Snyder v. Louisiana – Oral Argument – December 04, 2007

Media for Snyder v. Louisiana

Audio Transcription for Opinion Announcement – March 19, 2008 in Snyder v. Louisiana

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John G. Roberts, Jr.:

We’ll hear argument next in case 06-10119, Synder v. Louisiana.

Mr. Bright.

Stephen B. Bright:

Mr. Chief Justice, and may it please the Court: The decision here of the majority of the Louisiana Supreme Court on remand from this Court is an extraordinary departure from the lessons that this Court taught in its Miller-El decisions.

And I point out sort of three overarching errors in that regard.

First, the majority looked at each of the Miller-El factors or some of them, and largely discounted them.

That there were five African-Americans struck, they whittled that down to two.

That there was disparate questioning, they identified that of the white jurors and Jeffrey Brooks, but they said that counted for the State.

And Miller-El clearly teaches that it didn’t.

They found there was no racial implication in the mention of O.J. Simpson case from the start of the case all the way through, because neither O.J. Simpson’s race nor Mr. Snyder’s race was mentioned.

Secondly, there were some Miller-El factors that were not considered at all, not even acknowledged.

For example, one of the most powerful ones, the failure to ask any questions of Jeffrey Brooks or Elaine Scott.

There are very ambiguous general reasons for striking them.

They asked no questions.

In this case, you could ask anybody any questions you wanted as a lawyer.

And then thirdly, when they got to the point of considering them cumulatively, they had now whittled them down to where there was very little to consider.

And our position is that what Justice Kimball did, the author of the original decision, who wrote the dissenting opinion, one of the two dissents here, actually did what this Court remanded this case to do, which was reconsideration in light of Miller-El, because when you consider all those factors together, nothing answers the question of or explains them as well as race.

You can pick each piece out, each leaf out and you can try to find an innocent explanation for it.

But when you stand back and look at it all together… and that’s why the court missed the fact that the back strike was racially motivated in this case.

It just simply didn’t look at these things in the context–

Samuel A. Alito, Jr.:

Can I ask you about one of the factors?

Stephen B. Bright:

–Sure.

Samuel A. Alito, Jr.:

It’s hard to discuss them all at the same time.

What is the relevance of strikes of black lawyers that you don’t argue were based on race?

It’s hard for me to understand why that’s relevant in this calculation.

Suppose there’s a case where it’s perfectly clear that certain strikes were not racially motivated.

Let’s say the prosecution has the strategy of striking every lawyer who’s on the panel.

It strikes every white lawyer and it strikes every black lawyer.

Then what is the relevance of the fact that the black lawyers were peremptorily challenged?

Stephen B. Bright:

Well, I see.

You mean the jurors happen to be lawyers and they are struck?

Samuel A. Alito, Jr.:

That’s right.

Stephen B. Bright:

There’s a common reason.

Well, if that’s the case and you have considered that in Miller-El, that’s a factor for race neutrality.

The difference here is the reason given for striking Brooks, for example, is he might have a reason to go home–

Samuel A. Alito, Jr.:

You are making the argument there were five African-American jurors who were the subject of prosecutorial peremptory challenges.

Stephen B. Bright:

–Yes.

Samuel A. Alito, Jr.:

And… but you don’t claim that three of those strikes were based on race?

Do you?

Stephen B. Bright:

Well, no different than Miller-El.

The Court in Miller-El says you look at the prima facie case because it is unlikely to happen by chance.

Samuel A. Alito, Jr.:

There were a large number of strikes in Miller-El.

This is a much smaller number.

Could you just explain, if you can, what is the relevance of strikes that you do not even claim were racially motivated?

Stephen B. Bright:

Well, the difference is that as in Miller-El it is unlikely to happen by happenstance.

They struck all the blacks they could in this case.

There were only five.

They struck every one of them.

And the way they went about striking them… and the context of all this… it doesn’t say that all five of those, that’s… Justice Alito, but that’s the classic Batson case where the prima facie case is strong, given the number of people struck, but you zero in on the particular jurors where doing the side by side comparison, the failure to ask any questions, the other factors that were identified–

John G. Roberts, Jr.:

I think that’s right that you zero in on the ones as to which you objected.

But you also want to rely on the fact that these other jurors were excluded, and no objection was made to their exclusion.

If an objection had been made, the State, of course, would have… could have explained if they had a reason, a non-racial one, why they were struck.

But you didn’t object.

And yet you want them to be considered as convincing racial bias.

Stephen B. Bright:

–Well, part of the reason they weren’t struck, Mr. Chief Justice, was one of the elements of race here.

The prosecution accepted the first black juror.

So when the second one, Gregory Scott is struck, there’s only one out of two.

There’s no the pattern.

Then Mr. Hawkins is struck.

Now it’s two out of three.

It is when Miss Elaine Scott was struck.

Stephen B. Bright:

And now it’s three out of four.

There’s still one African-American.

At that point defense counsel said there’s a pattern, and I strike based on the pattern of striking African-Americans.

Ruth Bader Ginsburg:

Couldn’t counsel at that point have gone back and said, ah, now I see what’s going on, so I’m going to challenge… I’m going to interpose a Batson challenge with respect to the second and third African-American?

Stephen B. Bright:

Or actually the first and second.

You’re right.

The second and third.

There was… that certainly could have been done.

I think basically the defense was snookered here.

But also, there was nothing to prevent the prosecution from giving reasons.

In fact, Mr. Oland, the junior prosecutor here, he starts to say, I struck Mr. Hawkins, and at that point Williams, the senior prosecutor, said, don’t say anything.

Stop–

John G. Roberts, Jr.:

Presumably because no objection was raised as to Mr. Hawkins.

I mean, it is… the burden is on you to object if you think jurors are being excluded on a racial basis.

Stephen B. Bright:

–Well, but the only thing we’re putting the pattern forward for is step three of Batson, where both Miller-El decisions make it quite clear that if the numbers are such that it is unlikely to happen by happenstance, that’s one element.

It is not that all five necessarily were struck on the basis of race.

But it is the fact that that unlikely event, that five out of five were struck, informs that decision in Batson saying looking at all relevant facts, it doesn’t exclude… I’ve seen Batson challenges where a lawyer will say, well, with regards to five and six, then we think those are particularly strong, not with regards to others… Miller-El did that.

They only challenged seven on direct appeal, only challenged six on the habeas corpus case that ultimately made its way to this Court, and this Court only found with regard to two.

John G. Roberts, Jr.:

Out of… out of how many who were struck.

Stephen B. Bright:

Ten.

So they only challenged seven of those on… on direct appeal, six on habeas corpus, and this Court only found Jurors Fields and Juror Ward.

That’s basically… we’re here saying, you struck five out of five, all that he possibly could have, and Juror Brooks… if you look at all the Miller-El factors with regard to Jeffrey Brooks, just two general reasons that probably applied to everybody there.

He was nervous; I expect every citizen called out of their home or out of their work–

Antonin Scalia:

The district judge is in a much better position to decide those matters, such as you know, he… his… his response was… was slow on… one the question of, you know, whether he could consider the death penalty.

I can’t tell that from a cold record, and that’s why we… rely upon the trial judge.

Stephen B. Bright:

–Well, that was with regard to Ms. Scott.

Antonin Scalia:

Right.

Stephen B. Bright:

Justice Scalia, there… only one juror here was ambivalent about the death penalty, said she wasn’t sure.

She’s cross-examined for four or five pages of transcript.

23… 21, I’m sorry… jurors are asked if they are opposed to the death penalty and answer the question yes.

Stephen B. Bright:

21.

Every single one is asked at least two and some were asked more questions.

The only person not asked any questions was Elaine Scott.

She first says, could you impose the death penalty?

“I think I could”.

Then she says later, “I could”.

If you look at the three jurors right before her, Mr. Boyd, Ms. Sara Coney, Mr. Salita, “I could consider it”, Miss Scott, “I could”.

They all give the same answer.

Two of those people, Justice Scalia, end up on the jury in this case.

John G. Roberts, Jr.:

Well, I’m looking at… at the joint appendix on page 360.

As I read it, Miss Scott gives an answer that can’t be heard, right?

Stephen B. Bright:

Right.

The first time.

John G. Roberts, Jr.:

Ms. Dupont says,

“I’m sorry, I can’t hear you. “

I mean, we don’t know; since we weren’t there if it was kind of, you know, “I think I could” and then “I think”… I mean, you know, it’s an atmospheric determination by the… the district court judge; and as… as has been pointed out here, all we have is the cold transcript.

Stephen B. Bright:

Well, then, just a couple of pages later, Mr. Chief Justice, she says I could.

She gives the same answer that the–

John G. Roberts, Jr.:

That’s on joint appendix 401?

Stephen B. Bright:

–Yes.

John G. Roberts, Jr.:

And… and the problem with that, of course, is it’s–

Stephen B. Bright:

I’m sorry.

367.

John G. Roberts, Jr.:

–367.

Stephen B. Bright:

She says 361.

And then just a few pages later they go each juror, and she says “I could”.

John G. Roberts, Jr.:

Well, but… the question is not could you consider the death penalty.

It says could you consider both, when they’re going through several of the juries.

Jurors.

Stephen B. Bright:

Well–

John G. Roberts, Jr.:

And I thought that was… the point was made by your friend on the other side, was that it was ambiguous as to what option she was saying she could consider.

Stephen B. Bright:

–Well, I’d invite the Court to look at that.

Because what that starts out with is a question about life.

Could you consider life imprisonment.

And then when Ms. Goff is answered, she says the death penalty, could I consider it?

Yes, I could consider it.

And then everybody says they could consider it.

Now, the Louisiana Supreme Court treated this as her saying I could consider the death penalty.

That’s what they said.

But here’s the other point with Miss Scott.

It only took one question: Ms. Scott, what did you mean when you said I think you could?

I mean that was in Miller-El… in the opinion in Miller-El II, the fact that Fields wasn’t asked any questions about the position on the death penalty.

He had expressed some; but if the prosecutor–

Antonin Scalia:

Well, these are peremptory challenges.

It seems to me if you have one… one juror who says I think I could and another one who said I could, I’m going to strike the one who said I think I could.

Stephen B. Bright:

–But Justice Scalia, there’s no reason you wouldn’t ask them what they meant.

And that’s what the prosecutors did with all the white jurors here… every single one.

It’s only Ms. Scott, Elaine Scott that there’s no questions asked about the reasons they gave for striking her.

So they had the opportunity to ask her what she meant and they asked all 21 of the white jurors.

They asked the–

Antonin Scalia:

Did all 21 say I think I could?

Stephen B. Bright:

–No.

All 21 said no.

And then the prosecution asked them follow-up questions about what their beliefs were.

So in those situations, the prosecutor is asking questions to be sure to clarify their position on the death penalty.

Miss Calligan is the only one who says well, I’m not sure.

So they asked Ms. Calligan a number of questions.

How long have you thought about it?

What do you think?

All those sorts of things.

Stephen B. Bright:

Ultimately it is pretty clear Ms. Calligan is opposed to the death penalty.

Samuel A. Alito, Jr.:

Mr. Bright, you make good arguments about comparisons between white jurors and black jurors.

Stephen B. Bright:

Yes.

Samuel A. Alito, Jr.:

What do we do with the comparisons that you are making now to white jurors who were never brought to the attention of the Louisiana Supreme Court?

Stephen B. Bright:

Well, I think Miller-El, again, answers that, because the entire voir dire was before the Louisiana Supreme Court.

On remand from this Court arguments were made about the… the disparate questioning of jurors; and also with Jeffrey Brooks, where that’s also very clear because the reason given for striking Jeffrey Brooks is that he would have a reason to want to go home early.

My experience is most jurors taken out of their homes and out of their work, would like to finish their job and go home early.

Samuel A. Alito, Jr.:

I think you have a good argument in comparing him to some of the white jurors, in particular Mr. Laws.

Stephen B. Bright:

Right.

Samuel A. Alito, Jr.:

But my understanding is you never relied on Mr. Laws before the Louisiana Supreme Court.

Is that correct?

Stephen B. Bright:

Not Mr. Laws specifically, but you can look at the other people that are mentioned in Justice Kimball’s dissent.

Mr. Yeager had something coming out on Sunday; he wanted to get home for that.

Brandon Burns–

Samuel A. Alito, Jr.:

But the arguments as to each of them are different.

The argument as to Mr. Yeager, I think is much weaker.

He had one event on a Sunday and he was told you don’t have to worry about that, this case is going to be over by Sunday.

Stephen B. Bright:

–Well–

Samuel A. Alito, Jr.:

So that’s quite different from somebody… it could be quite different from someone like Mr. Brooks or Mr. Laws.

Isn’t that?

Stephen B. Bright:

–Actually the reason they say they’re concerned about Mr. Brooks is because he was told, your dean says it won’t be a problem.

And he says okay.

No further expression of worry by him.

There is, by the other jurors, that were accepted… they all say on the record I need to get back to my job, to my family.

Mr. Burns… a single parent, teenagers, 89-year-old grandparents that he wants to get back to.

All of those people accepted by the State.

And Justice Kimball deals with some of those in her dissenting opinions, and they’re briefed up to the Louisiana Supreme Court on remand from this case.

But I believe Miller-El III… or II–

Antonin Scalia:

I don’t understand how the dean could resolve his problem.

Stephen B. Bright:

–Well, he’s the dean.

Stephen B. Bright:

[Laughter]

Antonin Scalia:

The man’s problem, what he’s worried about is that he has to put in a certain number of hours of teaching.

And what was it?

A couple of months before the end of the term?

It was going to be very–

Stephen B. Bright:

No, this was in August.

This was right before the Labor Day weekend in August.

The term went all the way to December, Justice Scalia.

And he, at this point… Brooks… was just observing someone else teach.

I mean, he wasn’t teaching himself.

Antonin Scalia:

–Whatever.

He had to be there to observe.

He had to put in a certain number of hours.

How could the dean say oh, don’t worry, it’s no problem?

Stephen B. Bright:

Well–

Antonin Scalia:

The hours requirement is a requirement for the degree.

I don’t think deans have the ability to… to waive degree requirements.

Stephen B. Bright:

–Well, with all due respect, Your Honor–

Antonin Scalia:

Maybe the dean was just saying oh, he’ll be able to do it, and–

Stephen B. Bright:

–Well–

Antonin Scalia:

–that wouldn’t inspire a great deal of confidence in me, even if I said okay.

Stephen B. Bright:

–Well, again, it would have only taken one question.

One question… Mr. Books, now that you’ve heard that your dean said it won’t be a problem, do you have further concerns about wanting to get home quickly?

Mr. Brooks–

Antonin Scalia:

My reaction would be… would depend on how he said okay.

And if I were sitting there as the trial judge, I… I could discern whether okay meant well, you know, that’s what he says but I’m still going to have a hard time digging out those hours for the remaining time that I have in the term.

I don’t know how he said okay.

Stephen B. Bright:

–If–

John G. Roberts, Jr.:

If–

Stephen B. Bright:

–If I could answer that question, Mr. Chief Justice.

Stephen B. Bright:

If you’re the lawyer standing there beside him and he says what you just said, then you ask him one question.

But there’s a professor, Sanders; he’s not watching class; he’s teaching class at the start of a semester at the University of New Orleans; and he doesn’t… it is no speculation.

With Brooks it’s all speculation.

With Sanders–

John G. Roberts, Jr.:

–With Brooks, what he said when he said I’m missing right now something that will better me towards my teaching career, and they say… and the judge says, is there anybody who could speak to it?

And he says, I’ve already talked to the dean.

And so based on the initial conversation with the dean he was still worried.

Stephen B. Bright:

–Well–

John G. Roberts, Jr.:

Then the judge calls the dean, and of course the dean’s going to–

Stephen B. Bright:

–No problem.

John G. Roberts, Jr.:

–Well, that’s what he’s going to say to the judge.

When Brooks talked to him, apparently there was a problem because his concern remained after having talked to the dean.

Stephen B. Bright:

Brooks doesn’t say there’s a problem.

He gives the–

John G. Roberts, Jr.:

He says I’m missing right now–

Stephen B. Bright:

–Something that–

John G. Roberts, Jr.:

–Something that could help me out towards my teaching career.

Stephen B. Bright:

–Sure.

Every… the judge had given this hardship question; we’re going to sequester the jury, you’re not going to be allowed to communicate with anybody.

You’re going to have to stay out at the Travelodge while this case is going on.

Of course, he doesn’t say at that point how long it’s going to be.

And 44 people come forward.

But all… with most of those people, like with Brandon Burns, who has got to get back to his landscaping business, Mr. Laws who’s has to get back two homes he’s building; his wife is recovering from surgery and taking his children to school every day… all those people are assured this case is going to be over by Saturday; it’s not going to go very long.

This argument that they were worried that the jury might be out for a long time.

John G. Roberts, Jr.:

I don’t understand your answer that Mr. Brooks did not say there was a problem.

He says, I’ve already missed half a day.

There’s something I’m missing right now that will better me towards my teaching career.

He says I’ve already talked to the dean.

How can you say he isn’t identifying a problem?

Stephen B. Bright:

Well, he… he’s saying, again, not knowing how long this is going to last, or what’s going to be expected of him… right now I’m missing something to help my education.

Stephen B. Bright:

Everybody is missing something that’s going to help them in their job, with their families, or whatever.

But once the judge calls him back up to the bench and says, we’ve talked to the dean.

He said it is not going to be a problem for you to be here, most students I know… and I know a lot of you have had experience with students… once they’re assured by the dean that it’s not going to be a problem, it’s not going to be a problem.

Antonin Scalia:

Even if the assurance is only secondhand, right?

Stephen B. Bright:

Well, I think when the judge–

Antonin Scalia:

When the dean says it’s okay, that’s all right.

Stephen B. Bright:

–The judge of the court, the presiding judicial officer there, says we’ve talked to your dean, and it’s not going to be a problem for you to be here this week.

And everybody is told this week we’re going to try this case.

This is a Labor Day weekend coming up.

We know you will send the jury out on Friday afternoon.

You’re not going to wait too long for that verdict probably.

And everybody is told… you’re going to be out of here by Saturday.

Mr. Yeager, you’re going to be out of here by Sunday.

So we’re talking really about Mr. Brooks missing three more days.

This is on Tuesday.

This case is over on Friday.

And everybody knew it was going to be over on Friday, because they told jurors over and over and over again that it was going to be over by Friday, so… or Saturday at the latest.

So I… I would say, again, no questions asked.

The lawyers had an opportunity right there when they told him the dean says it’s not a problem.

Then later he’s called in panel 1.

You can ask… you see this voir dire.

It is very interesting.

It is very short, but the lawyers could ask individual questions to any juror out there on the panel.

Mr. Brooks, do you have any concern that you won’t be able to concentrate because you need to get back to school?

They asked that question over and over, as we pointed out in our brief, of white jurors.

In fact, the Louisiana Supreme Court, in what I think is one of its great legal errors–

Samuel A. Alito, Jr.:

Well, suppose you are trying this case.

You are a defense attorney, and you ask a juror, a potential juror: Would you hold it against a defendant who doesn’t take the stand?

And the initial answer is: I have to think about that.

I’m not quite sure.

Samuel A. Alito, Jr.:

Now… and then you go on, and you ask a lot of questions, and the juror comes around to saying: I understand that’s a person’s constitutional right.

They get the… advice from a lawyer.

It doesn’t necessarily mean the person has something to hide, et cetera, et cetera.

Does that additional questioning allay the concern that you would have had at the beginning about the fairness, the potential fairness, of the juror?

Stephen B. Bright:

–Well, I think you have to look not only at those answers but… but what the court in Miller-El II said were the side-by-side comparisons.

If you’re asking the white jurors follow-up questions to determine that, then that, I think, cuts very much against the prosecution and supports an inference of racial discrimination.

If you basically asked everybody about the same thing, you can’t draw that inference.

But the Louisiana Supreme Court said here there was consistent questioning of the jurors about whether whatever their other obligations were, it would interfere with their ability to sit as jurors.

There is consistent questioning of everybody except Jeffrey Brooks.

And that’s the one African-American who the court… who the prosecutors then say they’re striking for that reason.

Ruth Bader Ginsburg:

Mr. Bright, the Judge was quite passive, and was… was the judge, in fact, present throughout the entire voir dire?

Stephen B. Bright:

I… I think the judge was present, but he was quite passive.

One of the more remarkable aspects of this jury selection is when he grants a defense strike for cause, the prosecutor, Mr. Williams, says… are you crazy?

And the judge says: No.

And they go right on to the next fact.

You know, I… I practiced law for 30 years.

Antonin Scalia:

It sounds like the right answer to me.

[Laughter]

Stephen B. Bright:

It wasn’t the right question.

I’ve often wondered about that, but I’ve never articulated it.

[Laughter]

And I think most lawyers wouldn’t.

There’s another point where Williams tells the judge: Swear all these people to say they’ve got a valid reason for leaving, and send them all out of here… swearing people to say something that may be true or may not be true.

And the judge says: Well, do I do it individually, or do I do it in a group?

He says: Do it in a group.

Just have them all swear that they’ve got a legal reason, a hardship reason, to be excused.

And the judge goes right along with it.

I think what we see with the judge in every ruling here is four or five words: I’m going to allow it.

I’m going to allow it.

The judge is not engaged in questioning.

Stephen B. Bright:

Unlike Uttecht v. Brown that Justice Kennedy wrote about last term where you have a judge involved and hearing the lawyers and whatever, that’s not present here.

So I think that when you look at that factor, you don’t have assurance that this judge was involved in a way to make sure that the credibility determinations which were being made… and the other point I would make is here he’s ruling on the Batson strikes as the jury is being selected.

So he doesn’t have all of the information.

Now, he does rule again on the motion for a new trial.

That’s the only time that all of the information, all of the relevant information, is before the judge.

But, there again, all he says is I think the prosecutor’s reasons were race-neutral.

There is no indication that he went beyond that to consider what Batson said and what Miller-El says we have to consider, which is all the relevant factors.

John Paul Stevens:

Mr. Bright, may I ask, in your judgment, was all the reference to O. J. Simpson relevant at all to what is before us?

Stephen B. Bright:

I think it is, Justice Stevens, and I think, even if you don’t look at the closing argument, which tells you two important things… first of all, the prosecutor broke his promise to the judge that he wouldn’t mention it.

He said as an officer of the court, I will not mention it.

Antonin Scalia:

What does that have to do with anything?

Stephen B. Bright:

It has to do with–

Antonin Scalia:

So he broke his promise.

I mean sue him or something, but I don’t see how it has anything to do with whether a fair jury was… was–

Stephen B. Bright:

–It has to do with his credibility, which is very much what Batson is about.

But… but to the O. J. Simpson case, I think the prosecutor’s obsession with O. J. Simpson… a month before he mentions it in a pretrial hearing.

The defense moves to ask to quit referring to the O. J. Simpson case in the media; and, for goodness sakes, Judge, don’t let him refer to it before the jury.

And the… the defense makes quite clear: The polls show that the society is divided.

This was ten months ago that Simpson came down.

It is a very polarizing case.

The fact that he is mentioning it is going to inject racial prejudice into this case.

John G. Roberts, Jr.:

What about the explanation that was given that this was referring to the defendant’s feigning emotional distress rather than anything to do with race?

Stephen B. Bright:

Well, I think, Chief Justice Roberts, it doesn’t have anything to do with that.

John G. Roberts, Jr.:

What doesn’t have anything to do with it?

Stephen B. Bright:

The fact of whether or not Mr. Snyder was, in fact, suicidal is not rebutted in any way by bringing in the most racially polarizing case in the country and saying that Simpson was trying to get away with it.

Antonin Scalia:

–Well, that’s not just racially polarizing.

I mean maybe it is that, but it is also a case in which a man killed his wife with a knife.

Stephen B. Bright:

Yes.

Antonin Scalia:

The same as here.

Stephen B. Bright:

Well, there are a lot of similarities.

Antonin Scalia:

And then feigned a mental illness by his… his great-escape escapade, and that is… that is what the prosecutor said he was trying to bring before the jury.

Stephen B. Bright:

Well… and he said Simpson got away with it.

Snyder couldn’t have possibly known that, because the verdict in Simpson didn’t come down until after Snyder’s crime had been committed.

So he couldn’t have been imitating, if that is what he was arguing… he couldn’t have been imitating O. J. Simpson.

I… I think what this prosecutor learned from O.J. Simpson, Justice Stevens, is that you don’t let blacks on the jury.

I mean I think he saw that this racially mixed jury in Los Angeles let him… quote… “get away with it”, and we’re going to have an all-white jury here in Jefferson Parish, Louisiana.

And unlike what happened out there, we’re not going to let… of course, this was at the penalty phase.

He could only get life without parole or the death penalty.

He wasn’t going to get away with anything.

But that was the way it was pictured to the jury: That if they didn’t give him the death penalty, he would get away with it.

John G. Roberts, Jr.:

So the relief you are requesting goes only to the penalty and not to the conviction?

Stephen B. Bright:

No, Chief Justice Roberts.

This was in striking the jury, and there’s no prejudice requirement with race.

Allen Snyder is entitled to a new trial with a fair jury that represents the community.

So I think that–

John G. Roberts, Jr.:

Even though… even though your theory is that it was only with respect to the penalty that the bias… you have no allegation–

Stephen B. Bright:

–Oh, no.

John G. Roberts, Jr.:

–that this jury did not return a valid conviction.

I thought your objection was with respect to the death penalty.

Stephen B. Bright:

No.

Let me… let me make this quite clear.

Our objection is that when the jury was selected, in terms of the disparate questioning, disparate acceptance, failure to ask any questions, racial prejudice infected the selection of the jury.

All the O. J. Simpson case does is put a little icing on the cake.

But if you look at the Miller-El factors and you consider them cumulatively, like Justice Kimball did in her dissent, you come away once again with what the Court said in Miller-El.

The evidence is too powerful.

It all points in one direction, and that’s intentional race discrimination.

And that was in the jury.

And if that happened, Allen Snyder is entitled to a new trial.

If I could, I’d reserve the rest of my time.

Thank you.

John G. Roberts, Jr.:

Thank you, Mr. Bright.

Mr. Boudreaux.

Terry M. Boudreaux:

Mr. Chief Justice, and may it please the Court: I had some prepared remarks to begin with, but I think I’d like to go straight into responding to some of the concerns that have just been raised.

First of all, concerning Elaine Scott, the lady who said “I think I could”.

I think the record is quite clear that she was being asked about considering life imprisonment.

Beginning at 364 of the joint appendix, the question is asked by the prosecutor four times:

“Could you consider a sentence of life imprisonment? “

“Could you consider the possibility of life imprisonment? “

“Could you consider life imprisonment”?

“It is whether you could consider life imprisonment. “

You get to Ms. Scott, the answer is “I could”.

She’s the lady who said originally, “I think I could”.

So the prosecutor’s–

Antonin Scalia:

As to life imprisonment or as to the death penalty?

Terry M. Boudreaux:

–As to life imprisonment, Your Honor.

As to death, she said “I think I could”.

When it got to life imprisonment, the full question asked four times, among various… going down the list… is when she said–

Antonin Scalia:

Where is this?

I… 364?

Show me–

Terry M. Boudreaux:

–Beginning at 364 of the joint appendix, Your Honor.

I just wanted to point out the question posed is regarding life imprisonment.

Antonin Scalia:

–Right.

Terry M. Boudreaux:

She was originally asked the question about the death penalty, and her response was the “I think I could”.

John G. Roberts, Jr.:

Mr. Bright contrasts that with the more probing inquiry with respect to white jurors who said “I think I could”, and here there was no follow-up.

Terry M. Boudreaux:

That’s true, Your Honor.

In… in reviewing this record, there are instances where… where there were not a lot of follow-up questions.

We see the situation with Mr. Brooks.

This jury, unlike the jury in Miller-El, which took five weeks, this jury took less than a day and a half to pick.

So there were not a lot of probing questions.

Samuel A. Alito, Jr.:

The explanation for Mr. Brooks is not terribly convincing on its face.

This is… was an incredibly short trial, was it not?

Mr. Brooks is voir dired on Tuesday.

And there’s a death verdict on Friday.

Terry M. Boudreaux:

Yes, sir.

Samuel A. Alito, Jr.:

And the concern… the major concern about him is that he’s going to worry about missing Wednesday, Thursday, Friday student teaching?

Terry M. Boudreaux:

Yes, sir.

But you see–

Samuel A. Alito, Jr.:

But you compare him to some of the white jurors, particularly, I think, Mr. Laws.

Mr. Laws seemed to have a more compelling reason to be worried about not being… about being in court.

He was a contractor.

He had houses he had to finish.

His wife had recently had surgery.

He was taking kids back and forth to the school.

Terry M. Boudreaux:

–Yes, sir.

Mr. Laws, like Mr. Brooks, I think it’s good to point out, approached the bench of his own volition.

Other… other individuals waited until they… if they were called and were questioned.

The way the proceedings began, when the venire were summoned into the courtroom, the judge introduced the staff, read the statutory requirements for jury service, and then they started lining up.

And one of the people lining up to express his concern, not just about meeting the requirements to be a juror, was

“I’ve got class, I’ve got. “

–and I think it’s–

Ruth Bader Ginsburg:

Mr. Laws was an identical… he came up too.

He said–

Terry M. Boudreaux:

–He did come up, and I think the distinction there, Your Honor, is that like several of others, unlike Mr. Brooks, in the end he said

“I can make arrangements. “

“I can deal with it. “

Stephen G. Breyer:

Can I go back to Ms. Scott?

Terry M. Boudreaux:

I’m sorry.

Stephen G. Breyer:

Could I go back to Ms. Scott?

Terry M. Boudreaux:

Ms. Scott?

Stephen G. Breyer:

Yes.

If you look at the top of 367 and then you look over at 366, the format, I think, is that the prosecutor is posing a general question.

And then he poses his question… or she… and goes around and gets an answer.

Here is Mr. Lindey.

So they start out with the death penalty.

They have some ambiguous thing at the bottom of 366.

Then the prosecutor says,

“Mrs. Alvarez… Ms. Alvarez, you said you could not impose the death penalty. “

“Mrs. Goff… Ms. Goff: I could consider the death penalty. “

“Ms. DuPont: I couldn’t hear. “

“Prosecutor: You could consider both? “

“Yes, I would consider it. “

“Ms. DuBois: I could consider it. “

“Yes. “

“Ms. Archonie: I could consider it. “

“Mrs. Alvino: I could consider it. “

“Ms. Scott: I could. “

“I could. “

Now, that doesn’t seem too ambiguous for me… to me.

It seems that what they’re talking about, each of them, is the death penalty because that’s what, by the time they got to the top of 367, they were talking about.

Maybe there’s ambiguity there.

Terry M. Boudreaux:

I don’t–

Stephen G. Breyer:

But I haven’t noticed in anybody’s opinion, so far, making that point that you just made.

Terry M. Boudreaux:

–I would submit that… that would indicate ambiguity, Your Honor, that the prosecutor starts off with the life imprisonment question, and then it sort of morphed into a death penalty.

But, by the time you get back to Ms. Scott–

Stephen G. Breyer:

No… well, there’s… I just read you what it was, so I guess people make up their own mind about that.

But by… what I don’t think you can make up your own mind as ambiguous is when this prosecutor met with an answer that he considered not… call it strictly kosher, when he found that, like Mrs. Calligan, she said, “I’m not sure”.

That’s more ambiguous than Mrs. Scott.

And then he goes on, for three pages of additional questioning, and then 26 pages later, he doesn’t excuse her yet and he doesn’t excuse her until she volunteers,

“I could give a verdict… I don’t think I could give a verdict to take someone’s life. “

Stephen G. Breyer:

And it’s at that point that the prosecutor excuses her.

Now, compare that to Ms. Scott, who started out saying “I think I could” and then, as I read it, said “I could”.

Now, that’s the kind of comparison here.

No follow-up.

At the worst, minor ambiguity.

Terry M. Boudreaux:

–Yes, Your Honor.

What–

Stephen G. Breyer:

And a slight hesitation.

Now, what do you say to that?

Terry M. Boudreaux:

–One of the weaknesses in some these jurors is a lack of follow-up questions.

But I think we go back to her original comment, which was so softly spoken that the defense attorney said “I can’t hear you”.

There’s nothing–

Stephen G. Breyer:

And that, of course, is a problem I have generally in this area.

We can always imagine that things that are not in the transcript, perhaps what she said spokenly not in the transcript is

“I hate the death penalty. “

“I’ll never… I’ll never apply it under any circumstances. “

And I grant you, if that’s the law, we are never going to find that there’s any prejudice.

But I just don’t see how that could be the law.

Terry M. Boudreaux:

–In the totality of her responses, the ones that were heard which are on the record and the ones which were not heard which are not on the record, the prosecutor felt that she was weak on the death penalty.

And that on its face is a race-neutral reason.

Stephen G. Breyer:

Well, of course… sorry.

Terry M. Boudreaux:

Well, I would just say that the… we’re talking here with the prosecutor’s perception of the juror based on her answers and the the trial court’s perception in evaluating the prosecutor’s proper race-neutral reasons.

Could someone look at this and say it’s to the contrary?

Yes.

But in the… in the totality of the circumstances and the reviewing for clear error with the benefit, of course, that the trial court has in being present, hearing or not hearing what was said, the tone of voice, the demeanor, the mannerisms, the deference’s–

David H. Souter:

There… there isn’t much reason, is there, to think that the trial court was being very critical of the prosecutor’s answers?

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 neither… 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?

[Laughter]

Terry M. Boudreaux:

–I would… I would suppose not, Your Honor.

Terry M. Boudreaux:

[Laughter]

David H. Souter:

And because–

Terry M. Boudreaux:

The objection was–

David H. Souter:

–And because you suppose not and I certainly suppose not, the… the fact is that we have to… we have to consider the O. J. Simpson remark in trying to evaluate what went on, in trying to evaluate, for example, the lack of critical follow-up in… in a disparate way by the prosecutor.

And that, in fact, is a fair and potent argument that the other side has, isn’t it?

Terry M. Boudreaux:

–Yes, Your Honor.

I would like to respond to that by pointing out, though, that the reference to the O. J. Simpson case was based on the factual similarities involving the O. J. Simpson case and this case.

David H. Souter:

Do you believe that, if there had been a white defendant here, the O. J. Simpson case would have been mentioned?

Terry M. Boudreaux:

Yes, Your Honor, and I believe if the O.J. Simpson case–

David H. Souter:

See, I’d be candid… I will be candid to say to you, under the… under the circumstances of the record in front of us, I find that highly unlikely.

And because I find that highly unlikely, I put significance in the O. J. Simpson remark which even you concede is significant.

Terry M. Boudreaux:

–Yes, Your Honor.

But I think the… 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… I think perhaps the comment would have been made had it not been O. J. Simpson but some other high-profile white athlete celebrity; and I think it is appropriate, putting aside for the moment the assurance to the court that he wouldn’t mention it… but it was in response to the defense counsel’s argument.

This defendant was tried on a plea of not by season of insanity.

The murders are committed; several hours later he’s barricaded in his house, calls the police claiming to be suicidal; the police respond.

He gets up, unbarricades the door, lets the police in; then goes back into his fetal position.

To rebut the… this perhaps he’s thinking, and I think it is significant in Defense Exhibit 2 at trial, what… the defendant’s statement taken several hours later, he’s oriented; he’s aware of the situation; he knew he had done something wrong, was in… and was in trouble.

John G. Roberts, Jr.:

Mr. Boudreaux, even if… even if you’re correct that a neutral explanation was given focusing on the emotional distress, are you… do you think the prosecutor would have made the analogy if there had been a black juror on the jury?

Terry M. Boudreaux:

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.

The defendant’s statement as I said would betray no mental lack of wherewithal.

When the search warrant was executed his bloody shirt was found in the attic of his house.

That’s at page 1311 of the record.

It is not in the… it’s not in the joint appendix.

But when the defense attorney brings up the police coming to the house and… and he agreed that the police officer’s testimony was correct, he’s in a fetal position; he’s saying they’re coming to get me, I’m suicidal, the defense attorney is bringing up the mental aspects of this case.

So I think it was appropriate for the prosecutor to look at the record and… and to rebut that.

Ruth Bader Ginsburg:

–Before… before the rebuttal, this prosecutor was going around advertising this as his O. J. Simpson case, and the defense attorney said please, Judge, get him to stop saying that.

This is long before… you are painting a picture of someone who was answering an argument made by the defense, but this prosecutor initiated it, and the defense attorney was reacting.

She said judge, he’s talking in this county, that county about this is his O. J. Case; stop him from doing that.

Terry M. Boudreaux:

That’s correct, Your Honor.

Ruth Bader Ginsburg:

Then he says I’m an officer of the court, and I’m giving you my word.

Terry M. Boudreaux:

That’s correct; and then he believes… despite his assurances, when the defense attorneys made the argument they made, they were inviting that… that response.

David H. Souter:

Well, do you… do you believe that it would have been appropriate at that point for the prosecutor to invoke in his argument any case from any state in which a criminal defendant had unsuccessfully feigned insanity as a reason to decide… for the jurors to decide that this defendant is… is feigning insanity?

Terry M. Boudreaux:

I think any historical fact well known to people would have been fair game.

Just as an analogy, remember this situation.

The jury is instructed, argument of counsel is not evidence; take it for what you think it’s worth.

This was the historical reference this prosecutor used: The facts are similar.

Contrast that with the… or… kind of, almost similar to that when we’re talking about racism being part of these proceedings, one of the amicus briefs refers to David Duke.

If Your Honor is not aware, in New Orleans, Louisiana, for a number of years David Duke is high profile Ku Klux Klan.

In some of the voir dire in this case, at page 221, 222 of the joint appendix, it is defense counsel who brings up David Duke.

Now you understand if David Duke was on trial here today and we had a photo album of him in his robes, he would still be entitled to a fair trial.

So she’s using–

Stephen G. Breyer:

Exactly.

He’s entitled to a fair trial without prejudice.

Terry M. Boudreaux:

–Right.

Stephen G. Breyer:

So I think you have two instances here.

One is Mrs. Scott, and the other is Mr. Brooks.

And with regard to Mr. Brooks, what I’ve read in the transcript is that he was nervous and unhappy, because he’s learning to be a teacher, and he’s afraid he’s going to miss some student teaching time which will count against him.

Stephen B. Bright:

Yes, sir.

Stephen G. Breyer:

What it says is the clerk called the dean and the dean said it he won’t, don’t worry about it, which Mr. Brook is then told.

He’s challenged for that reason.

He might still worry about it.

But Mr. Laws is not.

And Mr. Laws is a self-employed contractor who announced to the court, I have a big problem this weekend; two houses are near completion, the owners are supposed to be moving in; my wife has just had a hysterectomy, she’s supposed to be taking care of the children back home, and I… she has nobody to help.

Okay?

He’s not challenged.

So we’re not worried about Mr. Laws worried about his wife and his business which going down… you know, serious.

But we are worried about Mr. Brooks, who has been told by the dean you have no problem.

Now, that’s a little bit of a problem to me.

Terry M. Boudreaux:

Yes, Your Honor.

Stephen G. Breyer:

If you add them up, we have Ms. Scott we have Mr. Brooks, we have the mention of… and three others… three others, the only other three black people are challenged off, and we have the… no black juror us on and we have the references to O. J. Simpson beside.

Okay?

All right so, there you are.

Full case against you.

Terry M. Boudreaux:

Your characterizations are… are correct, Your Honor.

I won’t dispute the factual allegations, but the key thing to point out there is Mr. Laws said he could make arrangements.

It is difficult; it’s… the jury duty happens.

Ruth Bader Ginsburg:

What’s the difference between that and “okay”?

Terry M. Boudreaux:

I’m sorry?

[Laughter]

Ruth Bader Ginsburg:

One says I can make arrangements, and the other is more economical and he says “okay”.

Terry M. Boudreaux:

But that… he said… I think that’s the landscape man, he said, as long as it wasn’t a prolonged… as.

Stephen G. Breyer:

No, she means the dean.

The dean–

Terry M. Boudreaux:

Oh, the dean–

Stephen G. Breyer:

–said no problem at all.

What better arrangement can you want?

Ruth Bader Ginsburg:

–meaning Brooks.

Terry M. Boudreaux:

–Brooks says–

David H. Souter:

Brooks says okay.

Ruth Bader Ginsburg:

The difference is between “I can make arrangements” and “okay”.

Terry M. Boudreaux:

–The difference… difference there, Your Honor, is that Mr. Brooks needs to make these classroom… undergraduate requirements to graduate.

There’s a day that’s going to come when he’s either made his requirements to graduate, or he has not.

The people with the jobs, the contractors, their jobs are there when they got… when they got out of court, when trial was over.

If Mr. Brooks didn’t meet his requirements, he was not going to graduate.

And I would be a little careful to take it as face value from the judge’s law clerk calling the dean who then… she comes back and says it is a 300-hour observation.

That’s obviously wrong.

David H. Souter:

Well, I wouldn’t take it at face value if there had been a further question asked of Mr. Brooks saying, are you really satisfied you have nothing to worry about?

And he says well, gee, boy, I sure hope I… I’m able to make that requirement.

But nobody asked that question.

Terry M. Boudreaux:

Nobody asked that question.

David H. Souter:

All we have is got is “okay” on the one hand and “I can make arrangements” on other.

Terry M. Boudreaux:

We also have, Your Honor, as far as the question of Mr. Brooks is concerned, a fact that is not articulated by the prosecutor but which would be supported by the record.

He’s an education teacher; he’s young; prosecutors in a death penalty case I think would shy away from asking or leaving on a jury a young person.

A teacher, maybe perhaps more sympathetic, maybe more understanding… nothing wrong with that, but maybe that’s not who a prosecutors seeking a death penalty–

Antonin Scalia:

Well, we… we have to go… your… this is enough of a fact-specific inquiry for any appellate court, even when we go into the allegations that the prosecution did make.

Now you’re saying we also have to imagine other reasons, which he didn’t state were the reasons why he struck, but which might have been.

You really think that that’s enough to–

Terry M. Boudreaux:

–That’s the problem with this record.

The State says–

Antonin Scalia:

–It is not the problem with it.

It is your problem with the record.

[Laughter]

It is not mine.

Terry M. Boudreaux:

–The plausibility of the prosecutor’s reasons stand or fall on what he says.

The other things perhaps the court will say he didn’t say that; we’re not going to consider them.

But talking about a fact… factual specific inquiry before an appellate court, that brings us back to the… to the discretion afforded the… not the discretion, Your Honor, the deference afforded the trial court who is present for the proceedings, who is there, passive or otherwise.

He’s there.

He sees what’s going on, the demeanor–

John Paul Stevens:

May I ask you about Juror Hawkins.

You haven’t talked much about him.

Terry M. Boudreaux:

–Hawkins?

John Paul Stevens:

Why did they strike him?

He seemed to me to be a pretty good juror for the prosecution.

Terry M. Boudreaux:

Your Honor, that’s a question I’ve asked myself; and I can’t… I’m not… you would think on the surface of it he would have been a good juror for the State.

What I think is equally clear is that the defense would… objected to his being excused but didn’t make a Batson claim because I don’t think they wanted to go there.

They would not have wanted that juror on their jury.

He said he had–

John Paul Stevens:

Wasn’t he struck before they back-struck the first black on the jury?

Terry M. Boudreaux:

–I believe so, Your Honor.

John Paul Stevens:

So that probably explains why they didn’t make a Batson objection.

Terry M. Boudreaux:

Yes, you’re correct about that.

But I think he would have not… the jurors… the defense perhaps would have struck him.

He testified that he had plenty friends who were police officers in this jurisdiction.

John Paul Stevens:

I understand why the defense would have struck him.

I’m trying to understand why the prosecutor–

Terry M. Boudreaux:

Well, we don’t know that, Your Honor, because there was no Batson objection raised, and the prosecutor was not called upon to articulate any reasons.

On the face of it, he looks like he could be a good juror.

But that’s a factual matter that the trial prosecutor, then and there, made that decision.

And I think–

David H. Souter:

He knew nothing about that juror except what Justice Stevens and you have just been reciting.

If that’s all you knew and you were a prosecutor, would you have struck him?

Would you have said: I don’t want… I don’t want anybody on this jury who’s got friends in the police department?

Would you have struck him for that reason?

Terry M. Boudreaux:

–Well, I can say, Your Honor, that’s not the first time that’s happened over years in different… different trials that I’ve reviewed.

David H. Souter:

How about you?

Terry M. Boudreaux:

I’m sorry?

David H. Souter:

Would you… would you have gotten rid of him?

Would you have said: I don’t want any cop lovers on my jury?

[Laughter]

Terry M. Boudreaux:

No, Your Honor.

I would… I would–

David H. Souter:

No, you wouldn’t have, and neither would I.

Terry M. Boudreaux:

–No, sir.

And that’s the difficulty that–

Samuel A. Alito, Jr.:

We have no idea… we have no idea what this man looked like.

We have no idea about his demeanor, his tone of voice.

This could have been… there could have been very legitimate reasons for doing it.

There could be no legitimate reasons for doing it.

Terry M. Boudreaux:

–Right.

Samuel A. Alito, Jr.:

But nobody asked what reason for doing it was.

Terry M. Boudreaux:

And no reasons were offered.

Stephen G. Breyer:

I don’t know the answer to this at all but how this is supposed to work?

A defense attorneys… the jury selection, and he sees that the prosecutor doesn’t challenge for peremptory or any other reason one black member.

Let’s call it five.

And then they start challenging black members.

Obviously, he didn’t at the beginning impose any Batson claim.

He had no Batson claim.

There were five people on the jury who were black.

What claim could you make?

And then after you begin to get suspicious and start to make them, now they do this thing called black strike and they get everybody off the jury.

How is it supposed to work?

Terry M. Boudreaux:

I would disagree they would not have a Batson claim to make when the first black is struck if they felt there was evidence of that one–

Stephen G. Breyer:

They don’t know.

Antonin Scalia:

The rule is not that you can’t… so long as you have some black on the jury, you can strike the rest.

Terry M. Boudreaux:

–No, sir.

Antonin Scalia:

Any single person.

Terry M. Boudreaux:

That’s correct.

Stephen G. Breyer:

I’m speaking reality.

Terry M. Boudreaux:

That’s why you don’t have to wait for a pattern.

Let’s say you have an all black jury.

John G. Roberts, Jr.:

I still have… I am curious to the answer to Justice Breyer’s question.

When they go back and back strike at that point can the defendant say I don’t think you can back strike this juror you’re doing it on the basis of race.

Terry M. Boudreaux:

They can go back and back strike, but the defendant could say–

John G. Roberts, Jr.:

They can go back and back strike.

Terry M. Boudreaux:

–Yes, sir.

John G. Roberts, Jr.:

They can go back and object to the back striking?

The State would say, well here’s the reasons we’re back striking.

Terry M. Boudreaux:

The back strike is when is the challenge exercised.

In and of itself you can’t say if it is racial or not.

Terry M. Boudreaux:

It is a challenge.

Stephen G. Breyer:

That was my question.

John Paul Stevens:

–My problem… after the back strike of the first black juror who had been accepted, can they thereafter renew an objection if the jurors two and three, who are accepted on the assumption that there would no–

Terry M. Boudreaux:

I think under Miller-El and related decisions that would be part of the totality of the circumstances.

The practical problem–

Ruth Bader Ginsburg:

That wasn’t done here.

That was the point that you made.

Terry M. Boudreaux:

–Yes.

Ruth Bader Ginsburg:

When the third… the back strike of Brooks was made, they could have gone back for Hawkins and the others, but they didn’t.

Terry M. Boudreaux:

That could have been argued evidence for them to make their prima facie case.

John G. Roberts, Jr.:

I’m sorry.

There’s some ambiguity in your answer.

Miller-El says others who were struck can be considered as part of the totality.

My question is… can they go back and object not only to the back struck juror, but as Justice Stevens points out, to the others who weren’t objected to perhaps because there wasn’t a black person on the jury?

Terry M. Boudreaux:

To give you a yes or no answer, yes.

The practical problem with that is those two jurors having previously been excused, could be on the way to their office or back to their home.

John G. Roberts, Jr.:

Still, the prosecutor is still there.

You can ask the prosecutor, why did you strike that juror?

Terry M. Boudreaux:

Yes, you could.

Then you have got a practical problem what if it doesn’t pass muster.

That’s the reason for the contemporaneous objection rule.

Stephen G. Breyer:

Can I ask you one other question.

You are the only one who will know the answer to, this too.

I noticed in looking at the opinion of the Louisiana Supreme Court that they start out by saying we have conducted another review of the voir dire transcript and find nothing there to disparage the Batson claim.

In reading that opinion in several places they refer to their having gone back and having read the whole transcript themselves.

And then they have two full pages, or one and a half anyway where they seem to be talking about what happened in a pretrial conference and they refer to that prior review and covered a factor favorable to the State’s use of a peremptory challenge.

They went back and found a factor of favorable to.

Now, was that factor argued to them in the brief?

Do you remember that?

Terry M. Boudreaux:

I wrote the brief, Your Honor, but I don’t think… I don’t remember.

Stephen G. Breyer:

I thought that’s why you might know.

[Laughter]

Terry M. Boudreaux:

I don’t remember.

Stephen G. Breyer:

I thought that, in reading it, it seems as if they are not, and I was thinking about how a judge can’t think of everything.

But if they’re going to think beyond what the briefs tell them, they ought to think of it for both sides, and not just for one side.

Terry M. Boudreaux:

You know to be honest, Justice Scalia’s comment about looking at the record and saying oh, here is another reason that the prosecutor didn’t articulate.

Similarly, Your Honor, in reference to the Thomas Hawkins being struck with no objections… there was… Greg Scott was a black juror of peremptory struck by the State.

Again with no objection.

If you want to talk about… if we’re talking about two or five here, little weight should be given to the exercise of those two.

Greg Scott… again like the other juror, I don’t think was going to survive the challenge by the defense.

His wife was the victim of a carjacking, and he said if he was a defendant and he was innocent, he would testify.

He would need to testify.

And in this case, the defendant did not testify at either phase of the proceedings.

Ruth Bader Ginsburg:

Mr. Boudreaux, I’d like to ask you a question before you finish.

It is not an issue in this case, but we are told that African-Americans are 20 percent of the population of Jefferson Parish, but they were less than 11 percent of the people summoned for jury duty.

Is that typical?

Terry M. Boudreaux:

Certainly pre-Katrina, Your Honor.

Yes.

The summons go out based on public records, driver licenses, voters registrations.

That’s basically at random.

To say those numbers would not surprise me.

Ruth Bader Ginsburg:

That’s… and because it’s almost half of what you would expect.

Terry M. Boudreaux:

Yes, and that’s going to vary, you know, from venire to venire on any given day.

Ruth Bader Ginsburg:

Thank you.

Terry M. Boudreaux:

In the minute or two I have left, Your Honors, I would just remind the Court, urge the Court to consider its recent opinion last June in Uttecht dealing with the deference due the trial court in these types of proceedings… that was a habeas case… what the opinion says to require on direct review, and according to the trial court, the deference having been present and not just relying on a cold record, that the Louisiana Supreme Court’s ruling should be farmered.

Anthony M. Kennedy:

Do you think the deference in Uttecht, which was the death qualified juror–

Terry M. Boudreaux:

Yes, sir.

Anthony M. Kennedy:

–should be any greater than in a Batson case where we have the sensitive issue of racial discrimination?

Terry M. Boudreaux:

I’m not sure I understood the question, Your Honor.

Anthony M. Kennedy:

Well, Uttecht–

Terry M. Boudreaux:

Whether it’s going to the issue–

Anthony M. Kennedy:

–Uttecht was a death qualified juror–

Terry M. Boudreaux:

–Yes.

Anthony M. Kennedy:

–and this is a Batson case.

Terry M. Boudreaux:

Right, and it–

Anthony M. Kennedy:

Because of our concerns in the Batson area, do you think we’re entitled to have a different standard of deference for the trial court?

I think your–

Terry M. Boudreaux:

–No.

Because you’re still dealing with–

Anthony M. Kennedy:

–We haven’t discussed this–

Terry M. Boudreaux:

–of a factfinder.

Obviously, there’s some differences in Uttecht being habeas and Witherspoon, but the similarities, I think, are enough that this… the degree of deference has to still be there, although there’s a statutory deference in a habeas.

Thank you.

John G. Roberts, Jr.:

Thank you, Mr. Boudreaux.

Mr. Bright, you have three minutes remaining.

Stephen B. Bright:

Thank you, Mr. Chief Justice.

If I could just say, first of all about, this backstrike, because what we see here is after Elaine Scott is struck, that’s State number 6, the very next peremptory strike by the State it, number 7, is to go back and backstrike Jeffrey Brooks.

Now, notice that with regard to the other four backstrikes used, two by the prosecution and two by the defense, it’s at the very end of the process.

It’s literally when they’re down to one juror.

Williams says, 11 jurors> [“]?

And then he backstrikes.

The defense says, 11th strike> [“]?

Backstrike.

Williams then, 11> [“]?

So these… the only way the backstrike makes sense really, when you think about it, is to look at the whole jury and then go back and cull out the ones based on a comparison.

But once Brooks had kept them from striking Mr. Scott, who as Mr. Boudreaux pointed out, his wife was robbed at gunpoint, said he would testify if he were a defendant in a case and was innocent.

And then as Justice Stevens pointed out, Hawkins, who was… had grown children, engineer, friends in the police department… these two are not struck… but then once Elaine Scott is struck, the third back and the Batson challenge is made, we don’t have any use for Jeffrey Brooks anymore, so he’s… the backstrike is used in that way.

And I think, again, when you look at all the relevant circumstances, it’s pretty clear what was going on here with the acceptance of Brooks at the start and the backstrike–

John G. Roberts, Jr.:

Do you agree with your friend on the other side, that you could have objected both to the backstruck juror and to the jurors to whom you… with respect to whom you did not object because there was… the juror that was later backstruck on the jury?

Stephen B. Bright:

–I… I think yes.

Stephen B. Bright:

The answer to that is yes, and I think, if the defense had, we’d be talking about four jurors here today instead of two.

But it doesn’t diminish from what the Court in Miller-El called the numbers.

The fact that it is unlikely to be, by chance, that all five… all five African-Americans are struck in this case.

John Paul Stevens:

Although you could have made an objection.

As I understand your opponent, he very helpfully said that they probably would have left the courthouse–

Stephen B. Bright:

They would.

John Paul Stevens:

–So what could you–

Stephen B. Bright:

So they’re gone.

And so if the objection had been overruled–

John G. Roberts, Jr.:

The objection would have afforded the state an opportunity to present the… if there was one… the non-racial reason THAT they struck the juror.

Stephen B. Bright:

–But the reason for doing that would be to have the judge not allow the strike and to put that juror in the box and the juror’ gone now.

So that, as a practical matter, is not going to work.

There’s no–

Antonin Scalia:

Another reason to do it would be to preserve your right on appeal, to object to those jurors.

Stephen B. Bright:

–But there’s no procedural rule in Louisiana that says you have to do that.

It might have been a stronger case if they had done it.

Antonin Scalia:

Maybe your rule here that… that we’re not going to postulate the worst reason for a prosecutorial strike rather than a good reason when you haven’t given the prosecution an opportunity to set forth a good reason.

Stephen B. Bright:

If I may answer.

That only goes, though… the only two jurors on the reasons that are before the Court are Jeffrey Brooks and Elaine Scott.

But the fact that the prosecutor struck all five, and as Justice Souter points out, you wouldn’t have made this argument, I don’t think… this O.J. Simpson argument… not only depending upon the race of the defendant, but if there had been black people on that jury.

This is an argument that resonates with an all-white jury.

Thank you.

John G. Roberts, Jr.:

Thank you, Mr. Bright.

The case is submitted.