Batson, O.J., and Snyder. Lessons from an Intersecting Trilogy

Author:Camille A. Nelson
Position::Professor, Saint Louis University School of Law

Introduction I. The Legacy Of Batson II. Snyder And The Prosecutorial Use Of Racial Proxies- The Louisiana Supreme Court Decision III. The Collision Of O.J. And Snyder IV. Conclusion-The Supreme Court's Missed Opportunity V. Carpe Diem

© Copyright 2008 Camille A. Nelson; Professor, Saint Louis University School of Law; LL.B., University of Ottawa; LL.M., Columbia Law School. A special thank you to my research assistants Amanda Giovanoni and Matthew Knepper and to my library liaison Ms. Lynn Hartke of Saint Louis University, School of Law for their excellent and timely research help. Thanks also to the faculty of Saint Louis University School of Law for allowing me the opportunity to share this Article with them as part of the faculty workshop series-their feedback is greatly appreciated. Last but not least, thank you to the student editors at the Iowa Law Review-not only did they host an incredible symposium, but they were truly wonderful to work with. This Article has benefitted greatly from their involvement.


There are few cases that inform our collective understanding of the American jury system more than Batson v. Kentucky.1This case serves as a touchstone in Equal Protection jurisprudence and can be viewed as "the [U.S. Supreme Court's] most ambitious attempt to impose meaningful prohibitions on the use of race-based peremptory challenges."2 This case and its progeny provide a framework for the protection of the Fourteenth Amendment's Equal Protection Clause3 and also implicate the Sixth Amendment's4 jury-trial guarantees.

The Batson holding has been expanded to guard not only against the wrongful exclusion of jurors based upon race, but also against improper exclusions based upon gender and ethnicity.5 It remains to be seen whether the Court will expand the Batson rationale to include exclusions based upon either sexual orientation6 or religion.7 Despite these expansions, however, even the original goals articulated twenty years ago in Batson remain unfulfilled. Batson's promise of protection against racially discriminatoryjury selection has not been realized. While the Batson majority proclaimed, "The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, or on the false assumption that members of his race as a group are not qualified to serve as jurors,"8 the challenges posed by cases such as Snyder v. State,9 a case with a deep racial history, belie the achievement of these lofty aspirations. Certainly, the recent U.S. Supreme Court decision in Snyder v. Louisiana10revealed that the Court would rather whitewash its Batson analysis than engage in a robust examination of the racialized circumstances and issues of racism present in, and revealed by, such a case. The Court thereby missed an opportunity to grapple with one of the criminal-justice system's most pressing and enduring concerns-race.

Many commentators have analyzed the racialized nature of the American criminal-justice system.11 Protection of the American jury system from race-based inequities has been an essential part of jurisprudential attempts at fairness, justice, and equity. Indeed, the aspiration for an impartial administration of the jury system has been the subject of numerous Supreme Court opinions as well as a popular topic of scholarly analysis.12

Given the Court's reluctance to explore peremptory challenges under the rubric of the Sixth Amendment,13 the Fourteenth Amendment is the exclusive jurisprudential lens for analysis. As discussed earlier, the Supreme Court and numerous legal commentators have highlighted the fact that defendants of color must receive a jury of their peers, reinforced the illegality of governmental discrimination on account of race, and focused upon prosecutorial misbehavior.14 Despite these aspirations, however, the hope of Batson v. Kentucky15 remains unfulfilled due in part to the ease with which a prosecutor may overcome a defendant's showing of a prima facie case of purposeful discrimination in the jury-selection process, and also due to the narrow framework courts employ when examining racially motivated behaviors.16 Specifically, challenges brought against the discriminatory use of peremptory challenges are too easily explained away because there is insufficient critical thought involved in the assessment of the exercise of this prosecutorial discretion.

This Article will explore the case of Snyder v. Louisiana17 as an example of the low threshold established by some jurisdictions that apply the Batson test. By allowing for pretext, inconsistent excuses, and flimsy explanations from prosecutors, many courts have essentially inoculated prosecutors from the rigorous potential of the Batson decision. Part I briefly reviews the landmark decision of Batson v. Kentucky to reveal the unrealized scope of this legal opinion. Part II explores Snyder and analyzes both the prosecutors' use of peremptory challenges to achieve an all-white jury as well as the repeated remarks of one prosecutor who invoked the racially polarizing O.J. Simpson case. Part III uses sociological theories of raced-based perception to examine the racial divisions prompted by the O.J. Simpson case. This subsection draws the connection between the likely manner in which an all-white jury would view the O.J. verdict and its relevance to establishing both discriminatory intent on the part of the prosecutors and the absence of neutral explanations for prosecutorial removal of all of the black jurors from Mr. Snyder's jury. In the conclusion, I suggest that the Supreme Court decision is under-theorized because it fails to address the larger issues of race and ethics so clearly at play in the case. I urge, instead, the adoption of a more critical and reality-based framework for the scrutiny of Batson challenges, or alternatively, the abolition of peremptory challenges with respect to capital murder cases.

I. The Legacy Of Batson

Mr. Batson, a black man, was indicted for second-degree burglary and the receipt of stolen property in Kentucky.18 After certain jurors were excused for cause, the prosecutor used his peremptory challenges to construct an all-white jury by striking all four of the black people on the venire.19 The defense counsel sought to discharge the jury as violative of Batson's Sixth and Fourteenth Amendment rights to a jury "drawn from a cross section of the community"20 and of guarantees to equal protection of the laws.21 Rejecting these submissions, the trial judge held that "the parties were entitled to use their peremptory challenges to 'strike anybody they want to.'" 22

In delivering the opinion of the Court, Justice Powell firmly situated Batson as following in the footsteps of the Court's decision in Swain v. Alabama.23 Swain, a case decided over two decades prior to Batson, involved a black defendant sentenced to death upon conviction, by an all-white jury, of raping a white woman. Robert Swain, then eighteen years old, mounted his appeals based not upon the historically rooted, yet controversial, allegations of rape made against black men accused of raping white women,24 nor upon the equally controversial use of the death sentence to execute black defendants accused of harming white victims.25 Rather, his articulations were based entirely upon the racialized use of the jury system in Talladega County.

The substance of Swain's appeal revolved around three issues. First, he challenged the construction of the jury panels in criminal cases-including the jury roll, grand juries, and petit juries-claiming that the disparities indicated racial discrimination.26 Second, Swain claimed that the prosecutor intentionally struck all six blacks from the petit jury in order to achieve an all-white jury.27 As such, Swain averred that the exclusion of black people from serving on his petit jury was designedly discriminatory. Third, Swain critiqued the manner in which prosecutors in Talladega County had perverted the peremptory strike system to exclude blacks systematically from ever serving on petit juries.28

Remarkably, the Court denied the appeal and affirmed the lower court's determinations on not one, not two, but all three bases of Swain's appeal.29 Because "Alabama ha[d] not totally excluded [blacks] from either grand or petit jury panels,"30 and because the inclusion of between six and eight blacks on these panels did not rise to the level of "forbidden token inclusion,"31 the Court held insufficient the evidence claimed "to make out a prima facie case of invidious [racial] discrimination [in violation of] the Fourteenth Amendment."32 Further, the Court determined that, because "Negro and white, Protestant and Catholic, are alike subject to being challenged without cause,"33 opening peremptory challenges up to "the demands and traditional standards of the Equal Protection Clause" would essentially eviscerate the nature and purpose of the challenge.34 The Court thus decided that the striking of blacks in a particular case was not a violation of equal protection.35 Finally, with respect to the assertion that Alabama was systematically striking blacks from petit juries, the Court again rejected Swain's arguments, stating that "even if a State's systematic striking of Negroes in the selection of petit juries raises a prima facie case under the Fourteenth Amendment, we think it is readily apparent that the record in this case is not sufficient to demonstrate that the rule has been violated."36The Supreme Court in Swain affirmed the death sentence by stating that "petitioner has not laid the proper predicate for attacking the peremptory strikes as they were used in this case."37

Batson both adopted and rejected these Swain rationales. The Supreme Court recognized that part of the Swain decision acknowledged that a "'State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause.'"38 The key issue to be resolved in Batson, however, was the manner and level of proof required to claim such a constitutional violation successfully. As such, the Court in Batson...

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