Amicus Curiae Brief — Snyder v. Louisiana

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In The

Supreme Court of the Gnited States

ALLEN SNYDER,

Petitioner.

versus

STATE OF LOUISIANA,

Respondent.

On Petition For A Writ Of Certiorari

To The Louisiana Supreme Court

°

BRIEF OF AMICUS CURIAE CORNELL

DEATH PENALTY PROJECT IN SUPPORT

OF PETITIONER ALLEN SNYDER

SHERI LYNN JOHNSON

CORNELL LAW SCHOOL

108 Myron Taylor Hall

Ithaca, NY 14853-4901

(607) 255-6478

slj8@cornell.edu

COCKLE LAW RRTIEF PRINTING ©Ob seme to eng

OR CALL COLLECT Wi2).s42-2851

TABLE OF CONTENTS

Page

I ios siciniccitiataseieaiiiianinbinidiedemmsbiauniiliaies ii

I ee I va iereccicteisnininnieitinnttiatinmennaniinans 1

I. Introduction and Summary of Argument .......... 1

II. The Prosecutor’s Premeditated Racial Manipu-

lation of the Jury Demands Condemnation........ 3

III. The Louisiana Supreme Court Defied This

a aiertaicincnsuenedcnctitictssiatdiiiihinineituiatintiiititiines 9

IV. Race-Based Recalcitrance Demands Correction

Be IUD cerstininsenienncnsieonscniinnnimmeninetannetecnidantetns 18

SRE Ae ee a SR Ie ea ok 20

ii

TABLE OF AUTHORITIES

Page

CASES

Batson v. Kentucky, 476 U.S. 79 (1986) ..........s00eceerees passim

Brown v. Board of Education, 347 U.S. 483 (1954).......... 19

Cooper v. Aaron, 358 U.S. 1 (1958)........cccsceesessseeseesseenes 19

Hightower v. Terry, 459 F.3d 1067 (11th Cir. 2006),

OT, GE, nn, TH ees ND crrerteenetinniernnsnmenn 2,3

Kyles v. Whitley, 514 U.S. 419 (1995) .0......ccesessesseeteeeees 10

Miller-El v. Cockrell, 537 U.S. 232 (2003) .............sssesseeseees 2

Miller-El v. Dretke, 545 U.S. 213 (2005)............000000+ passim

Snyder v. Louisiana, 545 U.S. 1137 (2005)................ccceeees 9

State v. Bridgewater, 823 So. 2d 877 (La. 2002)............... 10

State v. Durham, 673 So. 2d 1103 (La. Ct. App.

Siri niicccstciinnianebieiiiiinibiagdsobeeinetiinibiiinpaimtniiniaiviens Gree 11

State v. Harris, 820 So. 2d 471 (La. 2002)................... 10, 11

State v. Jacobs, 789 So. 2d 1280 (La. 2001).................0c08- 10

State v. Lucky, 755 So. 2d 845 (La. 1999) ........ceceseeeeees 10

State v. Myers, 761 So. 2d 498 (La. 2000)...............eeeeeeeee 10

State v. Seals, 684 So. 2d 386 (La. 1996)................:.eeceeeee 10

State v. Snyder (“Snyder I”|, 750 So. 2d 832 (La.

oe hivisissrstactenieniietestepeienidicdninitinnieusineiansisiatiounndiapiniais 9, 12, 14, 18

State v. Snyder (“Snyder IIT’, 942 So. 2d 484 (La.

ED icucitancendinivcniaiaiinanveniniannnmnarensanccumai passim

State v. Weary, 931 So. 2d 297 (La. 2006)...........s:cseeeeeeees 12

Turner v. Murray, 476 U.S. 28 (1986).............cccececeeeeereeeeees 1

iii

TABLE OF AUTHORITIES —- Continued

Page

OTHER

Joe Darby, Prosecutors’ Choice of Neckties Blasted;

Noose, Grim Reaper Worn in Murder Case, THE

ee IEEE, THe ccccsscctescssnvenercemsectiawenentsenenasnene wae

Jeffrey Gettleman, Prosecutors’ Morbid Neckties

Martin Gottlieb, Not Guilty: the Racial Prism;

Racial Split at the End, as at the Start, THE NEW

ee iit in ccrctipceictuninemiidininatsadinedtsinininniies 8

Teun A. Van Dijk, COMMUNICATING RACISM: ETHNIC

PREJUDICE IN THOUGHT AND TALK (1987).............0eeceeeeeees 8

INTEREST OF AMICUS CURIAE

The Cornell Death Penalty Project is an undertaking

of the Cornell Law School. One of the Project’s primary

goals is to address questions of law that carry important

implications beyond the facts of any particular case and

that involve the basic fairness of the death penalty’s

administration. Since its inception, the Project has had a

particular interest in the influence of racial discrimination

on the imposition of the death penalty. See Turner v.

Murray, 476 U.S. 28, 35 (1986) (“Because of the range of

discretion entrusted to a jury in a capital sentencing

hearing, there is a unique opportunity for racial prejudice

to operate but remain undetected.”) The Project’s approach

to these questions of basic fairness, including questions of

racial fairness, is informed to the greatest extent possible

by reliance on empirical studies of, and relevant to, the

capital sentencing process. The Project accordingly seeks

to intervene as amicus curiae in selected cases presenting

important questions of law on which its expertise and

experience may be useful to this Court.’

I. Introduction and Summary of Argument

Allen Snyder, a black man, was convicted and sen-

tenced to death by an all-white jury for the murder of his

wife’s male companion. Prior to trial, the prosecutor was

quoted in the media as referring to this case as his “O.J.

Simpson case,” behavior of which the trial judge was

aware prior to jury selection because defense counsel twice

' Counsel for amicus curiae authored this brief in its entirety. No

person or entity other than amicus curiae and its associated faculty

made a monetary contribution to the preparation or submission of the

brief in support of the petition. Counsel for both petitioner and respon-

dent consent to the filing of this amicus curiae brief.

2

moved the court to forbid further such racially inflamma-

tory comments. During voir dire, the prosecutor perempto-

rily struck all five African Americans who had survived

cause challenges. Several of his explanations for those

strikes cannot be squared with his failure to strike simi-

larly situated white jurors. Then, in summation, he urged

the all-white jury he had created to impose death because

the Snyder case was like the O.J. Simpson case, where the

defendant “got away with it.” Despite the egregiousness of

the prosecutor’s conduct, the Louisiana Supreme Court

affirmed the conviction. This Court vacated and remanded

for reconsideration in light of Miller-El v. Dretke, 545 U.S.

231 (2005) (hereinafter “Miller-El IT’). Nonetheless, the

Louisiana Supreme Court once more affirmed the conviction.

The lower courts’ responses, in various cases, to this

Court’s Miller-El remands present the ugly specter of

racia'!y motivated resistance. In Miller-El v. Cockrell, 537

U.S. 322 (2002) (“Miller-El I”), this Court reversed the

Fifth Circuit’s decision upholding the district court’s denial

of a certificate of appealability, and in the process of doing

so, laid out specific facts and principles that the Fifth

Circuit should consider on remand. Instead, the Fifth

Circuit gave short shrift to this Court’s careful Miller-El I

opinion, and affirmed the denial of Miller-El’s Batson v.

Kentucky, 476 U.S. 79 (1986) claim. This Court granted

certiorari again, and once more reversed and remanded.

Miller-El IT, 545 U.S. 231.

The Fifth Circuit’s resistance to this Court’s Batson

jurisprudence has been mimicked in this case.’ In State v.

* Hightower v. Terry, 459 F. 3d 1067 (11th Cir. 2006), cert. denied,

__. U.S. __. (2007), provides another example of lower court defiance.

Despite this Court’s instruction to the Eleventh Circuit to reconsider its

decision in light of Miller-El v. Dretke, 545 U.S. 231 (2005), that court

held that “Miller-El does not control our decision” and that “our opinion

(Continued on following page)

3

Snyder, 942 So. 2d. 484 (La. 2006) (“Snyder III”), the lower

court purported to follow this Court’s remand order, and

quietly, but still obdurately, deviated from the principles

laid down in Miller-El II. This recalcitrance is particularly

shameful in light of the prosecutor’s deliberate and pre-

meditated racial purge of the jury, a purge aimed at

securing a receptive audience for his racially inflammatory

closing argument.

II. The Prosecutor’s Premeditated Racial Manipu-

lation of the Jury Demands Condemnation.

At the pretrial hearing defense counsel argued that

the prosecutor’s public comparison of Mr. Snyder’s case to

O.J. Simpson’s case was designed “/t]lo play upon these

fears and prejudices to what will doubtless be an over-

whelmingly — if not all — white jury deciding a case with

admitted similarities is an appeal to racism at worst and

vigilante justice at best, and as such is specifically pre-

cluded by Louisiana law.” R. 160. This prediction turned

out to be prescient, and her protest in vain.

When Mr. Snyder’s prosecutor turned to jury selec-

tion, he did not stop thinking about race. Sometimes, when

a prosecutor strikes a black juror and states a reason that

comparative juror analysis shows is not the true reason for

the strike, it is difficult to know whether the prosecutor

has deliberately acted on the basis of race and attempted

to conceal his motivations, or whether he has responded to

unconscious stereotypes about racial groups so that the

influence of race on his actions is not apparent to him. See

in Hightower v. Schofield is accordingly reinstated.” Hightower v. Terry,

459 F.3d 1067, 1069, 1072 (11th Cir. 2006) (Appendix A). Judge Wilson

protested that the majority's decision “violates the Supreme Court’s

express mandate.” Jd. at 1078 (Wilson, J., dissenting).

4

Batson v. Kentucky, 476 U.S. 79, 106 (Marshall, J., concur-

ring) (“Nor is outright prevarication by prosecutors the

only danger here ... A prosecutor’s own conscious or

unconscious racism may lead him easily to the conclusion

that a prospective black juror is “sullen,” or “distant,” a

characterization that would not have come to his mind if a

white juror had acted identically). In many cases, however,

a review of the entire record excludes the second possibil-

ity. This is such a case.

Indeed, this is a case where not only conscious motiva-

tion to strike must be inferred, see Point III, infra, but

where it is obvious that the prosecutor consciously struck

black jurors in order to facilitate his presentation of a

racially charged and wholly improper closing argument.

After Mr. Snyder had been indicted, the prosecutor made

public statements comparing Mr. Snyder’s case to the O.J.

Simpson case. The defense filed a motion in limine to

preclude the prosecutor from making similar remarks in

the future. R. 159-61. As defense counsel explained to the

court, “References of the kind referred to above serve no

purpose other than as an attempt to confuse and prejudice

the jury.” R. 160. The prosecutor then deflected an adverse

ruling with the representation that he would not mention

the O.J. Simpson case “during the course of the taking of

evidence or before the jury in this case.” R. 418-19.

In hindsight, it is clear this representation was simply

a lie. Following the trial court’s denial of Mr. Snyder’s

motion, the prosecutor continued to make remarks to the

media concerning his “O.J. case,” which led to another

defense motion, this one more broadly aimed at prohibit-

ing the attorneys in the case from making any comments

to the media. R. 179-80. At the hearing on that motion,

defense counsel reported that the previous day she had

been asked by a television news reporter to comment “on

the second O.J. Simpson case that was scheduled to go to

5

trial in Jefferson Parish today.” R. 478. The prosecutor did

not deny or disavow his comments, but demurred that the

sequestered jury would not be exposed to publicity, R. 477,

and then claimed that he had no intention of discussing

the case with the media during the course of the trial. R.

479. Once more, the prosecutor’s representations satisfied

the trial court, and it denied the motion. R. 479.

This time, the prosecutor’s assurances concerning his

own future conduct were literally true, but still, just as

prevaricating as his response to defense counsel's first

motion. Although he made no more comments to the

media, what he did was worse: He addressed similar, but

even more objectionable comments directly to Mr. Snyder’s

jury. During his final argument to the jury, the prosecutor

urged the jury to sentence Mr. Snyder to death because

O.J. Simpson “got away with it”:

[Defense counsel] tried to describe this man as

being the man who — And it was 12 hours later

when he called the Kenner Police Department,

huddled up, claiming that he was suicidal, barri-

caded himself in the house. That made me think

of something. Made me think of another case, the

most famous murder case in the last, in probably

recorded history, that all of you all are aware of —

At this point, defense counsel objected, but the trial court

overruled her objection, and the prosecutor continued:

The most famous murder case, and all of you all

have heard about it, happened in California very,

very, very similar to this case. The perpetrator in

that case claimed that he was going to kill him-

self as he drove in a Ford Bronco and kept the

police off of him, and you know what, he got away

with it. Ladies and Gentlemen, is it outside the

realm of possibility that that was what that man

6

was thinking about when he called in and

claimed that he was going to kill himself?

R. 1591-93 (emphasis supplied).

After the jury returned with a sentence of death, R.

1598, Mr. Snyder filed a motion for new trial. The motion

urged that the trial court’s erroneous Batson rulings

required vacation of the conviction and death sentence, R.

199-201. During argument on the motion, defense counsel

linked the prosecutor’s O.J. Simpson argument with his

racially motivated exercise of his peremptory challenges,

pointing out that the prosecutor was able to make the O.J.

comparison only because he had rid the jury of African

Americans. R. 1618. Defense counsel also explained what

would seem to be obvious — the racially divisive nature of

the prosecutor’s O.J. Simpson argument:

[YJou’d have to be in a cave for the last couple of

years to not know, and the prosecutor knew ex-

actly what he was doing, to not know that most

white people, this was an all white jury, believed

that O.J. Simpson was guilty as hell, and that he

was getting away with murder, you know. And

it’s outrageous for the prosecutor to analogize to

that case, to this case, which has nothing to do

with it ... [aJnd to hammer this man down, and

to get a jury to say, That’s right, you know, O.J.

Simpson got off, this guy is trying to get off, he’s

like O.J. Simpson, you know, but we weren’t on

that jury in California, but we’re on a jury here,

we can do something about it. And that’s totally

outrageous.

R. 1617-18.

The Louisiana Supreme Court’s Snyder III majority

dismissed these pretrial comments and penalty phase

remarks as irrelevant to the assessment of whether the

prosecutor intended to discriminate when he cleared the

7

jury of all African American potential jurors. First, the

Court defended the prosecutor’s argument that Snyder

should be put to death because O.J. Simpson “got away

with it,” as a proper response to defense counsel’s state-

ment in closing argument that Mr. Snyder had been

suicidal when police officers arrived at his home. Snyder

IIT, 942 So. 2d at 499. This construction of the prosecutor’s

remarks failed to note that the prosecutor made similar

pretrial comments to the media, which hardly could be

responsive to defense counsel’s closing argument. The

Court also ignored the fact that any argument that Snyder

was feigning suicide in response to Simpson’s acquittal

was factually insupportable, given that Snyder’s suicidal

behavior occurred weeks before Simpson was acquitted.’

The majority then concluded that the prosecutor’s O.J.

Simpson comments did not evince any discriminatory

intent, a conclusion facilitated by an astonishing denial of

racial realities in this country:

[O]ther than suggesting inferences to be drawn

from the bare facts of the prosecutor’s remarks,

both prior to and subsequent to the voir dire,

defense counsel points to no evidence in the re-

cord to substantiate defendant’s claim of dis-

criminatory use of peremptory challenges. The

inferences defense counsel suggests are no more

compelling than other race neutral inferences to

be drawn when one considers the prosecutor’s

remarks in context. The remark at the motion in

limine [sic] referred to the fact that the Simpson

trial involved alleged domestic violence; the re-

mark during rebuttal referred to the fact that

* The O.J. Simpson verdict was returned on October 3, 1995.

7

a

8

Simpson feigned suicidal intent. Neither remark

referred to Simpson’s or Snyder's race.

Id. at 499 (emphasis supplied).

But the O.J. Simpson analogy had to be aimed at

jurors who were familiar with the O.J. Simpson case; it

would have been meaningless to anyone else. And it is

hard to believe that anyone in America aware of that case

did not know that Simpson was black. It is impossible to

believe that the jury failed to notice Snyder’s race. It is

impossible to believe that a prosecutor who struck all of

the qualified African American venirepersons was un-

aware that he had an all-white jury before him, or un-

aware that an all-white jury would respond more

sympathetically to the O.J. Simpson analogy.’

The prosecutor’s premeditated strategy of purging one

racial group and appealing to the racial biases of another

was constitutionally intolerable. The Louisiana Supreme

Court’s “see no evil” response to that intolerable conduct is

inexcusable, and warrants correction by this Court.

‘ Defense counsel’s assertion that, in general, African Americans

and whites saw the O.J. Simpson case in very different ways, is beyond

dispute, and was widely discussed at the time. See, eg., Martin

Gottlieb, Not Guilty: the Racial Prism; Racial Split at the End, as at the

Start, THE NEW YORK TIMES, 10/4/05.

Research into the communication of racial prejudice confirms that

in many settings, explicitly racist comments are rare, due to constraints

imposed by widespread acceptance of the norm of equality. Instead,

racist evaluations and conclusions are toned down. Speakers with a

racial message describe negative acts, leaving the racist conclusions

implicit. Teun A. Van Dijk, COMMUNICATING RACISM: ETHNIC PREJUDICE

IN THOUGHT AND TALK 48 (1987).

The use of examples — such as the O.J. Simpson analogy made by

the prosecutor in this case — to communicate racial messages is

common. Id. at 90-91.

9

Ill. The Louisiana Supreme Court Defied This

Court’s Order.

Snyder III does not flaunt its defiance of this Court.

The Louisiana Supreme Court does not disavow the

relevance of Miller-El II, does not reinstate its prior

decision, and even purports to reconsider that prior

opinion in light of Miller-El IT. Nonetheless, a comparison

of this Court’s Miller-El II opinion and the Snyder III

opinion makes plain the Louisiana Supreme Court’s

recalcitrance.

On its first review of Mr. Snyder’s claims, the Louisi-

ana Supreme Court denied Mr. Snyder’s Batson claims by

a 5-2 vote, dismissing the strikes of the first two black

jurors because defense counsel] failed to contemporane-

ously object to them, then rejecting his related ineffective

assistance of counsel claims on the ground that he could

show no prejudice from a Batson violation, and rejecting

his other three Batson claims by deferring to the trial

court’s unexplained rulings, and ignoring the prosecutor’s

O.J. Simpson analogies. State v. Snyder, 750 So. 2d 832

(1999) (“Snyder I”).

After this Court vacated and remanded Snyder I,

directing the Louisiana court to reconsider Mr. Snyder’s

Batson claims in light of Miller-El II, Snyder v. Louisiana,

545 U.S. 1137 (2005), a slimmer majority adhered vo prior

holding. Although that majority acknowledged the re-

quirement that it review Mr. Snyder’s “Batson complaints

cumulatively in light of the entire record as directed by

Miller-El,” Snyder III, 942 So. 2d at 486, it nonetheless

concluded that Miller-El II “do{es] not require a detailed

reconsideration of the voir dire of the five African-

American prospective jurors peremptorily struck by the

State.” Jd. at 492.

10

Instead of carefully considering all of the evidence

before it, the majority found a reason to dismiss each

piece, ignoring the fact that none of those reasons can be

squared with this Court’s opinion in Miller-El li. The

majority deferred to the trial court’s acceptance of the

prosecutor’s proffered reasons, even though the Louisiana

Supreme Court had previously chastised the judge who

credited those reasons for his careless treatment of Batson

challenges in another capital case, see State v. Jacobs, 789

So. 2d 1280, 1283, n. 2 (La. 2001), and even though the

prosecutor who proffered those reasons had his credibility

tarnished in a previous capital case.’

Mr. Snyder argued that the Jefferson Parish District

Attorney’s Office had practiced race discrimination in jury

selection in the past, citing cases previously decided by the

Louisiana Supreme Court,’ a statistical analysis conducted

* The prosecutor was involved in the suppression of material

exculpatory evidence in Kyles v. Whitley, 514 U.S. 419 (1995), a fact

that was brought to the attention of the Louisiana Supreme Court

during ora] argument.

* See State v. Harris, 820 So.2d 471, 474 (La. 2002) (finding Batson

violation where Jefferson Parish prosecutor explained that she was

striking African-American juror because he was a “single black male on

the panel with no children. ... I don’t want him relating to the deien-

dant more so than he would the State’s part of the case”); State v.

Jacobs, 789 So. 2d 1280 (La. 2001) (though reversing on other grounds,

rebuking the same judge who presided over Snyder’s trial for the

careless manner in which he considered the defendant’s Batson

challenges); State v. Myers, 761 So. 2d 498 (La. 2000) (reversing on the

ground that the trial court erred in failing to address the defendant’s

Batson challenges to the State’s peremptory striking of six of seven

African Americans venirepersons). See also State v. Bridgewater, 823

So.2d 877 (La. 2002) (all-white jury seated after prosecutor used

peremptory strikes to remove prospective black jurors); State v. Lucky,

755 So.2d 845 (La. 1999) (entire panel of jurors struck when juror

accused prosecutor of using challenges to remove African-American

women); State v. Seals, 684 So.2d 368 (La. 1996) (all-white jury seated

(Continued on following page)

11

in another Jefferson Parish case by a Tulane University

professor, who concluded that the racial disparity in the

state’s use of peremptory challenges strongly supports an

inference that the Jefferson Parish District Attorney’s

Office engaged in racially discriminatory jury selection

practices; and a climate of racial insensitivity — if not

outright animosity — illustrated by prosecutors’ wearing of

hanging-noose neckties in trial proceedings against African-

American defendant Lawrence Jacob.* Although the

Louisiana Supreme Court majority recognized that Miller-

El II prohibited “consign[ing] to history” a prosecutor’s

historical use of peremptory challenges, it dismissed the

significance of Mr. Snyder’s historical evidence by com-

plaining that consideration of that evidence “would take us

outside the four corners of the appellate record... .”” This

dismissive treatment of historical evidence seems both

inflexible and disingenuous, given that most of the evi-

dence in question came from cases decided by the Louisi-

ana Supreme Court itself.

The majority next dismissed the significance of three

of the five peremptory challenges the prosecutor exercised

after the prosecutor struck three African Americans over defendant’s

Batson objection), State v. Durham, 673 So.2d 1103 (La. Ct. App. 1996)

(same).

’ This study had been introduced into the trial court record

following the Louisiana Supreme Court’s reversal on Batson grounds in

State v. Harris, supra, and was included as an appendix in Harris’ writ

application to the Louisiana Supreme Court in State v. Harris, Sup. Ct.

No. 03-KK-3549.

* See, e.g., Jeffrey Gettleman, Prosecutors’ Morbid Neckties Stir

Criticism, THE NEW YoRK TIMES, 1/5/03, Section 1; Joe Darby, Prosecu-

tors’ Choice of Neckties Blasted; Noose, Grim Reaper Worn in Murder

Case, THE TIMES PICAYUNE, 1/5/03.

* Snyder III at 488.

° Id. at 490 n. 8.

12

against African-American jurors, announcing that “[t)he

court’s current task is eased by the winnowing out of some

of the challenged jurors.” Snyder III at 493. The majority

reiterated its Snyder I refusal to consider the prosecutor’s

strikes against Greg Scott and Thomas Hawkins because,

in its view, these strikes had been waived by trial counsel’s

failure to raise Batson objections to their removal. Accord-

ing to the lower court, “There is nothing in Miller-El or

Collins that casts doubt on the correctness of this portion

of Snyder I.” Id. at 493. This statement, however, ignores

clear and significant language contained in Miller-El II.

It is important to note that defense counsel did not

affirmatively “waive” the first two black jurors struck by

the prosecutor; she simply waited to make a Batson

motion until the prosecutor had struck the third African

American juror, and failed to specifically object to the

striking of those two jurors. Nothing in Batson suggests

that a Batson motion must be made when the first African

American juror is struck; nothing in Miller-El II says so;

and nothing in the Louisiana Supreme Court’s previous

cases said so. In fact, waiting for more than one strike of

an African-American juror to bolster the required prima

facie case showing, is likely both common and defensible,

especially given the Louisiana Supreme Court’s stringent

view of the prima facie case step of a Batson analysis. See

State v. Weary, 931 So. 2d 297 (La. 2006) (no prima facie

case established where prosecutor struck only one black

juror).

Nonetheless, it may have been proper to deem claims

focused on the first two struck black jurors procedurally

defaulted based upon trial counsel’s failure, at any time, to

object to those strikes. Procedural default in this limited

sense has the consequence that Mr. Snyder could not

prevail if the only discrimination he challenged on appeal

13

was the striking of jurors he had failed to challenge at

trial. But Mr. Snyder properly objected at trial to the

striking of three jurors, and Miller-El II clearly states that

“all relevant circumstances” must be considered in evalu-

ating whether the prosecutor acted with discriminatory

motivation in striking any prospective juror. Miller-El II at

240. Additional strikes of black jurors, especially ones

without any apparent justification in the record, are part

of the record, and contribute to an inference of discrimina-

tory purpose. See id. at 265 (“It is true, of course, that at

some points the significance of Miller-El’s evidence is open

to judgement calls, but when this evidence is viewed

cumulatively, its direction is too powerful to conclude

anything but discrimination.”) Thus, given that Mr.

Snyder properly asserted his challenges to two other

jurors (both at trial and upon appeal), in dismissing the

evidence of discrimination contributed by the strikes of

Hawkins and Scott, the Snyder III court ignored Miller-El

ITs counsel. Likewise, the majority erred when it dis-

missed the relevance of a third African American juror

struck by the prosecutor, this time because Mr. Snyder’s

brief on remand did not raise arguments specifically

addressing her removal. That the prosecutor had struck

another black juror was relevant for its statistical import

in evaluating the strikes to which Mr. Snyder’s counsel

had objected. Had the lower court followed this Court’s

instruction to reconsider in light of Miller-El II, it would

have had to consider that the prosecutor used his peremp-

tory challenges to remove all five qualified African-

American jurors — a pattern even starker than that pre-

sent in Miller-El II.

Justice Johnson, in her dissenting opinion, gave a

further, case-specific reason for condemning the majority’s

determination that the defense lawyers’ hesitation in

making a Batson motion was a waiver. The sequence of

14

events strongly suggests that defense counsel's failure to

challenge those strikes when the prosecutor made them

was prompted by the prosecutor’s devious tactic of accept-

ing the first black juror — and then “backstriking” him

later. As Justice Johnson explained, “the prosecutor’s

action in accepting the first African-American juror

[Brooks] seems to have been a tactic to keep defense

counsel from raising Batson challenges to the subsequent

exclusions.” Jd. at 506 (Johnson, J., dissenting) (quoting

Snyder I, 750 So. 2d at 866) (Johnson, J., dissenting)).

Justice Johnson further observed that the prosecutor’s use

of a backstrike to remove Brooks in this case paralleled the

Texas “jury shuffle” procedure this Court found so suspi-

cious in Miller-El II. Id. at 508 (Johnson, J., dissenting).

Having transformed five struck African American

jurors into two, the majority proceeded to adopt without

modification — or reference to Miller-El IJ — its analysis of

the remaining jurors. It noted that “[djespite defense

counsel’s reiteration of the argument concerning the

remaining two potential jurors, we turn to our previous

decision regarding these persons,” id. at 493, and then

quoted extensively from its earlier opinion. Jd. at 493-95

(quoting Snyder I, supra, 750 So. 2d at 840-42). Thereafter,

the majority observed, “we ... find nothing [in the voir

dire transcript] to disparage the above quoted Batson

analysis conducted by this court in Snyder J.” Id. at 494.

Noting that “the peremptory challenge of Brooks

requires a more detailed discussion than the challenge of

[Elaine] Scott,” id. at 496, the majority elaborated on its

Snyder I reasoning with respect to the striking of Jeffrey

Brooks.” According to the majority, the prosecutor’s claim

" Although Mr. Snyder’s petition convincingly sets out reasons to

believe that the prosecutor’s stated reasons for striking Elaine Scott, as

(Continued on following page)

15

that he struck Brooks because of his student teaching

schedule was not pretextual, despite the fact that he did

not strike white jurors who reported scheduling conflicts;”

the difference, said the majority, was that the scheduling

conflicts identified by prospective white juror Sandras and

seated white juror Yaeger arose because Brooks was a

student, while “both of these men were employed and

apparently already had established careers.” Jd. at 496. It

then distinguished white juror McMurray’s concerns with

service on a different ground; hers, the majority said, were

focused on childcare problems, rather than her court-

reporting classes at Franklin College. Jd. at 496 n. 16. It is

impossible to square this pointillist approach to compara-

tive juror analysis with this Court’s opinion in Miller-El II,

which rejected the dissent’s insistence that white panelists

are only similarly situated to a struck black juror when

they are “identical in all respects,” Miller-El II at 247 n. 6,

well as his stated reasons for striking Jeffrey Brooks, were pretexutal,

amicus curiae focus here on Brooks because the Louisiana Supreme

Court’s treatment of the evidence concerning Brooks is jarringly

inconsistent with this Court’s treatment of similar evidence in Miller-El

II, and provides the strongest support for an inference of recalcitrance.

* Prospective white juror Michael Sandras taught at the University

of New Orleans and expressed concern that classes had “just started

yesterday and it’s the beginning of the semester; so any prolonged

absence, it becomes a real problem.” R. 982. He acknowledged that

concern for his classroom obligations would create difficulties for him in

concentrating, and that he would “have to somehow pass on the informa-

tion concerning work.” Jd. Despite his expressions of these concerns, the

prosecutor never asked Sandras any questions about his commitments,

distractions, or motivations to end the trial quickly.

Prospective white juror Arthur Yaeger expressed concern that jury

service would interfere with his “longstanding commitment to an event

that’s going to take place on Sunday that I've been an integral part of

for many years.” R. 983. The prosecutor neither questioned Yaeger

about his concern nor challenged him.

16

reasoning that “potential jurors are not products of a set of

cookie cutters.” Jd. Instead, this Court found “strong

similarities” probative of discriminatory intent. Jd. at 247.

In contrast to the Snyder III majority, Judge Kimball

tracked this Court’s Miller-El II approach to comparative

juror analysis. She reasoned that the prosecutor’s failure

to question Brooks about the impact of his teaching

schedule on his ability to serve, considered with his

apparent disinterest in the scheduling conflicts of other

white prospective jurors, revealed that “there was no pre-

strike foreshadowing of genuine State concern over the

possibility of Mr. Brooks having time-schedule anxieties

[and] no attempt made by the State to verify its hypothesis

and develop an objective basis for its strike.” Jd. at 502

(Kimball, J., dissenting). There is no plausible excuse for

the lower court majority’s failure to adopt her approach to

the prosecutor’s first proffered reason for striking Brooks.

The Louisiana Supreme Court majority's treatment of

the prosecutor’s second proffered reason for striking Brooks

also deviates from Miller-El’s IIT commands. The prosecutor

alleged that Brooks was “very nervous,” an assertion that

was belied by both the absence of any confirmation by the

trial judge (despite defense counsel’s protest that Brooks

had displayed no nervousness), and by the engaged re-

sponses Brooks provided to questions from both parties.

The lower court first asserted that because “nervousness

cannot be shown from a cold transcript, ... the judge’s

evaluation must be given much deference,” id. at 496, a

proposition that might be true in some cases, but in this

case was impeached by Brooks’ apparent engagement in the

voir dire process, and “voluble” responses to questions.”

* As the dissent observed, the record reflected “that Mr. Brooks

was an engaged and voluble juror throughout voir dire examination.

(Continued on following page)

17

Then the majority creatively reshaped the prosecutor’s

assertion into something less transparently impeachable:

it reasoned that “the fact that Brooks was articulate

during the voir dire may have contributed to the prosecu-

tor’s fear that he would get ‘smart’ during jury deliberation

and suggest a verdict lesser than the death penalty.”

Snyder III at 496. Such creativity, however, is prohibited

by Miller-El II, which held that “A prosecutor simply has

got to state his reasons as best he can and stand or fall on

the reasons he gives. .. . If the stated reason does not hold

up, its pretextual significance does not fade because a trial

judge or an appeals court can imagine a reason that might

not have been shown up as false.” Miller-El II at 252.

Finally, the Snyder III majority dismissed as irrele-

vant the prosecutor’s pretrial comments and penalty phase

argument comparing this case to O.J. Simpson’s case by

the incredible declaration that those comments lacked

racial content. As discussed in Point II, that declaration

defies common sense as well as racial realities in this

country. In contrast, Justice Kimball, joined by Chief

Justice Calogero, concluded that the “voir dire began

against a backdrop of the issues of race and prejudice

when the State made references to the O.J. Simpson’s

case,” and that the prosecutor’s pretrial assurances to the

trial court “that he would not refer to O.J. Simpson during

the voir dire and evidentiary portion of trial ... appear

disingenuous because the prosecutor clearly referenced the

O.J. Simpson case during its rebuttal argument at the

penalty phase of trial.” Jd. at 501 (Kimball, J., dissenting),

“Snyder III at 502 (Kimball, J., dissenting) “In the absence of the trial

court’s independent and particularized assessment of Mr. Brooks’s

demeanor, a reviewing court can only look to the record, which seems to

indicate a lack of nervousness and uncertainty on the part of Mr.

Brooks.” Jd. at 503 (Kimball, J., dissenting).

18

see also id. at 506 (Johnson, J., dissenting) (quoting

Snyder I, 750 So. 2d at 506) (Johnson, J., dissenting))

(“The prosecutor’s discriminatory intent in excluding all

African-Americans from the jury was evidenced by his

reference to the O.J. Simpson trial during closing argu-

ments.”)

Justice Kimball, who had written the majority opinion

in Snyder I, upon reconsidering in light of Miller-Ei II,

concluded that “a review of the entirety of this record

performed using the vigorous analysis directed by the

Miller-El Court reveals the trial court erred in allowing

the State to peremptorily challenge Mr. Brooks.” Jd. at 100

(Kimball, J., dissenting). Given the history of discrimina-

tion in Jefferson Parish; the prosecutor’s use of his per-

emptory challenge to strike all five of the African

American jurors who had survived for-cause challenges;

the prosecutor’s use of a backstrike to eliminate African

American juror Jeffrey Brooks; the prosecutor’s reliance

on two reasons for that strike, both of which were im-

peached by the record, as well his extraordinary summa-

tion, in which he urged the all-white jury he had created to

impose death because the Snyder case was like the O.J.

Simpson case, where the defendant “got away with it;” and

given this Court’s opinion in Miller-El II — no other conclu-

sion seems possible for a lower court acting in good faith.

The Louisiana Supreme Court’s decision “correlates with

no fact as well” as with defiance. Cf. Miller-El IJ, 545 U.S.

at 266 (“The strikes correlate with no fact as well as they

correlate with race. .. .”).

IV. Race-Based Recalcitrance Demands Correction

By This Court.

Just as “ijt blinks reality to deny that the [Texas

prosecutor] struck Fields and Warren ... because they

19

were black,” Miller-El II at 266, it blinks reality to deny

that the Louisiana prosecutor who struck all five of the

qualified potential black jurors struck none of them

because they were black. Yet, the Louisiana Supreme

Court blinked this reality, contrary te the direct instruc-

tion of this Court.

Miller-El II and Snyder III share an issue particularly

likely to increase resistance to this Court’s rulings: race. In

the history of resistance to Supreme Court commands, the

most notorious episode of all involves race. Certainly the

most widespread, protracted, and violent resistance to this

Court’s power came in the aftermath of Brown v. Board of

Education, 347 U.S. 483 (1954), which declared that

racially segregated schools violate the Equal Protection

Clause of the Fourteenth Amendment. In a story so well-

known it needs no footnotes, this Court stayed its course

and insisted on adherence to its commands. After wide-

spread footdragging and intransigence from many school

boards across the South, the Governor of Arkansas blocked

an integration plan approved by the federal courts in

pursuance of Brown’s mandate. The governor backed off

for a brief time, but integration was again halted when the

Little Rock school board sought and was granted a long

postponement of the desegregation plan. In an opinion

signed by all nine justices, this Court rejected that post-

ponement and rejected Arkansas’ contention that it was

not bound by the Brown ruling since it had not been a

party to the Brown litigation. As this Court forcefully

declared, “[T]he interpretation of the Fourteenth Amend-

ment enunciated by this Court in the Brown case is the

supreme law of the land,” which binds “every state legisla-

tor and executive and judicial officer . . . ” Cooper v. Aaron,

358 U.S. 1, 18 (1958).

Race-based recalcitrance is particularly dangerous to

the Constitution and to this Court. Whether or not the

20

Louisiana Supreme Court’s insubordination in this case

stems in part from the fact that a capital conviction is

involved, or wholly from the racial issues at stake, that

insubordination must be rooted out. This case provides

further evidenée for the existence of race-based recalci-

trance, as well as a clean vehicle for addressing that

recalcitrance.

CONCLUSION

A prosecutor should not be permitted to purge a

capital jury of African American jurors in order to address

his racist argument to an all-white panel, and he should

not be permitted to hide behind his bare assertion of race-

neutrality in the face of a comparative juror analysis that

reveals pretext. A state court cannot by fiat bleach out the

patent racial content of that argument. It should not be

permitted to defy this Court’s remand order and ignore the

premeditated violation of the Equal Protection Clause

plain on the record in this case. This Court should grant

certiorari and affirm its authority, either by a summary

reversal, or by plenary review of the case.

Respectfully submitted,

SHERI LYNN JOHNSON

CORNELL LAW SCHOOL

108 Myron Taylor Hall

Ithaca, NY 14853-4901

(607) 255-6478

slj8@cornell.edu