SACRAMENTO — Months after an appellate court judge called for action on the issue, the California Supreme Court has announced it will study whether additional measures can be taken to prevent discrimination during the jury selection process.
In a news release, the court said that Chief Justice Tani G. Cantil-Sakauye will organize a study group composed of “judges, prosecutors, defense counsel, and other practitioners in criminal and civil litigation” to study what additional measures may be needed to ensure diversity in California juries. At the center of the debate are preemptory challenges — attorneys’ ability to dismiss potential jurors without stating a reason — as well as case law that critics say doesn’t go far enough to weed out unconscious bias or flat-out racism in trials.
Specifically, the court will study “perceived shortcomings” in two decades-old U.S. Supreme Court decisions that have been used as the standard for identifying discrimination in the jury selection process: Batson v. Kentucky, from 1986, and People vs. Wheeler, from 1978. The precedent set in those cases requires evidence, such as a pattern of exclusion or lack of other characteristics that would justify striking the jurors, to prove that an attorney is acting in bad faith to affect the racial makeup of a jury.
In an interview, State Sen. Nancy Skinner (D-Berkeley), who chairs the State Senate’s Public Safety Committee, said she is closely watching the court’s study and added, “I look forward to seeing what they’re going to recommend.”
Skinner said that while she was reluctant to embrace one solution other states have adopted — eliminating preemptory challenges altogether — she also wouldn’t take it off the table.
“It is a tradition while we absolutely have the right to jury of our peers, but to eliminate the ability to have a preemptory challenge isn’t necessarily the way to go because it affects the defense too,” Skinner said. “But if it’s being used in a way that primarily eliminates African-Americans or people of color, that may need to be looked at.”
The announcement from the Supreme Court comes months after state Appeals Court Judge P.J. Humes wrote a concurrence in a Contra Costa murder case calling for “the Legislature, Supreme Court and Judicial Council to consider meaningful measures to reduce actual and perceived bias in jury selection.” Humes wrote the concurrence after he and the two other appellate judges ruled that a prosecutor’s actions to dismiss every black juror in a 2017 murder trial was legal.
“Purposeful discrimination is especially hard to prove in the context of peremptory challenges, because attorneys can easily come up with supposedly non-biased justifications to strike potential jurors,” Humes wrote. “Under California precedent, even a justification that is trivial, speculative or objectively unreasonable suffices to disprove purposeful discrimination if it is facially neutral and the trial court credits it as being subjectively genuine.”
In the 2017 case, two black men — Gary Bryant and Diallo Jackson — were convicted of murder and robbery, along with gang enhancements, in the 2014 killing of 23-year-old Kenneth Wayne Cooper, of Pittsburg. During jury selection, all six African-Americans in the jury pool were dismissed; two were dismissed for cause, and the prosecutor in the case used some of his limited juror challenges to remove four others.
“Mr. Bryant’s case illustrates that the current state of the law, which allows prosecutors to mask race-based jury selection behind pretextual justifications, needs to be seriously reconsidered,” said Evan Kuluk, Bryant’s attorney in the 2017 trial.
The prosecutor in the Bryant/Jackson case, Chris Walpole, is the acting assistant district attorney in Contra Costa, the third-highest ranking position in the office. Scott Alonso, a spokesman for the office said last October that the appeals court, “correctly found that the District Attorney’s Office, during the course of the trial, did not exclude any jurors based on their race.” Alonso declined to comment for this story.
The Supreme Court announced the formation of the study group late last month, on the same day that it declined to reexamine the Bryant/Jackson matter.
“I don’t think that’s a coincidence,” said Cliff Gardner, the attorney who represented Bryant in his appeal. “I think the briefing in Bryant and the concurrence by Hume and Banke all combined to let the court know there is a problem here we need to deal with…My reaction was [that] finally someone recognized that the emperor has no clothes.”
