It has long been settled that prosecutors may not
dismiss citizens from a jury because they are black. But can they dismiss them
because they supported the verdict in the O.J. Simpson case?
That’s a question the U.S. Supreme Court may soon
take up after the California Supreme Court treated a prosecutor’s invocation of
a juror’s views on the O.J. Simpson verdict as a “race-neutral” reason that
justified the dismissal of a black juror.
If the rule forbidding race discrimination in the
selection of jurors is to have any real effect, such reasons cannot be accepted
as race-neutral without further inquiry.
As everyone knows, opinions about the verdict in
O.J. Simpson’s trial in the late 1990s divided overwhelming along racial lines.
A CNN
poll following the verdict showed that just 41 percent of white
respondents agreed with the verdict, compared with 88 percent of black
respondents.
In several capital murder trials in the wake of the
Simpson verdict, California prosecutors exploited this racial divide by
questioning prospective jurors about their opinions of the trial.
Then they cited black jurors’ acceptance of the
Simpson verdict as a “neutral” basis for striking them from the jury, often
resulting in trials of Black defendants by all-white juries. Now the U.S
Supreme Court will have a chance this spring to decide whether this practice
can be squared with the Constitution’s protection against racial discrimination
in jury selection.
The question arises in the case of Floyd Smith, a Black
California death row prisoner, who was convicted and sentenced to death in 1997
for murdering a white teenager in San Bernardino County. Smith was arrested in
Fontana, a town that had an active KKK presence. He was represented by two
black defense attorneys, and the defense team was subjected to vandalism and
racial threats over the course of the trial.
The prosecution struck all four prospective black
jurors from Smith’s jury. When the defense objected to this pattern as racially
biased, the prosecutor offered a laundry list of justifications that he said
were proof that his objections had nothing to do with the jurors’ race.
Prominent on his list was the fact that the jurors
accepted the O.J. Simpson verdict, even though he had accepted multiple white
jurors who also agreed with the Simpson verdict.
Under settled case law, if there is sufficient
evidence suggesting that a prosecution’s strike of a juror is racially biased,
the prosecution must offer a “race-neutral” explanation.
The judge in Smith’s case ruled that the jurors’
approval of the O.J. Simpson verdict was a sufficiently race-neutral
explanation to uphold the removal of the black jurors. After his trial and
conviction, Smith appealed, and the California Supreme Court, too, accepted the
prosecution’s reliance on views about the O.J. Simpson verdict as a
“race-neutral” explanation.
The California Supreme Court did not question
whether the prosecutor’s use of views about the O.J. Simpson verdict was a
proxy for race discrimination. What’s more, this is the fourth time that the
court has rubber-stamped the prosecution’s practice of striking black jurors
based on their opinions of the Simpson trial.
This is not the only instance of prosecutors
removing black jurors in capital cases based on suspect explanations that are
closely correlated to race. Lower courts are divided in how they handle and
resolve such cases.
A Georgia state court rebuffed a prosecutor’s
argument that he struck a juror because of his gold teeth, finding the
explanation a proxy for discrimination, but North Carolina and Alabama state
courts upheld as race-neutral prosecutors’ reliance on jurors’ attendance at
historically black colleges.
Lower courts are also divided about whether
residence in a racially identified neighborhood is a “race-neutral”
justification. One federal court rejected a California prosecutor’s argument
that living in Compton is a race-neutral justification, but another accepted a
prosecutor’s objection to a juror’s residence in Newark, which the prosecutor
called a “drug trafficking” neighborhood.
The Washington Supreme Court recently adopted a rule
declaring a prosecutor’s reliance on a prospective juror’s neighborhood
presumptive proof of discrimination.
The U.S. Supreme Court is now considering whether it
should take Smith’s case. It should.
The Supreme Court has insisted that it is committed
to jury selection free from discrimination. But that commitment is paper-thin
if the court permits prosecutors to cover over racially discriminatory strikes
of jurors by pointing to such factors as their residence in a black
neighborhood or their approval of the verdict in O.J. Simpson’s case.
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