Cal. Litig. 2020, Volume 33, Number 3

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.)

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