questionnaire responses, but from their subsequent voir dire
testimony. Supra, at 15–16, 20–21.
28 MILLER-EL v. DRETKE
THOMAS, J., dissenting
Thus far, the State’s explanation for its use of the
graphic script fares far better than Miller-El’s or the ma-
jority’s. Questionnaire answers explain prosecutors’ use of
the graphic script with 14 out of the 15 blacks, or 93%. By
contrast, race explains use of the script with only 8 out of
15 veniremen, or 53%. The majority’s more nuanced
explanation is likewise inferior to the State’s. It hypothe-
sizes that the script was used to remove only those black
veniremen ambivalent about or opposed to the death
penalty. Ante, at 27. But that explanation accounts for
only 12 out of 15 veniremen, or 80%. The majority cannot
explain why prosecutors did not use the script on Mosley
and Smith, who were opposed to the death penalty, or
Carter, who was ambivalent. Because the majority does
not account for veniremen like Carter, and also mischarac-
terizes veniremen like Keaton, Kennedy, and Mackey, it
arrives at different percentages. This is not clear and
convincing evidence of racial bias.
The State’s explanation also accounts for its treatment
of the 12 nonblack veniremen (10 whites, 1 Hispanic, and
1 Filipino) on whom the majority relies. Granted, it is
more difficult to draw conclusions about these nonblack
veniremen. With the blacks, 11 of their 15 question-
naires are available; with the nonblacks, that number
plummets to 3 of 12, because those veniremen were not
discussed before the state court. See supra, at 6. Never-
theless, the questionnaires and voir dire permit some
tentative conclusions.
First, of the five nonblacks who received the graphic
script—Desinise, Evans, Gutierrez, Sztybel, and Zablan—
four were ambivalent. On his questionnaire, Gutierrez
answered both that he believed in the death penalty and
that he had qualms about imposing it. Joint Lodging 231.
Sztybel and Zablan averred that they believed in the
death penalty and could impose it, but their written an-
swers to question 56 made it unclear under what circum-
Cite as: 545 U. S. ____ (2005) 29
THOMAS, J., dissenting
stances they could vote to impose the death penalty.7
Desinise is a closer call, but he was genuinely undecided
about his ability to impose the death penalty, and the
parties struck him by agreement. 3 Record 1505–1506,
1509, 1511, 1514. Of the five nonblacks who received the
graphic script, Evans was the only one steadfastly opposed
to the death penalty. 6 id., at 2588–2589, 2591, 2595.
Of the seven nonblacks who allegedly did not receive the
graphic script, four were strongly opposed to the death
penalty. See Miller-El I, 537 U. S., at 364–365 (THOMAS,
J., dissenting). Berk, Hinson, and Nelson were so opposed
that they were struck for cause, and Holtz was struck by
the State because he was opposed unless a policeman or
fireman was murdered. Ibid. Administering the graphic
script to these potential jurors would have been useless.
“No trial lawyer would willingly antagonize a potential
juror ardently opposed to the death penalty with an ex-
treme portrait of its implementation.” Id., at 364.
Of the remaining three nonblacks, the majority is cor-
rect that Moses was ambivalent in her questionnaire
responses, 3 Record 1140–1141, 1177, although it is not
certain that Vickery was, 4 id., at 1611. Neither received
the graphic script. However, the final nonblack, Girard,
confirms the State’s explanation. It was not clear from
Girard’s questionnaire whether she was ambivalent.8 On
the stand, prosecutor Nelson started off with the abstract
script. 6 id., at 2520–2521. But it quickly became appar-
——————
7 Joint Lodging 184 (Sztybel) (“If a person is found guilty of murder or
other crime, which they have taken someone else’s life, without a valid
defense. They may continue to do this again and again. Even if they
are sentenced to jail when they are released this could keep happen-
ing”); id., at 223 (Zablan) (“If it’s the law and if the crime fits such
punishment”).
8 Girard did not answer question 56 about her belief in the death
penalty, 6 Record 2522, but she indicated in answer to question 58 that
her personal beliefs would not prevent her from imposing the death
penalty, id., at 2555–2556.
30 MILLER-EL v. DRETKE
THOMAS, J., dissenting
ent that Girard was “just not real sure” about her ability
to impose the death penalty, and she testified that she had
not decided its value as a form of punishment. Id., at
2522–2523. At that point, Nelson gave her the graphic
script—for no other reason than to discern her basic reac-
tion. Id., at 2524–2525. Not only did it succeed—Girard
testified that she did not want to serve on a capital jury,
id., at 2529, 2531—but Miller-El’s attorney also used the
graphic script when he questioned Girard, id., at 2553.
Miller-El’s counsel was using the graphic script just as the
State was: to discern a potential juror’s true feelings, not
to create cause for removing a venireman. After all, Gi-
rard’s views were favorable to Miller-El.
In any event, again the State’s explanation fares well.
The State’s explanation accounts for prosecutors’ choice
between the abstract and graphic scripts for 9 of 12 non-
black veniremen, or 75%. Moses and Vickery were likely
ambivalent but did not receive the graphic script, while
Evans was opposed to the death penalty but did receive it.
However, the majority’s theory accounts for the State’s
treatment of only 6 of 12 nonblacks, or 50%. The majority
can explain why jurors like Moses and Vickery did not
receive the graphic script, because it believes the State
was using the graphic script primarily with blacks op-
posed to or ambivalent about the death penalty. Ante, at
27. But the majority cannot explain the State’s use of the
script with an opposed nonblack like Evans, or ambivalent
nonblacks like Desinise, Girard, Gutierrez, Sztybel, and
Zablan.
Finally, the majority cannot take refuge in any supposed
disparity between use of the graphic script with ambiva-
lent black and nonblack veniremen. Ante, at 26. The
State gave the graphic script to 8 of 9 ambivalent blacks,
or 88%, and 5 of 7 ambivalent nonblacks, or 71%. This is
hardly much of a difference. However, when the majority
lumps in veniremen opposed to the death penalty, ibid.,
Cite as: 545 U. S. ____ (2005) 31
THOMAS, J., dissenting
the disparity increases. The State gave the graphic script
to 8 of 11 ambivalent or opposed blacks, or 73%, and 6 of
12 ambivalent or opposed nonblacks, or 50%. But the
reason for the increased disparity is not race: It is, as the
State maintains, that veniremen who were opposed to the
death penalty did not receive the graphic script.
In sum, the State can explain its treatment of 23 of 27
potential jurors, or 85%, while the majority can only ac-
count for the State’s treatment of 18 of 27 potential jurors,
or 67%. This is a far cry from clear and convincing evi-
dence of racial bias.
2
Miller-El also alleges that the State employed two dif-
ferent scripts on the basis of race when asking questions
about imposition of the minimum sentence. This dispa-
rate-questioning argument is even more flawed than the
last one. The evidence confirms that, as the State argues,
prosecutors used different questioning on minimum sen-
tences to create cause to strike veniremen who were am-
bivalent about or opposed to the death penalty. Brief for
Respondent 33, and n. 26.
Of the 15 blacks, 7 were given the minimum punish-
ment script (MPS). All had expressed ambivalence about
the death penalty, either in their questionnaires (Baker,
Boggess, and Kennedy) or during voir dire (Bozeman,
Fields, Rand, and Warren).9 Woods expressed ambiva-
lence in his questionnaire, but his voir dire testimony
made clear that he was a superb juror for the State. See
supra, at 17–18. Thus, Woods did not receive the MPS.
There was no reason to give the MPS to Butler, Carter,
——————
9 In making the decision whether to employ the MPS, prosecutors
could rely on both the questionnaires and substantial voir dire testi-
mony, because the minimum punishment questioning occurred much
later in the voir dire than questioning about the death penalty. Miller-
El I, 537 U. S. 322, 369 (2003) (THOMAS, J., dissenting).
32 MILLER-EL v. DRETKE
THOMAS, J., dissenting
Mosley, or Smith, all of whom were dismissed for cause or
by agreement of the parties. That leaves Bailey, Keaton,
and Mackey, all of whom were so adamantly opposed to
the death penalty during voir dire that the State at-
tempted to remove them for cause. 11–(A) Record 4112,
4120, 4142 (Bailey); id., at 4316 (Keaton); 10 id., at 3950,
3953 (Mackey). Because the State believed that it already
had grounds to strike these potential jurors, it did not
need the MPS to disqualify them. However, even assum-
ing that the State should have used the MPS on these 3
veniremen, the State’s explanation still accounts for 7 of
the 10 ambivalent blacks, or 70%.
The majority does not seriously contest any of this.
Ante, at 28–29, and n. 34. Instead, it contends that the
State used the MPS less often with nonblacks, which
demonstrates that the MPS was a ruse to remove blacks.
This is not true: The State used the MPS more often with
ambivalent nonblacks who were not otherwise removable
for cause or by agreement.
Of the nonblacks who reached the point in the voir dire
sequence where the MPS was typically administered, the
majority points to 11 whom it alleges were ambivalent and
should have received the script. Ante, at 29, and n. 34.
Three of these veniremen—Gibson, Gutierrez, and Holtz—
were given the MPS, just like many of the blacks. Four of
the remaining eight veniremen—Moses, Salsini, Vickery,
and Witt—were favorable enough to the State that Miller-
El peremptorily struck them.10 The State had no interest
in disqualifying these jurors. Two of the remaining four
veniremen—Hearn and Mazza—indicated that they could
impose the death penalty, both on their questionnaires
——————
10 Moses gave ambivalent answers on her questionnaire, as perhaps
did Vickery. Supra, at 29. However, Moses and Vickery indicated
during their voir dire testimony that they could impose the death
penalty, 3 Record 1139–1141; 4 id., at 1576–1579, and thus they were
not questioned on minimum sentences. But see ante, at 30, n. 36.
Cite as: 545 U. S. ____ (2005) 33
THOMAS, J., dissenting
and during voir dire. The State likewise had no interest in
disqualifying these jurors. Assuming that the State
should have used the MPS on the two remaining venire-
men, Crowson and Whaley, the State’s explanation still
accounts for 9 of the 11 ambivalent nonblacks, or 81%.
Miller-El’s evidence is not even minimally persuasive,
much less clear and convincing.
C
Miller-El’s argument that prosecutors shuffled the jury
to remove blacks is pure speculation. At the Batson hear-
ing, Miller-El did not raise, nor was there any discussion
of, the topic of jury shuffling as a racial tactic. The record
shows only that the State shuffled the jury during the first
three weeks of jury selection, while Miller-El shuffled the
jury during each of the five weeks. This evidence no more
proves that prosecutors sought to eliminate blacks from
the jury, than it proves that Miller-El sought to eliminate
whites even more often. Miller-El I, 537 U. S., at 360
(THOMAS, J., dissenting).
Miller-El notes that the State twice shuffled the jury (in
the second and third weeks) when a number of blacks
were seated at the front of the panel. Ante, at 21. Accord-
ing to the majority, this gives rise to an “inference” that
prosecutors were discriminating. Ibid. But Miller-El
should not be asking this Court to draw “inference[s]”; he
should be asking it to examine clear and convincing proof.
And the inference is not even a strong one. We do not
know if the nonblacks near the front shared characteris-
tics with the blacks near the front, providing race-neutral
reasons for the shuffles. We also do not know the racial
composition of the panel during the first week when the
State shuffled, or during the fourth and fifth weeks when
it did not.
More important, any number of characteristics other
than race could have been apparent to prosecutors from a
34 MILLER-EL v. DRETKE
THOMAS, J., dissenting
visual inspection of the jury panel. See Ladd v. State, 3
S. W. 3d 547, 563–564 (Tex. Crim. App. 1999). Granted,
we do not know whether prosecutors relied on racially
neutral reasons, ante, at 21, but that is because Miller-El
never asked at the Batson hearing. It is Miller-El’s bur-
den to prove racial discrimination, and the jury-shuffle
evidence itself does not provide such proof.
D
The majority’s speculation would not be complete, how-
ever, without its discussion (block-quoted from Miller-El I)
of the history of discrimination in the D. A.’s Office. This
is nothing more than guilt by association that is unsup-
ported by the record. Some of the witnesses at the Swain
hearing did testify that individual prosecutors had dis-
criminated. Ante, at 31. However, no one testified that
the prosecutors in Miller-El’s trial—Norman Kinne, Paul
Macaluso, and Jim Nelson—had ever been among those to
engage in racially discriminatory jury selection. Supra, at 4.
The majority then tars prosecutors with a manual enti-
tled Jury Selection in a Criminal Case (hereinafter Man-
ual or Sparling Manual), authored by John Sparling, a
former Dallas County prosecutor. There is no evidence,
however, that Kinne, Macaluso, or Nelson had ever read
the Manual—which was written in 1968, almost two
decades before Miller-El’s trial.11 The reason there is no
evidence on the question is that Miller-El never asked.
During the entire Batson hearing, there is no mention of
the Sparling Manual. Miller-El never questioned Macaluso
about it, and he never questioned Kinne or Nelson at all.
The majority simply assumes that all Dallas County
prosecutors were racist and remained that way through
the mid-1980’s.
——————
11 Judge Larry Baraka, one of the first black prosecutors to serve in the
D. A.’s Office, testified that, to the best of his recollection, the Manual was
no longer used in 1977 when he attended the training course. App. 844.
Cite as: 545 U. S. ____ (2005) 35
THOMAS, J., dissenting
Nor does the majority rely on the Manual for anything
more than show. The Manual contains a single, admit-
tedly stereotypical line on race: “Minority races almost
always empathize with the Defendant.” App. 102. Yet the
Manual also tells prosecutors not to select “anyone who
had a close friend or relative that was prosecuted by the
State.” Id., at 112. That was true of both Warren and
Fields, and yet the majority cavalierly dismisses as
“makeweight” the State’s justification that Warren and
Fields were struck because they were related to individu-
als convicted of crimes. Ante, at 12, 16, n. 8. If the Man-
ual is to be attributed to Kinne, Macaluso, and Nelson,
then it ought to be attributed in its entirety. But if the
majority did that, then it could not point to any black
venireman who was even arguably dismissed on account of
race.
Finally, the majority notes that prosecutors “ ‘marked
the race of each prospective juror on their juror cards.’ ”
Ante, at 31 (quoting Miller-El I, supra, at 347). This suf-
fers from the same problems as Miller-El’s other evidence.
Prosecutors did mark the juror cards with the jurors’ race,
sex, and juror number. We have no idea—and even the
majority cannot bring itself to speculate—whether this
was done merely for identification purposes or for some
more nefarious reason. The reason we have no idea is that
the juror cards were never introduced before the state
courts, and thus prosecutors were never questioned about
their use of them.
* * *
Thomas Joe Miller-El’s charges of racism have swayed
the Court, and AEDPA’s restrictions will not stand in its
way. But Miller-El has not established, much less estab-
lished by clear and convincing evidence, that prosecutors
racially discriminated in the selection of his jury—and he
certainly has not done so on the basis of the evidence
36 MILLER-EL v. DRETKE
THOMAS, J., dissenting
presented to the Texas courts. On the basis of facts and
law, rather than sentiments, Miller-El does not merit the
writ. I respectfully dissent.