BERKELEY — Black people are often purposefully excluded from juries, sometimes dismissed for things as trivial as the way they looked or sat or their clothes, a new report finds.
During jury selection in criminal cases, attorneys are allowed to remove a certain number of prospective jurors without having to give a reason. But if the other side objects because they think the removal could be race-related, attorneys can offer a “neutral” explanation that would be legally acceptable. Those include the person looked confused, or was wearing hoop earrings — real examples that the UC Berkeley Law report, titled “Whitewashing the Jury Box,” found.
The report analyzed nearly 700 cases in the California Court of Appeals from 2006 to 2018 and found in 72% of those, prosecutors used their strikes to exclude black jurors from a jury panel. White jurors were removed 0.5% of the time, Latino jurors 28% and Asian-Americans less than 3.5%.
“I think there’s an understanding in law enforcement and potentially the district attorney’s office that black people may be less favorable to law enforcement as jurors,” said Alameda County Public Defender Brendon Woods in an interview. “If there’s an avenue to exclude black people or people of color, the way the law is written now, it gives them that avenue with excuses that are justified.”
When choosing a jury, both prosecutors and defense attorneys have what is called “peremptory strike,” or the power to remove a prospective juror from a panel, without a reason or the court’s approval. The other side can object to a strike that may appear to be racially motivated, but the report found that prosecutors are encouraged to use what it calls “race-neutral” reasons. Those include that the person expressed a distrust of law enforcement, a juror’s prior arrest or a juror having a loved one who had been incarcerated.
In fact, the report found that district attorney training manuals on peremptory challenges encourage discriminatory strikes — telling prosecutors to strike those who had negative experience with law enforcement or are distrustful of the criminal legal system.
The report, which was conducted by Berkeley Law’s Death Penalty Clinic and headed by Professor Elisabeth Semel, found that prosecutors successfully used their strikes against African-American prospective jurors based on their demeanor: because they had dreadlocks, were slouching, wore a short skirt or “blinged out” sandals or had visited family members who were imprisoned or jailed.
They also used their strikes if the prospective jurors had bad experiences with law enforcement, or in Bay Area cases, lived in East Oakland or San Francisco’s Tenderloin neighborhood.
Prosecutors also removed prospective Latino jurors because they were frowning, seemed confused, were wearing large earrings or expressed a belief that the criminal legal system treats people differently because of race, the report found.
Woods said as a black man, he has been stopped numerous times while driving by police. If he were on a jury panel, that could be considered a valid excuse to exclude him.
Woods also gave the example of an African-American public defender in his office who has tried more than 20 cases, yet can count the number of black jurors she has had on one hand.
The chances are much higher that a person of color may know someone or have a family member who had some prior experience with law enforcement, which under the current law, could be found as a legitimate excuse to exclude a juror, he said.
Courts rarely find error in this strike usage. According to the report, it’s been 30 years since the California Supreme Court found such a violation on a challenge of an African-American prospective juror. It’s also been 30 years since the state Supreme Court found a trial court made an error in denying a defendant’s objection to a strike challenge.
The report found that historically, the purpose of these challenges was so that prosecutors could eliminate African Americans from the jury, part of a systemic racism in society. But even now, with new rules and regulations meant to curb that discrimination, the report found that prosecutors continue to use these challenges to purposefully exclude minorities from serving on panels.
“We found that prosecutors continue to exercise peremptory challenges to remove African Americans and Latinx people from California juries for reasons that are explicitly or implicitly related to racial stereotypes,” the report said.
In its recommendations, the report suggests altering this juror strike process by having the attorneys who made the strike, explain why they removing that prospective juror.
The report also brings up the potential passage of Assembly Bill 3070 as a remedy, which offers this same suggestion. The bill, introduced in February, outlines stricter regulations that would prohibit attorneys from using their peremptory challenge to remove a prospective juror on the basis of discrimination, including race, ethnicity, gender, sexual orientation or religion. It was last amended in the Senate this week.
Woods testified in favor of AB 3070 several months ago before the Assembly Public Safety Committee. He said the bill “gets to the root cause of the issue” and would be a big step in remedying some of the problems.
