THE BLOG
07/13/2007 10:00 am ET Updated May 25, 2011

The O.J. Simpson Card

The moment the mostly black jury acquitted O.J. Simpson in 1996 a leading Simpson trial commentator pithily quipped that blacks would catch heck for that verdict. He didn't spell out exactly how they'd pay for the acquittal, but the point was that the Simpson verdict so enraged police, prosecutors, judges and many whites that they would throw the book at any black that wound up in a court docket. The quip seemed like over the top, hyperbole at the time.

But a decade later attorneys for convicted murderer, Allan Snyder, an African-American, say that it's no exaggeration. They have asked the Supreme Court to toss Snyder's conviction in Louisiana. Supposedly prosecutors played the Simpson race card when they told jurors that a defendant in a famed murder case got away with the murders. Though prosecutors didn't name Simpson directly, they mentioned the Ford Bronco, the famed slow chase and the historic notoriety of the case. It didn't take much for the all-white jury to connect the dots and figure that Simpson was the defendant in question. The Supreme Court will review the case this fall.

Whether the court buys Snyder's claim that he was a victim of Simpsonitis, or not -- and that's a tough one to prove based solely on a prosecutors off the cuff crack to a jury -- there's no doubt that Simpson's acquittal did send a jolt through the criminal justice system. In countless interviews, police officials, judges and prosecutors expressed their dismay at the verdict. Even then President Bill Clinton caught the angry public mood over the verdict when he asked Americans simply to respect the verdict and then quickly urged them to show sympathy for the victims. In the decade since the acquittal, that angry public mood on crime has translated into waves of tough new laws and bulging prisons. The year that Simpson was acquitted, America's jail population stood at about a half million. A decade later it has soared past 2 million, and the numbers show no sign of leveling off. Blacks make up nearly half of America's inmates.

In their Supreme Court challenge, Snyder's attorneys didn't stop at reaching at Simpson as the cause for his conviction. They also zeroed in on the all-white jury that convicted him. It was the mostly black jury that acquitted Simpson that set off howls that black jurors played the race card and let Simpson walk because he was black. That sent up red flags among prosecutors. Though the Supreme Court has repeatedly ruled that prosecutors can't bump blacks from juries solely because of race, when the defendant is black prosecutors have found creative ways to limit their number if not eliminate them entirely from the jury.

The Dallas Morning News revealed in 2006 that Dallas prosecutors systematically dumped blacks from juries for years. The Supreme Court tossed the conviction of Texas death row inmate Thomas Miller-El based on Dallas prosecutor's brazen racial jury sanitizing. Yet prosecutors still try to get as many whites, and as few blacks as possible, on juries. The thinking is that whites are more pro-prosecution than blacks. They aren't totally wrong.

A 10-year study by the Capitol Jury Project on juror racial attitudes in which more than 1,000 jurors were interviewed in 14 states found that white jurors were far more willing to believe the testimony of police, and prosecution witnesses than the testimony of black defendants and witnesses. Countless other studies have also shown that white jurors are more prone to convict black than white defendants. If the defendant is black, and the victim is white, the likelihood is greater still of a conviction.

Courts have consistently ruled that any explanation that a prosecutor gives for striking a prospective black juror that appears to be race-neutral is acceptable. There is no constitutional requirement that the prosecutor's explanation be reasonable or even make sense. There is no enforcement mechanism to insure that in the blatant instances where blacks are struck from juries that race wasn't the real motive. The Supreme Court has repeatedly reaffirmed the need to have jury diversity. But it has done little to clarify how to measure diversity, or how to attain it. It uses the vague and ambiguous standard that a jury must be representative of a fair cross section of the community.

That puts the burden on defense attorneys to prove that prosecutors manipulated jury selection to exclude blacks from a jury. A defense attorney must do an exhaustive population study to show that whites are over represented on a jury, and blacks are underrepresented. They must also show that the paucity of blacks in a jury pool is due to deliberate and systematic exclusion by prosecutors. That's nearly impossible to prove.

Snyder probably won't have much better luck in proving that juries in his trial were bumped because they were black either. But his legal challenge, and the Supreme Court's willingness to take it up, puts Simpson back in the news with all the ugly implications that his case had and still has on crime and punishment in America.

Earl Ofari Hutchinson is an author and political analyst. His new book The Latino Challenge to Black America: Towards a Conversation between African-Americans and Hispanics (Middle Passage Press and Hispanic Economics New York) in English and Spanish will be out in October.