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

The jurisprudence that has developed in the last twenty-five years under Batson v. Kentucky may be fairly described as indeterminate, unprincipled, and generally ineffective. Scholarly literature points to a variety of reasons for this state of affairs. This Article focuses on one source of the problem— the lack of clarity in the law concerning the evidentiary framework (methodology) needed for a reliable analysis of statistical evidence in Batson cases. United States Supreme Court decisions beginning with Miller-El v. Cockrell (2003) and continuing through Miller-El v. Dretke (2005), Johnson v. California (2005), and Snyder v. Louisiana (2008) clarified a number of issues related to the use of statistical evidence and laid the foundation for the development of a more rigorous and principled methodology for use in Batson cases. In that regard, this line of cases may be usefully compared to the Supreme Court’s Title VII decisions in the 1970s, which laid the foundation for the development of an exhaustive body of evidentiary and methodological law that informs the use of statistical evidence in employment cases. In this Article, we first consider the issues, rulings, and likely impact of the Miller-El line of cases. We then discuss research developed in connection with a recent capital case with complicated Batson issues to both illustrate and build on that foundation in an effort to provide useful guidance for future policymakers and litigants. In the next part, Part II, we provide background information on Batson and the evidentiary issues this paper seeks to address. Part III then introduces the Supreme Court cases that form the centerpiece of our analysis and considers, again, the contribution these cases make to the appropriate use of statistical analysis in Batson claims. This part presents a preliminary evaluation of how some courts have applied the Supreme Court’s guidance in these areas. Part IV focuses on the case of Commonwealth v. Harold Wilson, a capital case from Pennsylvania in which the defendant successfully litigated a complex Batson claim using statistical evidence. The evidence presented in this case can serve as a model of how to present statistical evidence of discrimination in jury selection. The conclusion appears in Part V