US Supreme Court: 06-10119

8/14/2019 US Supreme Court: 06-10119

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8/14/2019 US Supreme Court: 06-10119


8/14/2019 US Supreme Court: 06-10119


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Official - Subject to Final Review

P R O C E E D I N G S

(11:12 a.m.)

CHIEF JUSTICE ROBERTS: We'll hear argument

next in case 06-10119, Synder v. Louisiana.

Mr. Bright.

ORAL ARGUMENT OF STEPHEN B. BRIGHT

ON BEHALF OF THE PETITIONER

MR. BRIGHT: Mr. Chief Justice, and may it

please the Court:

The decision here of the majority of the

Louisiana Supreme Court on remand from this Court is an

extraordinary departure from the lessons that this Court

taught in its Miller-El decisions. And I point out sort

of three overarching errors in that regard.

First, the majority looked at each of the

Miller-El factors or some of them, and largely

discounted them. That there were five African-Americans

struck, they whittled that down to two. That there was

disparate questioning, they identified that of the white

jurors and Jeffrey Brooks, but they said that counted

for the State. And Miller-El clearly teaches that it

didn't.

They found there was no racial implication

in the mention of O.J. Simpson case from the start of

the case all the way through, because neither O.J.

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Simpson's race nor Mr. Snyder's race was mentioned.

Secondly, there were some Miller-El factors

that were not considered at all, not even acknowledged.

For example, one of the most powerful ones, the failure

to ask any questions of Jeffrey Brooks or Elaine Scott.

There are very ambiguous general reasons for striking

them. They asked no questions. In this case, you could

ask anybody any questions you wanted as a lawyer.

And then thirdly, when they got to the point

of considering them cumulatively, they had now whittled

them down to where there was very little to consider.

And our position is that what Justice

Kimball did, the author of the original decision, who

wrote the dissenting opinion, one of the two dissents

here, actually did what this Court remanded this case to

do, which was reconsideration in light of Miller-El,

because when you consider all those factors together,

nothing answers the question of or explains them as well

as race.

You can pick each piece out, each leaf out

and you can try to find an innocent explanation for it.

But when you stand back and look at it all together --

and that's why the court missed the fact that the back

strike was racially motivated in this case.

It just simply didn't look at these things

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in the context --

JUSTICE ALITO: Can I ask you about one of

the factors?

MR. BRIGHT: Sure.

JUSTICE ALITO: It's hard to discuss them

all at the same time. What is the relevance of strikes

of black lawyers that you don't argue were based on

race? It's hard for me to understand why that's

relevant in this calculation.

Suppose there's a case where it's perfectly

clear that certain strikes were not racially motivated.

Let's say the prosecution has the strategy of striking

every lawyer who's on the panel. It strikes every white

lawyer and it strikes every black lawyer. Then what is

the relevance of the fact that the black lawyers were

peremptorily challenged?

MR. BRIGHT: Well, I see. You mean the

jurors happen to be lawyers and they are struck?

JUSTICE ALITO: That's right.

MR. BRIGHT: There's a common reason. Well,

if that's the case and you have considered that in

Miller-El, that's a factor for race neutrality. The

difference here is the reason given for striking Brooks,

for example, is he might have a reason to go home --

JUSTICE ALITO: You are making the argument

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there were five African-American jurors who were the

subject of prosecutorial peremptory challenges.

MR. BRIGHT: Yes.

JUSTICE ALITO: And -- but you don't claim

that three of those strikes were based on race? Do you?

MR. BRIGHT: Well, no different than

Miller-El. The Court in Miller-El says you look at the

prima facie case because it is unlikely to happen by

chance.

JUSTICE ALITO: There were a large number of

strikes in Miller-El. This is a much smaller number.

Could you just explain, if you can, what is the

relevance of strikes that you do not even claim were

racially motivated?

MR. BRIGHT: Well, the difference is that as

in Miller-El it is unlikely to happen by happenstance.

They struck all the blacks they could in this case.

There were only five. They struck every one of them.

And the way they went about striking them -- and the

context of all this -- it doesn't say that all five of

those, that's -- Justice Alito, but that's the classic

Batson case where the prima facie case is strong, given

the number of people struck, but you zero in on the

particular jurors where doing the side by side

comparison, the failure to ask any questions, the other

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factors that were identified --

CHIEF JUSTICE ROBERTS: I think that's right

that you zero in on the ones as to which you objected.

But you also want to rely on the fact that these other

jurors were excluded, and no objection was made to their

exclusion. If an objection had been made, the State, of

course, would have -- could have explained if they had a

reason, a non-racial one, why they were struck. But you

didn't object.

And yet you want them to be considered as

convincing racial bias.

MR. BRIGHT: Well, part of the reason they

weren't struck, Mr. Chief Justice, was one of the

elements of race here. The prosecution accepted the

first black juror. So when the second one, Gregory

Scott is struck, there's only one out of two. There's

no the pattern. Then Mr. Hawkins is struck. Now it's

two out of three. It is when Miss Elaine Scott was

struck. And now it's three out of four. There's still

one African-American.

At that point defense counsel said there's a

pattern, and I strike based on the pattern of striking

African-Americans.

JUSTICE GINSBURG: Couldn't counsel at that

point have gone back and said, ah, now I see what's

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going on, so I'm going to challenge -- I'm going to

interpose a Batson challenge with respect to the second

and third African-American?

MR. BRIGHT: Or actually the first and

second. You're right. The second and third. There was

-- that certainly could have been done. I think

basically the defense was snookered here.

But also, there was nothing to prevent the

prosecution from giving reasons. In fact, Mr. Oland,

the junior prosecutor here, he starts to say, I struck

Mr. Hawkins, and at that point Williams, the senior

prosecutor, said, don't say anything. Stop --

CHIEF JUSTICE ROBERTS: Presumably because

no objection was raised as to Mr. Hawkins. I mean, it

is -- the burden is on you to object if you think jurors

are being excluded on a racial basis.

MR. BRIGHT: Well, but the only thing we're

putting the pattern forward for is step three of Batson,

where both Miller-El decisions make it quite clear that

if the numbers are such that it is unlikely to happen by

happenstance, that's one element. It is not that all

five necessarily were struck on the basis of race. But

it is the fact that that unlikely event, that five out

of five were struck, informs that decision in Batson

saying looking at all relevant facts, it doesn't

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exclude -- I've seen Batson challenges where a lawyer

will say, well, with regards to five and six, then we

think those are particularly strong, not with regards to

others -- Miller-El did that.

They only challenged seven on direct appeal,

only challenged six on the habeas corpus case that

ultimately made its way to this Court, and this Court

only found with regard to two.

CHIEF JUSTICE ROBERTS: Out of -- out of how

many who were struck.

MR. BRIGHT: Ten. So they only challenged

seven of those on -- on direct appeal, six on habeas

corpus, and this Court only found Jurors Fields and

Juror Ward. That's basically -- we're here saying, you

struck five out of five, all that he possibly could

have, and Juror Brooks -- if you look at all the

Miller-El factors with regard to Jeffrey Brooks, just

two general reasons that probably applied to everybody

there. He was nervous; I expect every citizen called

out of their home or out of their work --

JUSTICE SCALIA: The district judge is in a

much better position to decide those matters, such as

you know, he -- his -- his response was -- was slow on

-- one the question of, you know, whether he could

consider the death penalty. I can't tell that from a

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CHIEF JUSTICE ROBERTS: Ms. Dupont says,

"I'm sorry, I can't hear you." I mean, we don't know;

since we weren't there if it was kind of, you know, "I

think I could" and then "I think" -- I mean, you know,

it's an atmospheric determination by the -- the district

court judge; and as -- as has been pointed out here, all

we have is the cold transcript.

MR. BRIGHT: Well, then, just a couple of

pages later, Mr. Chief Justice, she says I could. She

gives the same answer that the --

CHIEF JUSTICE ROBERTS: That's on joint

appendix 401?

MR. BRIGHT: Yes.

CHIEF JUSTICE ROBERTS: And -- and the

problem with that, of course, is it's --

MR. BRIGHT: I'm sorry. 367.

CHIEF JUSTICE ROBERTS: 367.

MR. BRIGHT: She says "I think I could" at

361. And then just a few pages later they go each

juror, and she says "I could."

CHIEF JUSTICE ROBERTS: Well, but -- the

question is not could you consider the death penalty.

It says could you consider both, when they're going

through several of the juries. Jurors.

MR. BRIGHT: Well --

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CHIEF JUSTICE ROBERTS: And I thought that

was -- the point was made by your friend on the other

side, was that it was ambiguous as to what option she

was saying she could consider.

MR. BRIGHT: Well, I'd invite the Court to

look at that. Because what that starts out with is a

question about life. Could you consider life

imprisonment. And then when Ms. Goff is answered, she

says the death penalty, could I consider it? Yes, I

could consider it. And then everybody says they could

consider it.

Now, the Louisiana Supreme Court treated

this as her saying I could consider the death penalty.

That's what they said. But here's the other point with

Miss Scott. It only took one question: Ms. Scott, what

did you mean when you said I think you could?

I mean that was in Miller-El -- in the

opinion in Miller-El II, the fact that Fields wasn't

asked any questions about the position on the death

penalty. He had expressed some; but if the

prosecutor --

JUSTICE SCALIA: Well, these are peremptory

challenges. It seems to me if you have one -- one juror

who says I think I could and another one who said I

could, I'm going to strike the one who said I think I

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could.

MR. BRIGHT: But Justice Scalia, there's no

reason you wouldn't ask them what they meant. And

that's what the prosecutors did with all the white

jurors here -- every single one. It's only Ms. Scott,

Elaine Scott that there's no questions asked about the

reasons they gave for striking her. So they had the

opportunity to ask her what she meant and they asked all

21 of the white jurors. They asked the --

JUSTICE SCALIA: Did all 21 say I think I

could?

MR. BRIGHT: No. All 21 said no. And then

the prosecution asked them follow-up questions about

what their beliefs were. So in those situations, the

prosecutor is asking questions to be sure to clarify

their position on the death penalty. Miss Calligan is

the only one who says well, I'm not sure. So they asked

Ms. Calligan a number of questions. How long have you

thought about it? What do you think? All those sorts

of things. Ultimately it is pretty clear Ms. Calligan

is opposed to the death penalty.

JUSTICE ALITO: Mr. Bright, you make good

arguments about comparisons between white jurors and

black jurors.

MR. BRIGHT: Yes.

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JUSTICE ALITO: What do we do with the

comparisons that you are making now to white jurors who

were never brought to the attention of the Louisiana

Supreme Court?

MR. BRIGHT: Well, I think Miller-El, again,

answers that, because the entire voir dire was before

the Louisiana Supreme Court. On remand from this Court

arguments were made about the -- the disparate

questioning of jurors; and also with Jeffrey Brooks,

where that's also very clear because the reason given

for striking Jeffrey Brooks is that he would have a

reason to want to go home early.

My experience is most jurors taken out of

their homes and out of their work, would like to finish

their job and go home early.

JUSTICE ALITO: I think you have a good

argument in comparing him to some of the white jurors,

in particular Mr. Laws.

MR. BRIGHT: Right.

JUSTICE ALITO: But my understanding is you

never relied on Mr. Laws before the Louisiana Supreme

Court. Is that correct?

MR. BRIGHT: Not Mr. Laws specifically, but

you can look at the other people that are mentioned in

Justice Kimball's dissent. Mr. Yeager had something

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coming out on Sunday; he wanted to get home for that.

Brandon Burns --

JUSTICE ALITO: But the arguments as to each

of them are different. The argument as to Mr. Yeager, I

think is much weaker. He had one event on a Sunday and

he was told you don't have to worry about that, this

case is going to be over by Sunday.

MR. BRIGHT: Well --

JUSTICE ALITO: So that's quite different

from somebody -- it could be quite different from

someone like Mr. Brooks or Mr. Laws. Isn't that?

MR. BRIGHT: Actually the reason they say

they're concerned about Mr. Brooks is because he was

told, your dean says it won't be a problem. And he says

okay. No further expression of worry by him.

There is, by the other jurors, that were

accepted -- they all say on the record I need to get

back to my job, to my family. Mr. Burns -- a single

parent, teenagers, 89-year-old grandparents that he

wants to get back to. All of those people accepted by

the State. And Justice Kimball deals with some of those

in her dissenting opinions, and they're briefed up to

the Louisiana Supreme Court on remand from this case.

But I believe Miller-El III -- or II --

JUSTICE SCALIA: I don't understand how the

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dean could resolve his problem.

MR. BRIGHT: Well, he's the dean.

(Laughter.)

JUSTICE SCALIA: The man's problem, what

he's worried about is that he has to put in a certain

number of hours of teaching. And what was it? A couple

of months before the end of the term? It was going to

be very --

MR. BRIGHT: No, this was in August. This

was right before the Labor Day weekend in August. The

term went all the way to December, Justice Scalia. And

he, at this point -- Brooks -- was just observing

someone else teach. I mean, he wasn't teaching himself.

JUSTICE SCALIA: Whatever. He had to be

there to observe. He had to put in a certain number of

hours. How could the dean say oh, don't worry, it's no

problem?

MR. BRIGHT: Well --

JUSTICE SCALIA: The hours requirement is a

requirement for the degree. I don't think deans have

the ability to -- to waive degree requirements.

MR. BRIGHT: Well, with all due respect,

Your Honor --

JUSTICE SCALIA: Maybe the dean was just

saying oh, he'll be able to do it, and --

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MR. BRIGHT: Well --

JUSTICE SCALIA: -- that wouldn't inspire a

great deal of confidence in me, even if I said okay.

MR. BRIGHT: Well, again, it would have only

taken one question. One question -- Mr. Books, now that

you've heard that your dean said it won't be a problem,

do you have further concerns about wanting to get home

quickly? Mr. Brooks --

JUSTICE SCALIA: My reaction would be --

would depend on how he said okay. And if I were sitting

there as the trial judge, I -- I could discern whether

okay meant well, you know, that's what he says but I'm

still going to have a hard time digging out those hours

for the remaining time that I have in the term. I don't

know how he said okay.

MR. BRIGHT: If --

CHIEF JUSTICE ROBERTS: If --

MR. BRIGHT: If I could answer that

question, Mr. Chief Justice.

If you're the lawyer standing there beside

him and he says what you just said, then you ask him one

question. But there's a professor, Sanders; he's not

watching class; he's teaching class at the start of a

semester at the University of New Orleans; and he

doesn't -- it is no speculation. With Brooks it's all

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speculation. With Sanders --

CHIEF JUSTICE ROBERTS: With Brooks, what he

said when he said I'm missing right now something that

will better me towards my teaching career, and they

say -- and the judge says, is there anybody who could

speak to it? And he says, I've already talked to the

dean. And so based on the initial conversation with the

dean he was still worried.

MR. BRIGHT: Well --

CHIEF JUSTICE ROBERTS: Then the judge calls

the dean, and of course the dean's going to --

MR. BRIGHT: No problem.

CHIEF JUSTICE ROBERTS: Well, that's what

he's going to say to the judge. When Brooks talked to

him, apparently there was a problem because his concern

remained after having talked to the dean.

MR. BRIGHT: Brooks doesn't say there's a

problem. He gives the --

CHIEF JUSTICE ROBERTS: He says I'm missing

right now --

MR. BRIGHT: Something that --

CHIEF JUSTICE ROBERTS: Something that could

help me out towards my teaching career.

MR. BRIGHT: Sure. Every -- the judge had

given this hardship question; we're going to sequester

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the jury, you're not going to be allowed to communicate

with anybody. You're going to have to stay out at the

Travelodge while this case is going on. Of course, he

doesn't say at that point how long it's going to be.

And 44 people come forward. But all -- with most of

those people, like with Brandon Burns, who has got to

get back to his landscaping business, Mr. Laws who's has

to get back two homes he's building; his wife is

recovering from surgery and taking his children to

school every day -- all those people are assured this

case is going to be over by Saturday; it's not going to

go very long. This argument that they were worried that

the jury might be out for a long time.

CHIEF JUSTICE ROBERTS: I don't understand

your answer that Mr. Brooks did not say there was a

problem. He says, I've already missed half a day.

There's something I'm missing right now that will better

me towards my teaching career. He says I've already

talked to the dean.

How can you say he isn't identifying a

problem?

MR. BRIGHT: Well, he -- he's saying, again,

not knowing how long this is going to last, or what's

going to be expected of him -- right now I'm missing

something to help my education. Everybody is missing

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missing three more days. This is on Tuesday. This case

is over on Friday.

And everybody knew it was going to be over

on Friday, because they told jurors over and over and

over again that it was going to be over by Friday, so --

or Saturday at the latest.

So I -- I would say, again, no questions

asked. The lawyers had an opportunity right there when

they told him the dean says it's not a problem. Then

later he's called in panel 1. You can ask -- you see

this voir dire. It is very interesting. It is very

short, but the lawyers could ask individual questions to

any juror out there on the panel. Mr. Brooks,

do you have any concern that you won't be able to

concentrate because you need to get back to school?

They asked that question over and over, as

we pointed out in our brief, of white jurors. In fact,

the Louisiana Supreme Court, in what I think is one of

its great legal errors --

JUSTICE ALITO: Well, suppose you are trying

this case. You are a defense attorney, and you ask a

juror, a potential juror: Would you hold it against a

defendant who doesn't take the stand? And the initial

answer is: I have to think about that. I'm not quite

sure.

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Now -- and then you go on, and you ask a lot

of questions, and the juror comes around to saying: I

understand that's a person's constitutional right. They

get the -- advice from a lawyer. It doesn't necessarily

mean the person has something to hide, et cetera, et

cetera.

Does that additional questioning allay the

concern that you would have had at the beginning about

the fairness, the potential fairness, of the juror?

MR. BRIGHT: Well, I think you have to look

not only at those answers but -- but what the court in

Miller-El II said were the side-by-side comparisons.

If you're asking the white jurors follow-up

questions to determine that, then that, I think, cuts

very much against the prosecution and supports an

inference of racial discrimination.

If you basically asked everybody about the

same thing, you can't draw that inference.

But the Louisiana Supreme Court said here

there was consistent questioning of the jurors about

whether whatever their other obligations were, it would

interfere with their ability to sit as jurors. There is

consistent questioning of everybody except Jeffrey

Brooks. And that's the one African-American who the

court -- who the prosecutors then say they're striking

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for that reason.

JUSTICE GINSBURG: Mr. Bright, the Judge was

quite passive, and was -- was the judge, in fact,

present throughout the entire voir dire?

MR. BRIGHT: I -- I think the judge was

present, but he was quite passive. One of the more

remarkable aspects of this jury selection is when he

grants a defense strike for cause, the prosecutor,

Mr. Williams, says -- are you crazy?

And the judge says: No. And they go right

on to the next fact.

You know, I -- I practiced law for 30 years.

JUSTICE SCALIA: It sounds like the right

answer to me.

(Laughter.)

MR. BRIGHT: It wasn't the right question.

I've often wondered about that, but I've never

articulated it.

(Laughter.)

MR. BRIGHT: And I think most lawyers

wouldn't.

There's another point where Williams tells

the judge: Swear all these people to say they've got a

valid reason for leaving, and send them all out of here

-- swearing people to say something that may be true or

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may not be true.

And the judge says: Well, do I do it

individually, or do I do it in a group?

He says: Do it in a group. Just have them

all swear that they've got a legal reason, a hardship

reason, to be excused.

And the judge goes right along with it.

I think what we see with the judge in every

ruling here is four or five words: I'm going to allow

it. I'm going to allow it.

The judge is not engaged in questioning.

Unlike Uttecht v. Brown that Justice Kennedy wrote about

last term where you have a judge involved and hearing

the lawyers and whatever, that's not present here.

So I think that when you look at that

factor, you don't have assurance that this judge was

involved in a way to make sure that the credibility

determinations which were being made -- and the other

point I would make is here he's ruling on the Batson

strikes as the jury is being selected. So he doesn't

have all of the information.

Now, he does rule again on the motion for a

new trial. That's the only time that all of the

information, all of the relevant information, is before

the judge. But, there again, all he says is I think the

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prosecutor's reasons were race-neutral.

There is no indication that he went beyond

that to consider what Batson said and what Miller-El

says we have to consider, which is all the relevant

factors.

JUSTICE STEVENS: Mr. Bright, may I ask, in

your judgment, was all the reference to O. J. Simpson

relevant at all to what is before us?

MR. BRIGHT: I think it is, Justice Stevens,

and I think, even if you don't look at the closing

argument, which tells you two important things -- first

of all, the prosecutor broke his promise to the judge

that he wouldn't mention it. He said as an officer of

the court, I will not mention it.

JUSTICE SCALIA: What does that have to do

with anything?

MR. BRIGHT: It has to do with --

JUSTICE SCALIA: So he broke his promise. I

mean sue him or something, but I don't see how it has

anything to do with whether a fair jury was -- was --

MR. BRIGHT: It has to do with his

credibility, which is very much what Batson is about.

But -- but to the O. J. Simpson case, I think the

prosecutor's obsession with O. J. Simpson -- a month

before he mentions it in a pretrial hearing.

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The defense moves to ask to quit referring

to the O. J. Simpson case in the media; and, for

goodness sakes, Judge, don't let him refer to it before

the jury.

And the -- the defense makes quite clear:

The polls show that the society is divided. This was

ten months ago that Simpson came down. It is a very

polarizing case. The fact that he is mentioning it is

going to inject racial prejudice into this case.

CHIEF JUSTICE ROBERTS: What about the

explanation that was given that this was referring to

the defendant's feigning emotional distress rather than

anything to do with race?

MR. BRIGHT: Well, I think, Chief Justice

Roberts, it doesn't have anything to do with that.

CHIEF JUSTICE ROBERTS: What doesn't have

anything to do with it?

MR. BRIGHT: The fact of whether or not

Mr. Snyder was, in fact, suicidal is not rebutted in any

way by bringing in the most racially polarizing case in

the country and saying that Simpson was trying to get

away with it.

JUSTICE SCALIA: Well, that's not just

racially polarizing. I mean maybe it is that, but it is

also a case in which a man killed his wife with a knife.

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MR. BRIGHT: Yes.

JUSTICE SCALIA: The same as here.

MR. BRIGHT: Well, there are a lot of

similarities.

JUSTICE SCALIA: And then feigned a mental

illness by his -- his great-escape escapade, and that is

-- that is what the prosecutor said he was trying to

bring before the jury.

MR. BRIGHT: Well -- and he said Simpson got

away with it. Snyder couldn't have possibly known that,

because the verdict in Simpson didn't come down until

after Snyder's crime had been committed.

So he couldn't have been imitating, if that

is what he was arguing -- he couldn't have been

imitating O. J. Simpson. I -- I think what this

prosecutor learned from O.J. Simpson, Justice Stevens,

is that you don't let blacks on the jury.

I mean I think he saw that this racially

mixed jury in Los Angeles let him -- quote -- "get away

with it," and we're going to have an all-white jury here

in Jefferson Parish, Louisiana. And unlike what

happened out there, we're not going to let -- of course,

this was at the penalty phase. He could only get life

without parole or the death penalty. He wasn't going to

get away with anything. But that was the way it was

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pictured to the jury: That if they didn't give him the

death penalty, he would get away with it.

CHIEF JUSTICE ROBERTS: So the relief you

are requesting goes only to the penalty and not to the

conviction?

MR. BRIGHT: No, Chief Justice Roberts.

This was in striking the jury, and there's no prejudice

requirement with race. Allen Snyder is entitled to a

new trial with a fair jury that represents the

community. So I think that --

CHIEF JUSTICE ROBERTS: Even though -- even

though your theory is that it was only with respect to

the penalty that the bias -- you have no allegation --

MR. BRIGHT: Oh, no.

CHIEF JUSTICE ROBERTS: -- that this jury

did not return a valid conviction. I thought your

objection was with respect to the death penalty.

MR. BRIGHT: No. Let me -- let me make this

quite clear. Our objection is that when the jury was

selected, in terms of the disparate questioning,

disparate acceptance, failure to ask any questions,

racial prejudice infected the selection of the jury.

All the O. J. Simpson case does is put a little icing on

the cake. But if you look at the Miller-El factors and

you consider them cumulatively, like Justice Kimball did

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in her dissent, you come away once again with what the

Court said in Miller-El. The evidence is too powerful.

It all points in one direction, and that's intentional

race discrimination. And that was in the jury. And if

that happened, Allen Snyder is entitled to a new trial.

If I could, I'd reserve the rest of my time.

Thank you.

CHIEF JUSTICE ROBERTS: Thank you,

Mr. Bright.

Mr. Boudreaux.

ORAL ARGUMENT OF TERRY M. BOUDREAUX

ON BEHALF OF THE RESPONDENT

MR. BOUDREAUX: Mr. Chief Justice, and may

it please the Court:

I had some prepared remarks to begin with,

but I think I'd like to go straight into responding to

some of the concerns that have just been raised.

First of all, concerning Elaine Scott, the

lady who said "I think I could." I think the record is

quite clear that she was being asked about considering

life imprisonment. Beginning at 364 of the joint

appendix, the question is asked by the prosecutor four

times: "Could you consider a sentence of life

imprisonment?" "Could you consider the possibility of

life imprisonment?" "Could you consider life

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imprisonment?" "It is whether you could consider life

imprisonment." You get to Ms. Scott, the answer is "I

could." She's the lady who said originally, "I think I

could." So the prosecutor's --

JUSTICE SCALIA: As to life imprisonment or

as to the death penalty?

MR. BOUDREAUX: As to life imprisonment,

Your Honor. As to death, she said "I think I could."

When it got to life imprisonment, the full question

asked four times, among various -- going down the list

-- is when she said --

JUSTICE SCALIA: Where is this? I -- 364?

Show me --

MR. BOUDREAUX: Beginning at 364 of the

joint appendix, Your Honor. I just wanted to point out

the question posed is regarding life imprisonment.

JUSTICE SCALIA: Right.

MR. BOUDREAUX: She was originally asked the

question about the death penalty, and her response was

the "I think I could."

CHIEF JUSTICE ROBERTS: Mr. Bright contrasts

that with the more probing inquiry with respect to white

jurors who said "I think I could," and here there was no

follow-up.

MR. BOUDREAUX: That's true, Your Honor. In

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-- in reviewing this record, there are instances where

-- where there were not a lot of follow-up questions.

We see the situation with Mr. Brooks. This jury, unlike

the jury in Miller-El, which took five weeks, this jury

took less than a day and a half to pick. So there were

not a lot of probing questions.

JUSTICE ALITO: The explanation for

Mr. Brooks is not terribly convincing on its face. This

is -- was an incredibly short trial, was it not?

Mr. Brooks is voir dired on Tuesday. And there's a

death verdict on Friday.

MR. BOUDREAUX: Yes, sir.

JUSTICE ALITO: And the concern -- the major

concern about him is that he's going to worry about

missing Wednesday, Thursday, Friday student teaching?

MR. BOUDREAUX: Yes, sir. But you see --

JUSTICE ALITO: But you compare him to some

of the white jurors, particularly, I think, Mr. Laws.

Mr. Laws seemed to have a more compelling reason to be

worried about not being -- about being in court. He was

a contractor. He had houses he had to finish. His wife

had recently had surgery. He was taking kids back and

forth to the school.

MR. BOUDREAUX: Yes, sir. Mr. Laws, like

Mr. Brooks, I think it's good to point out, approached

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the bench of his own volition. Other -- other

individuals waited until they -- if they were called and

were questioned. The way the proceedings began, when

the venire were summoned into the courtroom, the judge

introduced the staff, read the statutory requirements

for jury service, and then they started lining up. And

one of the people lining up to express his concern, not

just about meeting the requirements to be a juror, was

"I've got class, I've got" -- and I think it's --

JUSTICE GINSBURG: Mr. Laws was an

identical -- he came up too. He said --

MR. BOUDREAUX: He did come up, and I think

the distinction there, Your Honor, is that like several

of others, unlike Mr. Brooks, in the end he said "I can

make arrangements. I can deal with it."

JUSTICE BREYER: Can I go back to Ms. Scott?

MR. BOUDREAUX: I'm sorry.

JUSTICE BREYER: Could I go back to Ms.

Scott?

MR. BOUDREAUX: Ms. Scott?

JUSTICE BREYER: Yes. If you look at the

top of 367 and then you look over at 366, the format, I

think, is that the prosecutor is posing a general

question. And then he poses his question -- or she --

and goes around and gets an answer. Here is Mr. Lindey.

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So they start out with the death penalty. They have

some ambiguous thing at the bottom of 366. Then the

prosecutor says, "Mrs. Alvarez -- Ms. Alvarez, you said

you could not impose the death penalty." "Mrs. Goff --

Ms. Goff: I could consider the death penalty." "Ms.

DuPont: I couldn't hear." Prosecutor: You could

consider both?" "Yes, I would consider it." "Ms.

DuBois: I could consider it. Yes." "Ms. Archonie: I

could consider it." "Mrs. Alvino: I could consider

it." "Ms. Scott: I could. I could."

Now, that doesn't seem too ambiguous for me

-- to me. It seems that what they're talking about,

each of them, is the death penalty because that's what,

by the time they got to the top of 367, they were

talking about. Maybe there's ambiguity there.

MR. BOUDREAUX: I don't --

JUSTICE BREYER: But I haven't noticed in

anybody's opinion, so far, making that point that you

just made.

MR. BOUDREAUX: I would submit that -- that

would indicate ambiguity, Your Honor, that the

prosecutor starts off with the life imprisonment

question, and then it sort of morphed into a death

penalty. But, by the time you get back to Ms. Scott --

JUSTICE BREYER: No -- well, there's -- I

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just read you what it was, so I guess people make up

their own mind about that. But by -- what I don't think

you can make up your own mind as ambiguous is when this

prosecutor met with an answer that he considered not --

call it strictly kosher, when he found that, like Mrs.

Calligan, she said, "I'm not sure." That's more

ambiguous than Mrs. Scott. And then he goes on, for

three pages of additional questioning, and then 26 pages

later, he doesn't excuse her yet and he doesn't excuse

her until she volunteers, "I could give a verdict -- I

don't think I could give a verdict to take someone's

life."

And it's at that point that the prosecutor

excuses her.

Now, compare that to Ms. Scott, who started

out saying "I think I could" and then, as I read it,

said "I could." Now, that's the kind of comparison

here. No follow-up. At the worst, minor ambiguity.

MR. BOUDREAUX: Yes, Your Honor. What --

JUSTICE BREYER: And a slight hesitation.

Now, what do you say to that?

MR. BOUDREAUX: One of the weaknesses in

some these jurors is a lack of follow-up questions. But

I think we go back to her original comment, which was so

softly spoken that the defense attorney said "I can't

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hear you." There's nothing --

JUSTICE BREYER: And that, of course, is a

problem I have generally in this area. We can always

imagine that things that are not in the transcript,

perhaps what she said spokenly not in the transcript is

"I hate the death penalty. I'll never -- I'll never

apply it under any circumstances." And I grant you, if

that's the law, we are never going to find that there's

any prejudice. But I just don't see how that could be

the law.

MR. BOUDREAUX: In the totality of her

responses, the ones that were heard which are on the

record and the ones which were not heard which are not

on the record, the prosecutor felt that she was weak on

the death penalty. And that on its face is a

race-neutral reason.

JUSTICE BREYER: Well, of course -- sorry.

MR. BOUDREAUX: Well, I would just say that

the -- we're talking here with the prosecutor's

perception of the juror based on her answers and the the

trial court's perception in evaluating the prosecutor's

proper race-neutral reasons.

Could someone look at this and say it's to

the contrary? Yes. But in the -- in the totality of

the circumstances and the reviewing for clear error with

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the benefit, of course, that the trial court has in

being present, hearing or not hearing what was said, the

tone of voice, the demeanor, the mannerisms, the

deference's --

JUSTICE SOUTER: There -- there isn't much

reason, is there, to think that the trial court was

being very critical of the prosecutor's answers? My

recollection is that, after the O. J. Simpson remark had

been made in final argument, that the ultimate

resolution of that involved the trial judge saying that

one reason that was not a racially significant remark

was that the prosecutor had neither -- had mentioned

neither the race of the defendant nor the race of O. J.

Simpson.

Now that is not a critical mind at work, is

it?

(Laughter.)

MR. BOUDREAUX: I would -- I would suppose

not, Your Honor.

(Laughter.)

JUSTICE SOUTER: And because --

MR. BOUDREAUX: The objection was --

JUSTICE SOUTER: And because you suppose not

and I certainly suppose not, the -- the fact is that we

have to -- we have to consider the O. J. Simpson remark

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in trying to evaluate what went on, in trying to

evaluate, for example, the lack of critical follow-up in

-- in a disparate way by the prosecutor. And that, in

fact, is a fair and potent argument that the other side

has, isn't it?

MR. BOUDREAUX: Yes, Your Honor. I would

like to respond to that by pointing out, though, that

the reference to the O. J. Simpson case was based on the

factual similarities involving the O. J. Simpson case

and this case.

JUSTICE SOUTER: Do you believe that, if

there had been a white defendant here, the O. J. Simpson

case would have been mentioned?

MR. BOUDREAUX: Yes, Your Honor, and I

believe if the O.J. Simpson case --

JUSTICE SOUTER: See, I'd be candid -- I

will be candid to say to you, under the -- under the

circumstances of the record in front of us, I find that

highly unlikely. And because I find that highly

unlikely, I put significance in the O. J. Simpson remark

which even you concede is significant.

MR. BOUDREAUX: Yes, Your Honor. But I

think the -- the reason it doesn't fatally infect the

proceedings with racism is -- I think the comment would

have been made had O. J. Simpson not been white -- I

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think perhaps the comment would have been made had it

not been O. J. Simpson but some other high-profile white

athlete celebrity; and I think it is appropriate,

putting aside for the moment the assurance to the court

that he wouldn't mention it -- but it was in response to

the defense counsel's argument. This defendant was

tried on a plea of not by season of insanity. The

murders are committed; several hours later he's

barricaded in his house, calls the police claiming to be

suicidal; the police respond.

He gets up, unbarricades the door, lets the

police in; then goes back into his fetal position. To

rebut the -- this perhaps he's thinking, and I think it

is significant in Defense Exhibit 2 at trial, what --

the defendant's statement taken several hours later,

he's oriented; he's aware of the situation; he knew he

had done something wrong, was in -- and was in trouble.

CHIEF JUSTICE ROBERTS: Mr. Boudreaux, even

if -- even if you're correct that a neutral explanation

was given focusing on the emotional distress, are you --

do you think the prosecutor would have made the analogy

if there had been a black juror on the jury?

MR. BOUDREAUX: I think he would have, Your

Honor. I know the contention is that he didn't, but I

think the facts are clear on this record that it was not

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an appeal to race, but it was an appeal to what was a

historical fact, common knowledge among most people in

the country, and the facts of this case. The

defendant's statement as I said would betray no mental

lack of wherewithal. When the search warrant was

executed his bloody shirt was found in the attic of his

house. That's at page 1311 of the record. It is not in

the -- it's not in the joint appendix. But when the

defense attorney brings up the police coming to the

house and -- and he agreed that the police officer's

testimony was correct, he's in a fetal position; he's

saying they're coming to get me, I'm suicidal, the

defense attorney is bringing up the mental aspects of

this case. So I think it was appropriate for the

prosecutor to look at the record and -- and to rebut

that.

JUSTICE GINSBURG: Before -- before the

rebuttal, this prosecutor was going around advertising

this as his O. J. Simpson case, and the defense attorney

said please, Judge, get him to stop saying that. This

is long before -- you are painting a picture of someone

who was answering an argument made by the defense, but

this prosecutor initiated it, and the defense attorney

was reacting. She said judge, he's talking in this

county, that county about this is his O. J. Case; stop

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self-employed contractor who announced to the court, I

have a big problem this weekend; two houses are near

completion, the owners are supposed to be moving in; my

wife has just had a hysterectomy, she's supposed to be

taking care of the children back home, and I -- she has

nobody to help.

Okay? He's not challenged.

So we're not worried about Mr. Laws worried

about his wife and his business which going down -- you

know, serious. But we are worried about Mr. Brooks, who

has been told by the dean you have no problem. Now,

that's a little bit of a problem to me.

MR. BOUDREAUX: Yes, Your Honor.

JUSTICE BREYER: If you add them up, we have

Ms. Scott we have Mr. Brooks, we have the mention of --

and three others -- three others, the only other three

black people are challenged off, and we have the -- no

black juror us on and we have the references to O. J.

Simpson beside.

Okay? All right so, there you are. Full

case against you.

MR. BOUDREAUX: Your characterizations are

-- are correct, Your Honor. I won't dispute the factual

allegations, but the key thing to point out there is

Mr. Laws said he could make arrangements. It is

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difficult; it's -- the jury duty happens.

JUSTICE GINSBURG: What's the difference

between that and "okay"?

MR. BOUDREAUX: I'm sorry?

(Laughter.)

JUSTICE GINSBURG: One says I can make

arrangements, and the other is more economical and he

says "okay."

MR. BOUDREAUX: But that -- he said -- I

think that's the landscape man, he said, as long as it

wasn't a prolonged -- as.

JUSTICE BREYER: No, she means the dean.

The dean --

MR. BOUDREAUX: Oh, the dean --

JUSTICE BREYER: -- said no problem at all.

What better arrangement can you want?

JUSTICE GINSBURG: -- meaning Brooks.

MR. BOUDREAUX: Brooks says --

JUSTICE SOUTER: Brooks says okay.

JUSTICE GINSBURG: The difference is between

"I can make arrangements" and "okay."

MR. BOUDREAUX: The difference -- difference

there, Your Honor, is that Mr. Brooks needs to make

these classroom -- undergraduate requirements to

graduate. There's a day that's going to come when he's

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either made his requirements to graduate, or he has not.

The people with the jobs, the contractors, their jobs

are there when they got -- when they got out of court,

when trial was over. If Mr. Brooks didn't meet his

requirements, he was not going to graduate. And I would

be a little careful to take it as face value from the

judge's law clerk calling the dean who then -- she comes

back and says it is a 300-hour observation. That's

obviously wrong.

JUSTICE SOUTER: Well, I wouldn't take it at

face value if there had been a further question asked of

Mr. Brooks saying, are you really satisfied you have

nothing to worry about? And he says well, gee, boy, I

sure hope I -- I'm able to make that requirement. But

nobody asked that question.

MR. BOUDREAUX: Nobody asked that question.

JUSTICE SOUTER: All we have is got is

"okay" on the one hand and "I can make arrangements" on

other.

MR. BOUDREAUX: We also have, Your Honor, as

far as the question of Mr. Brooks is concerned, a fact

that is not articulated by the prosecutor but which

would be supported by the record. He's an education

teacher; he's young; prosecutors in a death penalty case

I think would shy away from asking or leaving on a jury

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a young person. A teacher, maybe perhaps more

sympathetic, maybe more understanding -- nothing wrong

with that, but maybe that's not who a prosecutors

seeking a death penalty --

JUSTICE SCALIA: Well, we -- we have to

go -- your -- this is enough of a fact-specific inquiry

for any appellate court, even when we go into the

allegations that the prosecution did make.

Now you're saying we also have to imagine

other reasons, which he didn't state were the reasons

why he struck, but which might have been. You really

think that that's enough to --

MR. BOUDREAUX: That's the problem with this

record. The State says --

JUSTICE SCALIA: It is not the problem with

it. It is your problem with the record.

(Laughter.)

JUSTICE SCALIA: It is not mine.

MR. BOUDREAUX: The plausibility of the

prosecutor's reasons stand or fall on what he says. The

other things perhaps the court will say he didn't say

that; we're not going to consider them.

But talking about a fact -- factual specific

inquiry before an appellate court, that brings us back

to the -- to the discretion afforded the -- not the

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discretion, Your Honor, the deference afforded the trial

court who is present for the proceedings, who is there,

passive or otherwise. He's there. He sees what's going

on, the demeanor --

JUSTICE STEVENS: May I ask you about Juror

Hawkins. You haven't talked much about him.

MR. BOUDREAUX: Hawkins?

JUSTICE STEVENS: Why did they strike him?

He seemed to me to be a pretty good juror for the

prosecution.

MR. BOUDREAUX: Your Honor, that's a

question I've asked myself; and I can't -- I'm not --

you would think on the surface of it he would have been

a good juror for the State. What I think is equally

clear is that the defense would -- objected to his being

excused but didn't make a Batson claim because I don't

think they wanted to go there. They would not have

wanted that juror on their jury. He said he had --

JUSTICE STEVENS: Wasn't he struck before

they back-struck the first black on the jury?

MR. BOUDREAUX: I believe so, Your Honor.

JUSTICE STEVENS: So that probably explains

why they didn't make a Batson objection.

MR. BOUDREAUX: Yes, you're correct about

that. But I think he would have not -- the jurors --

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the defense perhaps would have struck him. He testified

that he had plenty friends who were police officers in

this jurisdiction.

JUSTICE STEVENS: I understand why the

defense would have struck him. I'm trying to understand

why the prosecutor --

MR. BOUDREAUX: Well, we don't know that,

Your Honor, because there was no Batson objection

raised, and the prosecutor was not called upon to

articulate any reasons.

On the face of it, he looks like he could be

a good juror. But that's a factual matter that the

trial prosecutor, then and there, made that decision.

And I think --

JUSTICE SOUTER: He knew nothing about that

juror except what Justice Stevens and you have just been

reciting. If that's all you knew and you were a

prosecutor, would you have struck him? Would you have

said: I don't want -- I don't want anybody on this jury

who's got friends in the police department? Would you

have struck him for that reason?

MR. BOUDREAUX: Well, I can say, Your Honor,

that's not the first time that's happened over years in

different -- different trials that I've reviewed.

JUSTICE SOUTER: How about you?

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MR. BOUDREAUX: I'm sorry?

JUSTICE SOUTER: Would you -- would you have

gotten rid of him? Would you have said: I don't want

any cop lovers on my jury?

(Laughter.)

MR. BOUDREAUX: No, Your Honor. I would --

I would --

JUSTICE SOUTER: No, you wouldn't have, and

neither would I.

MR. BOUDREAUX: No, sir. And that's the

difficulty that --

JUSTICE ALITO: We have no idea -- we have

no idea what this man looked like. We have no idea

about his demeanor, his tone of voice. This could have

been -- there could have been very legitimate reasons

for doing it. There could be no legitimate reasons for

doing it.

MR. BOUDREAUX: Right.

JUSTICE ALITO: But nobody asked what reason

for doing it was.

MR. BOUDREAUX: And no reasons were offered.

JUSTICE BREYER: I don't know the answer to

this at all but how this is supposed to work? A defense

attorneys -- the jury selection, and he sees that the

prosecutor doesn't challenge for peremptory or any other

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curious to the answer to Justice Breyer's question.

When they go back and back strike at that point can the

defendant say I don't think you can back strike this

juror you're doing it on the basis of race.

MR. BOUDREAUX: They can go back and back

strike, but the defendant could say --

CHIEF JUSTICE ROBERTS: They can go back and

back strike.

MR. BOUDREAUX: Yes, sir.

CHIEF JUSTICE ROBERTS: They can go back and

object to the back striking? The State would say, well

here's the reasons we're back striking.

MR. BOUDREAUX: The back strike is when is

the challenge exercised. In and of itself you can't say

if it is racial or not. It is a challenge.

JUSTICE BREYER: That was my question.

JUSTICE STEVENS: My problem -- after the

back strike of the first black juror who had been

accepted, can they thereafter renew an objection if the

jurors two and three, who are accepted on the assumption

that there would no --

MR. BOUDREAUX: I think under Miller-El and

related decisions that would be part of the totality of

the circumstances. The practical problem --

JUSTICE GINSBURG: That wasn't done here.

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That was the point that you made.

MR. BOUDREAUX: Yes.

JUSTICE GINSBURG: When the third -- the

back strike of Brooks was made, they could have gone

back for Hawkins and the others, but they didn't.

MR. BOUDREAUX: That could have been argued

evidence for them to make their prima facie case.

CHIEF JUSTICE ROBERTS: I'm sorry.

There's some ambiguity in your answer.

Miller-El says others who were struck can be considered

as part of the totality. My question is -- can they go

back and object not only to the back struck juror, but

as Justice Stevens points out, to the others who weren't

objected to perhaps because there wasn't a black person

on the jury?

MR. BOUDREAUX: To give you a yes or no

answer, yes. The practical problem with that is those

two jurors having previously been excused, could be on

the way to their office or back to their home.

CHIEF JUSTICE ROBERTS: Still, the

prosecutor is still there. You can ask the prosecutor,

why did you strike that juror?

MR. BOUDREAUX: Yes, you could. Yes, you

could. Then you have got a practical problem what if it

doesn't pass muster. That's the reason for the

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contemporaneous objection rule.

JUSTICE BREYER: Can I ask you one other

question. You are the only one who will know the answer

to, this too. I noticed in looking at the opinion of

the Louisiana Supreme Court that they start out by

saying we have conducted another review of the voir dire

transcript and find nothing there to disparage the

Batson claim. In reading that opinion in several places

they refer to their having gone back and having read the

whole transcript themselves.

And then they have two full pages, or one

and a half anyway where they seem to be talking about

what happened in a pretrial conference and they refer to

that prior review and covered a factor favorable to the

State's use of a peremptory challenge.

They went back and found a factor of

favorable to. Now, was that factor argued to them in

the brief? Do you remember that?

MR. BOUDREAUX: I wrote the brief, Your

Honor, but I don't think -- I don't remember.

JUSTICE BREYER: I thought that's why you

might know.

(Laughter.)

MR. BOUDREAUX: I don't remember.

JUSTICE BREYER: I thought that, in reading

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African-Americans are 20 percent of the population of

Jefferson Parish, but they were less than 11 percent of

the people summoned for jury duty.

Is that typical?

MR. BOUDREAUX: Certainly pre-Katrina, Your

Honor. Yes. The summons go out based on public

records, driver licenses, voters registrations. That's

basically at random. To say those numbers would not

surprise me.

JUSTICE GINSBURG: That's -- and because

it's almost half of what you would expect.

MR. BOUDREAUX: Yes, and that's going to

vary, you know, from venire to venire on any given day.

JUSTICE GINSBURG: Thank you.

MR. BOUDREAUX: In the minute or two I have

left, Your Honors, I would just remind the Court, urge

the Court to consider its recent opinion last June in

Uttecht dealing with the deference due the trial court

in these types of proceedings -- that was a habeas case

-- what the opinion says to require on direct review,

and according to the trial court, the deference having

been present and not just relying on a cold record, that

the Louisiana Supreme Court's ruling should be farmered.

JUSTICE KENNEDY: Do you think the deference

in Uttecht, which was the death qualified juror --

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habeas and Witherspoon, but the similarities, I think,

are enough that this -- the degree of deference has to

still be there, although there's a statutory deference

in a habeas.

Thank you.

CHIEF JUSTICE ROBERTS: Thank you,

Mr. Boudreaux.

Mr. Bright, you have three minutes

remaining.

REBUTTAL ARGUMENT OF STEPHEN B. BRIGHT

ON BEHALF OF THE PETITIONER

MR. BRIGHT: Thank you, Mr. Chief Justice.

If I could just say, first of all about,

this backstrike, because what we see here is after

Elaine Scott is struck, that's State number 6, the very

next peremptory strike by the State it, number 7, is to

go back and backstrike Jeffrey Brooks.

Now, notice that with regard to the other

four backstrikes used, two by the prosecution and two by

the defense, it's at the very end of the process. It's

literally when they're down to one juror. Williams

says, "Do we have 11 jurors?" And then he backstrikes.

The defense says, "Is this my 11th strike?" Backstrike.

Williams then, "Are we back to 11?" So these -- the

only way the backstrike makes sense really, when you

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think about it, is to look at the whole jury and then go

back and cull out the ones based on a comparison.

But once Brooks had kept them from striking

Mr. Scott, who as Mr. Boudreaux pointed out, his wife

was robbed at gunpoint, said he would testify if he were

a defendant in a case and was innocent. And then as

Justice Stevens pointed out, Hawkins, who was -- had

grown children, engineer, friends in the police

department -- these two are not struck -- but then once

Elaine Scott is struck, the third back and the Batson

challenge is made, we don't have any use for Jeffrey

Brooks anymore, so he's -- the backstrike is used in

that way.

And I think, again, when you look at all the

relevant circumstances, it's pretty clear what was going

on here with the acceptance of Brooks at the start and

the backstrike --

CHIEF JUSTICE ROBERTS: Do you agree with

your friend on the other side, that you could have

objected both to the backstruck juror and to the jurors

to whom you -- with respect to whom you did not object

because there was -- the juror that was later backstruck

on the jury?

MR. BRIGHT: I -- I think yes. The answer

to that is yes, and I think, if the defense had, we'd be

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talking about four jurors here today instead of two.

But it doesn't diminish from what the Court in Miller-El

called the numbers. The fact that it is unlikely to be,

by chance, that all five -- all five African-Americans

are struck in this case.

JUSTICE STEVENS: Although you could have

made an objection. As I understand your opponent, he

very helpfully said that they probably would have left

the courthouse --

MR. BRIGHT: They would.

JUSTICE STEVENS: So what could you --

MR. BRIGHT: So they're gone. And so if the

objection had been overruled --

CHIEF JUSTICE ROBERTS: The objection would

have afforded the state an opportunity to present the --

if there was one -- the non-racial reason THAT they

struck the juror.

MR. BRIGHT: But the reason for doing that

would be to have the judge not allow the strike and to

put that juror in the box and the juror' gone now. So

that, as a practical matter, is not going to work.

There's no --

JUSTICE SCALIA: Another reason to do it

would be to preserve your right on appeal, to object to

those jurors.

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56:13five 3:17 6:1,186:20 8:22,238:24 9:2,15,1510:9 24:9 31:449:1,5 53:1458:4,4 59:13

focusing 38:20follow-up 13:13

22:13 30:2431:2 34:18,2337:2

format 32:22forth 31:23 59:8forward 8:18

19:5found 3:23 9:8

9:13 34:5 39:652:16

four 7:19 10:824:9 29:2230:10 56:1958:1

Friday 20:2121:2,4,5 31:1131:15

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full 30:9 42:2052:11

further 15:1517:7 44:11

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give 10:20 28:134:10,11 51:16

given 5:23 6:2214:10 18:2526:11 38:2053:15 54:1359:7

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giving 8:9 40:4go 5:24 11:19

14:12,15 19:1222:1 23:1029:16 32:16,1834:24 45:6,746:17 50:2,5,750:10 51:1154:6 56:1757:1

goes 24:7 28:432:25 34:738:12 59:10

Goff 12:8 33:4,5going 8:1,1,1

11:23 12:2515:7 16:717:13 18:11,14


8/14/2019 US Supreme Court: 06-10119



18:25 19:1,2,319:4,11,11,2319:24 20:1,5,820:8,17,19,2120:23,24 21:321:5 24:9,1026:9 27:20,2227:24 30:1031:14 35:839:18 41:1842:9 43:2544:5 45:2246:3 53:3,1754:12 55:857:15 58:2159:5

good 13:2214:16 31:2546:9,14 47:1259:6,8

goodness 26:3gotten 48:3graduate 43:25

44:1,5grandparents

15:19grant 35:7grants 23:8great 17:3 21:19greater 55:2great-escape

27:6Greg 53:12,16Gregory 7:15Gretna 1:18group 24:3,4grown 57:8guess 34:1gunpoint 57:5

H habeas 9:6,12

54:19 56:1,4half 19:16 31:5

52:12 54:11hand 44:18happen 5:18 6:8

6:16 8:20happened 27:22

29:5 47:2352:13

happens 43:1happenstance

6:16 8:21hard 5:5,8 17:13hardship 18:25

24:5hate 35:6Hawkins 7:17

8:11,14 46:6,751:5 53:1157:7

hear 3:3 11:2

33:6 35:1heard 10:2417:6 35:12,13

hearing 24:1325:25 36:2,2

help 18:23 19:2520:1 42:6

helpfully 58:8hesitation 34:20he'll 16:25hide 22:5high 41:2highly 37:19,19high-profile

38:2historical 39:2

40:16,20hold 21:22home 5:24 9:20

14:12,15 15:117:7 42:551:19

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30:8,15,2532:13 33:2134:19 36:1937:6,14,2238:24 40:2,25

42:13,23 43:2344:20 46:1,1146:21 47:8,2248:6 52:2053:10 54:655:6

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16:19 17:1338:8,15

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individually 24:3

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53:19 57:6

inquiry 30:2245:6,24insanity 38:7

40:13,15inspire 17:2instances 31:1

41:14instructed 40:19intentional 29:3interesting

21:11interfere 22:22interpose 8:2introduced 32:5invite 12:5inviting 40:8invoke 40:11involved 24:13

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55:9

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26:2 27:1528:23 36:8,1336:25 37:8,937:12,20,2538:2 39:19,2542:18

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judge 9:21 10:211:6 17:1118:5,10,14,24

20:3,12,1523:2,3,5,10,2324:2,7,8,11,1324:16,25 25:1226:3 32:436:10 39:20,2453:2 58:19

judge's 44:7 judgment 25:7 judicial 20:16June 54:17 junior 8:10 juries 11:24 jurisdiction

47:3 juror 7:15 9:14

9:16 10:711:20 12:2321:13,22,2222:2,9 32:835:20 38:2242:18 46:5,946:14,18 47:1247:16 50:4,1851:12,22 53:1253:16 54:2555:11 56:2157:20,22 58:1758:20,20

jurors 3:20 5:186:1,24 7:5 8:15


8/14/2019 US Supreme Court: 06-10119



9:13 10:9,1611:24 13:5,913:23,24 14:214:9,13,1715:16 21:4,1722:13,20,2230:23 31:1834:23 40:1446:25 50:2051:18 56:2257:20 58:1,2559:11

jury 10:21 19:119:13 20:2023:7 24:2025:20 26:4

27:8,17,19,2028:1,7,9,15,1928:22 29:431:3,4,4 32:638:22 40:1843:1 44:2546:18,20 47:1948:4,24 49:5,949:16,24 51:1554:3 57:1,2359:17,18

Justice 3:3,84:12 5:2,5,195:25 6:4,10,217:2,13,24 8:139:9,21 10:5,610:21,22 11:111:9,11,14,1711:21 12:1,2213:2,10,2214:1,16,20,2515:3,9,21,2516:4,11,14,1916:24 17:2,917:17,19 18:218:10,13,19,2219:14 20:10,1321:20 23:2,1324:12 25:6,925:15,18 26:1026:14,16,23

27:2,5,16 28:328:6,11,15,2529:8,13 30:530:12,17,2131:7,13,1732:10,16,18,2133:17,25 34:2035:2,17 36:536:21,23 37:1137:16 38:1839:17 40:3,941:10,13,2142:14 43:2,643:12,15,17,1943:20 44:10,1745:5,15,18

46:5,8,19,2247:4,15,16,2548:2,8,12,1948:22 49:14,1549:19,21,2550:1,7,10,1650:17,25 51:351:8,13,2052:2,21,2553:7,23 54:1054:14,24 55:255:7,10,13,1655:22 56:6,1257:7,18 58:658:11,14,2359:4,13,20

K Kennedy 24:12

54:24 55:2,755:10,13,16,22

kept 57:3key 42:24

kids 31:22killed 26:25Kimball 4:13

15:21 28:25Kimball's 14:25kind 11:3 34:17

40:22Klan 41:2

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11:2,3,4 17:1217:15 20:6,620:20 23:1238:24 42:1047:7 48:2249:14 52:3,2253:6 54:13

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40:17

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39:5lady 29:19 30:3landscape 43:10landscaping

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48:16lessons 3:12Let's 5:12 49:1

49:23

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42:12 44:653:15

long 13:18 19:419:12,13,2320:21 39:2143:10 49:16

look 4:22,25 6:79:16 10:1612:6 14:2422:10 24:1525:10 28:2432:21,22 35:2339:15 57:1,14

looked 3:1548:13

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looks 47:11Los 27:19

lot 20:6 22:127:3 31:2,6

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lovers 48:4

M M 1:17 2:5

29:11major 31:13majority 3:10

3:15making 5:2514:2 33:18

man 26:25 43:1048:13

mannerisms 36:3

man's 16:4matter 1:11

47:12 58:2159:24

matters 9:22mean 5:17 8:14

11:2,4 12:1612:17 16:1322:5 25:1926:24 27:18

meaning 43:17means 43:12meant 13:3,8

17:12media 26:2meet 44:4

meeting 32:8member 49:1members 49:3mental 27:5

39:4,13mention 3:24

25:13,14 38:542:15


8/14/2019 US Supreme Court: 06-10119



mentioned 4:114:24 36:1237:13

mentioning 26:8mentions 25:25met 34:4Miller-El 3:13

3:16,21 4:2,165:22 6:7,7,116:16 8:19 9:49:17 12:17,1814:5 15:2422:12 25:328:24 29:231:4 50:2251:10 58:2

mind 34:2,336:15mine 45:18minor 34:18minute 54:15minutes 56:8missed 4:23

19:16missing 18:3,19

19:17,24,2521:1 31:15

mixed 27:19moment 38:4month 25:24months 16:7

26:7morphed 33:23motion 24:22motivated 4:24

5:11 6:14moves 26:1moving 42:3murders 38:8muster 51:25

N N 2:1,1 3:1near 42:2necessarily 8:22

22:4need 15:17

21:15 53:20needs 43:23neither 3:25

36:12,13 48:9nervous 9:19

41:16neutral 38:19neutrality 5:22never 14:3,21

23:17 35:6,6,8new 17:24 24:23

28:9 29:5 41:1non-racial 7:8

58:16notice 56:18noticed 33:17

52:4number 6:10,116:23 13:1816:6,15 41:156:15,16

numbers 8:2054:8 58:3

O O 2:1 3:1 25:7

25:23,24 26:227:15 28:2336:8,13,2537:8,9,12,2037:25 38:239:19,25 42:18

object 7:9 8:1550:11 51:1257:21 58:24

objected 7:346:15 51:1457:20

objection 7:5,6

8:14 28:17,1936:22 46:2347:8 50:1952:1 53:1358:7,13,14

objections 53:11obligations

22:21

observation 44:8

observe 16:15observing 16:12obsession 25:24obviously 44:9

49:3 55:25offered 48:21office 51:19officer 20:16

25:13 40:4officers 47:2officer's 39:10oh 16:16,25

28:14 43:1453:8

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57:3,9ones 4:4 7:3

35:12,13 57:2opinion 4:14

12:18 33:1852:4,8 54:1754:20

opinions 15:22opponent 58:7opportunity

13:8 21:858:15 59:7

opposed 10:1013:21

option 12:3oral 1:11 2:2 3:6

29:11oriented 38:16original 4:13

34:24originally 30:3

30:18Orleans 17:24

41:1

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11:19 34:8,852:11

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54:2parole 27:24part 7:12 40:24

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31:18pass 51:25passive 23:3,6

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7:22 8:1849:23

penalty 9:2510:7,10,1411:22 12:9,1312:20 13:16,21

27:23,24 28:228:4,13,1730:6,19 33:1,433:5,13,2435:6,15 44:2445:4

people 6:2310:21 14:24

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percent 54:1,2perception

35:20,21peremptorily

5:16peremptory 6:2

12:22 48:2552:15 53:1256:16

perfectly 5:10

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person's 22:3Petitioner 1:4

1:16 2:4,9 3:756:11

phase 27:2353:22

photo 41:7pick 4:20 31:5picture 39:21pictured 28:1piece 4:20places 52:8plausibility

45:19plea 38:7please 3:9 29:14

39:20plenty 47:2point 3:13 4:9

7:21,25 8:1112:2,14 16:1219:4 23:2224:19 30:1531:25 33:1834:13 40:1142:24 50:251:1

pointed 11:6


8/14/2019 US Supreme Court: 06-10119



21:17 57:4,7pointing 37:7points 29:3

51:13 59:13polarizing 26:8

26:20,24police 38:9,10

38:12 39:9,1047:2,20 57:8

polls 26:6population 54:1posed 30:16poses 32:24posing 32:23position 4:12

9:22 12:19

13:16 38:1239:11possibility 29:24possibly 9:15

27:10postulate 59:5potent 37:4potential 21:22

22:9powerful 4:4

29:2practical 50:24

51:17,24 58:21practiced 23:12prejudice 26:9

28:7,22 35:941:11

prepared 29:15present 23:4,6

24:14 36:246:2 54:2258:15

preserve 58:24presiding 20:16Presumably

8:13pretrial 25:25

52:13pretty 13:20

46:9 57:15prevent 8:8

previously 51:18

pre-Katrina 54:5

prima 6:8,2251:7

prior 52:14probably 9:18

20:22 46:2258:8

probing 30:2231:6

problem 11:1515:14 16:1,416:17 17:618:12,15,18

19:16,21 20:520:8,9,17 21:935:3 42:2,1142:12 43:1545:13,15,1650:17,24 51:1751:24

procedural 59:1proceedings

32:3 37:2440:24 46:253:22 54:19

process 56:20professor 17:22profile 41:2prolonged 43:11promise 25:12

25:18proper 35:22prosecution

5:12 7:14 8:913:13 22:1545:8 46:1056:19 59:7

prosecutor 8:108:12 12:2113:15 23:825:12 27:7,1629:22 32:2333:3,6,22 34:434:13 35:14

36:12 37:338:21 39:15,1839:23 40:11,2144:22 47:6,947:13,18 48:2551:21,21 53:859:13

prosecutorial 6:2 59:6

prosecutors 13:4 22:2544:24 45:3

prosecutor's 25:1,24 30:435:19,21 36:745:20

public 54:6put 16:5,1528:23 37:2058:20

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p.m 59:23

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questioned 32:3questioning

3:19 14:9 22:722:20,23 24:1128:20 34:8

questions 4:5,74:8 6:25 10:1210:13 12:19

13:6,13,15,1821:7,12 22:222:14 28:2131:2,6 34:23

quickly 17:8quit 26:1quite 8:19 15:9

15:10 21:2423:3,6 26:528:19 29:20

quote 27:19

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racially 4:245:11 6:1426:20,24 27:1836:11

racism 37:2440:23

raised 8:1429:17 47:9

random 54:8reacting 39:24reaction 17:9read 10:23 32:5

34:1,16 41:15

52:9reading 52:8,25reality 49:21really 20:25

44:12 45:1156:25

reason 5:20,235:24 7:8,12

13:3 14:10,1215:12 23:1,2424:5,6 31:1935:16 36:6,1137:23 40:1341:24 47:2148:19 49:151:25 53:858:16,18,2359:5,6,8

reasons 4:6 8:99:18 13:7 25:135:22 45:10,1045:20 47:1048:15,16,2150:12 59:11

rebut 38:1339:15rebuttal 2:7

39:18 56:10rebutted 26:19reciting 47:17recollection

36:8reconsideration

4:16record 10:1

15:17 29:1931:1 35:13,1437:18 38:2539:7,15 44:2345:14,16 53:754:22

records 54:7recovering 19:9refer 26:3 52:9

52:13reference 25:7

37:8 40:2153:10

references 42:18referring 26:1

26:11refers 40:25regard 3:14 9:8

9:17 10:341:15 56:18


8/14/2019 US Supreme Court: 06-10119



regarding 30:16regards 9:2,3registrations

54:7related 50:23relevance 5:6,15

6:13relevant 5:9

8:25 24:2425:4,8 57:15

relied 14:21relief 28:3rely 7:4 10:1relying 54:22remained 18:16remaining 17:14

56:9remand 3:1114:7 15:23

remanded 4:15remark 36:8,11

36:25 37:20remarkable

23:7remarks 29:15remember

40:18 52:18,2052:24

remind 54:16renew 50:19represents 28:9requesting 28:4require 54:20requirement

16:19,20 28:844:14

requirements 16:21 32:5,843:24 44:1,5

reserve 29:6resolution 36:10resolve 16:1resonates 59:17respect 8:2

16:22 28:12,1730:22 57:21

respond 37:7

38:10Respondent

1:18 2:6 29:12responding

29:16response 9:23

30:19 38:540:8

responses 35:12rest 29:6 49:17return 28:16review 52:6,14

54:20reviewed 47:24reviewing 31:1

35:25

rid 48:3right 5:19 7:28:5 10:5,16,2410:25 14:1916:10 18:3,2019:17,24 20:1120:14 21:822:3 23:10,1323:16 24:730:17 41:1242:20 48:1855:15 58:24

robbed 57:5Roberts 3:3 7:2

8:13 9:9 10:2211:1,11,14,1711:21 12:117:17 18:2,1018:13,19,2219:14 26:10,1526:16 28:3,628:11,15 29:830:21 38:1849:25 50:7,1051:8,20 56:657:18 58:1459:20

robes 41:8rule 24:22 49:15

52:1 59:1,4ruling 24:9,19

54:23

S S 2:1 3:1sakes 26:3

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18:1Sara 10:17satisfied 44:12Saturday 19:11

20:23 21:6saw 27:18saying 8:25 9:14

12:4,13 16:2519:22 22:2

26:21 34:1636:10 39:12,2044:12 45:952:6 53:8

says 6:7 10:1410:15 11:1,911:18,20,2312:9,10,2413:17 15:14,1417:12,21 18:518:6,19 19:1619:18 20:4,1320:16 21:923:9,10 24:2,424:25 25:433:3 40:341:21 43:6,843:18,19 44:844:13 45:14,2051:10 54:2056:22,23 59:2

Scalia 9:21 10:510:6,21 12:22

13:2,10 15:2516:4,11,14,1916:24 17:2,920:10,13 23:1325:15,18 26:2327:2,5 30:5,1230:17 45:5,1545:18 49:15,19

58:23 59:4Scalia's 53:7school 19:10

21:15 31:23Scott 4:5 7:16

7:18 10:4,1310:18,24 12:1512:15 13:5,629:18 30:232:16,19,2033:10,24 34:734:15 41:1442:15 53:12,1656:15 57:4,1059:12

search 39:5

season 38:7second 7:15 8:28:5,5

secondhand 20:11

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21:10 24:825:19 31:3,1635:9 37:1656:14

seeking 45:4seen 9:1sees 46:3 48:24selected 24:20

28:20selection 23:7

28:22 48:24self-employed

42:1semester 17:24send 20:20

23:24senior 8:11sense 56:25sensitive 55:3sentence 29:23sequester 18:25serious 42:10service 32:6set 59:8

seven 9:5,12shirt 39:6short 21:12 31:9show 26:6 30:13shy 44:25side 6:24,24

12:3 37:4 53:557:19

sides 53:4side-by-side

22:12significance

37:20significant

36:11 37:2138:14

similar 40:21,23similarities 27:437:9 56:1

Similarly 53:10simply 4:25Simpson 3:24

25:7,23,2426:2,7,21 27:927:11,15,1628:23 36:8,1436:25 37:8,937:12,15,20,2538:2 39:1942:19 59:15

Simpson's 4:1single 10:11

13:5 15:1849:19

sir 31:12,16,2441:20 48:1049:18 50:955:1

sit 22:22sitting 17:10situation 31:3

38:16 40:18situations 13:14six 9:2,6,12slight 34:20slow 9:23smaller 6:11


8/14/2019 US Supreme Court: 06-10119



snookered 8:7Snyder 1:3

26:19 27:1028:8 29:5

Snyder's 4:127:12

society 26:6softly 34:25somebody 15:10someone's 34:11sorry 10:9 11:2

11:16 32:1735:17 43:448:1 51:8

sort 3:13 33:23sorts 13:19

sounds 23:13Souter 36:5,2136:23 37:11,1640:9 43:1944:10,17 47:1547:25 48:2,859:13

speak 18:6speaking 49:21specific 45:23specifically

14:23speculation

17:25 18:1spoken 34:25spokenly 35:5staff 32:5stand 4:22 21:23

45:20standard 55:18standing 17:20start 3:24 17:23

33:1 49:2,852:5 57:16

started 32:634:15

starts 8:10 12:633:22

state 3:21 7:615:21 40:1245:10,14 46:14

50:11 53:1356:15,16 58:15

statement 38:1539:4

States 1:1,12State's 52:15statutory 32:5

56:3stay 19:2step 8:18STEPHEN 1:15

2:3,8 3:6 56:10Stevens 25:6,9

27:16 46:5,846:19,22 47:447:16 50:17

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US Supreme Court: 06-10119