Story on peremptory challenge bill was inaccurate, unbalanced

We write in response to the Daily Journal's July 30 article, regarding Assembly Bill 3070 -- "Bill to limit challenges gets amendments and calls for delay" -- which was both inaccurate and unbalanced.

The article's main point is that Legislature should stand down so that the California Supreme Court's "jury selection work group" can study peremptory challenges. We could not help but be reminded of the words of Dr. Martin Luther King Jr., about waiting for racial equity and justice: "For years now I have heard the word 'Wait!' It rings in the ear of every Negro with piercing familiarity. This 'Wait' has almost always meant 'Never.'"

Our courts have had ample time to address this problem, and it is disingenuous for the bill's opponents to attempt to hijack the agenda of the work group in an effort to uphold a discriminatory jury selection regime. Moreover, the article never acknowledges the Berkeley Law Death Penalty Clinic's recent report, Whitewashing the Jury Box, which thoroughly examined the history and present-day use of peremptory challenges in this state. The study concurred with California Supreme Court Justice Goodwin Liu's view that it is "past time" to remedy Batson's deficiencies.

Both the urgent need for change, and the reason why it cannot be left to the same judiciary that has countenanced this blatant discrimination for decades, was underscored last week by yet another federal court opinion condemning how California courts have responded to the problem. In reversing the capital murder conviction of Marvin Walker because of the discriminatory exclusion of Black jurors, a panel of the 9th U.S. Circuit Court of Appeals observed that "the California Supreme Court ... simply restated, without any analysis, the prosecutor's proffered reasons for striking all of the black potential jurors, ... including reasons that even the trial court had rejected. Both decisions by the California courts were therefore so 'lacking in justification' as to constitute 'an unreasonable determination of the facts in light of the evidence presented.'" This was merely the latest of an unbroken series of failures: As Justice Liu recently observed, it has been more than 30 years since the state Supreme Court has found error in the exclusion of African-American jurors -- despite the fact that they are excluded at nearly two-and-a-half times the rate of others.

The article's teaser asserts that "[e]ven those who say they share with the bill's authors the belief that peremptory challenges can be biased are calling on it to be withdrawn pending an extensive review of its merits." The same statement appears in the body of the article. However, the article does not identify a single critic who also expressed agreement with AB 3070's central goal, which is to eliminate endemic racial discrimination in the exercise of peremptory challenges. True enough, the purpose of the article was to describe reservations about AB 3070. However, the author apparently did not speak with a representative of the bill's sponsor -- California Attorneys for Criminal Justice -- or with any of the bill's authors, representatives of the long list of organizations that support AB 3070, or the several attorneys who have been visible proponents in the legislature and in the media.

At bottom, the article was little more than a platform for prosecutors to vent about losing the status quo that has perpetuated the disproportionate exclusion of African-Americans from California juries. That prosecutors vehemently oppose legislation designed to curb the well-documented discriminatory practices of prosecutors is hardly news. The president of the California District Attorney Association complained that AB 3070 is in "bad taste" because of the abbreviated nature of legislative hearings during the pandemic. This has not, however, constrained CDAA from advocating for the passage of its legislative agenda this session. It could be asserted, with perhaps greater justice, that it is "bad taste" for CDAA to double down on a procedure that has been proven to discriminate against African-Americans in midst of a massive, nationwide call for an end to such discrimination in the criminal justice system.

In giving a unilateral voice to those who insist the bill is "premature," the article is tone deaf -- as are many of the bill's opponents -- to the Legislature's historic opportunity to begin to rectify the exclusion of Black and Latinx citizens from jury service in California and the urgent need for such reform. Unsurprisingly, the critics quoted in the article do not mention that AB 3070 is modeled on a rule the Washington state courts have successfully implemented for the last two years. Again, it is past time to for our legislature to act. 

-- AJ Kutchins

Supervising Deputy

Office of the State Public Defender

-- Elisabeth Semel

Clinical Professor of Law and Director

Berkeley Law Death Penalty Clinic

-- Brendon Woods

Chief Public Defender

Alameda County