By Cassandra Stubbs
Gov. Gavin Newsom’s moratorium on executions in California has highlighted the pernicious role race has played in who gets the death penalty in that state. In a case now awaiting review, the U.S. Supreme Court will have an opportunity to examine whether discriminatory tactics in jury selection in a California capital case can stand.
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? 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 — except, apparently, the California Supreme Court — 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. 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, including cross-burnings, hate crimes, and Klan marches into the late 1980s. 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.
Attorneys in California are free to strike a certain number of eligible jurors from serving for any reason at all — as long as that reason does not discriminate on the basis of race or gender. 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.
Cassandra Stubbs is Director of ACLU Capital Punishment Project
