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.

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?

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.

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