Bright's opponent this morning is Louisiana's Assistant State Attorney General Terry M. Boudreaux. He opens with an effort to once again separate the dots, but Justice Samuel Alito tells him that the prosecution's stated neutral objection to a black college student who was worried about missing school "is not compelling on its face. ... This was an incredibly short trial," says Alito. "He was afraid of missing Tuesday through Friday?"
Justice Stephen Breyer starts to probe another dismissal that was, as he says, "not exactly kosher." When Boudreaux explains that the prosecutors were nervous because one of the dismissed jurors' answers was inaudible, Breyer shoots back, "Perhaps what she said softly was 'I hate the death penalty and will not apply it under any circumstances!' " It's bad enough that the justices are trying to imagine what prosecutors were thinking. Now they are called on to speculate about what whispering jurors were whispering. And who the maids were milking ...
Boudreaux is insistent. "The prosecutor thought she was weak on the death penalty," he says. Sure you can find evidence to the contrary, he concedes, but that doesn't mean the dismissal was motivated by race.
When it's officially open season on the negligent, checked-out trial court judge, Justice David Souter takes aim: "There isn't much reason to think the trial judge was being very critical of the prosecutor's answers," he observes. When the defense objected to the prosecutor's O.J. remarks, the trial judge ruled it was not really a racially significant remark since the prosecution "had not mentioned the race" of the defendant or O.J. Simpson. "Now that is not a critical mind at work," Souter scoffs, bringing down the house.
Boudreaux sighs: "I would suppose not."
Souter persists that had Snyder been white, the prosecutor would never have made reference to O.J. Boudreaux disagrees. "I'll be candid," replies Souter. "I find that highly unlikely." And then the chief justice, his heart growing three full sizes, agrees: "Even if there is a neutral explanation, do you think the prosecutor would have made the O.J. reference if there had been a black juror?" Boudreaux insists the prosecutor raised the O.J. parallel only because Snyder was also pretending to be suicidal.
Ginsburg: "But the prosecutor was going around telling everyone this was his O.J. Simpson case."
Breyer has about had it with pointillism. "We have Scott and Brooks and three others and we have no black jurors and a reference to O.J. Simpson," he says. "That's the whole case for you." Boudreaux continues to posit hypothetical rationales for bumping Brooks. "He was young, a teacher, perhaps more sympathetic, more understanding. ..." Now even Scalia's had it with the speculation about nonevents and warns Boudreaux about offering arguments the prosecution didn't make.
Boudreaux tries to pass off these doubts as "a problem with the record." No, says Scalia, "That's your problem with the record." But Souter has one more problem. One of the prospective black jurors struck by the prosecution was friendly with the police. That doesn't make so much sense, observes Souter, doing his best prosecution impression: "I don't want anyone on my jury who has friends in the Police Department! None of those cop lovers on this jury."
When Anthony Kennedy, who's been as silent as Clarence Thomas until this point, speaks in the last few minutes, it's to suggest that the court might be a teeny bit less deferential than usual to trial judges on "sensitive matters" such as Batson challenges. The pattern in the dots in this caseis that hard to miss. Even Boudreaux seems to see the picture that emerges. The truth about why these jurors weren't selected for this trial is pretty apparent: And, as Johnnie Cochran might say, when the glove fits that well, you wear it.