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The legacy of the O.J. Simpson murder trial lives on in Texas, thanks to a 1st Court of Appeals opinion that OK’d a prosecutor’s decision to ax prospective jurors who agreed with the outcome of the case against the former football star. On May 3, the Houston appeals court in a 6-3 en banc opinion ruled it was permissible for prosecutors in Roy Neal Shelling Jr. v. State of Texas to peremptorily strike all prospective African-American jurors who said Simpson’s acquittal was correct, so long as white venire members were struck for the same reason. “The prosecutor may have been trying to gain an unfair advantage by trying to commit jurors to a set of facts based on the similarity of the O.J. Simpson murder case to this case,” wrote Justice Tim G. Taft for the majority. “Nevertheless, that was neither the basis for the appellant’s objections at trial, nor does that indicate any improper racial motives on the part of the prosecutor. … What the prosecutor did may have been improper. From this record, however, there is no showing that what the prosecutor did was racially motivated.” Simpson’s nine-month trial in 1995 captured worldwide attention. In a Los Angeles County Superior Court, the trial resulted in his acquittal on charges that he murdered his ex-wife, Nicole Brown Simpson, and her friend, Ron Goldman. A year after the acquittal, a CNN/ USA Today/Gallup Poll showed 60 percent of whites and 48 percent of blacks believed the Simpson verdict enlarged the country’s racial divide. The 1st Court noted that Shelling resembles the Simpson case. According to the opinion, Shelling and his wife, Lisa Robinson, spent Thanksgiving 1997 in Chicago with Robinson’s family. While there, Robinson told Shelling she wanted a divorce, and Shelling said if he caught her with someone, “there would be drama,” the court wrote. The couple returned home to Houston on Nov. 28. Two days later, Robinson spoke with her friend Carlos McMahon and made plans to meet him at his apartment for dinner, the opinion noted. Once there, Robinson saw Shelling in the parking lot of McMahon’s apartment complex, the court’s opinion said. Robinson and Shelling allegedly made eye contact. Feeling “terrified,” Robinson turned around and drove home, according to the court’s opinion; she did not see where Shelling went from there. Robinson allegedly phoned McMahon’s apartment several times but did not get an answer, the court wrote. Also that night, McMahon’s neighbor allegedly heard loud noises coming from McMahon’s apartment. The next day, Robinson and her girlfriend drove to McMahon’s apartment and discovered his body. He had been shot five times, stabbed 11 times and his throat had been cut, severing his jugular vein, the court wrote. ‘BATSON’ MOTION During jury selection for Shelling’s trial in Harris County’s 262nd District Court, the prosecutor, Victor J. Wisner, asked each juror’s opinion on the Simpson verdict. “I’m going to object to the reference to the O.J. [Simpson] verdict as it relates to homicide cases, as it indirectly relates to this defendant, myself or co-counsel,” said defense lawyer Robert Alton Jones, who obtained a running objection to the line of questioning, according to the court’s opinion. Judge Woody Denson overruled Jones’ objections. According to the 1st Court’s opinion, Wisner then struck all members of the venire panel — black and white — who said Simpson’s acquittal was fair. At Shelling’s trial, Robinson testified that Shelling had watched the Simpson case “to the point that it sometimes interfered with his work,” the court noted. The jury convicted Shelling of murder in August 1998; he was sentenced to life in prison. On appeal, defense attorney Stanley G. Schneider made a Batson motion. Pursuant to the U.S. Supreme Court case Batson v. Kentucky (1989), the equal protection clause forbids peremptory challenges to exclude potential jurors solely based on race or gender. To avoid a Batson challenge, the prosecutor must have a race-neutral explanation for the strike, the U.S. Supreme Court wrote. Schneider argued that the trial court erred in overruling the defense’s objections to the state’s use of peremptory challenges on prospective minority jurors and that agreement with the outcome of the Simpson case was not a race-neutral reason to strike jurors, the opinion noted. The state argued on appeal that the question about the outcome of Simpson’s trial was not racially motivated and that the prosecutor struck black and white jurors who agreed with the verdict, says Rikke Burke Graber, Harris County assistant district attorney. “We agree with the trial court that the prosecutor’s explanations were racially neutral,” wrote Taft, joined by 1st Court Justices Michael Schneider, Adele Hedges, Sam Nuchia, Scott Brister and Terry Jennings. Brister wrote a separate concurrence to point out that the number of available peremptory challenges in Texas — 10 — should be reduced. “I write separately to point out that reducing the number of peremptory challenges — as recommended by many judges, legal commentators, and the American Bar Association — would temper the claims of bias, racism, and other heated charges that often arise in cases like this,” he wrote. Justice Murry B. Cohen says he recused himself from the case because Schneider & McKinney, the firm representing Shelling, represents him in civil matters. In a joint dissent, Justices Margaret Garner Mirabal and David L. Wilson sided with the defense on the Batson issue. “We should not sanction skirting around Batson by condoning the peremptory strike of a member of a particular minority based solely on one answer to one question about which a vast majority of that minority have been demonstrated to agree,” the justices wrote. In a lengthy separate dissent, retired 1st Court Justice Frank C. Price, sitting by assignment, wrote that he would remand the case for a new trial. “I think the majority has done a disservice to Texas jurisprudence with this opinion,” wrote Price. “In the future, the state, especially in the context of a nonhomicide prosecution, will be permitted to ask each prospective juror his or her opinion about the verdict in the O.J. Simpson case and legitimately strike all African-Americans who say it is fair, so long as it strikes any white venire person who answers similarly. It is unfortunate that we ask African-Americans to accept our system of justice as a fair and unbiased application of legal principles, then refuse them the opportunity to serve on a jury because they claim, in their minds, the system worked.” OUTSIDE LOOKING IN Three Harris County lawyers say they’re concerned that the 1st Court’s decision may tarnish the image of the criminal justice system in Texas. “I think it makes the criminal justice system look bad,” comments Jay T. Karahan, a member in Houston’s Kuniansky, Karahan & Rozan. “We need to avoid that at all costs because we have to appear fair as well as be fair.” South Texas College of Law Professor Neil McCabe agrees. “The O.J. Simpson case was a racially polarizing event, and it’s best not to have events like that repeated,” he says. “As far as a topic of conversation, O.J.’s died down, but it’s something that’s entered people’s view of the criminal justice system as a basic yawning chasm between the white and black population. I think [Judge] Price is right that this sets a terrible precedent, and when prosecutors read this … [it'll] become a very useful tool for getting blacks off the jury.” “Most prosecutors and defense attorneys, if they’re really good, keep up with the current opinions, and this may reignite the use of the O.J. Simpson example again in voir dire,” says Paul Mewis, a Houston sole practitioner who does criminal defense work. “They’ve got training sessions, and they keep up with the law, and they’ll see it as a good tool to get minorities off the jury.” Graber, who argued the appeal on the state’s behalf, disagrees. “The prosecutor in this case didn’t just pick O.J. Simpson out of the blue,” says Graber, pointing to the similarities between the two cases. “There were a lot of reasons why we thought the O.J. case was important to this particular case, so the assumption that prosecutors would cling to this and use it to get rid of black jurors, I don’t think that will happen.” WHY EN BANC? Schneider, Shelling’s lawyer, has problems with the 1st Court’s decision that go beyond the Simpson issue, though. The court’s decision to render its opinion en banc came as a surprise to Schneider, who argued Shelling’s case on Feb. 29, 2000, to a three-judge panel consisting of Mirabal, Taft and Price. “I didn’t know it’d be an en banc opinion until I got the decision,” he says. “I thought that it’s kind of shocking that you can argue a case before a three-judge panel and then suddenly it turns into an en banc panel without notice.” Graber doesn’t find anything unusual about the en banc decision being rendered without notice and says it’s typical. “I don’t believe they’re required to give notice that they’re going to issue an en banc opinion,” she says. Schneider believes the three-judge panel would have decided the case in his favor because Mirabal and Price dissented in the en banc opinion. He says he is moving for a rehearing. If the 1st Court denies his motion, he says he’ll take the case to the Court of Criminal Appeals. According to Taft, the decision to issue an en banc opinion was made after a member of the court — he can’t recall whom — requested en banc review and a majority of the court voted to hear it en banc. Because no record was made of the oral arguments that took place before the three-judge panel, the full court based its decision on the arguments made in the parties’ briefs, says Taft. Schneider says he’ll ask the State Bar of Texas’ appellate division to file an amicus brief in support of his motion on the issue.

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