Bias in Jury Selection Addressed in Bill

The theory behind the movie Runaway Jury and just about every other film or novel dealing with selecting a jury is that a lawyer can kick off a potential juror for any reason, something called a peremptory challenge. However, in reality, there are limits on peremptories, and a bill working its way through the California legislature would require even more transparency around juris strikes to address concerns of implicit racial and

gender bias and jury selection. But judges and prosecutors say there are already checks in place and that the bill would just add work to an already overtax justice sist without any benefits. Joining me as former federal prosecutor Laurie Levinson, a professor Loyola Law School, Laurie tell Us a little

bit about the bill. What this bill would do is create some presumption that if a party used a peremptory challenge that they kicked off a juror and it related to certain columns of information they had said, Oh, I'm picking them off because they know people who have been stopped or arrested, or I'm kicking them off because the neighborhood they're from, or because they're not a native English speaker, and there's a list of at least fifteen or sixteen

different categories, then the burden would be on them by cleaning convincing evidence to show that this is not race related, or ethnicity related, or gender or sexual orientation. In other words, it would shift the burden to the party using the peremptory challenge to say, when I give those reasons, they're really not a code for race, gender, or other impermissible category. A peremptory challenge is a lawyer dismissing a juror without

stating a cause. Does this mean that peremptory challenges really aren't what they're stated to be. Well, when peremptory challenges were first created, a lawyer could kick off a juror for any reason, you know, it could be any thoughts they had, and then the Supreme Court took a look at that and said, well, we should not allow people to kick off jurors because of their race or gender

or categories like that. That's been operating for a while, but people say, you know, it really isn't fair because what will happen is that there will be a pattern of kicking people off. We all know it's for race, and then usually it might be the prosecutor who says no, no, no, I have these other neutral reasons for kicking them off. There's been some studies to show that because the standard is so low, it really is easy for people, because of their implicit bias or other reasons, to kick off

jurors who it really is code for race. This bill is designed twitch ask that to say, look, if you're using these categories, it probably is race related, and therefore you're going to need a clear and convincing reason to say it not as it stands now, explain what happens in court if someone, let's say a district attorney uses a peremptory challenge and the defense attorney suspects that it's

race related. Well, right now, under our current system if either side, but it's often a challenge against the district attorney. If the district attorney is using peremptory challenges to kick off, for example, all the blacks on the jury or all the men on the jury, then the other side, the defense can say objection your honor Batson, which is the

Supreme Court decision doesn't allow that. At that point, the district attorney is allowed to give a neutral reason for why they use the challenge, and then the judge decides whether that in fact was true. That's why they were doing it for the neutral reason. The thought is is that a just too easy to come up with so

called neutral reason. The juror wasn't looking me in the eye, or the other jurors didn't like them, or the jurors have negative feelings towards people in law enforcement, and therefore it's easy for the d A to disguise when they really are making race based challenges. You mentioned studies, and one UK Berkeley study concluded that California has a serious bats in problem, and the Association of Deputy DA says that it was misleading. Do you see a serious bats

and problem particularly in California? Or is this across the country. Well, I think there probably is a serious problem across the country.

I don't think California is unique. It's accurate that there were some questions that could be raised regarding the Berkeley study, but that doesn't undermine the overall impression that people who are in the courtroom day in and day out, and I am a former prosecutor, realized that in fact, there are path kicking off people who look like, oh, they just don't belong there, and that can have a disproportional

racial impact. It may not even be prosecutors in their minds saying oh, I want to get rid of all people from this background, but they're going to look closer to find reasons that they think are neutral to kick them off. Judge Steve White, who is president of the Alliance of California Judges, says almost all judges have a problem with this bill, and he said it won't solve the problem, and we'll just make jury selection three times longer and ten times more difficult. It seems like it

would make it longer and more difficult. Oh, undoubtedly, I think this would make it more difficult. We have to decide if this is the way we want to remedy the problem. But you know, for the judge, there are lists here of things that the judge has to pay attention to. For example, the distric attorney could not kick off a perspective juror for being inattentive or failing to make eye contact, or not being friendly enough with other

perspective jurors. At least the burden would shift in for the prosecutor to say, well, I'm not using that because of their race. Now that means you have to have a judge who's watching everything in that courtroom all the time to see whether that behavior is happening. That's not going to be easy to do. What are you gonna explain what this means? One public defender said judges must now take a radical step to even demand justifications from

attorneys for peremptories. Well, I think what he's saying is is that ordinarily the judges before would wait till the party objected and then they'd look at the pattern and then they'd say, put on the record, why you excuse that person? But under this bill, you have certain exercise the peremptory challenges that are presumed to be invalid, and those are unless the party using them can show by clear and convincing evidence, which is fairly high, that they're

not doing it on those reasons. So the so called radical staff is listening on every use of excuse, demanding an explanation and making sure that explanation hits that heightened standard. Batson's been expanded over the years. Has it been expanded as far as this bill to include gender? California is unique. We have a broader category of the juror traits that are protected, for example, sexual orientation. The Supreme Court has never expanded it that far. Supreme Court, frankly has never

expanded it even to some religious affiliation. The California does have a broad category of how jurors are protected. The California bill was apparently modeled after a rule in Washington State. Do you know how that rule being applied and whether it's working. I don't know, and I don't know if any studies set show exactly how well the Washington rule is working. What we're trying to do is set up rules to govern and guide behavior by people in the courtroom.

You can try to do that by rule, it's not easy, or you can try to do it by changing the way people look at their job and the bias that they bring into the courtroom. I think a lot of people who pose this bill say that this will not do the trick. You'll still have people who will have other types of questions that will get to what they want, and you still will have judges in a tough situation of making credibility calls that they're really not in the

position to make. I just wonder whether it's ever possible to really eliminate your bias. Well, you know, justice, they're good. Marshal who was a concurrence in the famous bats In case where they established you cannot use peremptory challenges impermissively against rape. He wrote, you know, this is a good start, but I don't know that it will actually work, and maybe we should go to a system more like they have in Great Britain. In Great Britains, they realize it

will never work on peremptory challenges. When you tell people to use their gut, the gut includes all kinds of bias. Who instead, everything has to be a challenge for cause you have to show actual bias by that juror, and in that way the judge can do a deeper dive and get clearer on the record why someone's being excused. What's your take? Do you agree with this, would you like to see this bill passed? Or do you think it's not going to work? I think this bill is

going to be awkward if it were to pass. I think it would be very difficult in terms of enforcement and implementation. Having said that, however, I do think we do need to do something to address bias in the courtroom because it continues on and that's something probably includes

more than a bill like this. It also includes retraining of lawyers, have judges who are trained to look for what the biases, making sure that when we ask these explanations, we don't take a pace value what the parties say about why they're excusing people. And I also think that as society changes, as we see it happening on the streets right now, but the public and the jurors will demand that they be treated not based upon the color of their skin, but what their attitudes really are regarding

the case. I was wondering if you thought this bill might pass because of this heightened scrutiny of racial justice in light of the protests going on. Well, I think that's part of the emphasis of this bill. Having said that, nonetheless, there are people in all different branches who are concerned about it. I think judges are concerned, Uh, the prosecutors are clearly concerned. Even some defense lawyers are wondering how

this will affect their ability to exercise challenges. So I think given that you have enough people from the different parts of the justice system, I don't think in its current state it's as likely to pass, but it's a good starting point for the discussion. The best thing about this bill is waking up the system and saying we've got a problem, and we can't just keep pretending that bats and objections is enough to deal with the implicit advice in the system, and these has a real impact

on cases. The study in Berkeley really should wake us up to ask the questions what's happening in death penalty cases in particulars now Having said that, it's hard to go from the concept the actual bill, and there's language in the bill that is vague, things like expressing a distrust, what does that cover? Having a close relationship? What does

that cover? Historically associated? What does that cover? And so the problem with this bill is the same problem you come up whenever you try to draft legislation, Is it precise enough? And will it work? Thanks for being on the Bloomberg Law Show, Laurie. That's former federal prosecutor Laurie Levinson, a professor at Loyola Law School. I'm June Grasso, and this is Bloomberg