Alito on race: Statistics are misleading

In a 1991 case, Bush's Supreme Court nominee equated discrimination against African-Americans with the country's tendency to elect left-handed presidents.

Published October 31, 2005 2:47PM (EST)

The fight over Samuel Alito is likely to focus on his views on abortion rights. But as an outspoken conservative who has spent 15 years on a federal appellate court, Alito has handed the left plenty of other ammunition for a broader attack on his nomination.

Here's one piece: a case called Riley v. Taylor.

James Riley was 22 years old when he and a man named Tyrone Baxter robbed a liquor store in Dover, Del. When the store's owner, a 59-year-old white man, resisted, Riley shot him in the leg. As Riley and Baxter fled, the man threw a wine bottle at them and shouted, "You fucking niggers." Riley fired another shot, hitting the man in the chest and killing him.

As you've probably guessed by now, Riley is black. All of the jurors who heard his case were white; prosecutors used peremptory challenges to remove all three African-Americans on the panel from which Riley's jury was chosen. There were three other first-degree murder trials in Kent County the year Riley was sentenced. Prosecutors struck all the black jurors from those trials, too.

Coincidence? A majority of the U.S. Court of Appeals for the 3rd Circuit didn't think so. "An amateur with a pocket calculator can calculate the number of blacks that would have served had the state used its strikes in a racially proportionate manner," the majority wrote. The majority did its own math and concluded that if the prosecutors in the four cases had used their peremptory challenges in a race-blind way, five of the 48 jurors in those cases would have been black. "Admittedly, there was no statistical analysis of these figures presented by either side in the post-conviction proceeding," the majority wrote. "But is it really necessary to have a sophisticated analysis by a statistician to conclude that there is little chance of randomly selecting four consecutive all white juries?"

Alito thought so. "Statistics can be very revealing -- and also terribly misleading in the hands of 'an amateur with a pocket calculator,'" he wrote in a dissenting opinion in which he said that Riley's death sentence should be upheld. "The majority's simplistic analysis treats the prospective jurors who were peremptorily challenged as if they had no relevant characteristics other than race, as if they were in effect black and white marbles in a jar from which the lawyers drew. In reality, however, these individuals had many other characteristics, and without taking those variables into account, it is simply not possible to determine whether the prosecution's strikes were based on race or something else."

Alito continued: "The dangers in the majority's approach can be easily illustrated. Suppose we asked our 'amateur with a pocket calculator' whether the American people take right- or left-handedness into account in choosing their presidents. Although only about 10 percent of the population is left-handed, left-handers have won five of the last six presidential elections. Our 'amateur with a calculator' would conclude that 'there is little chance of randomly selecting' left-handers in five out of six presidential elections. But does it follow that the voters cast their ballots based on whether a candidate was right- or left-handed?"

The rejoinder from the majority: In analogizing the striking of African-American jurors to the election of left-handed presidents, Alito had "overlooked the obvious fact that there is no provision in the Constitution that protects persons from discrimination based on whether they are right-handed or left-handed. To suggest any comparability to the striking of jurors based on their race is to minimize the history of discrimination against prospective black jurors and black defendants, which was the raison d'etre" of Batson v. Kentucky, the 1986 Supreme Court decision that prohibits prosecutors from using peremptory challenges in a racially discriminatory way.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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