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Snyder v. Louisiana:
The Supreme Court overturned a death sentence today in a 7-2 opinion written by Justice Alito, Snyder v. Louisiana. The decision is very fact-specific: It found clear error under Batson v. Kentucky for removing a black juror during jury selection. Justice Thomas dissented, joined by Justice Scalia, and accused the majority of unfairly reading the record to set aside the sentence.
MJG:
The really interesting thing is that this was the case where the prosecutor kept referring to the case as his "O.J. Simpson case," including at closing argument and earlier I believe during voir dire. I could be missing something, but I don't believe the opinion (majority or dissent) mention O.J. Simpson once. I actually thought this might be relevant to prosecutor/judicial credibility, but maybe the Justices didn't want to go there. They did ask about it at oral argument, if I remember correctly.

In any event, in the last few Batson cases first Breyer, then Souter and Breyer wrote to invoke Thurgood Marshall's old wish that peremptory challenges should be entirely done away with. Interestingly, there were no concurrences here. Maybe they've backed off, or maybe they wanted more influence on how this opinion would be written. I always found Souter's jump there particularly of note, since his Miller-El opinion was the one that solidified that all these Batson challenges are exceedingly fact specific.
3.19.2008 3:38pm
Michael J.Z. Mannheimer (mail):
Orin,

If by "fact-specific," you mean that the decision will not have a big impact, I disagree. I think the case is very significant for a couple of reasons.

First, the case seems to shift the burden of an ambiguous record from the opponent of the strike to the proponent of the strike. That is, where the trial court does not specifically say why it is not convinced that the strike is motivated by discriminatory animus, it seems that the proponent of the strike must now prod the court to do so. If it does not, the proponent bears the risk that a reviewing court will independently view the strike as discriminatory based on the cold record without giving any deference to the trial court's ability to judge the demeanor of the prospective juror.

Second, the decision all but invites litigants to now raise the "mixed-motives" issue, which has heretofore been largely ignored. But see Russell D. Covey, The Unbearable Lightness of Batson: Mixed Motives and Discrimination in Jury Selection, 66 MD. L. REV. 279, 287-88 (2007). I think the mixed-motives issue is going to be the next Batson battleground.
3.19.2008 3:48pm
Michael J.Z. Mannheimer (mail):
MJG,

It always struck me as odd that the prosecutor's "O.J. Simpson" reference in his summation had anything to do with the Batson issue. The issue was whether the trial court made the correct Batson ruling at the time it was made. I never could figure out how that issue could be affected by what the prosecutor said later in the same case. I think the "O.J. Simpson" angle was included in the Petitioner's brief largely for atmospherics, and it was something the media could grab onto to make the case sounds sexier than it actually was.
3.19.2008 3:56pm
Dave N (mail):
There was something I noted that was rather odd about the opinion--and I have to wonder if Justice Alito was fishing for Justice Thomas' vote.

In Section II of the opinion, Justice Alito quotes the standard of review in this puzzling manner:
Batson provides a three-step process for a trial court touse in adjudicating a claim that a peremptory challengewas based on race:

“‘First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race[; s]econd, if that showing has been made,the prosecution must offer a race-neutral basis for striking the juror in question[; and t]hird, in light of the parties’ submissions, the trial court must deter-mine whether the defendant has shown purposeful discrimination.’” Miller-El v. Dretke, supra, at 277 (THOMAS, J., dissenting) (quoting Miller-El v. Cockrell, 537 U. S. 322, 328–329 (2003)).
Why not just quote Cockrell in the first place?

I also agree that this case makes it clear that if a prosecutor is facing a Batson challenge, he better make sure that both he and the trial court make a good record in doing so.

Finally, I also wonder if the Court is sending a message that if it GVR's a case, it expects the lower court to do more than pay lip service to the remand.
3.19.2008 4:10pm
Rock Chocklett:
I agree with Thomas's dissent. The prosecutor offered two race-neutral reasons for the challenge: the juror's perceived nervousness and the juror's need to return to student teaching. The trial court did not make a finding on either basis but simply allowed the challenge.

The majority assumed the trial court ruled on the second basis, which they thought was a sham. But if there is ambiguity about whether the trial court relied on a permissible basis or an impermissible one, the deferential standard of review requires the appellate court to presume the trial court relied on the former. What's more, the Court said the second basis was a sham because there were lots of other jurors who had scheduling conflicts too. So what? The prosecutor only had so many peremptory strikes. He couldn't have struck them all.
3.19.2008 4:13pm
George Weiss (mail) (www):
doing the show cause strikes before the peremptory strikes sure makes it easier to have batson challenges. i thought LA was a conservative state.
3.19.2008 4:31pm
Michael J.Z. Mannheimer (mail):
Dave N.,

I noticed the same thing and the same thought occurred to me as well. What an odd way of trying to get Justice Thomas' (unnecessary) vote. Perhaps Justice Alito was prodded by the Chief to try to get a unanimous decision.
3.19.2008 4:32pm
MJG:
Michael J.Z.,

The prosecutor made two OJ references, one early on (before the strikes), and one at his closing argument. Arguably, the second can't be a factor since it happened later, though Miller-El and Lane talk about credibility so it might be relevant in that context. And (though someone who does this for a living might be better able to explain), I got the impression that the defense attorney renewed the entirety of the Batson challenge when she motioned to set aside the verdict, and thus you could sweep in the closing argument reference.

In any event, he made a prior reference to OJ which, while debatable whether that tips the scale or not, was certainly not just atmospherics.
3.19.2008 4:47pm
Michael J.Z. Mannheimer (mail):
MJG,

Thanks for the clarification.
3.19.2008 5:01pm
Bert Campaneris (mail):
For these reasons, we cannot presume that the trial judge credited the prosecutor's assertion that Mr. Brooks was nervous. Section III-A.

Fair enough. However, how can the Court presume that the judge did not so credit the prosecutor? Moreover, without making that presumption, how can the Court overrule the trial judge' ruling based on the applicable standard.

Can anyone fill me in on what I'm missing?

I understand that as a matter of practice Dave N's suggestion as to a clear record is dead on. However, I find the Court's ruling to be rather dubious.
3.19.2008 6:55pm
Angus:
This is Louisiana, keep that in mind. The prosecutor weeded out all of the black jurors, first through cause, then all five of the remaining black jurors through preemptory strikes. Does anyone seriously believe this prosecutorial conduct wasn't motivated by race?
3.19.2008 7:29pm
alias:
Angus, perhaps it was, but Snyder is a precedent, not just a resolution of this case. Justice Alito's opinion didn't say "and we emphasize that this is Louisiana," nor did it mention OJ Simpson at all. Rather, his opinion basically says that despite the amount of deference appellate courts are supposed to show to trial court rulings on Batson challenges, this one's wrong.

I think that the dissent has the better of the legal argument, but as a pragmatic matter failed Batson challenges are probably nearly unreviewable. Thus, as Michael J.Z. and Dave N. suggest, the Supreme Court has in effect required the prosecutor and the trial court to make a more detailed record when addressing Batson challenges in the future, perhaps to facilitate review.

It's a shame that they didn't come out and say that, because the logic of the opinion itself is dubious.
3.19.2008 7:59pm
NI:
Here's a question: Suppose a state decided to adopt a rule that required that a jury contain at least one person of the same race as the defendant. Would that rule be constitutional?
3.19.2008 10:45pm
Dave N (mail):
NI,

I have a feeling that it would have a problem judicial surviving scrutiny. What if a white defendant wanted to have a non-white juror, for example? Indeed, I suspect such a rule would be also challenged on the basis that juries are supposed to be color-blind--and this would be a step in making juries decidedly non-color-blind.
3.19.2008 10:58pm
Kovarsky (mail):
NI,

The issue is less about racial identification between the defendant and the venireperson than it is about the venireperson being black. I'm pretty sure that Blacks are statistically less likely to impose the death penalty, regardless of the race of the defendant.

I think that this actually fits into a pattern of cases (albeit some of them are habeas, rather than direct review cases) whereby the court is saying that factual deference - whether it be appellate (clear error) or on habeas review (unreasonableness) will not go so far as to require an appellate (direct review) or federal district (habeas) court, when faced with two potential explanations, simply assume the explanation most consistent with the contested outcome was the one on which the trial court actually relied. Look at the terse dismissal of that idea here, and compare it with similarly terse dismissals in some of the ineffective assistance cases (wiggins and rompilla).

and it makes sense. otherwise, you give a systematic incentive for the lower court to say as little as possible because, through silence, they expand the set of conceivable explanation for the ruling for which a reviewing court would have to defer.
3.20.2008 2:58am
Kovarsky (mail):
it's also worth noting that the facts here are far less egregious than those in miller-el. is this just explained by the change in court composition, or is it stare decisis?
3.20.2008 3:01am
Steve2:
Kovarsky, I like to agree with you that the issue isn't about whether or not the defendant and any number of jurors are the same race, although for me it's because I agree with the premise in Part I of Carter v. Greene County (which showed up again in Batson) that race-based peremptory strikes constitute a violation of the juror's Equal Protection rights.

And I agree with you (and several before you) that it makes sense (and I think it's a good thing for them to do) for the SCOTUS to instruct, by way if its rulings, lower courts to explain their actions fully and develop as thorough and unambiguous a record as possible.
3.20.2008 9:16pm