Bloomberg Law
July 24, 2020, 8:51 AM

Judges, DAs Question California Proposal on Bias and Juries

Joyce E. Cutler
Joyce E. Cutler
Staff Correspondent

Prosecutors and judges are resisting a proposal working its way through the California Legislature to require transparency around juror strikes in the nation’s largest state justice system, favoring a court-driven approach to address concerns of racial, gender, and other bias.

“Almost without exception, trial judges have problems with that bill,” Judge Steve White, president of the Alliance of California Judges, said in an interview. “The concern is not its objective, which we share. It’s the mechanism by which they seek to achieve that objective.”

Opponents call premature the measure that has cleared the Assembly and is set for consideration in the Senate on July 28. They say there already are checks in place for judges, and that the plan as proposed would add work to an already over-taxed justice system without improving juror quality.

Proponents say the effort in the Democratically controlled Legislature would provide a fuller picture of peremptory strikes when they happen. But judges and prosecutors also prefer to see how a newly formed California Supreme Court task force tackles questions of unconscious bias and discrimination in jury selection. A particular concern, according to one study, is the removal of prospective Black jurors.

Other states have acted or are considering similar approaches. These efforts come amid heightened racial awareness nationally after George Floyd’s death while in the custody of Minneapolis police launched ongoing protests over injustice and inequality. The scrutiny includes public debate about how bias influences and can infect decisions in the criminal justice system.

Not Just Race

Assembly Bill 3070 would require the party challenging a prospective juror from serving to state the reasons why. The court is required to determine whether “an objective observer, aware of unconscious biases, would view race, ethnicity, gender, and other specified characteristics as a factor in the use of the challenge,” an Assembly floor analysis said.

California Assemblymember and bill author Shirley Weber (D) said she began working on the measure five or six years ago, and the prospects are good under Gov. Gavin Newsom (D), who she said has “the same kind of passion for social justice.”

Weber, whose husband was a judge, dismissed judicial and prosecutor opposition.

“None of these folks want to change. All of them believe they have changed and if the system has any flaws it’s not enough to produce dramatic changes,” Weber said in an interview.

Judges are already required to rule on whether a peremptory challenge is discriminatory, said Matthew Clair, Stanford University assistant professor in sociology and law whose research includes law and society, race and ethnicity, cultural sociology, and criminal justice.

“If anything, this legislation would provide judges greater leeway to make a more holistic determination about whether a lawyer struck a juror on the basis of race, gender, or sexual orientation,” Clair said.

The timing for final action in California is unclear, but there are developments elsewhere.

A Connecticut Supreme Court-convened task force held its inaugural meeting July 14 to review what changes in law and practice may be needed to address implicit bias in jury selection. And a rule in Washington state, which California used in drafting its proposed law, gives judges more authority to prevent challenges “disproportionately” aimed at ethnicity.

Batson in Focus

A focus in the California effort is the U.S. Supreme Court’s ruling nearly 35 years ago in Batson v. Kentucky. That decision outlawed the use of peremptory strikes on racial grounds and allowed judges to consider only purposeful discrimination in the use of those challenges. It later extended Batson to strikes based on ethnicity or gender.

California’s Supreme Court has an “abysmal” record in Batson cases, said Elisabeth Semel, director of the University of California Berkeley Law’s clinical programs who helped write the legislative proposal.

A UC Berkeley Law death penalty clinic study of 670 appealed cases involving Batson claims where defense counsel objected to peremptory strikes used by prosecutors concluded that “California has a serious Batson problem and lacks an effective judicial mechanism (or the judicial will) to address it.”

Objections to Bill

The Association of Deputy District Attorneys criticized the UC Berkeley report as misleading by only examining trials in which there was an accusation a juror was excluded for a discriminatory reason.

“To extrapolate those results, as the authors have done, to all California prosecutors, where there is an accusation in less than 1% of trials and a finding of misconduct by the courts in what equates to .0162% of those cases, is statistically dishonest,” wrote Michele Hanisee, president of the Association of Los Angeles Deputy District Attorneys. The group is the collective bargaining agent representing nearly 1,000 deputy district attorneys who work for L.A. County.

The Alliance of California Judges says A.B. 3070 isn’t the answer.

“It won’t solve the problem and to just to make the jury selection process three times longer and ten times more difficult is not the solution. If you really care about solving the problem, eliminate peremptory challenges,” White said.

Even public defenders who support the legislation acknowledge the position judges are put in when evaluating challenges. Judges, a substantial portion of whom come from DAs offices, must take a “radical step” to even demand justifications, said AJ Kutchins, supervising deputy in the Office of State Public Defender, who argues A.B. 3070 will help jurists.

Task Force Competition

Legislation opponents want A.B. 3070 to take a back seat to a California Supreme Court jury selection working group that on July 6 was finally named six months after the chief justice announced its formation.

The group includes judges, defense counsel, and prosecutors who will spend 12 to 15 months studying possible alternatives to a purposeful discrimination standard, unconscious bias, and new training or guidance.

To contact the reporter on this story: Joyce E. Cutler in San Francisco at

To contact the editors responsible for this story: Tom P. Taylor at; John Crawley at