California DA Must Reveal Jury Selection Notes in Bias Challenge

A California inmate will be able to review prosecutors’ notes about jury selection used during his murder trial after the state’s highest court ruled Thursday that the DA’s office waived any claim of privilege when it revealed the existence of an internal juror-rating system.

The ruling, which was prompted by alleged racial bias in the selection process, is the latest to challenge who gets bounced from a jury. The California Supreme Court in a 6-1 ruling July 1 held in a separate case that dropping a Black juror isn’t necessarily discriminatory.

The justices, ruling in a case in which they already upheld the death penalty verdict, agreed with the trial court’s order of full-scale discovery of prosecutors’ notes on jury selection. An intermediate appeals court, in a case of first impression, held in April that a defendant’s right to a jury selected in a manner free from discrimination must prevail over the DA’s assertion of work-product privilege related to a numerical juror-rating system.

“The point, in the end, is simple: A striking attorney cannot both stand on such a rating system and assert privilege over it,” the unanimous California Supreme Court said in an opinion written by Justice Leondra R. Kruger.

Going forward, attorneys resisting what they view as overbroad discovery efforts can look to the California Code of Civil Procedure Section 2018.030 and make a showing that disclosure would reveal “impressions, conclusions, opinions, or legal research or theories” unrelated to jury selection, the court said. That way the trial court may ensure on a case-by-case basis that necessary redactions are made to protect core work product that isn’t relevant to the challenge at issue, it said.

The California Supreme Court more than four decades ago ruled in People. v. Wheeler that using peremptory challenges to remove prospective jurors on the basis of race or other forms of group bias is unconstitutional. The U.S. Supreme Court in Batson v. Kentucky reached the same conclusion in 1986 under the equal protection clause of the 14th Amendment.

The San Diego District Attorney’s office used an opaque numerical system to toss potential jurors in the first-degree murder case against Bryan Maurice Jones. During a post-trial habeas corpus hearing, the prosecutor referenced details from the jury selection notes after the defense questioned why three Black jurors were dismissed on a peremptory challenge.

“By putting the rating system at issue, the prosecutor impliedly waived any claim of work product protection over notes containing information about the system. The District Attorney may not now invoke attorney work product protection to withhold information necessary to the fair adjudication of Jones’s Batson/Wheeler claim,” the court said.

The justices returned the case to the California Superior Court for San Diego County.

The case is California v. Superior Ct. of San Diego Cnty. (Jones), Cal., No. S255826, opinion 12/2/21.