A question of bias in jury selection

01/05/2014 12:00 AM

01/02/2014 4:56 PM

On a night in January 1990 two men were fatally shot during a drug deal in a small apartment in Los Angeles. A jury convicted George Brett Williams, an African-American man, of first-degree murder and sentenced him to death.

On the surface, there is nothing about this case that would set it apart from hundreds of others in California involving drugs, violence and death. In fact, though, this case focuses a much-needed spotlight on the potential for racial bias in the jury selection process.

During jury selection in Williams’ trial, the prosecutor used peremptory challenges to remove five African-American women from the jury panel – stating that he had the impression that they would be unable to vote for the death penalty.

After the prosecutor removed the five women, the jury ended up with seven whites and five African Americans – four men and one woman.

This week, the U.S. Supreme Court is expected to decide whether to review this use of peremptory challenges – a practice dating back centuries. If the court takes the case, the legal community will watch to see if the court’s final decision alters the way judges must respond when a peremptory challenge is attacked by opposing counsel on the grounds it was based on racial or gender stereotypes.

Because the law does not ordinarily require attorneys to offer detailed explanations for peremptory challenges, critics argue that prosecutors can cloak their true reasons for removing prospective jurors, hiding any racial bias.

In the Williams case, Los Angeles Superior Court Judge Madge Watai touched on the race issue when she stated from the bench that in her experience black female jurors are “very reluctant” to impose the death penalty.

Last year the California Supreme Court upheld Williams’ conviction by a 5-2 vote, finding the removal of the five jurors was valid and reiterating its view that prospective jurors’ death penalty views are race-neutral grounds for a peremptory challenge.

One of the two dissents in the case came from Justice Goodwin Liu, who noted “a strong inference of purposeful discrimination arises from the pattern of the prosecutor’s strikes of the first five black women in the jury box.”

In California, the use of peremptory challenges relates not just to the issue of whether racial or gender stereotypes are relied upon. It also has a direct impact on the court costs – with more challenges taking more time and significantly increasing a trial’s cost.

With California courts having lost $1 billion in funding in the last five years, the California Judges Association supports decreasing the number of peremptory challenges. The number now ranges from six to 20, depending on the type of case, and a report by California’s presiding judges last year recommended fewer peremptory challenges in all but death penalty cases.

The report noted: “The number of peremptory challenges mandated under California law ranks consistently among the highest in the country in all categories.”

Sonoma Superior Court Presiding Judge Rene Chouteau, chair of the judges’ committee that produced the report, told me “a more expedited system of selecting jurors” would be a boon to jurors and their employers: “The primary complaint we get from jurors is that the (jury selection) system is interminable.’’

Don’t look for the Legislature to embrace such recommendations quickly, though. A measure reducing peremptory challenges in misdemeanor criminal cases is strongly opposed by prosecutors and public defenders. The bill’s sponsor, state Sen. Noreen Evans, D-Santa Rosa, says she will continue to push the legislation this year, however, “as a simple way to cut costs without any prejudice to anyone.”

Proposals to reduce peremptory challenges inevitably focus on how those challenges are used. Increasingly, some critics call for complete elimination of such challenges, arguing no lawyer should have the right to strike a prospective juror without offering a cause and contending that the existence of such challenges continues to provide a cover for racial stereotyping on the part of prosecutors.

In the landmark 1986 Batson v. Kentucky case, the U.S. Supreme Court barred attorneys from challenging prospective jurors solely on grounds of their race, and later rulings expanded that prohibition to include gender. In a concurring opinion in Batson, Justice Thurgood Marshall wrote: “Merely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges ... will not end the illegitimate use of the peremptory challenge. ... The inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the court to ban them entirely.”

Since then, when a lawyer objects to opposing counsel’s peremptory challenge on the grounds it was based on racial or gender discrimination, that typically is called a “Batson motion.”

Marshall’s argument for the elimination of peremptory challenges is supported by the fact that Batson motions are almost never granted in California – meaning judges almost invariably accept prosecutors’ nonracial explanations for their peremptory challenges.

As state Supreme Court Justice Liu noted in another opinion last year, the court has heard more than 100 cases involving a Batson objection in the past two decades but has found “unlawful discrimination in the jury selection only once.”

In the Williams case, Liu also noted Judge Watai’s comment about black women jurors and said that remark represented “precisely the sort of reliance on racial and gender stereotypes” that the U.S. Supreme Court’s Batson decision was “intended to eliminate.”

One lawyer filing a brief supporting Williams is professor Elisabeth Semel, director of the Death Penalty Clinic at the University of California, Berkeley, School of Law. The clinic’s brief, written by Semel’s students and filed on behalf of the National Congress of Black Women and the Black Women Lawyers Association of Los Angeles, notes: “Given that trial judges harbor biases and overestimate their impartiality, it is troubling – though perhaps not surprising – that they accept the overwhelming majority of attorneys’ race-neutral justifications” in jury selections.

Semel says the brief urges the court “to ultimately decide that when a trial court rejects a Batson objection, the court must explain on the record that it has evaluated all the circumstances related to the issue of discrimination. If a trial judge fails to do so, a reviewing court should not accept the trial court’s unexplained ruling.”

What Semel says about racial stereotyping makes great sense. In fact, when one considers her remarks on the inherent problems underlying peremptory challenges, along with the criticisms of Justices Marshall and Liu, the possibility of total elimination of such challenges becomes an option well worth considering.

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