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Snyder: Underplaying the Race Card

Recent political developments, Barack Obama told us Tuesday, "reflect the complexities of race in this country that we've never really worked through -- a part of our union that we have yet to perfect." Given yesterday's 7-2 Supreme Court decision, Snyder v. Louisiana, the same can be said of our criminal justice system. More than two decades after it confronted the issue of race in jury selection in Batson v. Kentucky, the court continues to confront -- and, thankfully, correct -- such bias. As Linda Greenhouse writes today in The New York Times, while Batson was indisputably a landmark ruling, it "promised more than it has delivered." Many criminal defense lawyers, she says, "maintain that the prosecution practice of using peremptory strikes to remove black jurors remains widespread."

Writing at SCOTUSblog, Lyle Denniston describes yesterday's decision as "a straightforward application" of Batson. The court failed to address the more sensational race issue, he notes -- the prosecutor's racially charged reference to this as his "O.J. Simpson case," which Denniston says was meant to convey "that there a black man had gotten by with murder." At Sentencing Law and Policy, Douglas Berman says the most interesting aspect of the ruling may be the voting pattern, with Justice Samuel Alito writing the majority opinion and Justice Clarence Thomas writing the dissent, joined only by Justice Antonin Scalia. It was Alito's first written opinion this term, Kimberly Atkins at DC Dicta notes, adding, "The decision was not entirely surprising, given the comments from the justices during oral arguments in the case."

But the timing of the decision, coming as it did on the heels of Obama's speech, unavoidably casts it in a broader light. As Diane Marie Amann writes at Convictions, with reference to Obama's speech, "It seems proper to question the decision of the Court to leave so much unsaid." Anne Reed at Deliberations takes this point even further, describing Snyder as "one of the most conscientiously narrow decisions you'll ever read," with a result that is striking, "even if the reasoning is not." While the decision focused on one peremptory challenge, it inexplicably ignored the broader context, in which the prosecutor successfully struck every black in the venire and then made his "O.J." argument to an all-white jury. Citing Obama's speech, Reed suggests a need to confront race in jury selection more squarely. "This tension, between the ideal of nondiscrimination and the reality of race in shaping jurors' attitudes, has made lower courts struggle with Batson ever since it was decided," she writes. "Snyder may help them struggle more bravely, but they'll still struggle."

Posted by Robert J. Ambrogi on March 20, 2008 at 03:22 PM | Permalink | Comments (1)


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