Not this time,* high court rules

In his speech on race, Barack Obama referenced the OJ Simpson case as an example of race being used as "spectacle."

A good example of the rhetorical power of OJ references came in a Louisiana courtroom, when a prosecutor told an all-white jury that since OJ "got away with it," the jury should impose death on an African American murder defendant. In a parish where a local Ku Klux Klan wizard was a popular figure, the jury obliged.

The U.S. Supreme Court overturned that sentence this week. But the high court's opinion in Snyder v. Louisiana was not based on the OJ reference. Indeed, the court's opinion does not even mention the prosecutor’s inflammatory statement during closing arguments. Rather, the case was overturned because the prosecutor selectively removed all African Americans from the jury.

Under the 1986 Batson rule and subsequent case law, prosecutors must not strike jurors for the purpose of race discrimination. If challenged, they must be able to offer a race-neutral reason for having removed jurors from a certain race.

This leads to some very strained excuses, including the one given by the prosecutor in the Snyder case. He said he exercised a peremptory challenge against black college student Jeffrey Brooks because Brooks looked nervous and was worried about missing classes. The court found that excuse "implausible," in light of more severe hardship claims by white jurors who were not dismissed.

"People can offer compelling explanations for their behavior even when unaware of the factors - such as race - that are actually influential," wrote researchers Samuel Sommers and Michael Norton in a recent article on this phenomenon. "Even if attorneys consciously and strategically consider race during jury selection, they would be unlikely to admit it."

In the case of Snyder, who was convicted of stabbing to death his estranged wife's date, the prosecutor had managed to get rid of all nine blacks in the jury pool of 85.

Not surprisingly, Justices Thomas and Scalia dissented from the majority, saying the trial court's opinion that race was not a factor should not be second-guessed.

The ScotusBlog, Sentencing Law & Policy, and Deliberations blogged about the case and its implications. The case itself can be found here. Related posts of mine are here and here. Photo credit: Tilaneseven

*"Not this time" is a quote from Barack Obama's recent speech, in which he stated: "We have a choice in this country. We can accept a politics that breeds division, and conflict, and cynicism. We can tackle race only as spectacle – as we did in the OJ trial – or in the wake of tragedy, as we did in the aftermath of Katrina - or as fodder for the nightly news.... Or, at this moment, in this election, we can come together and say, 'Not this time.' This time we want to talk about the crumbling schools that are stealing the future of black children and white children and Asian children and Hispanic children and Native American children.... This time we want to talk about how the lines in the Emergency Room are filled with whites and blacks and Hispanics who do not have health care; who don’t have the power on their own to overcome the special interests in Washington, but who can take them on if we do it together. This time we want to talk about the shuttered mills that once provided a decent life for men and women of every race, and the homes for sale that once belonged to Americans from every religion, every region, every walk of life. This time we want to talk about the fact that the real problem is not that someone who doesn't look like you might take your job; it's that the corporation you work for will ship it overseas for nothing more than a profit."