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.