Column attacking Berkeley study on peremptory challenges is dismaying

I am writing in regard to the column by Deputy District Attorney Michele Hanisee attacking both Berkeley Law's landmark report "Whitewashing the Jury Box" and Assembly Bill 3070, the current legislative effort to eliminate the discriminatory exclusion of African-Americans and other people of color from California juries. ["Flawed study by Berkeley Law clinic produces flawed conclusions," June 23, 2020].

At the heart of Ms. Hanisee's piece is the remarkable notion that prosecutors do not disproportionately target black and Latinx jurors when exercising peremptory challenges. The statistics -- not just the ones that Ms. Hanisee chooses to play with, but also the ones she has chosen to ignore -- decisively belie that notion. As the report outlines, and as Justice Goodwin Liu has repeatedly observed in his published opinions in Batson cases, study after study has demonstrated that prosecutors strike eligible African-Americans at well more than twice the rate at which they challenge eligible whites -- "'[i]n fact, being black was the most important personal trait affecting which juror prosecutors rejected ....'" People v. Harris, 57 Cal. 4th 804, 888 (2013) (Liu, J., concurring).

No one who has seriously studied this issue denies that the discriminatory exclusion of African-Americans from juries is a continuing -- and intolerable -- reality. Nor can we afford to ignore the extent to which this reality contributes to the disaffection and distrust of the criminal justice system that African-Americans and other persons of color are expressing in the most emphatic terms in words and actions that are rocking this nation. For a representative of the largest district attorney's office in the state to insist that this is not problem just underscores how desperate the problem is.

Ms. Hanisee complains that the Berkeley Law report paints prosecutors as racists. This again ignores the crucial finding of the report that the most vital impetus for discriminatory exclusion is not racial antipathy but the unconscious (or "implicit") biases that -- as science has demonstrated and the Legislature explicitly found -- are harbored by all of the actors in the justice system, prosecutors included. Ms. Hanisee rightly points out that defense attorneys harbor biases also (something the report never denies). But she misses the point that only the prosecutor titularly represents "the People" and as such is the face of the criminal justice system to the African-Americans and others who experience it.

Ms. Hanisee similarly misses the point when she complains about the provision in the pending corrective legislation -- Assembly Bill 3070 -- that labels "presumptively invalid" various justifications given by prosecutors for kicking out minority jurors -- such as the jurors' distrust of law enforcement, negative experiences with police or the justice system, or relationship with someone has been convicted of crime. Why, she wonders, are these any different than reasons employed by defense attorneys, who eliminate jurors with close ties to law enforcement, or who think the system is "soft on crime"? The answer is that the disfavored justifications are ones that have been proven to apply in far greater proportion to people of color, and thus become proxies for racial and/or ethnic exclusion. The experience of being harassed (and sometimes, killed) for "driving while black" is not just an anecdote in a standup monologue -- it is a well-documented reality. To challenge a juror because she has had such an experience is to strike her because she is African-American.

The Berkeley Law report masterfully documents the failure of the existing Batson/Wheeler procedure to meaningfully discourage invidious discrimination in jury selection. The report also documents the ways in which district attorneys' offices have opted not to address the problem but rather to exacerbate it, by training their attorneys in how to evade Batson motions by relying on pre-fabricated lists of "acceptable" justifications that have been approved by the courts while in fact counseling them to "go with your gut" in choosing jurors -- the perfect soil from which implicit bias springs.

It is unsurprising that justices of both the California Supreme Court and the Court of Appeal have concluded that the existing system is broken and that (as Justice Liu put it, late last year) "it is past time for a course correction." Assembly Bill 3070, modeled on the reform that has proven efficient and effective in Washington State, provides that course correction. What is surprising -- and frankly dismaying -- is that someone billed as a representative of "the People" would choose this particular historical moment to take a stand in favor of maintaining a discriminatory practice in the criminal justice system. 

-- AJ Kutchins

Supervising Deputy

Office of the State Public Defender