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Another look at Batson?

Way back in 1880, the US Supreme Court held that a state denied a black defendant equal protection of the law by putting him on trial before a jury from which blacks had been intentionally excluded.  That case presented a fairly simple situation:  the law of the state -- West Virginia, in that case -- specifically provided that blacks couldn't serve on juries.  In 1965, the Court was confronted with a different situation:  while the law permitted blacks to serve on juries, the prosecutor had used his peremptory challenges to remove all of them. 

That presented a rather different situation, given that peremptories have historically been allowed for any reason whatsoever.  The Court upheld the conviction, saying that the defendant had to show a systematic county-wide pattern of bias in order to make a successful challenge of discrimination. 

Twenty years of experience showed that that was impossible, and in 1986 the Court reversed direction in Batson v. Kentucky, holding that discrimination in the use of peremptory challenges was unlawful as wellThis past Tuesday, it had oral argument on another case involving that issue, in what many -- the prosecutor especially -- had hailed as the Louisiana version of the OJ Simpson case.

Batson doesn't exactly establish a bright-line test for determining whether a challenge has been exercised in a discriminatory fashion.  If you're so inclined, and of a slightly masochistic bent, this portion of this Ohio Supreme Court decision pretty much lays out the requirements.  There's lots of fun lawyer words like "prima facie" and "pretextual," but what it really boils down to is that unless the prosecutor is dumb enough to confess a desire to "get the coloreds off the jury," an appeals court is going to be extremely reluctant to reverse a trial judge's determination that the prosecutor had a non-racial motivation for exercising the peremptory. 

Which brings us to Snyder v. Louisiana, the case argued on Tuesday.  Less than a year after Simpson was acquitted, Allen Snyder was convicted and sentenced to death for slashing his estranged ex-wife and her companion with a knife, killing the latter.  The prosecutor repeatedly referred to the case in public as his "OJ Simpson" case, and in closing argument alluded to the Simpson case by reminding jurors that "the perpetrator in that case. . . got away with it."

The reason the Supreme Court took the case wasn't because of the OJ pitch; it was because the prosecutor had used his peremptories to kick all five blacks off the panel.  But the blatantly racial allusion to the Simpson case wasn't far from the Justice's mind, Chief Justice Roberts pointedly inquiring "Do you think the prosecutor would have made that analogy if there had been a black person on the jury?" 

In fact, the probable result of Snyder will be a more demanding and less deferential standard toward trial judges on these issues.  As became clearer and clearer during oral argument, the trial judge in Snyder's case had adopted a stance of almost total passivity in the face of the prosecutor's racially-charged arguments, in one instance stating that he'd allow the jury to consider the Simpson analogy because the prosecutor didn't mention Simpson's or Snyder's race.  That prompted Justice Souter to dryly observe, "That is not a critical mind at work, is it?" 

Perhaps the best indication of of the docility of the trial judge toward the prosecutor came up during the argument by Snyder's counsel:  he pointed to the record where in one place in the trial, the judge allowed a defense challenge for cause, at which point the prosecutor said, "Are you crazy?"  The judge simply replied, "No," and proceeded from there.  Try to imagine yourself ever saying, "Are you crazy?" to a judge during trial.  Then try to imagine how many days he'd give you for contempt of court.

Indeed, as might be gleaned from the OJ references, maybe it wasn't the judge who was the problem.  This article from the LA Times discloses that the prosecutor, Jim Williams, also had some "issues":

Jim Williams had a reputation as a highly skilled, tenacious prosecutor -- maybe even a little bloodthirsty.

After scoring convictions in dozens of murder cases, he told a reporter: "It got to the point where there was no thrill for me unless there was a chance for the death penalty."

In the mid-'90s, Williams posed for Esquire magazine standing behind a miniature electric chair with mug shots of five African American men he sent to death row. Since then, two of the defendants have been exonerated, two had their sentences commuted to life because of misconduct by Williams, and the fifth won a retrial after an appeals court overturned the verdict.

Thrill, indeed.

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