Snyder v. Louisiana is a death-row case about race as an issue in jury selection. But it looms larger as a potentially significant inquiry into the use of implied racial imagery to influence not only who sits on a jury but how to turn that jury toward a guilty verdict. It has the special feature of a prosecutor turning the race-tinged legal woes of O.J. Simpson into a trial tactic.

Background

In criminal trials, prosecutors and defense lawyers for generations have attempted to create images, in words, to try to influence jurors. It is widely acknowledged that, if lawyers are good at crafting such word pictures, they can shape the outcome of a trial. The task may be easier if the attorney, on either side, can summon up an allusion that is so familiar that it has become a cultural icon; that can make the intended message simpler, and the effect potentially greater.

A constitutional problem may arise, however, if the allusion seeks to play upon presumed or actual juror prejudice. The questions the Supreme Court will be attempting to answer, in Snyder v. Louisiana, are whether a prosecutor crosses the constitutional line when he invokes the familiar image of O.J. Simpson, as one who "got away with it," in a case where an all-white jury is trying a black man for murder.

The Snyder case has been to the Supreme Court once before. On June 13, 2005, the Supreme Court sent the case (04-6530) back to the Louisiana Supreme Court to examine it further in the wake of a decision two weeks earlier in Miller-El v. Dretke, another death row case. The Justices ruled in Miller-El that it was unconstitutional for a prosecutor to strike 10 of 11 qualified black jurors from sitting in that murder trial. Comparisons of the black jurors who got struck with the whites who did not reinforced the finding, the Court said.

In the course of that ruling, the Court remarked: "For more than a century, this Court consistently has reaffirmed that racial discrimination by the state in jury selection offends the Equal Protection Clause." The difficulty, however, the Court added, is the practical one of "ferreting out discrimination" because selections are "discretionary by nature," and might be shaped by "myriad legitimate influences."

It is a problem the Court has in each case now that is a sequel to Batson v. Kentucky, the 1986 decision in which the Court first ruled that race-based uses of peremptory challenges in criminal trials were unconstitutional under the Equal Protection Clause.

In the case of Allen Snyder, of Kenner, La., the Louisiana Supreme Court "“ in its initial decision in 1999 and in a ruling in September 2006 after the remand from the U.S. Supreme Court "“ found no Batson violation in the assembly of an all-white jury to try a black suspect on a charge of murdering the male companion of his estranged wife in 1995.

After Snyder had been charged with murder, the prosecutor, before the trial began, made a number of public comments comparing the case to the O.J. Simpson case, in which the former pro athlete was charged with murdering his wife and a friend of hers; Simpson was acquitted. Snyder's defense lawyer filed a motion to bar such comparisons in future comments by the prosecutor, and was turned down, but the prosecutor said he would not mention the Simpson case during the trial itself "“ a vow he reportedly broke.

In the jury selection process, there were nine blacks in a pool of 85 eligible potential jurors. The state removed four for stated causes, and the remaining five by peremptory challenge "“ with the defense objecting to some of those strikes on Batson grounds. One of the results: an all-white jury.

The O.J. Simpson case was not mentioned by the prosecutor during the guilt phase. In closing argument during the death-sentencing phase, the prosecutor said this case "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 are aware of… ” At that point, the defense objected, unsuccessfully. The prosecutor went on: "The most famous murder case, and all of you have heard about it, 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." The jury returned with a sentence of death.

A new trial motion, arguing that the prosecutor had used his strikes to get an all-white jury that would be receptive to the O.J. Simpson argument, failed. The case went up to the Louisiana Supreme Court, which rejected the Batson challenge. The 5-2 majority said it was not "firmly convinced" that the O.J. Simpson case had influenced the jury. It found that the strikes of the black jurors were justified by valid reasons. On remand from the U.S. Supreme Court, the state Supreme Court in another divided opinion dismissed the argument about the O.J. Simpson comparison, saying that the prosecutor had not referred to Snyder's or Simpson's race in his remarks. Besides, the majority said, Snyder's lawyer had opened the issue by saying in closing argument that Snyder had been suicidal when police arrived to arrest him. The comparison to the O.J. Simpson case, the majority added, was only a reference to the fact that that case, too, was about domestic violence.

Petition for Certiorari

In Snyder's new appeal, he argued that the state Supreme Court had been "recalcitrant" in failing to "engage in the exacting scrutiny" that Miller-El requires. The state Court, it contended, should have examined sensitively both circumstantial and direct evidence of prosecutors' racial intent in the strikes, and in addressing the jury at sentencing, as well as in framing the case before trial as one in which race would be a factor. The ruling on remand was little more than a slightly expanded review of the challenges that race had infected the case, the appeal asserted.

Besides the O.J. Simpson angle, the petition asked the Court to rule that the state Supreme Court had wrongly imported into a case on direct appeal a standard of review fashioned for federal habeas, and that the state Supreme Court should have considered the strikes of black jurors to which defense counsel had not made an objection at the time.

The Court granted review on June 25. The case is set for one-hour of argument on Tuesday, Dec. 4.

Merits Briefs

Snyder's brief on the merits suggests, in early passages, that his trial occurred "in a community familiar with racial divisions and appeals to race." It noted the political popularity of a Ku Klux Klan wizard in the area as proof. This, obviously, was part of a tactic of immersing the case in a racial context in order to strengthen the specific claims about how those issues played out during the trial. The brief goes on to examine, in some detail, the process of the five peremptory strikes of blacks "“ part of the tactic of using specifics to make the broader point that Miller-El requires a detailed examination into the jury-selection process. The brief uses the O.J. Simpson references to make the summary point that the comments "were indicative of his [the prosecutor's] intent in striking all of the black prospective jurors." Each part of the case, with its supposed racial overtones "“ from pre-trial through sentencing "“ is tied together in the brief as a continuum.

That brief reflects the lesson that defense lawyers are taking from the Court's several decisions, including Miller-El, mandating a close examination of specific facts about the conduct of trials where race may be made or was made into an issue. Instead of making sweeping legal arguments, the focus is on factual detail to create a mosaic. The overwhelming bulk of the Snyder brief is a reiteration of the record. There is little legal rhetoric, but the brief does close with a comment from Justice Anthony M. Kennedy in last Term's school desegregation cases, saying that "The enduring hope is that race should not matter; the reality is that too often it does."

The state's merits brief compresses the issue into a test of whether the state court was wrong in accepting race-neutral reasons given by the prosecutor for the five peremptory challenges of blacks, and puts some focus on the fact that the defense objected to only three of those strikes. Those challenges, it suggests, should simply be ignored by the Justices, because "Batson requires a timely objection" before prosecutors must explain strikes.

After the opening, the state brief discusses the virtue of federal court deference to state trial courts, and then contrasts its view of the Louisiana Supreme Court's ruling regarding Snyder's trial with the facts in the trial of Miller-El, which the state calls a case of "unique factors." Much of the remainder of the brief, like Snyder's, goes deeply into detail about the facts of this trial.

When the state brief reaches the O.J. Simpson point, it seeks to separate the remark made during sentencing from the earlier, jury-selection process. It argues: "When the trial judge ruled on the Batson objections the O.J. Simpson comment could not have been considered because it had not yet been made. Therefore, because it could not have been considered by the trial court it should not be considered by a reviewing court." The Supreme Court itself, the state asserts, should not consider that in evaluating the Batson claim.

The state, though, does suggest that there were, indeed, other, non-racial parallels between the charges against Simpson and the facts against Snyder.

The Constitution Project, a progressive advocacy group, filed an amicus brief supporting Snyder, largely seeking to enhance the significance of the O.J. Simpson issue in the case. Referring to data beyond the Snyder case about "the racially charged response to the O.J. Simpson [not guilty] verdict," this brief argued that this response led the prosecutor to inject race into Snyder's case ""without expressly mentioning it.Racial messages are more often implicit than explicit."

There is also an amicus brief from nine ministers of black churches in the community where Snyder was tried, arguing that Jefferson Parish has repeatedly witnessed the use of race in criminal trials, including the exclusion of black jurors, along with "troubling racial attitudes" among whites in the Parish.

Analysis

If the Court continues its recent pattern in Batson sequels, it will focus on details to see what they show on their own, and whether they contribute to a totality that indicates that race was, indeed, a part of the prosecution's strategy "“ and its success. The O.J. Simpson factor in the case could turn out to be an important detail, but it is not guaranteed to be the most significant factor in the Justices' analysis. For one thing, it is unclear whether they would be willing to tie the pre-trial statements and the closing argument statement about the O.J. Simpson case as related to each other, as Snyder suggests, or as isolated circumstances, as the state argues. It seems entirely unlikely that the Court will take the state's suggestion to leave it out of account altogether. The Court will be looking for evidence that the trial genuinely was influenced by a climate of racial intolerance in the community, and the O.J. Simpson references might be a part of that. But possibly more important would be the arguments of the nine black ministers, as amici, relating their community-specific observations about racial attitudes.

If the Court spends much time on the O.J. Simpson references, it is possible that the final decision in the case could make some quite significant comments on the role that implicit comments might play in exciting racial intolerance in the courtroom.

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