The Supreme Court takes on the O.J.-obsessed prosecutor.

Oral argument from the court.
Dec. 4 2007 7:12 PM

Race to the Bottom

The Supreme Court takes on the O.J.-obsessed prosecutor.

O.J. Simpson. Click image to expand.
O.J. Simpson

The central facts in Snyder v. Louisiana are not in dispute. Allen Snyder stabbed his estranged wife and her boyfriend in August 1995. The boyfriend died. An all-white jury found him guilty and imposed the death penalty. The question for the high court today is whether the Louisiana prosecutor in the case improperly used peremptory challenges to exclude all five black prospective jurors because of their race. The question that may have nothing whatever to do with this case—although it sure makes things wacky—is whether that same prosecutor then went on to invoke the O.J. Simpson trial to inflame his all-white jury, telling them, ominously, that "the perpetrator in that case ... got away with it."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

In 1986, in Batson v. Kentucky, the Supreme Court decided peremptory challenges of jurors based on race were unconstitutional. A prosecutor or defense lawyer can certainly strike jurors simply because they just feel wrong (that's how peremptory challenges differ from challenges "for cause"). But they can't use their peremptories to racially discriminate. Of course prosecutors don't announce they are striking Mrs. Smith because she's black, and so Batson and its progeny strove to craft a test for smoking out such unspoken bias. If this sounds like a process fit for Karnak the Magnificent, it is. As a result, today's argument features a lot of justices filling in a lot of imaginary conversations that never happened in the first place.

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If you're in this class for credit, note that the formal constitutional test for race-based strikes looks like this: First the defendant has to connect the dots between unspoken justifications to show racism. Then the burden shifts to the other side, to unconnect the dots with a race-neutral explanation. "It's not racism," they'll say, reconnecting the dots to form, say, a muffin. "It's just a muffin!" Then the burden shifts back to the party who objected, to take another crack at showing intentional discrimination.

In court today, Snyder is represented by Stephen B. Bright, who quickly explains that the only way the state can disavow the clear racial bias in striking every last black juror is by getting up so close to the dots that you can't see the pattern. It's like putting your nose right up to a Seurat painting. Each innocent explanation, he says, sounds plausible, but put all the prosecution conduct and strikes together, and "nothing explains it like race."

Chief Justice John Roberts asks why the defense raised Batson challenges about only two of the five jurors. Bright replies that you can't object to jurors being stricken for race until you see a pattern. In this case, he says, the defense didn't even see a pattern until several black jurors were struck.

Justice Antonin Scalia says the court shouldn't be in this Karnak business at all. "The district judge was in a much better position to decide this," he observes. "I can't tell from a cold record." Bright replies that even the cold record shows that while 21 prospective jurors were asked if they objected to the death penalty, only the black one who did so was dismissed without follow-up questions. Roberts reiterates that these inquiries are "atmospheric" and best left to the judge who's watching rather than appeals court judges, who are just speculating. In this case, neither the trial judge nor the Louisiana Supreme Court saw racism.

Roberts and Samuel Alito take turns explaining that the dots could be muffins until Justice Ruth Bader Ginsburg points out that looking at the transcript, the trial judge appears "quite passive." She asks whether he was in fact present for the entire jury selection.

Bright thinks passive might be overstatement. At one point in the process, he says, the defense counsel struck one juror and the judge granted it. The prosecutor then turned and asked the judge: "Are you crazy?" The judge replied, "No," and moved on. Scalia, trying to rehabilitate the inert judge, suggests that this "sounds like a good answer to me."

Justice John Paul Stevens finally brings in the references to O.J. Simpson, asking whether they are "even relevant to what's before us." Bright replies that the prosecutor continued to refer to the Simpson case, even after he promised, midtrial, to stop.

"What does that have to do with anything?" asks Scalia. "He broke his promise. Sue him or something." Bright says the prosecutor was "obsessed" with the Simpson case and was using it to inflame the jury. Scalia tries to find a more benign parallel between Simpson and Snyder: "The man killed his wife, in the home, then feigns mental illness in his great escape escapade." Just like O.J. Of course, O.J.'s jury actually found Simpson hadn't killed his wife, so the parallel is a little tenuous, no?

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