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March 19, 2008

SCOTUS overturns "OJ death sentence" in Snyder

As detailed here at SCOTUSblog, "Supreme Court ruled 7-2 on Wednesday that the trial judge in a Louisiana murder case — one that involved a prosecutor’s use of the O.J. Simpson case to try to help win a death sentence against a black man — was wrong in rejecting a challenge to the denial of a seat to one black juror."   Thanks to SCOTUSblog, the decision in Snyder v. Louisiana can be downloaded here.

The voting pattern may be the most interesting aspect of this ruling: "ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined."

Especially at a time when we are having a national political dialogue about race, I will have a lot of reflections on this case (and on the complexion of the Supreme Court Justices) in future posts.  For now let me make one notable observation: Senator Obama's speech yesterday mentioned O.J. (with a reference to the "OJ trial"), but did not mention Associate Justice Clarence Thomas.  I wonder how that made both Justice Thomas and O.J. Simpson feel.

March 19, 2008 at 10:25 AM | Permalink


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Even though SCOTUSblog will competently cover Snyder v. LA (holding that a trial judge committed clear error in rejecting a Batson challenge), I want all you people out that troll the masses about judicial activism, and “liberal” and “conservative” jud... [Read More]

Tracked on Mar 19, 2008 11:29:59 AM


was wrong in rejecting a challenge to the denial of a seat to one black juror

quadruple negatives make my brain hurt...

Prosecutor tried to strike black juror
Defense attorney challenged strike
Judge denied challenge
Supreme Court says that was wrong

On first read, the majority opinion 's reasoning strikes me as weak, but maybe the Supreme Court wants to force trial courts to provide something in the way of an explanation so that failed Batson challenges don't become unreviewable as a practical matter. If that's their goal, then Snyder seems more palatable.

Posted by: | Mar 19, 2008 10:50:18 AM

Alito didn't really go into the inflamatory racial remarks (which would implicate the prosecutor), but rather concentrated on a more searching review of the judge's findings.

At first this sort of irked me.

However, now I think that OJ references are tired and any further judicial consideration gives both OJ and people that refer to him too much credit because: 1) any prosecutor that uses them is a racist jerk; but 2) they really don't mean that much as most people, by now, realize that the OJ case was, like many, a complicated case (involving a less than likable defendant) with a lot of evidence that was subject to different interpretations.

Posted by: S.cotus | Mar 19, 2008 1:46:12 PM

10:50 -

Not sure what is so weak about finding the systematic exclusion of blacks on a jury violates Batson.

What bothers me is that someone can justify removing every black venire person so readily as the dissenters did. This is a case about race, a racist prosecutor, and a system willing to sweep it under the rug.

Posted by: | Mar 19, 2008 2:35:45 PM


If you read the opinion closely, or even Prof. Berman's post, you will see that the question in the case was whether 2 particular black jurors were excluded based on their race, and that the Supreme Court decided that at least one of them was.

The prosecutor offered race-neutral reasons for striking the juror that the Supreme Court addressed. The trial court appears to have accepted those reasons. The Supreme Court says that that was clear error.

As the dissent explains, there are some things that look bad about this case, but there isn't enough evidence to be able to say with the requisite confidence that the trial court clearly erred. The trial court didn't give any explanation, and one of the prosecutor's race-neutral reasons was the prospective juror's demeanor, on which there's no evidence one way or the other.

One of the problems with reviewing failed Batson challenges is that if the proper procedure was followed in the trial court (defense objects, prosecutor gives race-neutral reason, judge rules), then you're basically asking the Supreme Court to judge what was in the prosecutor's mind at the time, and to second-guess the trial court's conclusion about what was in the prosecutor's mind. Under those circumstances, it's difficult to imagine how a reviewing court could ever find "clear error" unless there's a smoking gun somewhere.

As the dissent points out, the majority gives only lip service to the law on deference.

Even so, if this case results in judges explaining themselves further in the future when they rule on Batson challenges, then that will solve the problem of practical unreviewability, and it will likely be a step in the right direction toward getting rid of the evil that Batson sought to prevent.

Posted by: 10:50 | Mar 19, 2008 2:57:16 PM

Assume that the dissent was the majority in this case. The prosecution survices the Batson challenge.

At what point do we say that that the subsequent race-baiting was wrong? And if it was wrong, can't we then look back to the dismissals by the prosecution of the black jurors to be, in fact, discriminatory?

It would be interesting to hear a court say that the prosecution can survive a Batson challenge but not subsequent race-baiting.

Posted by: hmmmm.... | Mar 19, 2008 3:29:10 PM

Assume that the dissent was the majority in this case. The prosecution survices the Batson challenge.

At what point do we say that that the subsequent race-baiting was wrong? And if it was wrong, can't we then look back to the dismissals by the prosecution of the black jurors to be, in fact, discriminatory?

It would be interesting to hear a court say that the prosecution can survive a Batson challenge but not subsequent race-baiting.

Posted by: hmmmm.... | Mar 19, 2008 3:29:21 PM

At what point do we say that that the subsequent race-baiting was wrong? And if it was wrong, can't we then look back to the dismissals by the prosecution of the black jurors to be, in fact, discriminatory?

Interesting questions. I don't know the answer. I would think that later-discovered evidence of the prosecutor's racial motives would be probative evidence of what was in his mind at the time he struck the juror, but I don't know precisely how the law deals with that.

Two semi-unrelated thoughts, though:

(1) Snyder v. Louisiana is a Supreme Court decision, and the reasoning will be applied in the future by trial courts across the country when they deal with Batson challenges. The opinion makes no mention of OJ Simpson nor, as far as I can tell, does it mention anything about what rhetoric the prosecutor used during the actual trial. As such, it appears that they would have reached the same result even if the prosecutor had been perfectly well behaved during trial. Regardless of what you think of this particular case, the majority has arguably made bad law--unless, as I alluded to earlier, the point is to force future trial courts to give more detailed explanations when they rule on Batson challenges. On its own terms, however, the majority opinion seems poorly reasoned.

(2) Also, what is this exactly about race-baiting? I haven't read the news articles about this in a while, and my recollection is that the prosecutor brought up the OJ Simpson story during his arguments to the jury. Without more details beyond that and his use of strikes, I'm not prepared to call that race baiting.

When I think of the OJ Simpson trial, the first thing that comes to mind is jury nullification, not "oh no, a black man got away with killing a white woman." If I were a prosecutor and wanted to tell the jury that jury nullification is bad, the only story of jury nullification that I know of that's well known to the general public is the OJ Simpson story.

It could be that the prosecutor spun it differently. If anyone has any further details, I'd be interested.

Posted by: 10:50 | Mar 19, 2008 4:01:50 PM

As the years pass, people will forget about who OJ is.

But, if the court HAD made the OJ reference, it would be saying a lot more:

It would be saying, “How dare the prosecutor invoke an acquittal of a black person in order to obtain a conviction?” This would lead to the inference that somehow the acquittal of OJ was wrong. (And, strangely enough, a jury is completely free not to credit any of the state’s evidence. There is no burden shifting in criminal law. A juror may simply think that cops are liars. In fact, one of the witnesses later wrote a book about how much he lied, so that conclusion would be ironically correct.) In essence, it would also be declaring any mention of a single person to be off limits in jury selection? (Within hours every prosecutor in the country would get the message.) That would be a strange honor for OJ to have, and I doubt that the supremes would really want to give it to him.
But, in the future, there will be other “trials of the century.” There will be some acquittals. The Victims Rights Industry and various PR entities will be able to spin these as miscarriages of justice. Prosecutors will seek to invoke them (and all the racist devices that the PR firms and the Victims Rights Industry uses). And judges, rather than saying “They didn’t mention OJ, the question is okay,” will know that their decisions on Batson challenges will be subject to a higher standard of direct and collateral review than before. I now throughly agree with the decision and the way it was written (with the exception of one caveat (not relevant here) on my blog.)

Posted by: S.cotus | Mar 19, 2008 4:14:47 PM

10:50, would you concede that the OJ trial result exposed a rift between many in the black and white communities?

If you concede that, can you see how a prosecutor, in a case where a black man is accused of killing a white woman, keeps bringing up OJ before an all-white jury may be race-baiting?

I don't think I've ever seen a prosecutor pre-emptively aregue against jury nullification, otehr than saying something like "this is the law and you've swornn to follow it."

Posted by: hmmmm.... | Mar 19, 2008 4:24:50 PM

I don't deny that there are racial issues in the OJ trial, but I do deny that it's race baiting any time a prosecutor mentions the OJ trial.

I agree that the conventional way to preemptively (I think "preemptively" is the only possible way to do it) argue against jury nullification is to say something dry like "follow the law," but I'm not ready to say that the prime example of jury nullification in recent memory if off-limits because it involved a black man who killed a white woman.

Posted by: 10:50 | Mar 19, 2008 4:47:01 PM

And I also deny that it's race baiting any time a prosecutor mentions the OJ trial in a case where a black man is accused of killing a white woman.

Posted by: 10:50 | Mar 19, 2008 4:57:43 PM

10:50- You seem to have missed a key part of the Synder case, black defendant accused of killing white women, tried before an


(from which the prosecutor excluded the black candidates).

Considering the racial polarization I think we agree came to the forefront as a result of the OJ trial and verdict, can you see how this particular case may involve race baiting?

Posted by: hmmmm.... | Mar 19, 2008 5:11:31 PM

Surely the mere mention of OJ is not race-baiting. But this mention occured in front of an all-white jury at a trial of a black man accused of killing a white woman in Jefferson Parish, LA -- a parish that, even for the Deep South, has had an extraordinarily troubled history of racial discrimination. As late as the early 1990s, David Duke, a former Grand Wizard of the KKK was the popularly elected state representative from this area.

Posted by: dm | Mar 19, 2008 5:22:32 PM

I agree that it may have involved race-baiting. I just don't think that the respective races of the jurors, the victim and the defendant means that any use by the prosecutor of the OJ trial is necessarily race baiting.

If you have any further details, I'd be interested.

Posted by: 10:50 | Mar 19, 2008 5:26:52 PM

Ah, yes... the south. No black man accused of killing a white woman can ever get an unbiased trial in the south, much less the "Deep South." Perhaps the Supreme Court should just decide cases on that basis. A bright line rule like that would save a lot of litigation.

All the lawyers would have to do is look into the races of the people involved. Instead of reading Batson and the rest of the case law, the respondents in this case should have researched the race of the judge, the race of the defense lawyer, the race of the bailiff, the races of the spectators, the races of the police officers who did the investigation and who testified (if they did). And perhaps the defense lawyers at trial should have just noted that the defendant is black, the victim is white, they're in the south, so there's no way that the prosecution or the police were being honest. Case closed. QED.

For the last time, does anyone have any details about what the prosecutor did in the actual trial, or is the only defense of the result in this case based on the fact that a prosecutor said "OJ" to a white jury trying a black man for killing a white woman in the south?

Posted by: | Mar 19, 2008 6:01:12 PM

Read this and see what you think:


Posted by: hmmmm.... | Mar 20, 2008 9:05:23 AM

Mar 19, 2008 6:01:12 PM, I am not sure that his conduct in the trial actually matters, since the Supremes resolved it on a Batson issue. Therefore, everything that comes after doesn't matter.

Posted by: S.cotus | Mar 20, 2008 10:55:11 AM

S.Cotus, I agree with that, but I think the other issues in the trial may have influenced the justices to determine the Batson issues as they did.

That's why I posed the hypo I did, if the dissent was the majority, how would the other issues have been determined? And if they were subsequently determined to be inappropriate with regard to race, it would seem to indicate the Batson issues may have been real.

Posted by: hmmmm.... | Mar 20, 2008 11:39:57 AM

Sorry, I didn’t really go down the road with your hypothetical. I think that any “influence” that the OJ comments had came out in a reluctance to actually make OJ (or references to other criminal proceedings resulting in an acquittal) a legal issue in itself.

There is something particularly hoary about the Supreme Court saying something along the lines of “It is prosecutorial misconduct for a prosecutor to refer to an acquittal.” This would essentially be giving the prosecutor too much credit, as it would be saying that he could improperly manipulate a jury by saying that our entitle judicial process is flawed every time someone gets off. That would be an indictment of juries as well, as it would express a belief that they really don’t understand their role in the system.

Posted by: S.cotus | Mar 20, 2008 12:50:25 PM

What about the Supremes majority over-running the judge's discretion here? That is a leg of the Batson test, right? Must judges now give an exhaustive rationale for every ruling during a trial? How much more time and money will that add to litigation?

Also: how, if at all, does this jive with the Gall/Kimbrough more discretion to judges on sentencing if indeed this decision is taking anything from the judges?

Posted by: Ernie King | Mar 20, 2008 1:10:28 PM

“Discretion” is a term of art. It doesn’t mean “do whatever you want.” It requires 1) an understanding of the law; 2) a finding of facts; and 3) a reasoned explanation (or something fairly obvious in the record) for the application of #1 to #2. Here, the Supreme Court found that “Rather than making a specific finding on the record concerning Mr. Brooks’ demeanor, the trial judge
simply allowed the challenge without explanation.... For these reasons, we cannot presume that the trial judge credited the prosecutor’s assertion that Mr. Brooks was nervous.”

The post-Booker view sentencing might appear to make it more “discretionary” in the lay sense of the word, but the process that judges must go through is different (and I would say more complex), and the standard of review is different than a Batson or similar challenge.

So, to answer your question, the best judges WILL create a record. Others will simply hope the Court of Appeals scours the record enough to support their decisions.

Posted by: S.cotus | Mar 20, 2008 2:45:42 PM

Sounds as thought the SC wasn't too impressed with the trail judge. From SCwiki:
He noted that one of the reasons the trial judge had given for finding no error in the prosecutor’s talk about the O.J. Simpson case to the all-white jury was that the prosecutor “had not mentioned” either Simpson’s or Snyder’s race. “That is not a critical mind at work,” Souter dryly remarked, to which Boudreaux softly replied: “I would suppose not.”

Posted by: hmmmm.... | Mar 20, 2008 3:00:45 PM

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