PREVENTING DISCRIMINATION IN JURY SELECTION

By William Schlaerth

William Schlaerth is a Supervising Deputy District Attorney for Kern County, currently assigned to the Prisons Unit. Mr. Schlaerth has 17 years of experience as a prosecutor including 75 trials, 13 of which were murders. He is a graduate of Loyola Law School and holds a bachelor’s degree in history from UCLA.

An essential prerequisite to an impartial jury is that it be drawn from a representative cross-section of the community. Courts at the federal and state level have been grappling with this issue for decades in cases where prospective jurors who were members of a minority group (typically based on race or gender) were removed from venires by peremptory challenges. The law has evolved from allowing attorneys to make peremptory challenges without showing a reason (see Swain v. Alabama (1964) 380 U.S. 202) to adopting a methodology to test whether members of cognizable groups were improperly removed from juries. The process began with two cases.

In the early 1970s, a jury in Los Angeles composed entirely of White jurors, convicted James Wheeler and Robert Willis (both African Americans) of murder committed in the course of a robbery. The venire contained a number of potential jurors who were African American, each of whom was struck by the prosecution’s use of peremptory challenges after he had passed for cause. The Supreme Court reversed the conviction finding that “the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to a trial by jury drawn from a representative cross-section of the community.” (People v. Wheeler (1978) 22 Cal.3d 258.)

In 1982, a jury in Louisville, Kentucky, composed entirely of White jurors, convicted James Batson, an African American, of burglary and receipt of stolen goods. During jury selection, the prosecutor exercised peremptory challenges against the four potential African American jurors in the venire. The U.S. Supreme Court reversed the conviction finding that “the Equal Protection Clause (of the Fourteenth Amendment) forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” (Batson v. Kentucky (1986) 476 U.S. 79.)

These cases preclude the consideration of race in the selection of a potential juror because such considerations violate the Sixth Amendment right to an impartial jury, the Fourteenth Amendment right to Equal Protection, and the right to a trial by jury guaranteed by the California Constitution. Race is no longer the sole basis of a protected cognizable group. Courts have identified not only African Americans (People v. Gray (2001) 87 Cal. App.4th 781), Hispanics (People v. Gonzales (2008) 165 Cal.App.4th 620), and Caucasians (People v. Willis (2002) 27 Cal.4th 811), but also Gays or Lesbians (People v. Garcia (2000) 77 Cal.App.4th 1269) as cognizable groups protected by the Baston and Wheeler cases and their progeny.

Although prosecutors are usually the targets for motions alleging improper excusal of jurors, any party can bring a Batson/Wheeler motion if they suspect opposing counsel are striking prospective jurors based on membership in a cognizable group. (Georgia v. McCollum (1992) 505 U.S. 42; People v. Willis (2002) 27 Cal.4th 811.) A private litigant in a civil case may not use peremptory challenges to exclude jurors on account of race or membership in any other cognizable group. (Edmonson v. Leesville Concrete Co. (1991) 500 U.S. 614.) A judge may also initiate Batson/Wheeler proceedings sua sponte. (People v. Lopez (1991) 3 Cal.App.4th Supp. 11.)

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Courts in California have adopted a three-step process to evaluate a Batson/Wheeler motion to determine if there is impermissible discrimination in a peremptory challenge against a member of a cognizable class.

STEP ONE

In Step One, the movant bears the burden to make a prima facie showing that there was impermissible discrimination against a member of a cognizable group in the use of a peremptory challenge. (People v. Salcido (2008) 44 Cal.4th 93; People v. Neuman (2009) 176 Cal.App.4th 571.)

A prima facie case must show that the totality of relevant facts give rise to an inference of impermissible discrimination. (Johnson v. California (2005) 545 U.S. 162.) To make a prima facie showing, the moving party may rely on any information in the record. The basis for a Batson/Wheeler motion may include that all or most of the members of a cognizable group have been struck, a disproportionate number of peremptory challenges have been used against members of a cognizable group, that members of the cognizable group were questioned differently than other jurors, or that a defendant is a member of the cognizable group in question. (People v. Bell (2007) 40 Cal.4th 582; People v. Lenix (2008) 44 Cal.4th 602.)

The standard applied in Step One has changed from the state’s “strong likelihood” of discrimination (see People v. Howard (1992) 1 Cal.4th 1132) to align with the federal standard of a “reasonable inference” of discrimination. (Johnson, supra, 545 U.S. 162.) The burden of establishing a prima facie case in Step One in now “minimal.” (Johnson v. Finn (9th Cir. 2011) 665 F.3d 1063.) Exclusion of even one prospective juror for reasons impermissible under Batson/Wheeler constitutes structural error, requiring reversal. (People v. Silva (2001) 25 Cal.4th 345.) Even if the court does not find a prima facie case, it can still invite the non-moving party to place his or her reasons for exercising a peremptory challenge on the record. (People v. Howard (2008) 42 Cal.4th 1000.)

STEP TWO

If the court finds that the moving party meets the threshold for demonstrating a prima facie case, the burden shifts to the opponent of the motion to give an adequate nondiscriminatory explanation for the challenge or challenges. (Batson, supra, 476 U.S. 79.) The opponent of the motion must give a “clear and reasonably specific” explanation of their “legitimate reasons” for exercising the peremptory challenge or challenges. There is no burden on the opponent of the motion to “disprove discrimination.” (United States v. Collins (9th Cir. 2009) 551 F.3d 914.) Reasons will be upheld as long as they do not deny equal protection.

STEP THREE

In order to prevail, the moving party must show that it was more likely than not that the peremptory challenge was improperly motivated. (People v. Hutchins (2007) 147 Cal.App.4th 992; Johnson, supra, 545 U.S. 162.) This probabilistic standard is not designed to elicit a definitive finding of deceit or racism. Instead it defines a level of risk that courts cannot tolerate in light of the serious harms that racial discrimination in jury selection can cause. (Batson, supra, 476 U.S. 79.) The trial court must make a sincere and reasoned attempt to evaluate the justification made by the party that exercised the peremptory challenge. The trial court may consider the attorney’s demeanor, the reasonableness of the nondiscriminatory explanation from the opposing party, trial strategy, and anything else found in the record. (Miller-El v. Cockrell (2003) 537 U.S. 322.)

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Trial courts must incorporate Comparative Juror Analysis in their evaluation during Step Three. Comparative Juror Analysis requires a trial court to engage in a comparison between, on the one hand, a challenged panelist, and on the other hand, similarly situated but unchallenged panelists who are not members of the challenged panelist’s protected group. (Miller-El v. Dretke (2005) 545 U.S. 231.) Evidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by the defendant and the record is adequate to permit the urged comparisons. (People v. Gutierrez (2017) 2 Cal.5th 1150.)

If an appellate court finds that a prosecutor committed Batson/Wheeler error, that error is “structural” and any resulting conviction must be overturned. Where a trial court finds that any party has committed Batson/Wheeler error, the targeted jurors must be reincorporated into the venire or a mistrial must be found and an entirely new venire must be seated. (Powers v. Ohio (1991) 499 U.S. 400.) When a reviewing court addresses the trial court’s ruling on a Batson/Wheeler motion, it ordinarily reviews the issue for substantial evidence. (People v. McDermott (2002) 28 Cal.4th 986.)

PROPOSED CHANGES IN THE LAW

On May 11, 2020, the Judiciary Committee of the California State Assembly passed Assembly Bill 3070 (AB-3070) through its first stage of the legislative process. This proposed legislation codifies much of the Batson/Wheeler process outlined above but also makes some changes, most notably to Step Three.

AB-3070 dictates that if there is a “substantial likelihood” that an “objectively reasonable person” would view group bias as “a factor” in the use of a peremptory challenge, then the objection on Batson/Wheeler grounds must be sustained. The trial court does not need to find purposeful discrimination.

AB-3070 further requires the challenged party to show, by clear and convincing evidence, a non-discriminatory purpose for the peremptory challenge where it is based on the prospective juror’s neighborhood, job status, language ability, marital status, appearance, receipt of state benefits, experiences with law enforcement, or opinions about law enforcement.

AB-3070 would also require the trial court or the objecting party to make independent observations about a prospective juror’s attentiveness, body language, demeanor, attitude, and ability to make intelligent and unconfused answers to questions asked of them. The challenged party must still explain why the asserted demeanor, behavior, or manner in which the prospective juror answered the question matters to the case to be tried.

A denial of an objection made pursuant to AB-3070 would be reviewable de novo. If passed, AB-3070 would not apply to civil cases.

TIPS

How to watch out for Batson/Wheeler error:

• Document peremptory challenges from both parties;
• Make note of similarly situated prospective jurors of different races or classes;
• Watch for any disparity in questioning;
• Make objections outside the presence of the jury, and
• Always act in good faith.

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