Bill to limit peremptory challenges gets amendments and calls for a delay

Lawmakers aiming to impose stricter limitations on the use of peremptory challenges in jury selection issued a slew of proposed amendments to a bill that would do just that, hinting that a final version may reflect a compromise sought by some judges and attorneys.

But even those who say they share with the bill's authors the belief that peremptory challenges can be discriminatory and biased are calling on it to be withdrawn pending an extensive review of its merits.

The scope of Assembly Bill 3070, authored by Assemblywoman Shirley Weber, D-San Diego, has changed significantly in recent weeks. But it still aims to prohibit the use of peremptory challenges to strike prospective jurors based on several protected characteristics, including race, gender and ethnicity. Should it become law, attorneys would have to show by clear and convincing evidence that their strike wasn't based on implicit bias; otherwise it would be invalidated.

Only criminal case attorneys and judges would have to navigate new boundaries for striking prospective jurors if it passes, according to proposed amendments released this week. The bill now says it won't apply to civil trials.

Prosecutors initially raised flags because early drafts of the bill held that attorneys couldn't use peremptory challenges to strike jurors who were unintelligible, hostile or sleeping unless they could prove it wasn't based on implicit bias.

Under the proposed amendments, these reasons would be allowed if a trial judge can confirm the asserted behavior occurred and if attorneys can show why it is relevant to the case.

Added language also aims to limit when an appellate court can conduct a de novo review of a trial court's denial of an objection to strike a juror, something Tam N. Schumann, president of the California Judges Association, said would have led to more reversals and retrials if it hadn't been amended.

The amendments come as a group of judges, defense attorneys and prosecutors organized by the California Supreme Court is studying unconscious bias and discrimination in the state's jury selection process.

Critics of the proposal have called the bill premature and say it undermines the work of the high court's jury selection work group.

"It would be better to allow this commission, composed of a highly regarded panel of former and present judges, to complete its work before passing legislation that may or may not be supported by the commission's findings and recommendations," El Dorado County District Attorney and president of the California District Attorneys Association Vern Pierson said Wednesday.

Prosecutors including Pierson have said the bill is in bad taste at a time when full hearings and public debates are limited due to the pandemic.

Judges and prosecutors are also concerned about language that invalidates strikes against jurors who express a distrust or negative view of law enforcement, but Weber has yet to remove that from her bill.

"As currently drafted, the proposal amendments are one-sided and could have serious, unintended consequences," Pierson said. In the absence of a complete review of the bill, Pierson said, "problems like this are not being identified or addressed."

Los Angeles County Superior Court Judge Laura R. Walton

But that doesn't appear to be happening any time soon. Assembly Speaker Anthony Rendon, D-Lakewood, recently became the principal coauthor of the bill, and it's expected to be introduced in the Senate Public Safety Committee later this week or early next week.