Justices ponder O.J. and the race card

During yesterday’s oral argument in the case of Snyder v. Lousiana – a fact-oriented reexamination of a Louisiana prosecutor’s use of peremptory strikes to dismiss black jurors in a black defendant’s capital murder trial – the Supreme Court justices examined what role comments by the prosecutor comparing the case to the O.J. Simpson trial played in evidencing that the juror strikes were racially-motivated.

The attorney for defendant/petitioner Allen Snyder, who was convicted and sentenced to death for fatally stabbing his wife’s male companion, argued that the prosecutor’s comments in the press that the case was “his O.J. trial” and that he would not let Snyder “get away with it” as O.J. did, as well as comments about the Simpson case in his closing argument, showed that the prosecutor wanted to prejudice the defendant in the eyes of the all-white jury.

But Louisiana Assistant Attorney General Terry M. Boudreaux argued that the Simpson reference did not refer to race. The prosecutor, Boudreaux argued, was simply pointing out that both cases involved men who had attacked their estranged wives and their companions.

Justice David Souter was not easily sold on Boudreaux’s argument.

First, focusing on the role the trial judge played, Souter pressed Boudreaux on the matter. “There isn’t much reason, is there, to think that the trial court was being very critical of the prosecutor’s answers?” Souter began. “My recollection is that, after the O.J. Simpson remark had been made in final argument, that the ultimate resolution of that involved the trial judge saying that one reason that was not a racially significant remark was that the prosecutor had mentioned neither the race of the defendant nor the race of O.J. Simpson.

“Now that is not a critical mind at work, is it?” Souter queried, drawing laughter from the audience.

“I would suppose not, Your Honor,” Boudreaux acquiesced. More laughter.

“And because you suppose not and I certainly suppose not,” Souter continued, “the fact is that we have to consider the O.J. Simpson remark in trying to evaluate what went on, in trying to evaluate [the prosecutor’s conduct]. And that, in fact, is a fair and potent argument that the other side has, isn’t it?”

“Yes, Your Honor” Boudreaux said, but added: “The reference to the O.J. Simpson case was based on the factual similarities involving the O.J. Simpson case and this case.”

Souter was still skeptical.

[More after the jump]

“Do you believe that, if there had been a white defendant here, the O.J. Simpson case would have been mentioned?” Souter asked, leaning forward.

“Yes, Your Honor,” Boudreaux replied.

Souter interjected. “I will be candid to say to you, under the circumstances of the record in front of us, I find that highly unlikely,” Souter said. “And because I find that highly unlikely, I put significance in the O.J. Simpson remark which even you concede is significant.”

Boudreaux persisted. “Yes, Your Honor, but I think the reason it doesn’t fatally infect the proceedings with racism is I think the comment would have been made had O.J. Simpson not been white,” Boudreaux said. “I think perhaps the comment would have been made had it not been O. J. Simpson but some other high-profile white athlete celebrity.”

This drew in Chief Justice John Roberts.

“Even if you’re correct that a neutral explanation was given [by the prosecutor] do you think the prosecutor would have made the analogy if there had been a black juror on the jury?” Roberts asked.

“I think he would have, Your Honor. I know the contention is that he didn’t, but I think the facts are clear on this record that it was not an appeal to race, but it was an appeal to what was a historical fact, common knowledge among most people in the country, and the facts of this case.”

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