us supreme court: 06-10119
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P R O C E E D I N G S
(11:12 a.m.)
CHIEF JUSTICE ROBERTS: We'll hear argument
next in case 06-10119, Synder v. Louisiana.
Mr. Bright.
ORAL ARGUMENT OF STEPHEN B. BRIGHT
ON BEHALF OF THE PETITIONER
MR. 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.
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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
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in the context --
JUSTICE ALITO: Can I ask you about one of
the factors?
MR. BRIGHT: Sure.
JUSTICE ALITO: 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?
MR. BRIGHT: Well, I see. You mean the
jurors happen to be lawyers and they are struck?
JUSTICE ALITO: That's right.
MR. 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 --
JUSTICE ALITO: You are making the argument
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there were five African-American jurors who were the
subject of prosecutorial peremptory challenges.
MR. BRIGHT: Yes.
JUSTICE ALITO: And -- but you don't claim
that three of those strikes were based on race? Do you?
MR. 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.
JUSTICE ALITO: 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?
MR. 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
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factors that were identified --
CHIEF JUSTICE ROBERTS: 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.
MR. 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. 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.
JUSTICE GINSBURG: Couldn't counsel at that
point have gone back and said, ah, now I see what's
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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?
MR. 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 --
CHIEF JUSTICE ROBERTS: 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.
MR. 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
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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.
CHIEF JUSTICE ROBERTS: Out of -- out of how
many who were struck.
MR. 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 --
JUSTICE 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
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CHIEF JUSTICE ROBERTS: 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.
MR. BRIGHT: Well, then, just a couple of
pages later, Mr. Chief Justice, she says I could. She
gives the same answer that the --
CHIEF JUSTICE ROBERTS: That's on joint
appendix 401?
MR. BRIGHT: Yes.
CHIEF JUSTICE ROBERTS: And -- and the
problem with that, of course, is it's --
MR. BRIGHT: I'm sorry. 367.
CHIEF JUSTICE ROBERTS: 367.
MR. BRIGHT: She says "I think I could" at
361. And then just a few pages later they go each
juror, and she says "I could."
CHIEF JUSTICE ROBERTS: 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.
MR. BRIGHT: Well --
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CHIEF JUSTICE ROBERTS: 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.
MR. 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 --
JUSTICE 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
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could.
MR. 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 --
JUSTICE SCALIA: Did all 21 say I think I
could?
MR. 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. Ultimately it is pretty clear Ms. Calligan
is opposed to the death penalty.
JUSTICE ALITO: Mr. Bright, you make good
arguments about comparisons between white jurors and
black jurors.
MR. BRIGHT: Yes.
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JUSTICE ALITO: 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?
MR. 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.
JUSTICE ALITO: I think you have a good
argument in comparing him to some of the white jurors,
in particular Mr. Laws.
MR. BRIGHT: Right.
JUSTICE ALITO: But my understanding is you
never relied on Mr. Laws before the Louisiana Supreme
Court. Is that correct?
MR. 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
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coming out on Sunday; he wanted to get home for that.
Brandon Burns --
JUSTICE ALITO: 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.
MR. BRIGHT: Well --
JUSTICE ALITO: So that's quite different
from somebody -- it could be quite different from
someone like Mr. Brooks or Mr. Laws. Isn't that?
MR. 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 --
JUSTICE SCALIA: I don't understand how the
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dean could resolve his problem.
MR. BRIGHT: Well, he's the dean.
(Laughter.)
JUSTICE 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 --
MR. 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.
JUSTICE 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?
MR. BRIGHT: Well --
JUSTICE SCALIA: The hours requirement is a
requirement for the degree. I don't think deans have
the ability to -- to waive degree requirements.
MR. BRIGHT: Well, with all due respect,
Your Honor --
JUSTICE SCALIA: Maybe the dean was just
saying oh, he'll be able to do it, and --
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MR. BRIGHT: Well --
JUSTICE SCALIA: -- that wouldn't inspire a
great deal of confidence in me, even if I said okay.
MR. 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 --
JUSTICE 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.
MR. BRIGHT: If --
CHIEF JUSTICE ROBERTS: If --
MR. BRIGHT: If I could answer that
question, Mr. Chief Justice.
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
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speculation. With Sanders --
CHIEF JUSTICE ROBERTS: 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.
MR. BRIGHT: Well --
CHIEF JUSTICE ROBERTS: Then the judge calls
the dean, and of course the dean's going to --
MR. BRIGHT: No problem.
CHIEF JUSTICE ROBERTS: 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.
MR. BRIGHT: Brooks doesn't say there's a
problem. He gives the --
CHIEF JUSTICE ROBERTS: He says I'm missing
right now --
MR. BRIGHT: Something that --
CHIEF JUSTICE ROBERTS: Something that could
help me out towards my teaching career.
MR. BRIGHT: Sure. Every -- the judge had
given this hardship question; we're going to sequester
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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.
CHIEF JUSTICE ROBERTS: 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?
MR. 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. Everybody is missing
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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 --
JUSTICE ALITO: 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.
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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?
MR. 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
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for that reason.
JUSTICE GINSBURG: Mr. Bright, the Judge was
quite passive, and was -- was the judge, in fact,
present throughout the entire voir dire?
MR. 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.
JUSTICE SCALIA: It sounds like the right
answer to me.
(Laughter.)
MR. BRIGHT: It wasn't the right question.
I've often wondered about that, but I've never
articulated it.
(Laughter.)
MR. BRIGHT: 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
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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.
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
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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.
JUSTICE 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?
MR. 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.
JUSTICE SCALIA: What does that have to do
with anything?
MR. BRIGHT: It has to do with --
JUSTICE 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 --
MR. 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.
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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.
CHIEF JUSTICE ROBERTS: 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?
MR. BRIGHT: Well, I think, Chief Justice
Roberts, it doesn't have anything to do with that.
CHIEF JUSTICE ROBERTS: What doesn't have
anything to do with it?
MR. 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.
JUSTICE 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.
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MR. BRIGHT: Yes.
JUSTICE SCALIA: The same as here.
MR. BRIGHT: Well, there are a lot of
similarities.
JUSTICE 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.
MR. 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
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pictured to the jury: That if they didn't give him the
death penalty, he would get away with it.
CHIEF JUSTICE ROBERTS: So the relief you
are requesting goes only to the penalty and not to the
conviction?
MR. 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 --
CHIEF JUSTICE ROBERTS: Even though -- even
though your theory is that it was only with respect to
the penalty that the bias -- you have no allegation --
MR. BRIGHT: Oh, no.
CHIEF JUSTICE ROBERTS: -- that this jury
did not return a valid conviction. I thought your
objection was with respect to the death penalty.
MR. 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
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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.
CHIEF JUSTICE ROBERTS: Thank you,
Mr. Bright.
Mr. Boudreaux.
ORAL ARGUMENT OF TERRY M. BOUDREAUX
ON BEHALF OF THE RESPONDENT
MR. 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
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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 --
JUSTICE SCALIA: As to life imprisonment or
as to the death penalty?
MR. 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 --
JUSTICE SCALIA: Where is this? I -- 364?
Show me --
MR. BOUDREAUX: Beginning at 364 of the
joint appendix, Your Honor. I just wanted to point out
the question posed is regarding life imprisonment.
JUSTICE SCALIA: Right.
MR. BOUDREAUX: She was originally asked the
question about the death penalty, and her response was
the "I think I could."
CHIEF JUSTICE ROBERTS: 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.
MR. BOUDREAUX: That's true, Your Honor. In
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-- 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.
JUSTICE ALITO: 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.
MR. BOUDREAUX: Yes, sir.
JUSTICE ALITO: And the concern -- the major
concern about him is that he's going to worry about
missing Wednesday, Thursday, Friday student teaching?
MR. BOUDREAUX: Yes, sir. But you see --
JUSTICE ALITO: 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.
MR. BOUDREAUX: Yes, sir. Mr. Laws, like
Mr. Brooks, I think it's good to point out, approached
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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 --
JUSTICE GINSBURG: Mr. Laws was an
identical -- he came up too. He said --
MR. 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."
JUSTICE BREYER: Can I go back to Ms. Scott?
MR. BOUDREAUX: I'm sorry.
JUSTICE BREYER: Could I go back to Ms.
Scott?
MR. BOUDREAUX: Ms. Scott?
JUSTICE 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.
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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.
MR. BOUDREAUX: I don't --
JUSTICE BREYER: But I haven't noticed in
anybody's opinion, so far, making that point that you
just made.
MR. 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 --
JUSTICE BREYER: No -- well, there's -- I
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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."
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.
MR. BOUDREAUX: Yes, Your Honor. What --
JUSTICE BREYER: And a slight hesitation.
Now, what do you say to that?
MR. 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
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hear you." There's nothing --
JUSTICE 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.
MR. 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.
JUSTICE BREYER: Well, of course -- sorry.
MR. 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
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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 --
JUSTICE 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.)
MR. BOUDREAUX: I would -- I would suppose
not, Your Honor.
(Laughter.)
JUSTICE SOUTER: And because --
MR. BOUDREAUX: The objection was --
JUSTICE 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
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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?
MR. 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.
JUSTICE SOUTER: Do you believe that, if
there had been a white defendant here, the O. J. Simpson
case would have been mentioned?
MR. BOUDREAUX: Yes, Your Honor, and I
believe if the O.J. Simpson case --
JUSTICE 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.
MR. 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
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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.
CHIEF JUSTICE ROBERTS: 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?
MR. 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
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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.
JUSTICE 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
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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.
MR. BOUDREAUX: Yes, Your Honor.
JUSTICE 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.
MR. 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
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difficult; it's -- the jury duty happens.
JUSTICE GINSBURG: What's the difference
between that and "okay"?
MR. BOUDREAUX: I'm sorry?
(Laughter.)
JUSTICE GINSBURG: One says I can make
arrangements, and the other is more economical and he
says "okay."
MR. BOUDREAUX: But that -- he said -- I
think that's the landscape man, he said, as long as it
wasn't a prolonged -- as.
JUSTICE BREYER: No, she means the dean.
The dean --
MR. BOUDREAUX: Oh, the dean --
JUSTICE BREYER: -- said no problem at all.
What better arrangement can you want?
JUSTICE GINSBURG: -- meaning Brooks.
MR. BOUDREAUX: Brooks says --
JUSTICE SOUTER: Brooks says okay.
JUSTICE GINSBURG: The difference is between
"I can make arrangements" and "okay."
MR. 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
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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.
JUSTICE 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.
MR. BOUDREAUX: Nobody asked that question.
JUSTICE SOUTER: All we have is got is
"okay" on the one hand and "I can make arrangements" on
other.
MR. 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
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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 --
JUSTICE 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 --
MR. BOUDREAUX: That's the problem with this
record. The State says --
JUSTICE SCALIA: It is not the problem with
it. It is your problem with the record.
(Laughter.)
JUSTICE SCALIA: It is not mine.
MR. 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
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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 --
JUSTICE STEVENS: May I ask you about Juror
Hawkins. You haven't talked much about him.
MR. BOUDREAUX: Hawkins?
JUSTICE STEVENS: Why did they strike him?
He seemed to me to be a pretty good juror for the
prosecution.
MR. 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 --
JUSTICE STEVENS: Wasn't he struck before
they back-struck the first black on the jury?
MR. BOUDREAUX: I believe so, Your Honor.
JUSTICE STEVENS: So that probably explains
why they didn't make a Batson objection.
MR. BOUDREAUX: Yes, you're correct about
that. But I think he would have not -- the jurors --
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the defense perhaps would have struck him. He testified
that he had plenty friends who were police officers in
this jurisdiction.
JUSTICE STEVENS: I understand why the
defense would have struck him. I'm trying to understand
why the prosecutor --
MR. 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 --
JUSTICE 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?
MR. 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.
JUSTICE SOUTER: How about you?
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MR. BOUDREAUX: I'm sorry?
JUSTICE 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.)
MR. BOUDREAUX: No, Your Honor. I would --
I would --
JUSTICE SOUTER: No, you wouldn't have, and
neither would I.
MR. BOUDREAUX: No, sir. And that's the
difficulty that --
JUSTICE ALITO: 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.
MR. BOUDREAUX: Right.
JUSTICE ALITO: But nobody asked what reason
for doing it was.
MR. BOUDREAUX: And no reasons were offered.
JUSTICE 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
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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.
MR. BOUDREAUX: They can go back and back
strike, but the defendant could say --
CHIEF JUSTICE ROBERTS: They can go back and
back strike.
MR. BOUDREAUX: Yes, sir.
CHIEF JUSTICE ROBERTS: They can go back and
object to the back striking? The State would say, well
here's the reasons we're back striking.
MR. BOUDREAUX: The back strike is when is
the challenge exercised. In and of itself you can't say
if it is racial or not. It is a challenge.
JUSTICE BREYER: That was my question.
JUSTICE 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 --
MR. BOUDREAUX: I think under Miller-El and
related decisions that would be part of the totality of
the circumstances. The practical problem --
JUSTICE GINSBURG: That wasn't done here.
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That was the point that you made.
MR. BOUDREAUX: Yes.
JUSTICE 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.
MR. BOUDREAUX: That could have been argued
evidence for them to make their prima facie case.
CHIEF JUSTICE ROBERTS: 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?
MR. 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.
CHIEF JUSTICE ROBERTS: Still, the
prosecutor is still there. You can ask the prosecutor,
why did you strike that juror?
MR. BOUDREAUX: Yes, you could. Yes, you
could. Then you have got a practical problem what if it
doesn't pass muster. That's the reason for the
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contemporaneous objection rule.
JUSTICE 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?
MR. BOUDREAUX: I wrote the brief, Your
Honor, but I don't think -- I don't remember.
JUSTICE BREYER: I thought that's why you
might know.
(Laughter.)
MR. BOUDREAUX: I don't remember.
JUSTICE BREYER: I thought that, in reading
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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?
MR. 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.
JUSTICE GINSBURG: That's -- and because
it's almost half of what you would expect.
MR. BOUDREAUX: Yes, and that's going to
vary, you know, from venire to venire on any given day.
JUSTICE GINSBURG: Thank you.
MR. 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.
JUSTICE KENNEDY: Do you think the deference
in Uttecht, which was the death qualified juror --
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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.
CHIEF JUSTICE ROBERTS: Thank you,
Mr. Boudreaux.
Mr. Bright, you have three minutes
remaining.
REBUTTAL ARGUMENT OF STEPHEN B. BRIGHT
ON BEHALF OF THE PETITIONER
MR. 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, "Do we have 11 jurors?" And then he backstrikes.
The defense says, "Is this my 11th strike?" Backstrike.
Williams then, "Are we back to 11?" So these -- the
only way the backstrike makes sense really, when you
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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 --
CHIEF JUSTICE ROBERTS: 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?
MR. BRIGHT: I -- I think yes. The answer
to that is yes, and I think, if the defense had, we'd be
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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.
JUSTICE 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 --
MR. BRIGHT: They would.
JUSTICE STEVENS: So what could you --
MR. BRIGHT: So they're gone. And so if the
objection had been overruled --
CHIEF JUSTICE ROBERTS: 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.
MR. 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 --
JUSTICE SCALIA: Another reason to do it
would be to preserve your right on appeal, to object to
those jurors.
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