The Book Of Clarence Thomas

Andrew Cohen: Court's Only Black Justice Won't Oppose Legal Racism In Death Penalty Case

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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If you really want to take the measure of Supreme Court Justice Clarence Thomas, don’t bother reading his self-serving, cry-for-help book. And don’t bother going into the archives to view or read the fawning interviews that accompanied it. Just read this week’s big death penalty decision in a case involving a black man named Allen Snyder.

By a margin of 7-2, with conservative Justice Samuel A. Alito, Jr., writing the majority opinion, the Court Wednesday overturned Snyder’s death penalty conviction and ordered a new trial after concluding that black jurors were illegally barred from his Louisiana trial. The Court’s ruling was the latest in a recent series designed to rein in rogue prosecutors and recalcitrant judges who merely give lip service to the constitutional mandate that black jurors ought to be able to sit in judgment upon black defendants.

Snyder is no picnic. He allegedly murdered his estranged wife’s boyfriend. But this case, this appeal, was not about his guilt or innocence or even any of the information offered at trial, before which the prosecutor told one and all that this was his “O.J. Simpson” case, a reference to a black defendant whom many believe got away with murder back in the fall of 1995. Snyder’s trial was in 1996 - less than a year later.

The Snyder case instead is about what happened during jury selection. All five black jurors who made it through the initial screening were promptly eliminated by the prosecutor using his “peremptory strikes.” These occur when either side in a case unilaterally rejects a potential juror before trial. Such strikes may not be based upon race. So Snyder’s lawyers immediately (before trial) challenged two of the “strikes” on the grounds that they were unconstitutional. This required the prosecutor to justify his decision to eliminate the two people.

When he justified his decision to strike one such juror, the prosecutor said that the man looked nervous and might want to bargain in deliberations for a lower charge because he wanted to get back to his job as a student teacher. The trial judge immediately agreed with these justifications without making any sort of a factual finding that the prosecutor’s concerns were based upon impressions the judge himself agreed with. This spur-of-the-moment bench ruling, the Supreme Court said, “fails even under the deferential standard of review” the trial judge gets in these types of cases.

What else? Here is what Justice Alito wrote: “The implausibility of [the prosecutor’s] explanation is reinforced by the prosecutor’s acceptance of white jurors who disclosed conflicting obligations that appear to have been at least as serious as Mr. Brooks’.” In other words, the prosecutor bent over backward to remove black jurors from Snyder’s trial and bent over backward to keep white jurors in the jury pool. The Supreme Court, then, issued a ruling that comports both with precedent and common sense-not always a guaranteed Quinella these days.

Two members of the Court did not see things that way. They would have supported both the two-faced prosecutor and the quick-draw trial judge. One of these Justices was Clarence Thomas, just the second black person to sit on Court. Despite the obvious scheme devised by the prosecutor - and endorsed by the trial judge - Justice Thomas declared that it was not the province of the Supreme Court to “second-guess” such judges when they make decisions about jury selection in capital cases.

Writing for his ideological brother Justice Antonin Scalia, Justice Thomas praised the “pivotal role” of the trial court. The prosecutor in Snyder’s case, according to Thomas, offered “neutral” reasons for excusing the black jurors; reasons that the trial judge was right to accept and that the Supreme Court is wrong to reject. The majority was wrong, too, Justice Thomas declared, for comparing the white and black jurors who were excused by the prosecutor.

Go ahead and read both the majority and dissenting opinions and then ask yourself which one comports with your sense of justice and fairness. Under Justice Thomas’ standard, apparently, a black defendant could successfully challenge the exclusion of a black juror from his case only if the prosecutor were so blatantly racist that the motives for the exclusion were clear for all to see. Those kinds of prosecutors - thankfully - no longer exist in this country. The law has exiled them into obscurity.

But the other kind of prosecutor - like the one in Snyder’s case - just as obviously still does exist in America. This kind of prosecutor is too smart and subtle to be so cavalier in open court about the reasons for precluding black jurors from sitting in judgment upon black defendants. This kind of prosecutor with a wink and a nod excuses black jurors with the barest of rationales - “he looked very nervous to me,” said Snyder’s prosecutor - that then are condoned by sympathetic judges who are in on the gig.

The Supreme Court this week said it will no longer countenance this charade. Justice Thomas said this week that the charade ought to be respected. He may be, as his recent book suggests, his “grandfather’s son.” But I doubt even Justice Thomas’ grandfather would be pleased with the lengths to which his grandson has proven willing to go to keep alive in precedent among the last (and worst) vestiges of legal racism.

[trohunt00]

Thomas has been this way forever. He holds some type of enmity towards black people. In every case that has been brought before the Supremes, that had a possibility of coming down on the side of Blacks, justice Thomas has been on the other side. In the one case I know of where he and Justice Scalia differed, it was on a racial intimidation issue where the scrawling of racial epithets on someones house was deemed to be a hate crime issue, and Justice Thomas broke with his buddy and went against the reasoning that racial epithets scrawled on a house and a burning cross in the front yard held no racial significance. Even Scalia couldn''t side with this one, but our buddy Clarence had no problem saying it was just graffiti. Someone else summed it up perfectly. He feels since he rose despite hardships that all others can do it as well. Of couse, that means we should not help anyone or fight any injustice because someone, somewhere survived without any help, so everyone else should be held to that same standard.

[classicdoc]

Well, here we go again--Thomas is singled out for attack because he doesn''t toe the left-liberal color line. Blacks are only supposed to have certain opinions. Sounds like racism to me, Mr. Cohen.

[downsteamjim]

McVet: It''s Easter. Couldn''t you give your sieg heils just one day off. The spirit of Hitler will probably forgive you. Have a nice peaceful day.

[mcvet]

At least read the article before your far left bias shines through; Alito wrote the majority opinion in this case that AGREED that there was bias against Snyder; Thomas wrote the dissenting opinion. Alito wasn''''t on the same side as Thomas in this.



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Posted by fredgrad2000 at 08:51 PM : Mar 22, 2008
+ report abuse

I''m interested with you Nazi''s and your hatred for the Free Press. This isn''t new but I just wondered who YOU think should decide for me what I can hear and who I can hear it from. As it stands now, if I want to hear the streight "Party" line I can go to FOX. Now since I''m a free thinking person and would prefer to have my news mixed and NOT the "Party" line I pick other outlets. That''s MY call. So who would you like to make that call for me? Should all networks be required to produce ONLY the "Party" Line? Wasn''t THAT what Joe McCarthy did and wasn''t that defeated? Sieg Heil Bush

[mcvet]

think that Mr. Cohen misses the point. Cases before the court are there for legal reasons, not for socio-economic solutions (although by some of the views of some of the justices, you''''d never know that!) Apparently, Justices Alito and Thomas thought that the system was not impugned in this jury selection matter. They believe that the trial judge was in the best position to make the call about the exclusion of black jurors. Don''''t forget, there are two sides in the case and the state is entitled to justice, too. That is often ignored. No Supreme Court decision mandates that juries be composed of some blacks when a black is a criminal defendant.



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Posted by Atty12 at 06:21 AM : Mar 23, 2008
+ report abuse

You Fascist missed the 60''s and NOW you are attempting to pretend they never happened. So you''ll know RACIAL discrimination in Jury Sellection IS a LIGAL issue you pathetic Nazi! Sieg Heil Bush

[atty12]

I think that Mr. Cohen misses the point. Cases before the court are there for legal reasons, not for socio-economic solutions (although by some of the views of some of the justices, you''d never know that!) Apparently, Justices Alito and Thomas thought that the system was not impugned in this jury selection matter. They believe that the trial judge was in the best position to make the call about the exclusion of black jurors. Don''t forget, there are two sides in the case and the state is entitled to justice, too. That is often ignored. No Supreme Court decision mandates that juries be composed of some blacks when a black is a criminal defendant.

[vet_sk]

For a while I started wondering if Thomas'' tough time during his confirmation by the senate was the result of politics. But then...
I watched him on C-Span talk to a group of high school students who had obviously prepared for weeks to greet, meet, and ask questions of this man. But he was a total and complete idiot. It was fully embarrassing and within 15 minutes this supreme court justice had totally lost their attention and they were talkign amonst each other. Can you imagine that happending to Thurgood Marshal, the justice her replaced? Surely not.

His book is another example of a ramble. This man shouldn''t be a district court judge much less a justice. It is a embarrassment to the United States.

[carlmoore4]

Clarence and Ward should both retire and start their own TV show. It would be a hit in every Klan household. Let''s call it "Fools Rush In" . Clarence has stopped practicing law a long time ago. Everyone who speaks before the court always is taken by the fact that he never says anything.He has taken to practicing a sort of vendetta not law. He is the most pathetic figure of our time.

[fredgrad2000]

"Just as Thomas and Alito defend the decision of the trial judge, both will surely strike down the authority of the Washington D.C. council and mayor to ban guns."

At least read the article before your far left bias shines through; Alito wrote the majority opinion in this case that AGREED that there was bias against Snyder; Thomas wrote the dissenting opinion. Alito wasn''t on the same side as Thomas in this.

[sanfelz]

Thomas''s overriding rage and legal ineptitude reveals him to be the worst of a number of political hacks that demean this Supreme Court.

Just as Thomas and Alito defend the decision of the trial judge, both will surely strike down the authority of the Washington D.C. council and mayor to ban guns.

Thomas is a sullen and angry man who uses his overcoming of difficult childhood experiences as an excuse to disregard explicit and implicit tenets of the Constitution. His reasoning is that since he overcame racism, anyone else should be able to do the same. Disregard he will, the Constitutional search for justice and goal of equality for all.

[skyk-2009]

Mr. Cohen,

Your analysis is shallow. Assuming you are of better-than-average intelligence, your work here can only be described as a simple attack piece that ignores Justice Thomas'''' legitimate concerns about the overreaching of federal judicial power. And "bretheren" is plural.




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Posted by resolute96 at 07:35 PM : Mar 21, 2008
+ report abuse

Why would you say that? Those of us who confronted the Klan and such groups know what he''s talking about. There is no doubt about what happened to LA. What is in question is Thomas. Someone this ignorant of the History of this nation should NOT be sitting on any court. Some of you seem to want to ignore or refuse to admit that the 60''s happened... Take if from someone who faced off against these people, they were and still just as real.

[jimbo554]

Future assessments of Clarence Thomas''s opinions will not be in law books, but in psychology books -- a twisted product of pain and anger.

[bogdog30]

After doing Judge Judy the **** notices

Chrissy (Mathews) continuing with his down-low on Shoeshine and the Rev. - from one to the other.

Thus the train wreck casualties exhibit a spirited uplifting ...

[rushlimpdrug]

The nice thing about Clarence is that history will
have a record of just how stupid his judgment was.
Those that read about his life and his decisions and
his thinking on the bench will only wonder how such
a stupid fool could think he fooled everyone all the time.

Hey Clarence Thomas, what is that on top of your Coke can?

[kidofstl]

Justice Thomas is really very highly regarded in the Black community. When publications such as Ebony, Jet and others have their annual 50 most influential African- Americans for some reason Clarence Thomas is NEVER on there. I''ve never seen his face grace the cover of any major Black publication. Condi Rice and Colin Powell always make these list so I wonder what the deal is. Perhaps Justice Thomas has quite forgotten where he came from. Let him go among a group of far-right White supreme and Ku Klux Klan types and I''m sure they will not hesitate to remind him of what he is in their eyes.

[truth832-2009]

Mr. Cohen,

Thanks for the well written article. Your assessment does indeed contain merit. Thankfully, the majority ruled.

[resolute96]

Mr. Cohen,

Your analysis is shallow. Assuming you are of better-than-average intelligence, your work here can only be described as a simple attack piece that ignores Justice Thomas'' legitimate concerns about the overreaching of federal judicial power. And "bretheren" is plural.

[davewrite1]

Self-righteous and self-absorbed persons like Clarence Thomas who see themselves as wronged and persecuted at every turn are the quickest to judge others mercilessly. This became obvious with hin over-the-top characteriztion of Anita Hill -- a woman whose honesty about Thomas''s advances was apparent.

Uncle Tom is a horror of a human being - and will remain one more vestige of the litany of crimes committed by the Bush administration, which has disgraced our nation and from which we may never recover.

[shogl]

What a completely asinine, disdainful, and disrespectful assessment of Clarence Thomas, his book, the case in question, Justice Thomas'''' written decision, and legal reasoning altogether.

You offer no real response to Clarence Thomas'''' decision, other than that you obviously disagree with it.

Are you an actual attorney? Or do you just play one on the internet?
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Can''t you find a way to disagree with the columnist without renouncing common sense or dignified discourse?

[lfitts1]

Mr. Cohen:

What a completely asinine, disdainful, and disrespectful assessment of Clarence Thomas, his book, the case in question, Justice Thomas'''' written decision, and legal reasoning altogether.

You offer no real response to Clarence Thomas'''' decision, other than that you obviously disagree with it.

Are you an actual attorney? Or do you just play one on the internet?

Posted by logipundit

You are so right--Clarence is such a great legal mind and so qualified to be on ''the court"--NOT!!! He has got to be one of the dumbest, least qualified people ever to nominated and confirmed-- and to think we need to put up with this numb skull for another 40 years--one of the worst vestiges of Bush1