The case of Snyder v. Louisiana (06-10119) may live in history as a case about using O.J. Simpson’s legal troubles as a way to “play the race card” before an all-white jury trying a black man. The Supreme Court, in a hearing on Tuesday, showed some fascination with that part of the case. But the decision that ultimately emerges from the Court may also bring a call for trial judges to take a more active role in monitoring the race factor in criminal trials. Justice Anthony M. Kennedy, in fact, implied that there may be a price to pay if judges do not take the hint: they won’t get the usual respect and deference, in appeals, for their conduct of trials.

Much of the Court’s one-hour hearing was occupied with an exhaustive examination of the details of jury selection in Snyder’s trial for murder in Jefferson Parish. That was to be expected: this is a “Batson case.” Since ruling in Batson v. Kentucky in 1986, curbing prosecutors’ use of peremptory challenges to keep blacks off of juries, the sequels in the Court to that decision have been focused much more on the specifics of each trial under review, with not much further development of the controlling legal principles. So, once again, the Justices spent a great deal of time on why some individuals were struck while others were not, and on how to judge whether, in each instance, race was or could have been the key factor. Much of that, of course, focuses on the actions of prosecutors and defense lawyers. This is the Court’s way of judging the totality of racial overtones in a trial to check for Batson violations.

But, this time, the trial judge’s conduct became a focus — favorably, near the beginning, as Justice Antonin Scalia made the customary point about how the judges on the scene “are in a much better position” than an appellate court to judge the process of jury selection and the conduct of counsel on both sides. But the mood changed, beginning with Justice Ruth Bader Ginsburg’s remark that the trial judge in Snyder’s case “was passive throughout.” That prompted Snyder’s lawyer, Stephen B. Bright of the Southern Center for Human Rights in Atlanta, to recount an incident at the trial: The defense had struck one juror for cause, and the judge allowed it, to which the prosecutor said to the judge: “Are you crazy?” To which the judge reportedly said, simply, “No,” and the trial simply went on from there.

Bright went on to criticize the judge further, noting that he disposed of challenges for cause with four- or five-word responses. “You don’t have the assurance that this judge was involved,” he said. It was a smart tactical remark, since the state, in defending against Snyder’s appeal, put heavy stress on the Court’s usual willingness to defer to trial judges on the handling of their courtrooms, and the need especially to defer to trial judges’ observation of the demeanor of prosecutors in jury selection in capital cases.

Later, when assistant state attorney general Terry M. Boudreaux of Gretna, La., was at the podium, Justice David H. Souter returned to the judge’s conduct. “There is nothing in the record to suggest the trial court was very critical of the prosecutors” for their alleged use of racial implications, Souter said. 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.”

Boudreaux was nearly finished when Justice Kennedy, who up to then had not said a word, sat forward in his seat after the state’s lawyer brought up Kennedy’s opinion last Term in Uttecht v. Brown (06-413). Repeating the state’s citation in its brief to that opinion, mandating broad deference to trial judges in capital cases up on habeas review, Boudreaux was closing his argument for a call for that principle in Snyder’s case. Kennedy noted that Uttecht was a habeas case, and asked whether the deference the Court had required in that case should apply to a Batson case, “where we have the sensitive issue of racial discrimination. “Because of our concerns in the Batson area,” Kennedy commented, “do you think we’re entitled to have a different standard of deference for the trial court?” It sounded more like a suggestion than a question.

The “O.J. Simpson factor” in the case — so central to popular interest in the Snyder case — was actually slow to come into the oral argument. It did not arise until well into Bright’s presentation. Justice John Paul Stevens brought it up, asking whether the prosecutor’s pre-trial and trial argument references to O.J. Simpson having “gotten away with” a crime was “relevant at all to what’s before us” in this jury selection case. Bright said it was, noting that the prosecutor had broken a promise not to bring it up at the trial. Justice Scalia then jumped in, asking “What does that have to do with anything — the prosecutor broke his promise?” Bright said it had to do with the prosecutor’s credibility on whether he was trying to turn the case into one about race. The Simpson case, the lawyer said, was “the most racially polarizing case” in the Nation.

Justice Scalia rushed, perhaps a bit too hastily, to the defense of the prosecutor. The O.J. Simpson case was brought up at the trial by the prosecutor, Scalia suggested, because of factual parallels with the Snyder case. In the Simpson case, Scalia recalled (assuming a verdict that did not occur), “he kills his wife, with a knife, and then feigns mental illness in his great escapade.”

Justice Souter was the strongest supporter of the notion that the Court had to consider the O.J. Simpson remarks as factors in “trying to determine what went on” at Snyder’s trial with the race issue. He asked Boudreaux whether, if a white defendant had been on trial instead of Snyder, who is black, “would the O.J. Simpson matter have been mentioned?” Boudreaux ventured that it would have. “I find it unlikely,” Souter commented.

Chief Justice John G. Roberts, Jr., followed up on Souter’s question, asking the state’s lawyer: “Even if you are correct that there was a neutral explanation given [for the Simpson remark], do you think the prosecutor would have made the analogy if a black juror had been on the jury?” Boudreaux said “I think he could have.”

Although Justice Scalia and Justice Samuel A. Alito, Jr., had gone the furthest of any members of the Court to find valid explanations for the way the jury selection went in Snyder’s case, it was not clear, as the hearing went on, that they were doing anything more than trying to draw out Bright’s argument on the claimed racial character of the trial. It was not apparent, by the time the hearing concluded, that Bright’s adversary, Boudreaux, had carried the day with any member of the Court.

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