Juror challenge bill is an opportunity to lead

I am writing in response to the Daily Journal's article May 2 "Bill aims to curb some juror challenges." While the article offers some useful information about the bill, it also contains several factual errors and omits critical background information.

First, Assembly Bill 3070 is not "unprecedented." The bill is modeled on General Rule 37, which the Washington Supreme Court adopted in 2018 to remedy the very ill AB 3070 seeks to eliminate: prosecutors' decades-old practice of disproportionately removing black and Latinx jurors through peremptory challenges. According to Washington Supreme Court Justices Steven Gonzalez and Mary Yu, it appears thus far that GR 37 "has served a critical role in judicial education on eliminating racial bias." The justices expressed their "hope that other states will join our efforts in addressing bias in jury selection."

Second, the Berkeley Law Death Penalty Clinic is not a sponsor of AB 3070. The bill, however, did emerge, in significant part, from the clinic's study of peremptory challenges in California criminal trials. Our findings and recommendations were distributed to members of the Assembly Judiciary Committee, but never mentioned in the article. In our examination of 12 years of court of appeal opinions, we found that in nearly 75% of the cases, prosecutors used their strikes to remove black jurors. They relied most often on either demeanor-based reasons or the prospective juror's relationship with someone who had been involved in the criminal justice system. Our report makes clear, as does the Washington Supreme Court's report on GR 37, that many of the same reasons prosecutors call "valid" are in fact "historically associated with discrimination." We present the empirical evidence that draws a direct line between racial stereotypes and prosecutors' justifications, in part by showing how prosecutors are trained to rely on reasons that are associated with explicit and implicit racial bias.

Third, AB 3070 does indeed go farther than U.S. Supreme Court has in its decisions under Batson v. Kentucky. The bill does so precisely because, as the Washington Supreme Court acknowledged and the clinic's findings show, the procedure under Batson has altogether failed to end discriminatory strikes. In the last 30 years, the California Supreme Court reviewed 142 cases involving Batson claims, and found a violation only three times. It has been more than three decades since the court found a Batson violation involving the peremptory challenge of an African-American prospective juror. Under Batson, a party objecting to a peremptory strike can only prevail by showing that the party who made the strike intentionally discriminated. The California Supreme Court's abysmal record in Batson cases is, to some degree, the result of this standard, which fails take the truth into account: most acts of bias are unconscious or implicit. The impact, however, of implicit bias is no less harmful to the right of excluded juror to serve or to the defendant whose trial is tainted by a discriminatory jury selection process.

Fourth, the article gives short shrift to the truly significant innovations the bill introduces. Foremost, AB 3070 eliminates the need to prove intentional discrimination, which is the central feature of the Batson procedure. This requirement precludes relief in cases in which black and Latinx jurors are struck because of unconscious bias, and has proved to be unworkable in virtually all cases. Under the current procedure, a judge understands that by granting a Batson objection, the court is essentially calling an attorney -- usually a prosecutor -- a bigot, a liar or both. That puts all of the court officers -- judges, prosecutors and defense attorneys -- in an untenable position. The bill's shift away from requiring judges to ascertain a party's subjective intent is a service to all. Moreover, the bill creates a streamlined and clear procedure, eliminating steps (like the "prima facie case" showing) that have confused lawyers and courts alike for nearly four decades.

AB 3070 is an opportunity for the legislature to lead. Members of the bench, including California Supreme Court Justice Goodwin Liu and Court of Appeal Justice Jim Humes have, in Justice Humes's words, called for "meaningful reform." AB 3070 overhauls peremptory challenges in a way that is long overdue. Nothing less is required. 

-- Elisabeth Semel

Clinical Professor of Law, UC Berkeley School of Law

Director, Death Penalty Clinic