Batson and the “O.J. factor”
on Jun 23, 2007 at 4:10 pm
For the second time in two years, the Supreme Court is pondering what to do about this scenario:
A black man is convicted of murder. His trial is before an all-white jury, composed that way in part because prosecutors struck all potential black jurors.
In the penalty phase of the trial, the defense counsel seeks to head off a death sentence by discussing “mitigating circumstances.” When police arrived at the home of the convicted man some 12 hours after the murder, counsel said, the man “was curled up in a fetal position. He was suicidal. He kept saying ‘They’re coming to get me. They’re coming to get me.’…Doors were being barricaded. The furniture was being used as a barricade…I’ll ask you if that is not suggestive of some sort of disturbance” (apparently, meaning mental disturbance).
The prosecutor’s rebuttal then includes the following:
“…it was 12 hours later when he called [police], huddled up, claiming that he was suicidal, barricaded himself in his house. That made me think of something. Made me think of another case, the most famous murder case in the last, in probably recorded history, that all of you all are aware of…”
At that point, the defense counsel objected. After a bench conference, the prosecutor continued: “The most famous murder case…happened in California very, very, very similar to this case. The perpetrator in that case claimed that he was going to kill himself as he drove in a Ford Bronco and kept the police off of him, and you know what, he got away with it. Ladies and gentlemen, is it outside the realm of possibility that that’s not what that man [in this case] was thinking about when he called in and claimed that he was going to kill himself?”
That is what the defense lawyer for Allen Snyder, on death row in Louisiana, has called “the O.J. card,” suggesting that it was a calculated maneuver by the prosecutor to use O.J. Simpson’s controversial acquittal for murder to get an all-white jury in Louisiana to give Snyder the death penalty.
Now, the Snyder case is back before the Supreme Court, with the prospect that the Court may act on his appeal as early as Monday. The case, Snyder v. Louisiana (06-10119), was considered by the Justices at their Conference on Thursday. It reached the Court in the context of a claim that the jury that convicted Snyder of the stabbing murder of his estranged wife’s boyfriend was all-white because prosecutors intended it to be that way, and used their automatic (“peremptory”) challenges to achieve that end. Once having such a jury assembled, the appeal argues, a prosecutor — who had referred before trial to the case as his “O.J. Simpson case” — knew the jury was open to a racial plea for death.
The jury process, the appeal contends, violated the Supreme Court’s 1986 ruling in Batson v. Kentucky, barring the use of race-based peremptory challenges in jury selection. It also asserts that the Louisiana Supreme Court did not follow the Supreme Court’s post-Batson decision, Miller-El v. Dretke in 2005, mandating a full analysis of the circumstances of jury selection to detect Batson violations.
But the case also raises, implicitly, the larger question of whether prosecutors’ references to the O.J. Simpson case, in trials involving charges against blacks, are a form of jury contamination that puts a vivid emphasis on race in jury selection and in other phases of the trial and sentencing.
State prosecutors, though, have urged the Supreme Court to bypass the case, saying that Snyder’s lawyer did not preserve many of the claims about a Batson violation, and did not show that prosecutors in the case were exploiting the race issue with the jury. The state court, Louisiana’s attorneys contend, faithfully applied Batson and Miller-El.
The case was before the Supreme Court in the 2004-5 Term (docket 04-6530). On June 27, 2005, two weeks after the Court had decided Miller-El , it vacated a prior (2004) ruling against Snyder by the Louisiana Supreme Court and told the state court to apply the Miller-El ruling.
On reconsideration, the Louisiana court, dividing 4-3 last September, applied Miller-El and once more upheld the conviction and death sentence. As to “the O.J. card” allegation by defense counsel, the state court said that “defense counsel points to no evidence in the record to substantiate defendant’s claim of discriminatory use of the peremptory challenges….The remark during rebuttal referred to the fact that Simpson feigned suicidal intent,” but did not refer “to Simpson’s or Snyder’s race….A review of this record compels a conclusion that race did not play an impermissible role in the exercise of these strikes.”
One of the dissenting state judges complained of “the prosecutor’s inflammatory and prejudicial comparison of this case to the O.J. Simpson trial.” Two others found prosecutors had injected “racial issues” into the case, noting that the prosecutor, before trial, had made a reference to Simpson case, said when challenged that he would not do so during the trial, but then did so in rebuttal at the penalty phase.
Snyder’s new appeal to the Supreme Court, filed by Marcia A. Widder of the Capital Appeals Project in New Orleans, does not rely solely on “the O.J. card” question, although it does put strong emphasis on that. Other factors in claiming a Batson violation were the facts of striking all five blacks on the jury panel, different lines of questioning white and blacks on the panel, and evidence “showing a pattern or practice of race-based peremptory challenges by the prosecutor’s office.”
There were a total of nine blacks in the 85-member jury pool from which the 12 members of the jury were chosen. Four were removed for cause on prosecution motions, and the remaining five were removed with peremptory challenges. (After the jury of 12 had been selected, the state did not strike a black woman who was chosen as an alternate; the alternates were never used at the trial.)
On a Batson-related issue, the appeal contends that the state court imported into its review of this case — a case on direct appeal — a deferential standard that the Supreme Court had laid down only in cases involving federal habeas review of state court decisions. The Louisiana court said it could overturn the trial judge’s findings of no Batson violation based on the prosecutor’s race-neutral reasons for striking black jurors only by finding that the prosecutor had lied about those reasons. That would be improper second-guessing of the trial court, the state supreme court said, relying on the strong deference the Supreme Court had commanded for habeas review in Rice v. Collins in 2006.
Finally, the appeal challenges the state court’s refusal to consider in its Batson and Miller-El analysis the prosecution’s first two strikes of black members of the pool because the defense did not object at the time. This failure, the appeal asserts, showed that Snyder’s trial lawyer was ineffective of failing to raise an objection, but the state court said such a failure to object on Batson grounds is never prejudicial to the accused.
The appeal is supported by the Cornell Law School Death Penalty Project and by the Louisiana Association of Criminal Defense Lawyers.
The Cornell brief argues that there is an “ugly specter of racially motivated resistance” by lower courts to the Supreme Court’s Miller-El decision. It accused the Louisiana court of “recalcitrance,” and suggests it is “particularly shameful in light of the prosecutor’s deliberate and premeditated racial purge of the jury, a purge aimed at securing a receptive audience for his racially inflammatory closing argument.”
The brief of the state criminal defense group complains that the state’s Supreme Court has refused to find a Batson violation unless a prosecutor concedes that the reason for striking a juror was that he was a single black male. “Nothing else has been sufficient,” it argues. In Jefferson Parish, where the Snyder case originated, “prosecutors strike black jurors at more than three times the rate they strike white jurors,” the defense group contends.
