Bill aims to curb some juror challenges

A state bill the author says is aimed at ending discrimination in jury selection has some prosecutors concerned because peremptory challenges of sleeping, unintelligible or hostile jurors would be invalidated unless the attorney could prove the challenge wasn't based on implicit bias.

"Under existing law, these are all valid reasons for a prosecutor or a defense attorney to ask to have a juror excused," said Michele Hanisee, president of the Association of Los Angeles Deputy District Attorneys, in a statement Wednesday. "Yet Shirley Weber wants to pass a law making these reasons, and others, presumptive evidence that the attorney who excuses a juror for such a reason is acting on bias against a protected class."

AB 3070, introduced by Assemblymember Shirley Weber, D-San Diego County, in February and sponsored by the UC Berkeley Law Death Penalty Clinic and California Attorneys for Criminal Justice, passed the Assembly Judiciary Committee on an 8-3 vote May 12. The sponsors first met in December to begin brainstorming.

A spokesman for Webere said the sole intent of the bill is to address "flimsy excuses that prosecutors most frequently use" to racially discriminate in jury selection.

"We took this bill up because of the disproportionate number of dismissals of potential jurors who are persons of color," spokesman Joe Kocurek said in a phone interview adding the bill was a "cut and paste" from a Washington State Supreme Court ruling in State v. Jefferson, 192 Wn.2d 225 (Wash. 2018).

Existing law already prohibits attorneys from excusing jurors based on a presumption of bias stemming from an individual's racial, ethnic or religious status. People v. Wheeler, 22 Cal. 3d 258, 276, (1978). And the U.S. Supreme Court, ruling jury challenges based on group bias violate the equal protection clause of the 14th Amendment, established a process, commonly known as the Batson challenge, for identifying and remedying implicit bias in peremptory challenges in 1986. Batson v. Kentucky, 476 U.S. 79, 79-80 (1986).

Robert Weisberg, professor of law and director of Stanford's Criminal Justice Center, said while some parts of the bill repeat what the Batson doctrine already says, the law would significantly change that process in an unprecedented way by placing the burden on the judge to enforce Batson rights more rigorously.

"It goes way beyond, not only beyond Batson, but beyond anything I think the Supreme Court would have the power to do," Weisberg said in a phone interview Friday. "That's fine if California wants to do that, but it's clear that this is not just a refinement of Batson. It's a massive change."

Prosecutors expressed serious concerns that AB 3070 would invalidate peremptory challenges against prospective jurors who were inattentive, have a close relationship with the accused, express a distrust in the legal system, or provide unintelligent or confused answers, indicating they may not understand the proceedings.

Hanisee argued language steps out of bounds because it manufactures evidence of an attorney's bias for the most common and logical reasons to excuse a prospective juror.

"Weber's bill .. presumes that an attorney articulating any of the rationales outlined above for kicking a juror was actually motivated by bias against a protected class," Hanisee said. "If that were not absurd enough, the bill proposes that judges may use bias when ruling on an objection by considering race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation of the attorney making the objection."

Under the proposed law, if the judge determines that an objective observer could view bias as playing a factor in a peremptory challenge, the initial objection would be sustained, regardless if the discrimination was found to be intentional or negligent. In that case, the judge would be inclined to either seat the challenged juror, declare a mistrial or provide an appropriate alternative remedy accepted by the objecting party.

Kevin E. Mitchell, a private defense attorney in San Francisco, said he doesn't anticipate the bill will have much of a practical effect because when jurors are sleeping or are hostile, the judge or an attorney will bring it up in a sidebar discussion where the attorneys stipulate to excuse such jurors without the need to use a peremptory. He also argued that jurors who exhibit the behaviors that are invalidated by this bill are typically doing so to make it clear that they don't want to be there.

"Assessing the inner workings of someone's mind is very difficult to do, even for a judge," Mitchell said Friday. "I think judges, like most of us, make judgment calls based upon their experience and personal beliefs. I do not have any concerns about trying to question a hostile juror to establish their bias, as opposed to my own, because there are techniques to establish as much, if necessary, to make a successful challenge for cause."

By invalidating these reasons from peremptory challenges, Weisberg surmised, the author and sponsors of the bill "believe that those things are a kind of coded proxy for getting rid of people of color."

Indeed, the president of California Attorneys for Criminal Justice, defense attorney Eric Schweitzer of Clovis, argued the safeguards established by Batson have for years been easily avoided by prosecutors to discriminate during jury selection.

"The path around Batson is wide and it's deep from all of the bypasses that have been made over the years since Batson came down," Schweitzer said in a phone interview. "Batson is designed to eliminate bias, and this is just implementing the rule after much experience at seeing the rule being avoided by disingenuous, yet dangerous, means -- particularly when Batson is at the crux of so many death prosecutions."

He said the bill is "long overdue and is calculated to abolish a thinly veiled vestige of Jim Crow."

According to Alameda County Public Defender Brendon Woods, black people in California are excluded from jury service at a rate of 2 1/2 times higher than jurors of other races.

And when an attorney makes a Batson challenge in those cases, they are rarely ganted, Mitchell said.

"I have made Batson/Wheeler motions in the past because black jurors are regularly excused by DAs," Mitchell said. "No judge has ever granted my motion by reseating the juror. I don't expect the law to change that."

Still, Weisberg said he understands why some lawyers might think this law is a step too far.

"It sort of assumes that prosecutors will use inattention or some other odd behavior as a neutral founding proxy for race," Weisberg said. "Now that may be a stereotype of the way prosecutors stereotype people, and that might not be fair. But there has to be a situation where a juror who happens to be a person of color is exhibiting such inattention or such disobedience or disrespect that the person has to be challengeable."

But when the state is facing an unprecedented health crisis as it is now, Hanisee argues the Legislature's priorities should be on the physical and fiscal health of the state and not on making sure juries are "filled with unsuitable jurors."

"Weber's AB 3070 should be discarded as swiftly as the sleeping, potential juror, who upon being awakened informs the attorneys to go to hell and that they are not going to convict anybody of anything," she said.

The bill has now been referred to the Committee on Appropriations for another vote.