That's the title of a Los Angeles Times editorial today regarding Snyder v. Louisiana, argued at the U.S. Supreme Court last week. LINK
It seemed like a good idea at the time. In 1986, the U.S. Supreme Court ruled that prosecutors could not use peremptory challenges of prospective jurors -- challenges for which no cause need be offered -- to exclude individuals because of their race. When a prosecutor used his challenges to remove potential jurors in a way that the defense found suspicious, a judge could demand a "race-neutral" explanation for the exclusions.
Unfortunately, the court's solution has complicated the work of judges and defense attorneys without banishing ulterior racial motives from jury selection. That was clear last week when the Supreme Court heard arguments concerning the death sentence an all-white Louisiana jury meted out to an African American man convicted of killing his wife's boyfriend.
The court could -- and should -- grant a new trial and sentencing hearing to Allen Snyder. Not only did the prosecutor use peremptory challenges to exclude five black potential jurors, but in asking for the death penalty, he compared Snyder to O.J. Simpson, deliberately invoking the specter of race. Chief Justice John G. Roberts Jr. pointedly asked a lawyer for Louisiana, "Do you think the prosecutor would have made the analogy if there had been a black juror on the jury?"
And with reference to Justice Stephen Breyer:
Breyer suggested a better solution: Abolish peremptory challenges altogether, requiring prosecutors and defense attorneys alike to challenge jurors only for cause, not because of a hunch.
Earlier coverage of Snyder v. Louisiana is here, here, and here.
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