by BOB EGELKO AND MEGAN CASSIDY
Nov 04, 2018
(SF Chronicle) - It’s illegal to dismiss prospective jurors because of their race. But civil rights advocates say some California prosecutors have found a way to keep blacks off their juries without using overtly racial criteria.
You might call it the “O.J. strategy.”
The first step is asking prospective jurors how they felt about the 1995 acquittal of former football star O.J. Simpson, who is African American, in the killing of his ex-wife and her friend, both of them white.
The next step is to dismiss black jurors who agreed with the verdict, while offering a non-racial explanation that satisfies the courts.
Attorneys for two men on California Death Row say their clients were denied a fair trial in the 1990s, because prosecutors used the O.J. question as a “proxy for race” to cull black people from juries. Both of the convicted men are black, and both of the victims were white.
Lawyers for one of the men are seeking review in the U.S. Supreme Court after California’s Supreme Court upheld his death sentence without deciding whether the Simpson question was a tool for racial exclusion. Attorneys in the second case want the state’s high court to finally address that issue in their upcoming hearing.
Floyd Daniel Smith is on Death Row for the 1994 murder of a white teenager in San Bernardino County. His attorneys argue that prosecutors at the time of the trial unconstitutionally removed black people from the jury pool, based on a question about the O.J. Simpson verdict.
Johnny Duane Miles is on Death Row for the 1992 murder of rape counselor Nancy Willem in San Bernardino County. His attorneys are arguing that prosecutors unconstitutionally removed black people from the jury
California courts have banned racial discrimination in jury selection since 1978, eight years before the U.S. Supreme Court reached the same conclusion as a matter of constitutional law. But defense lawyers, joined by the NAACP, say some San Bernardino County prosecutors used the O.J. strategy as a thinly veiled loophole.
“These are cases that were tried in the mid- to late ’90s, when O.J. was still really fresh,” said Alexis Hoag, a senior counsel with the NAACP Legal Defense and Educational Fund who has filed a brief with the California Supreme Court. Using the O.J. question responses to strike jurors, she said, was “something that the D.A.s inserted into these cases, in what I argue was a very meaningful and intentional way.”
Simpson’s case had strong racial overtones, including testimony about racist slurs by a white Los Angeles police detective who investigated the killings. Soon after the trial, a CBS poll found that 79 percent of white respondents, but only 22 percent of blacks, believed Simpson was guilty. More recent polls have found that the racial gap has narrowed but hasn’t disappeared.
If the Simpson question is a stand-in for race, it isn’t the only one.
In separate cases, federal and state courts in California have found racial discrimination by prosecutors who said they had removed jurors because they lived in the heavily black communities of Compton and Inglewood in Los Angeles County.
And last year, the Georgia Court of Appeals overturned a black man’s robbery conviction because the prosecutor said one reason he dismissed a black juror was that the man had a mouth full of gold teeth. That is “a cultural proxy associated with African Americans,” the court majority said.
So far, though, no court majority opinions are known to have flagged jury questioning about O.J. Simpson as a veiled form of racism.
The California Supreme Court passed up a chance to address the issue in May, when it considered the death sentence of Floyd Daniel Smith, a black man convicted by a jury with no black members for the 1994 murder of a white teenager in San Bernardino County. Prosecutors at Smith’s trial asked prospective jurors whether they were upset about the Simpson verdict, and removed all four blacks — each of whom said they weren’t upset. But several non-black jurors who also said they weren’t upset about the verdict were seated without complaint.
In arguing to the court’s justices, Smith’s lawyers claimed racism in jury selection but didn’t focus on the Simpson issue. Neither did Justice Leondra Kruger, the court’s only African American member, who wrote the unanimous ruling upholding Smith’s conviction and sentence. She said prosecutors had offered adequate non-racial explanations for the prospective jurors’ dismissals, which included reservations about the death penalty, one juror’s casual clothing, and the similarities in the evidence against Simpson and Smith.
Smith’s lawyers have appealed to the U.S. Supreme Court.
In three similar cases since 2010, California’s high court has upheld death sentences without deciding whether prosecutors had engaged in racial discrimination by dismissing black jurors who agreed with the Simpson verdict.
In another capital case that awaits a hearing before the California court, defense lawyers and their allies are asking the justices to finally decide whether removing black jurors based on their views of the O.J. Simpson trial is truly race-neutral.
Johnny Duane Miles, a black man, was convicted by a jury with no black members and sentenced to death in 1999 for the 1992 rape and murder of a white woman, Nancy Willem, a 35-year-old rape counselor, in Rialto (San Bernardino County). Prosecutors asked prospective jurors whether they were upset about the Simpson verdict and dismissed two African Americans who said they weren’t. Two other jurors who gave the same answer, one white and one Latino, were both allowed to serve, one as a juror and one as an alternate, or backup. The alternates also included one African American.
Prosecutors denied racial bias, saying they removed the black jurors because they seemed skeptical of the types of evidence presented against Simpson, including DNA evidence, which was also used against Miles.
Those explanations were “pretexts for discrimination,” Miles’ lawyer, Cliff Gardner, said in a state Supreme Court filing. He said both prospective jurors had backgrounds that prosecutors usually find appealing. One had been a Marine who was married to a correctional officer and believed that prosecutors were trying “to protect the community.” The other was the son of a federal drug agent and had considered law enforcement as a career. And both said they support the death penalty.
“Especially now, courts cannot sit on the sidelines when the government makes decisions based on race,” Gardner told The Chronicle. “The O.J. Simpson question is clever, but it is simply another way to do just that.”
NAACP lawyers have filed arguments in Miles’ support, saying the prosecutors’ selective dismissal of black jurors who supported the Simpson verdict left “no doubt that the O.J. Simpson question was a tool for racial discrimination.”
“This court should decide this issue because it’s recurring,” the lawyers said, citing the earlier capital cases in which prospective jurors were asked about Simpson. “A decision on this issue will hopefully forestall prosecutors from using this invidious ... discrimination tactic again.”
In response, Attorney General Xavier Becerra’s office, representing the prosecution, contended the Simpson case, when it was fresh in jurors’ minds, was a legitimate, non-racial topic for pretrial questioning.
“The Simpson case was not all about race,” Deputy Attorney General Seth Friedman said in a court filing. He said the trial had divided the public on several issues relevant to future cases, including “the reputation and trustworthiness of police officers” and allegations that police planted evidence to frame defendants.
And although polls still find whites more likely than blacks to believe that Simpson had committed the murders, Friedman said, a Washington Post-ABC News poll in 2015 reported 57 percent of African American respondents now thought the former football star was guilty.
“That more blacks might be accepting of the Simpson verdict than members of other groups does not establish that the criterion is not race-neutral,” Friedman said.
Hoag, the NAACP attorney, said it is puzzling that the attorney general’s office would highlight a poll taken 16 years after Miles’ conviction.
“We were very intentional in our amicus (brief) about timeliness,” she said. “National and California newspaper articles in 1999 underscore how the views of the (1995 O.J. Simpson) verdict were still divided along racial lines.”