Prosecutors’ ‘O.J. Simpson Question’ And The Case Against Peremptory Strikes

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For all of the nearly 150 years that the U.S. Supreme Court has recognized that the Constitution prohibits excluding people from juries because of race, prosecutors have found new and creative ways to get away with discrimination. That held true even after the Court’s 1986 decision in Batson v. Kentucky, which held that prosecutors cannot use their peremptory strikes—strikes that allow prosecutors and the defense to remove jurors at their discretion for almost any reason—to exclude Black people on the basis of race.

Some of these tactics have been insidious. In 1995, for example, the Conference of District Attorneys in North Carolina called a meeting and provided prosecutors with a cheat sheet of pat, “race neutral” explanations for striking Black jurors—things like “inappropriate dress,” “physical appearance,” “age,” “body language,” and “attitude,” that could be deployed whenever the defense alleged unlawful racial discrimination. (In over 100 cases raising a Batson violation, North Carolina’s appellate courts have never reversed a conviction because of discrimination against a nonwhite juror.)

By comparison, another scheme that emerged around the same time seems a rather obvious ruse. Known as the “O.J. Simpson question,” it works like this: Prosecutors ask potential jurors for their reaction to the jury’s verdict in O.J. Simpson’s trial, and then strike Black jurors who are untroubled by Simpson’s acquittal, citing that response as a “race-neutral” reason for using a peremptory strike.

Prosecutors in at least three California counties used some variant of the O.J. Simpson question in the 1990s, as did prosecutors elsewhere, including in Colorado and Texas. And although Simpson’s 1995 verdict may not have the same resonance today, contemporary analogs have surfaced: In 2016, a prosecutor in Nevada asked members of the jury pool whether they had any strong opinions about the Black Lives Matter movement, a question that “had, at best, minimal relevance to the circumstances of th[e] case,” according to the Nevada Supreme Court.

Now this practice is up for review before the California Supreme Court. On Tuesday, the court heard argument in a capital case that for the first time puts the O.J. Simpson question—and the practice of striking Black jurors based on their answers to it—squarely at issue.

In 1999, Johnny Duane Miles was convicted and sentenced to death for a string of serious crimes including the rape and murder of a white woman. Before his trial, each prospective juror completed a questionnaire that asked: Were “you upset with the jury’s verdict in the O.J. Simpson case?” After the defense challenged strikes used against two Black prospective jurors who answered “no,” the prosecutor pointed to their answers on the O.J. Simpson question as “the common denominator” justifying removal, and suggested that both people were poorly suited to serve as jurors in a trial that, like Simpson’s, rested on DNA and circumstantial evidence.

In an amicus brief, the NAACP Legal Defense & Educational Fund (LDF) argued that the O.J. Simpson question cannot be considered “race neutral” and that striking Black jurors because they are not “upset” with the verdict amounts to unlawful racial discrimination. Deploying the question is “discrimination by proxy,” LDF said, “a ruse for targeting and then striking Black venirepersons.” (Disclosure: I worked at LDF.)

LDF’s argument is grounded in the reality—plain to anyone who was paying attention to the trial and the unrest that followed, or who has seen “O.J.: Made in America,” and certainly plain to California prosecutors trying capital cases in the late ’90s—that the reaction to Simpson’s verdict broke largely along racial lines. At the time, Simpson was a singularly famous Black athlete and movie star charged with killing his ex-wife and her friend. His trial started in Los Angeles just a few years after four Los Angeles police officers were acquitted in the vicious beating of a Black man, Rodney King, that was captured on video. And Simpson’s defense focused on racism in law enforcement, particularly as to Detective Mark Fuhrman, who had a long history of racist comments. “Studies have shown,” LDF’s brief points out, “that for many Black people, the trial of O.J. Simpson was about the centrality of police brutality to black Americans very sense of self, and was a symbol of endemic racism in the justice system.”

A 1995 CBS poll found that 79 percent of whites believed that Simpson was guilty compared to just 22 percent of African Americans. In the Los Angeles Times, journalist Sheryl Stolberg called Simpson’s acquittal “a moment of sweet triumph for all the anonymous black men in America who didn’t have money to buy a dream team of attorneys to fight a system that produces a racist cop like Mark Fuhrman—and does nothing to weed him out.”

Given this context, it’s unsurprising that responses to the O.J. Simpson question, while not an airtight proxy, would correlate closely with race, and could serve as an effective tool for excluding Black people from juries. The question now is whether the California Supreme Court will ignore that reality, elevating form over substance to say that the question is “race neutral,” or recognize that the question and others like it function as impermissible surrogates for racial bias.

When the O.J. Simpson question reached a Texas Court of Appeals in 2001, one dissenting justice put the issue this way: “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.” Another dissenting justice lamented how “the State found a convenient way to strike African Americans,” and offered another reason the question is so problematic: “It is unfortunate,” he said, “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.”

But no matter how the court decides Miles’s case, it can only go so far toward eradicating racial discrimination from jury selection. Batson simply leaves too much room for prosecutors to come up with ostensibly race-neutral reasons for peremptory strikes that conceal unlawful bias. If it isn’t the O.J. Simpson question—or the Black Lives Matter question—it will be something else, something less obvious. Additional reforms are essential.

One option is to fashion new rules that further constrain the use of peremptories. In 2018, the Washington Supreme Court adopted a new rule designed to ban peremptory strikes based on “implicit, institutional, and unconscious” racial and ethnic bias in addition to intentional discrimination. Under the rule, reasons for excluding jurors that are historically tied to racial bias and stereotypes—for example, the prospective juror lives in a high-crime neighborhood, or believes that police officers racially profile, or has close relationships with people who have been arrested—are presumed invalid. The California Supreme Court may explore a similar option with its California Jury Selection Work Group, announced in January, that will “study whether modifications or additional measures are needed to guard against impermissible discrimination in jury selection.”

These reforms are well intentioned, but the more elegant and effective solution might be what Justice Thurgood Marshall called for over 30 years ago in his Batson concurrence: eliminate peremptory strikes altogether. Marshall correctly predicted that Batson “will not end the racial discrimination that peremptories inject into the jury-selection process.” The “inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds,” he wrote, “should ideally lead the Court to ban them entirely from the criminal justice system.”