The pandemic, the killing of George Floyd and discriminatory jury selection

This month, the California State Assembly approved Assembly Bill 3070, which would meaningfully reform jury selection in criminal and civil trials. It did so by a vote of 51 to 11. Understandably, members of the Legislature have winnowed their agendas to prioritize bills that directly address Californians' needs during the pandemic. While AB 3070 has nothing to do with access to health care or economic relief, it has everything to do with addressing the enduring, pervasive racial and ethnic inequities COVID-19 has further laid bare. The bill will not ensure accountability for the killing of George Floyd or put an end to police-instigated violence against communities of color. However, it will remedy discriminatory selection practices that continue to exclude African-American and Latinx citizens from juries. AB 3070 at least begins to address the well-founded distrust African-Americans and other people of color harbor toward our justice system.

The history of peremptory challenges in this country, including in California, is straightforward and unsurprising: Prosecutors have used them without restraint to remove African-Americans from jury service. In 1978, in People v. Wheeler, 22 Cal. 3d 258, our supreme court was the first in the nation to adopt a three-step procedure to determine whether a party had impermissibly exercised a challenge, also known as a strike, based on group bias. In 1986, the U.S. Supreme Court, in Batson v. Kentucky, 476 U.S. 79, embraced the three-step approach.

What has changed in California in the more than 40 years since Wheeler? Very little.

I know this is true because I tried far too many criminal cases in which an all-white jury decided the fate of my clients. I know this is true because in the last two-plus decades -- through litigation and research -- I have attempted, with marginal success, to be a force that moves courts to reckon with prosecutors' use of strikes to excuse African-American and Latinx prospective jurors. And I know that very little has changed in the past four decades because I co-authored an extensive study -- "Whitewashing the Jury Box: How California Perpetuates the Exclusion of Black and Latinx Jurors" -- with five Berkeley Law Death Penalty Clinic students. The report concludes that passage of AB 3070 is the only viable course of action to upend the status quo.

Prosecutors' continued success in challenging black and Latinx jurors can be traced directly to the three-step procedure. When the Supreme Court decided Batson, Justice Thurgood Marshall predicted the three-stage inquiry would be a placebo. At the first step of the inquiry, the defendant must make a threshold showing of purposeful discrimination. Justice Marshall anticipated that in the many cases in which the jury panel consists only of a few African-Americans, judges would not find their removal sufficient. Next, a prosecutor can get past Batson's second step by offering a "race-neutral" reason: an explanation that, on its face, does not convey purposeful discrimination. The justice warned that prosecutors would easily produce such reasons, and that judges would be ill-equipped to second guess them. Ultimately, at step three, the defendant must prove that the prosecutor intended to discriminate. Justice Marshall pointed out that "unconscious racism" is what often drives both prosecutors' negative characterizations of African-American jurors and judges' willingness to credit those explanations. He also wrote that prosecutors' strikes based on their "'seat-of-the-pants instincts'" about a juror "may often be just another term for racial prejudice."

"Whitewashing the Jury Box" shows how, in case after case, decade after decade, Justice Marshall's predictions have been borne out in California. In particular, the reports builds on other studies that have demonstrated (1) black jurors are removed at a rate at least twice that of other jurors; (2) overwhelmingly it is defense attorneys who object to the removal of black jurors, that is, to prosecutors' peremptory challenges; and (3) appellate courts rarely hold Batson error. The report adds new information to our understanding of how and why peremptory strikes continue to be an effective means of striking African-Americans from California juries. It does so in three ways. First, we examined every court of appeal Batson decision during a 12-year period (2006 through 2018) to determine not just who the prosecution excluded, but the reasons given for removal. Second, we reviewed dozens of district attorney training materials. Third, we analyzed the opinions of the California Supreme Court and Court of Appeal.

Our empirical research examined cases in which the defendant raised a Batson violation on appeal. (As the report explains, social scientists used this method of analysis in many of the previous Batson studies.) It was therefore unsurprising that 98% of the peremptory challenges in these opinions involved defense objections to prosecutors' strikes. Telling, however, was the finding that 72% involved the exclusion of African-American jurors and 28% involved the removal of Latinx jurors. Even more important in what is hopefully a moment of national reckoning, "Whitewashing the Jury Box" shows that prosecutors exercised their peremptory challenges against black and Latinx individuals in a manner that reinforces racial and ethnic stereotypes.

When it came to African-Americans, prosecutors most frequently offered three types of explanations: the juror's demeanor; distrust of law enforcement or the criminal legal system; or relationship with someone who had been stopped, arrested or convicted of a crime. Bear in mind that in each case the trial and appellate courts ruled that the reasons were "race-neutral."

Typical of demeanor-based explanations were a prosecutor's assertion that a black juror sat with folded arms, failed to make eye contact, had not made friends with other jurors during breaks, or gave short answers. Often prosecutors relied on a juror's appearance in addition to demeanor, citing, for example, a male juror's dollar-sign earrings or dreadlocks, which the prosecutor believed were "somewhat associated with a Reggae culture ... that promotes drug use," or a woman's short skirt, high heels, long fingernails, or "her orange hair color which indicates ... she is not really one to conform with others."

Prosecutors struck jurors in the second category if the juror acknowledged, for example, the need for reforming drug laws that punish blacks more severely than whites, "flaws" in the criminal legal system that privilege wealthy defendants, or having been "detained while in the wrong part of town while black." The third category of explanations often looked like this: The juror's son had been arrested for driving under the influence, the juror had visited a sibling who was in prison, or the juror stated that she cut off her relationships with family members who had been involved with crimes but the prosecutor "found that kind of hard to believe."

California prosecutors offer these reasons because they are taught to do so. Our examination of district attorney jury-selection manuals exposed at least three ways in which training leads to disproportionate strikes against black and brown jurors. First, prosecutors are told that "GOOD PEOPLE look just like them: "middle class, middle aged homeowners," people with a "steady job," and " traditional lifestyles." They are instructed to avoid members of groups in which people of color are overrepresented, that is, jurors who are unemployed, underemployed, "less educated and blue color workers," or have "occupations sympathetic to defendants."

Second, prosecutors are trained to "ALWAYS, ALWAYS-TRUST YOUR INSTINCTS." Justice Marshall wrote in Batson, "A prosecutor's own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is 'sullen,' or 'distant,' a characterization that would not have come to his mind if a white juror had acted identically." Extensive research into implicit bias leaves no doubt that our gut reactions are the quintessential trigger for unconscious stereotyping. Prosecutors are no different than the rest of us; even when they condemn overt racism, implicit biases -- most often associating African Americans with negative impressions -- remain key components of their decision-making.

Third, manuals contain extensive lists of court-approved explanations, enabling prosecutors to instantly produce a "race-neutral" response to any imaginable Batson objection. One guide, for example, offers 77 characteristics that courts have endorsed. These lists facilitate prosecutors' reliance on their instincts, shortcutting the inquiry into whether an individual juror can fairly sit in a particular trial. Their reliance on ready-made explanations also calls into question judges' ability to fairly assess the genuineness of the reason as courts must do at Batson's third step.

While our courts have ruled that reasons such as demeanor and distrust of police are "race-neutral," the effect of using them is anything but. And they can be searingly offensive. As California Supreme Court Justice Goodwin Liu, a frequenter dissenter from the majority's Batson opinions, wrote, "Today, as when Batson was decided, it is a troubling reality, rooted in history and social context, that our black citizens are generally more skeptical about the fairness of our criminal justice system than other citizens." "Whitewashing the Jury Box" traces the history and social context that led inexorably to what one researcher called "a deep and persisting racial cleavage in perceptions of racial injustice."

In 1978, when the California Supreme Court set out to end discriminatory jury selection practices, it reasoned that the state Constitution's fair cross-section standard is "designed to foster" juries composed of individuals with different attitudes. The report explains how the court long ago lost sight of that lodestar. In the last 30 years, the California Supreme Court reviewed 142 Batson cases, and found error in only three cases -- an error rate of 2.1%. It has been even longer since the court found a Batson violation involving the peremptory challenge of an African-American prospective juror. In almost 700 Batson appellate court opinions issued between 2006 and 2018, the error rate was only 2.6%.

It has been suggested that the low number of reversals means that Batson has been faithfully applied and discriminatory jury selection practices have been eliminated. Neither is true. One need only look at the 9th U.S. Circuit Court of Appeals, which found error in 15% of the California Batson cases the circuit considered between 1993 and 2019. The circuit did so under a much more stringent standard of review than our state courts employ, and in cases that our state courts had already rubber-stamped.

The report shows that the California Supreme Court has all too often selected the course least likely to restrain prosecutors' use of discriminatory peremptory challenges, least likely to ensure trial court accountability, and most likely to produce one affirmance after another. It is a course that led Justice Liu to write, "Our Batson jurisprudence ... leaves one to wonder whether any circumstances, short of an outright admission by the prosecutor ... will ever suffice to prove a violation." The report emphasizes, however, that though court's enforcement has been deficient, Batson was destined to fail for the very reasons Justice Marshall identified.

In 2018, the Washington Supreme Court adopted General Rule 37. The court's leadership was the impetus for our study and the model for AB 3070, introduced by Assemblymember Dr. Shirley Weber. The bill replaces Batson with a well-delineated inquiry: When a party objects that a peremptory challenge is discriminatory on a ground such as race, the party making the strike must explain. There is a presumption that specific reasons "historically associated with discrimination," such as a juror's neighborhood or relationship with someone who has been arrested, are invalid. Some prosecutors object that AB 3070 would force them to accept jurors who are biased against law enforcement. The bill does not require either party to accept a juror. Lawyers are free to offer any of these explanations, but will face a heightened burden of proof if they do so. Ultimately, if the trial judge -- acting as an objective observer aware of the role implicit and institutional bias have played in the discriminatory exclusion of jurors -- concludes that the race was not a factor in the strike, the court will allow the peremptory challenge.

"Whitewashing the Jury Box" is no more critical of the California Supreme Court's Batson track record than Justice Liu has been. He has repeatedly called out the majority's failure to apply Batson's precedents with the "vigilance required by the constitutional guarantee of equal protection of the law." More importantly, however, Justice Liu and other members of the bench now acknowledge what was so evident to Justice Marshall in 1986. Dissenting last month, Justice Liu wrote, "It is past time to ask whether the Batson framework, as applied by this court, must be rethought in order to fulfill the constitutional mandate of eliminating racial discrimination in jury selection." In so doing, he agreed with Justice Jim Humes of the Court of Appeal who acknowledged "the serious shortcomings with the Batson framework" and called for "meaningful reform." AB 3070 promises precisely that. 