A supreme experience
During my externship, I had the unique opportunity to work on a case argued before the Supreme Court of the United States, Snyder v. Louisiana, with attorney Stephen B. Bright, founder and president of the Southern Center for Human Rights (SCHR) in Atlanta, GA.
The first week I arrived at SCHR, Attorney Bright was just finishing up a draft of his brief. I volunteered to edit and cite-check it. I must have done a decent job, because he asked me to help with a research assignment and later help formulate the argument for the reply brief.
When I began my research, I found many inconsistencies with later cases, and many problems with “clear error” review. I thought the Court should reconsider its ruling in Hernandez v. New York, which established the clear error review in Batson cases, and create a new standard of review that would be less deferential. While this might have been the best solution, Bright explained that a compromise is crucial to winning your case. My research focused on the standard of review applicable to this line of cases on direct appeal (instead of habeas corpus cases, which have their own highly deferential review). It was an issue that took up less than three pages in Attorney Bright’s brief, but was an issue he thought would be important to the state’s argument. To understand the standard of review issue in Snyder v. Louisiana, it is important to understand Batson v. Kentucky, the landmark Court decision in this area as well as the later Court cases applying Batson.
Peremptory challenges have been used since the nation’s founding, a carry-over from English common law, and are now a staple of the American jury system. A peremptory challenge can be used by either the defense or the prosecution, when selecting a jury when they have a “hunch” that a juror would not be helpful, or will not agree with their side of the case. During what is known as the “voir dire,” the prosecutors, defense lawyers, and occasionally the judge, ask questions of the prospective jurors about their qualifications for jury service, their opinions about the issues in the case, and specifically, in death penalty cases, about their ability to impose a death sentence if the facts support one.
If either side believes that a prospective juror is biased towards one side or, in death penalty cases, if a prospective juror is not “death qualified” (meaning that the prospective juror cannot impose the death penalty for whatever reason), and either side can prove this fact, the judge will excuse the prospective juror “for cause,” meaning that there is a valid reason for not having that person sit on the jury. After these “for cause” challenges, each side is permitted a specific number of peremptory challenges (the number varies state-by-state). These challenges are then exercised on prospective jurors who were not excused “for cause,” but for prospective jurors that either side still believes would be likely to vote with the opposing side.
Historically, peremptory challenges were exercised without giving any reason as to why a prospective juror was being excused. After being confronted with many improper uses by prosecutors, such as using peremptory challenges to exclude minorities, the Court required, on equal protection grounds, that parties give reasons for using peremptory challenges when race is an issue.
