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April 10, 2008
PROSECUTORS, MISCONDUCT, AND RACE
Houston Criminal Attorney John Floyd Discusses Improper Use of Race as Factor in Exercising Juror Strikes
The Harris County District Attorney’s office has found itself embroiled in political controversy over the last six months: racially charged and sexually explicit e-mails, the resignation of Chuck Rosenthal, a feud with a grand jury, involvement in a civil rights lawsuit that will cost the county several million dollars, and media criticism of prosecutorial tactics utilized to secure criminal convictions at any cost.
The Houston Chronicle recently published an editorial (March 22, 2008) critical of the District Attorney’s office’s rather routine racially discriminatory practice of excluding African-Americans from jury duty. The Chronicle pointed to a recent 7-2 decision by the United States Supreme Court reversing a capital murder conviction because a Louisiana prosecutor improperly excluded an African-American from jury duty. See: Snyder v. Louisiana, 552 U.S. ____ (2008) [Slip Opinion No. 06-10119].
Pointing to Justice Samuel A. Alito, Jr.’s comment that the Louisiana’s prosecutor’s tactics “naturally gives rise to an inference of discriminatory intent,” the Chronicle observed:
“Where have we heard this before? The scenario should ring a bell with readers of Chronicle columnist Lisa Falkenberg, who explored a Harris County prosecutor and district attorney candidate’s striking of a black juror in a murder case.
“Although Siegler told the judge she eliminated AT&T manager Matthew Washington because he was a member of Lakewood Church, she did not strike two other prospective jurors who were Lakewood members. They were Hispanic, both had arrest records, and they had answered affirmatively to the question, ‘Do you feel blacks are more violent than other racial groups?’
“Harris County prosecutors and former prosecutors who are African-American told Falkenberg the district attorney’s office exerts subtle pressure to keep minorities off juries.
“That atmosphere of discrimination might explain an e-mail circulated in 2003 by the chief of the district attorney’s felony division congratulating a prosecutor for winning a case with a weak jury containing ‘Canadians,’ a term used by some in law enforcement as a code for black people.”
It would indeed serve the interests of justice if federal prosecutor Ken Magidson, recently appointed by Gov. Rick Perry to complete Rosenthal’s unexpired term, would make Snyder v. Louisiana required reading for his assistants in the District Attorney’s office. It’s an instructive decision for those prosecutors who like to skate on the edges of “prosecutorial misconduct.”
Allen Snyder, an African-American, was tried, convicted, and sentenced to death by an all-white jury in Jefferson Parish, Louisiana, in August 1996 for the murder of his wife’s companion. Snyder and his wife, Mary, had been experiencing marital difficulties prior to their estrangement. Both had extra-marital affairs which played a role in the physical abuse Snyder inflicted on his wife immediately prior to their breakup. Mary took the children and moved with her mother.
Shortly after their separation, on the evening of August 15, 1995, Snyder contacted Mary about reconciliation. She agreed to meet with her husband the next day, but Snyder pressed for a meeting that evening. Mary put him off, saying she “didn’t want to see him” that evening. She did not tell her husband that her reluctance to meet him was because she had a date with a married man named Howard Wilson. Snyder repeatedly tried to page Mary throughout the evening but she refused to respond.
At about 1:30 a.m. on the morning of August 16 Wilson pulled his vehicle up in front of the home of Mary’s mother. Snyder was waiting. He approached Wilson’s vehicle from the driver’s side. He snatched open the door and attack Wilson and Mary with a double-edged knife. He stabbed Wilson nine times and Mary nineteen times. Wilson died from his wounds while Mary survived hers.
Two months after Snyder’s arrest, on October 3, 1995, O.J. Simpson was acquitted in what was hailed as the “trial of the century.” James Williams, the lead prosecutor in the Snyder case, immediately began making public statements that the Snyder case was “his O.J. Simpson case.” Snyder’s defense counsel learned of these comments and filed a motion in limine “to preclude the state from making any references or comparison whatever – direct or indirect – to other notorious prosecutions, specifically People of the State of California v. Orenthal James Simpson.”
In her motion, defense counsel argued that any such references to the Simpson case would be highly prejudicial and racially inflammatory because “[s]urveys conducted since the verdicts in the O.J. Simpson trial have shown consistently that a large majority of white Americans believe that the not guilty verdicts were wrong.”
The trial court conducted a hearing on defense counsel’s motion one week prior to the start of Snyder’s trial. At that hearing defense counsel informed the court that “Mr. Williams has been all over two parishes talking about this is his O.J. Simpson case.” Defense counsel added that “[s]ixty-something percent of all white people in America think that O.J. Simpson got away with murder. We’ve got a ninety-five percent jury venire that is white.”
Defense counsel’s argument was particularly relevant in Jefferson Parish. A majority of the people in the parish had voted to send David Duke, a former grand wizard of the Knights of the Ku Klux Klan, to the Louisiana House of Representatives in the late 1980s. The parish had also given Duke 52% of its vote in 1990 in a U.S. Senate race against former Sen. J. Bennett Johnston, D-La., and 40% of its vote in a gubernatorial run off election with then popular Gov. Edwin Edwards. While Jefferson Parish is one of Louisiana’s wealthiest and best educated parishes, it has long been known as a “racially polarized” community because many of its residents are part of the “white flight” from adjacent Orleans parish. The parish garnered unsavory national media attention in the wake of Hurricane Katrina after its armed law enforcement officers refused to let fleeing New Orleans residents, mostly African-American, enter the parish from elevated freeways on the heels of reported looting in the ravaged Crescent City.
Williams did not disavow the O.J. Simpson references, but he did assure the trial court that he would not make any references to the Simpson case during the taking of evidence. Defense counsel was not satisfied. She pointed out that Williams had twice been reversed by the Louisiana Supreme Court for making improper closing arguments. Williams responded to this argument by telling the court: “trust me, trust me, as an officer of this Court … [please allow me] to conduct this case in the proper manner. I have given my word that I will not, at any time during the course of the taking of evidence or before the jury in this case, mention the O.J. Simpson case.”
The trial court accepted the prosecutor’s assurances, saying: “Based on Mr. Williams’ representations, I’m going to deny [the] motion.”
Defense counsel was not deterred by this adverse ruling. She moved the court for an “order” prohibiting Williams from making any future comments to the media linking Snyder’s case to the O.J. Simpson case. In her written motion, defense counsel informed the court that she had received a telephone call from a local television reporter asking her for a comment on “the O.J. Simpson trial” scheduled to begin the next day. The reporter confirmed that the District Attorney’s office had “billed this trial with the by-now infamous {O.J. Simpson] moniker, and intimated that it was the reference that made the story newsworthy.”
The trial court conducted a hearing on this motion on the day of trial prior to jury selection. Williams responded to the motion by telling the court he was “a big First Amendment guy” and “this is yet another motion that if it’s granted, is going to bring about a tidal wave of other motions, trying to limit what I can and cannot say, and I don’t think it’s relevant in this case.” Williams added that he had no intention of speaking to the press, and the court concluded that “with that in mind, I’m going to go ahead and deny the motion.”
Williams, of course, lied to the court. In his rebuttal argument, the prosecutor invoked “the most famous murder case in the last, in probably recorded history, that all of you are aware of …” Defense counsel rose quickly to object, and during a bench conference, told the trial judge that “he’s going to mention the O.J. Simpson trial.” Williams responded that such a reference was “fair comment on something that’s common knowledge.” The trial judge agreed, saying “I’m going to allow it.”
Williams resumed his argument, saying: “The most famous murder case, and all of you have heard about it, happened in California very, very, very similar to this case” He then made reference to Snyder’s pre-arrest suicide threat: “ … when he [Snyder] called in and claimed that he was going to kill himself,” he was imitating O.J. Simpson, who “got away with it.”
In a motion for new trial, defense counsel argued that Williams had systematically struck all five African-Americans from the thirty-six prospective jurors in the jury pool to get an all-white jury that would be a “receptive audience” to his “O.J. Simpson argument.” The trial court denied the motion.
The Louisiana Supreme Court upheld Snyder’s conviction and sentence on direct appeal. See: State v. Snyder, 1998-1078 (La. 4/14/04), 878 So.2d 739. Snyder filed an application for writ of certiorari in the U.S. Supreme Court, arguing that Williams had exercised some of peremptory jury challenges based on race in violation of the court’s precedent ruling in Batson v. Kentucky, 476 U.S. 79 (1986). While Snyder’s certiorari petition was pending, the Supreme Court handed down Miller-El v. Dretke, 545 U.S. 231 (2005) which imposed a duty on the trial court in a Batson inquiry to weigh the “prosecutor’s credibility.” The Supreme Court granted Snyder’s certiorari application, vacated the judgment, and remanded the case back to state courts for a Miller-El review. See: Snyder v. Louisiana, 545 U.S. 1137 (2005).
On remand the Louisiana Supreme Court once again rejected Snyder’s Batson claim. See: State v. Snyder, 1998-1078 (La. 9/6/06), 942 So.2d 484. Snyder applied again to the U.S. Supreme Court for certiorari review and the court granted review. See: Snyder v. Louisiana, 551 U.S. ____ (2007). The nation’s high court thereafter reversed Snyder’s conviction on March 19, 2007. The Supreme Court pointed out that Batson v. Kentucky established a three-step process that must be utilized by a trial court in determining where a peremptory challenge was based on race:
• A defendant must make a bona fide showing that a peremptory challenge has been exercised on the basis of race.
• If the defendant makes initial showing, the prosecution must offer a race-neutral basis for striking the juror.
• The trial court, in light of both by the defense and prosecution, must determine whether the defendant has shown purposeful discrimination.
See: Miller-El v. Dretke, supra, 545 U.S. at 277. See also: Miller-El v. Cockrell, 537 U.S. 322, 328-29 (2003). The trial court’s ruling on the “purposeful discrimination” issue will not be disturbed on appeal absent clearly erroneous reasons. See: Hernandez v. New York, 500 U.S. 352, 369 (1991).
Snyder based his Batson claim on the strikes of two black jurors: Jeffery Brooks and Elaine Scott. Because the Supreme Court found a “clear error” in the trial court’s ruling concerning juror Brooks, the court said there was no need to examine the strike of Ms. Scott. See: 552 U.S. at ____ (Slip Opinion at 4-5). When Snyder’s defense counsel made the Batson objection with respect to Jeffery Brooks, prosecutor Williams offered two “race-neutral” reasons for the strike:
“I thought about it last night. Number 1, the main reason is that he looked very nervous to me throughout the questioning. Number 2, he’s one of the fellows that came up at the beginning [of our voir dire] and said he was going to miss class. He’s a student teacher. My main concern is for that reason, that being that he might, to go home quickly, come back with guilty of a lesser verdict so there wouldn’t be a penalty phase. Those are my two reasons.”
The Supreme Court examined in detail both of the reasons offered by Williams:
“With respect to the first reason, the Louisiana Supreme Court was correct that ‘nervousness cannot be shown from a cold transcript, which is why … the [trial] judge’s evaluation must be given much deference.’ 542 So.2d at 496. As noted above, deference is especially appropriate where a trial judge has made a finding that an attorney credibly relied on demeanor in exercising a strike. Here, however, the record does not show that the trial judge actually made a determination concerning Mr. Brooks’ demeanor. The trial judge was given two explanations for the strike. Rather than making a specific finding on the record concerning Mr. Brooks’ demeanor, the trial judge simply allowed the challenge without explanation. It is possible that the judge did not have any impression one way or the other concerning Mr. Brooks’ demeanor. Mr. Brooks was not challenged until the day after he was questioned, and by that time dozens of other jurors had been questioned. Thus, the trial judge may not have recalled Mr. Brooks’ demeanor. Or, the trial judge may have found it unnecessary to consider Mr. Brooks’ demeanor, instead basing his ruling completely on the second proffered justification for the strike. For these reasons, we cannot presume that the trial judge credited the prosecutor’s assertion that Mr. Brooks was nervous.
“The second reason proffered for the strike of Mr. Brooks – his student-teaching obligation – fails even under the highly deferential standard of review that is applicable here. At the beginning of voir dire, the trial court asked the members of the venire whether jury services or sequestration would pose an extreme hardship, Mr. Brooks was 1 of more than 50 members of the venire who expressed concern that jury service or sequestration would interfere with work, school, family, or other obligations.” 545 U.S. at ____ (Slip Opinion at 7-8).
The Supreme Court took note that a law clerk for the court contacted Mr. Brooks’ university professor who expressed no problem with Mr. Brooks’ jury service so long as the trial was completed that week. When informed by the court of the university professor’s support, Brooks was receptive to serving on the jury. As the Supreme Court emphasized:
“Once Mr. Brooks heard the law clerk’s report about the conversation with Doctor Tillman, Mr. Brooks did not express any further concern about serving on the jury, and the prosecution did not choose to question him more deeply about the matter.
“The colloquy with Mr. Brooks and the law clerk’s report took place on Tuesday, August 27; the prosecution struck Mr. Brooks the following day, Wednesday, August 28; the guilt phase of petitioner’s trial ended the next day, Thursday, August 29; and the penalty phase was completed by the end of the week, on Friday, August 30.
“The prosecutor’s second proffered reason for striking Mr. Brooks must be evaluated in light of these circumstances. The prosecutor claimed to be apprehensive that Mr. Brooks, in order to minimize the student-teaching hours missed during jury service, might have been motivated to find petitioner guilty, not of first-degree murder, but of a lesser-included offense because this would obviate the need for a penalty phase proceeding. But this scenario was highly speculative. Even if Mr. Brooks had favored a quick resolution, that would not have necessarily led him to reject a finding of first-degree murder. If the majority of jurors had initially favored a finding of first-degree murder, Mr. Brooks’ purported inclination might have led him to agree in order to speed the deliberations. Only if all or most of the other jurors had favored the lesser verdict would Mr. Brooks have been in a position to shorten the trial by favoring such a verdict.
“Perhaps most telling, the brevity of petitioner’s trial – something the prosecutor anticipated on the record during voir dire – meant that serving on the jury would not have seriously interfered with Mr. Brooks’ ability to complete his required student teaching…” 545 U.S. at ____ (Slip Opinion, at 8-9).
Finally, the Supreme Court pointed out that prosecutor Williams did not strike two white jurors who stated they had “conflicting obligations” as serious as those Mr. Brooks had expressed. Williams did not strike either juror. That was sufficient for the court to find “purposeful discrimination” by Williams with the strike of Jeffery Brooks. The court concluded:
“ … it is enough to recognize that a peremptory strike shown to have been motivated in substantial part by discriminatory intent could not be sustained based on any lesser showing by the prosecution. And in light of the circumstances here – including absence in the record showing that the trial judge credited the claim that Mr. Brooks was nervous, the prosecution’s description of both of its proffered explanation as ‘main concern[s],’ and the adverse inference noted above – the record does not show that the prosecution would have pre-emptively challenged Mr. Brooks based on his nervousness alone. Nor is there any realistic possibility that this subtle question of causation could be profitably explored further on remand at this late date, more than a decade after petitioner’s trial.” 545 U.S. at ___ (Slip Opinion at 12-13).
The prosecutorial tactics of Jefferson Parish Assistant District Attorney James Williams in the Snyder case are similar to those attributed to many at the Harris County Assistant District Attorney’s Office.
Law students, future lawyers, and assistant district attorneys should be reminded that their dirty linen can and will be hung out to dry in the legal community if they follow the prosecutorial tactics advocated by those compelled to win at all costs. James Williams is a prime example – two reversals by the state supreme court and one by the U.S. Supreme Court.
SOURCE: Background information in the Snyder case was gleaned from the certiorari writ application submitted to the U.S. Supreme Court by Stephen R. Bright, Southern Center for Human Rights, 83 Popular Street, N.W., Atlanta, Georgia 30303.
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