Whether the Supreme Court should grant certiorari to prevent courts from allowing prosecutors to use prospective jurors’ opinions about the O.J. Simpson trial or other potential racial proxies as “race-neutral” explanations for striking black jurors without further inquiry.

Floyd Smith, a young black man charged with killing a white teenager, was tried twice in 1997, each time by a jury with no black jurors. The first trial resulted in a hung jury, the second in conviction and a death sentence. In both trials, the prosecution used peremptory challenges to strike all the black jurors, and then relied on the black jurors’ views of the O.J. Simpson verdict to rebut charges of race discrimination. Despite the extraordinary and widely recognized overlap between race and views of the O.J. Simpson verdict, the trial court accepted the prosecutor’s reliance on such views as a valid race neutral reason for all four strikes. For each strike, the court accepted the justification on its face, and conducted no inquiry to assess whether this rationale was being used as a proxy for race. On appeal, the California Supreme Court did the same, as it has done in several other capital cases. That makes Smith’s case at least the fourth capital case in California, along with several criminal cases in Texas, where courts have accepted views on the O.J. Simpson verdict as a race-neutral explanation for striking black jurors, without any further inquiry.

If prosecutors can use facially neutral but highly racially correlated factors to defeat charges that they are discriminating on the basis of race in selecting jurors, the prohibition on such discrimination will be a nullity.  Because the use of such facially “race neutral” reasons presents an important and recurring issue for trial courts, the ACLU, the ACLU of Southern California, and the Roderick and Solange Macarthur Justice Center, filed an amici curiae brief urging the Supreme Court to grant certiorari in this case.

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