1 00:00:00,480 --> 00:00:05,720 Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:06,519 --> 00:00:09,920 Speaker 1: Trials are too important to be left up to juries. 3 00:00:11,039 --> 00:00:13,680 Speaker 1: The defense has retained Rank and Fitch as their lead 4 00:00:13,720 --> 00:00:16,560 Speaker 1: jury consultant and general, Let's find eleven more jurors just 5 00:00:16,720 --> 00:00:20,400 Speaker 1: like her. They're using video surveillance wire tracks finding out 6 00:00:20,400 --> 00:00:22,560 Speaker 1: things about juror's husband and their wives don't even know. 7 00:00:23,400 --> 00:00:26,680 Speaker 1: The theory behind the movie Runaway Jury and just about 8 00:00:26,680 --> 00:00:29,840 Speaker 1: every other film or novel dealing with selecting a jury 9 00:00:30,200 --> 00:00:32,960 Speaker 1: is that a lawyer can kick off a potential juror 10 00:00:33,040 --> 00:00:37,920 Speaker 1: for any reason, something called a peremptory challenge. However, in reality, 11 00:00:37,960 --> 00:00:41,239 Speaker 1: there are limits on peremptories, and a bill working its 12 00:00:41,240 --> 00:00:45,600 Speaker 1: way through the California legislature would require even more transparency 13 00:00:45,640 --> 00:00:49,400 Speaker 1: around juris strikes to address concerns of implicit racial and 14 00:00:49,520 --> 00:00:53,480 Speaker 1: gender bias and jury selection. But judges and prosecutors say 15 00:00:53,479 --> 00:00:56,200 Speaker 1: there are already checks in place and that the bill 16 00:00:56,240 --> 00:00:59,840 Speaker 1: would just add work to an already overtax justice sist 17 00:01:00,280 --> 00:01:04,920 Speaker 1: without any benefits. Joining me as former federal prosecutor Laurie Levinson, 18 00:01:05,000 --> 00:01:08,520 Speaker 1: a professor Loyola Law School, Laurie tell Us a little 19 00:01:08,520 --> 00:01:12,000 Speaker 1: bit about the bill. What this bill would do is 20 00:01:12,120 --> 00:01:16,559 Speaker 1: create some presumption that if a party used a peremptory 21 00:01:16,640 --> 00:01:20,080 Speaker 1: challenge that they kicked off a juror and it related 22 00:01:20,120 --> 00:01:23,840 Speaker 1: to certain columns of information they had said, Oh, I'm 23 00:01:23,880 --> 00:01:26,600 Speaker 1: picking them off because they know people who have been 24 00:01:26,600 --> 00:01:29,640 Speaker 1: stopped or arrested, or I'm kicking them off because the 25 00:01:29,680 --> 00:01:32,920 Speaker 1: neighborhood they're from, or because they're not a native English speaker, 26 00:01:33,240 --> 00:01:36,000 Speaker 1: and there's a list of at least fifteen or sixteen 27 00:01:36,040 --> 00:01:39,880 Speaker 1: different categories, then the burden would be on them by 28 00:01:40,000 --> 00:01:44,119 Speaker 1: cleaning convincing evidence to show that this is not race related, 29 00:01:44,280 --> 00:01:48,360 Speaker 1: or ethnicity related, or gender or sexual orientation. In other words, 30 00:01:48,640 --> 00:01:51,320 Speaker 1: it would shift the burden to the party using the 31 00:01:51,400 --> 00:01:55,320 Speaker 1: peremptory challenge to say, when I give those reasons, they're 32 00:01:55,440 --> 00:02:00,000 Speaker 1: really not a code for race, gender, or other impermissible category. 33 00:02:00,760 --> 00:02:04,680 Speaker 1: A peremptory challenge is a lawyer dismissing a juror without 34 00:02:04,720 --> 00:02:08,640 Speaker 1: stating a cause. Does this mean that peremptory challenges really 35 00:02:08,760 --> 00:02:13,119 Speaker 1: aren't what they're stated to be. Well, when peremptory challenges 36 00:02:13,200 --> 00:02:15,640 Speaker 1: were first created, a lawyer could kick off a juror 37 00:02:15,680 --> 00:02:17,959 Speaker 1: for any reason, you know, it could be any thoughts 38 00:02:17,960 --> 00:02:20,200 Speaker 1: they had, and then the Supreme Court took a look 39 00:02:20,200 --> 00:02:22,639 Speaker 1: at that and said, well, we should not allow people 40 00:02:22,680 --> 00:02:25,240 Speaker 1: to kick off jurors because of their race or gender 41 00:02:25,320 --> 00:02:28,800 Speaker 1: or categories like that. That's been operating for a while, 42 00:02:29,080 --> 00:02:32,160 Speaker 1: but people say, you know, it really isn't fair because 43 00:02:32,200 --> 00:02:34,400 Speaker 1: what will happen is that there will be a pattern 44 00:02:34,440 --> 00:02:36,800 Speaker 1: of kicking people off. We all know it's for race, 45 00:02:36,919 --> 00:02:40,399 Speaker 1: and then usually it might be the prosecutor who says no, no, no, 46 00:02:40,760 --> 00:02:43,760 Speaker 1: I have these other neutral reasons for kicking them off. 47 00:02:44,000 --> 00:02:47,560 Speaker 1: There's been some studies to show that because the standard 48 00:02:47,680 --> 00:02:51,639 Speaker 1: is so low, it really is easy for people, because 49 00:02:51,639 --> 00:02:55,359 Speaker 1: of their implicit bias or other reasons, to kick off 50 00:02:55,440 --> 00:02:58,880 Speaker 1: jurors who it really is code for race. This bill 51 00:02:59,000 --> 00:03:02,519 Speaker 1: is designed twitch ask that to say, look, if you're 52 00:03:02,600 --> 00:03:07,400 Speaker 1: using these categories, it probably is race related, and therefore 53 00:03:07,560 --> 00:03:09,920 Speaker 1: you're going to need a clear and convincing reason to 54 00:03:09,960 --> 00:03:14,000 Speaker 1: say it not as it stands now, explain what happens 55 00:03:14,560 --> 00:03:18,280 Speaker 1: in court if someone, let's say a district attorney uses 56 00:03:18,320 --> 00:03:22,239 Speaker 1: a peremptory challenge and the defense attorney suspects that it's 57 00:03:22,440 --> 00:03:27,160 Speaker 1: race related. Well, right now, under our current system if 58 00:03:27,240 --> 00:03:30,639 Speaker 1: either side, but it's often a challenge against the district attorney. 59 00:03:30,639 --> 00:03:34,960 Speaker 1: If the district attorney is using peremptory challenges to kick off, 60 00:03:35,000 --> 00:03:37,480 Speaker 1: for example, all the blacks on the jury or all 61 00:03:37,520 --> 00:03:40,360 Speaker 1: the men on the jury, then the other side, the 62 00:03:40,400 --> 00:03:43,600 Speaker 1: defense can say objection your honor Batson, which is the 63 00:03:43,720 --> 00:03:47,840 Speaker 1: Supreme Court decision doesn't allow that. At that point, the 64 00:03:47,920 --> 00:03:51,000 Speaker 1: district attorney is allowed to give a neutral reason for 65 00:03:51,120 --> 00:03:53,800 Speaker 1: why they use the challenge, and then the judge decides 66 00:03:53,880 --> 00:03:56,640 Speaker 1: whether that in fact was true. That's why they were 67 00:03:56,640 --> 00:03:59,680 Speaker 1: doing it for the neutral reason. The thought is is 68 00:03:59,720 --> 00:04:02,200 Speaker 1: that a just too easy to come up with so 69 00:04:02,320 --> 00:04:05,440 Speaker 1: called neutral reason. The juror wasn't looking me in the eye, 70 00:04:06,000 --> 00:04:08,680 Speaker 1: or the other jurors didn't like them, or the jurors 71 00:04:08,680 --> 00:04:13,560 Speaker 1: have negative feelings towards people in law enforcement, and therefore 72 00:04:13,800 --> 00:04:16,840 Speaker 1: it's easy for the d A to disguise when they 73 00:04:16,880 --> 00:04:21,240 Speaker 1: really are making race based challenges. You mentioned studies, and 74 00:04:21,520 --> 00:04:25,640 Speaker 1: one UK Berkeley study concluded that California has a serious 75 00:04:25,720 --> 00:04:29,479 Speaker 1: bats in problem, and the Association of Deputy DA says 76 00:04:29,600 --> 00:04:33,680 Speaker 1: that it was misleading. Do you see a serious bats 77 00:04:33,680 --> 00:04:38,719 Speaker 1: and problem particularly in California? Or is this across the country. Well, 78 00:04:38,760 --> 00:04:41,679 Speaker 1: I think there probably is a serious problem across the country. 79 00:04:41,680 --> 00:04:45,520 Speaker 1: I don't think California is unique. It's accurate that there 80 00:04:45,560 --> 00:04:48,960 Speaker 1: were some questions that could be raised regarding the Berkeley study, 81 00:04:49,080 --> 00:04:52,640 Speaker 1: but that doesn't undermine the overall impression that people who 82 00:04:52,640 --> 00:04:54,599 Speaker 1: are in the courtroom day in and day out, and 83 00:04:54,680 --> 00:04:59,200 Speaker 1: I am a former prosecutor, realized that in fact, there 84 00:04:59,240 --> 00:05:03,120 Speaker 1: are path kicking off people who look like, oh, they 85 00:05:03,240 --> 00:05:07,120 Speaker 1: just don't belong there, and that can have a disproportional 86 00:05:07,279 --> 00:05:10,800 Speaker 1: racial impact. It may not even be prosecutors in their 87 00:05:10,839 --> 00:05:12,880 Speaker 1: minds saying oh, I want to get rid of all 88 00:05:13,000 --> 00:05:16,160 Speaker 1: people from this background, but they're going to look closer 89 00:05:16,200 --> 00:05:19,000 Speaker 1: to find reasons that they think are neutral to kick 90 00:05:19,040 --> 00:05:21,839 Speaker 1: them off. Judge Steve White, who is president of the 91 00:05:21,839 --> 00:05:25,720 Speaker 1: Alliance of California Judges, says almost all judges have a 92 00:05:25,760 --> 00:05:29,160 Speaker 1: problem with this bill, and he said it won't solve 93 00:05:29,200 --> 00:05:32,800 Speaker 1: the problem, and we'll just make jury selection three times 94 00:05:32,839 --> 00:05:36,159 Speaker 1: longer and ten times more difficult. It seems like it 95 00:05:36,160 --> 00:05:39,760 Speaker 1: would make it longer and more difficult. Oh, undoubtedly, I 96 00:05:39,800 --> 00:05:41,880 Speaker 1: think this would make it more difficult. We have to 97 00:05:41,920 --> 00:05:44,120 Speaker 1: decide if this is the way we want to remedy 98 00:05:44,160 --> 00:05:46,920 Speaker 1: the problem. But you know, for the judge, there are 99 00:05:47,360 --> 00:05:49,360 Speaker 1: lists here of things that the judge has to pay 100 00:05:49,400 --> 00:05:53,000 Speaker 1: attention to. For example, the distric attorney could not kick 101 00:05:53,040 --> 00:05:56,599 Speaker 1: off a perspective juror for being inattentive or failing to 102 00:05:56,680 --> 00:05:59,920 Speaker 1: make eye contact, or not being friendly enough with other 103 00:06:00,080 --> 00:06:03,240 Speaker 1: perspective jurors. At least the burden would shift in for 104 00:06:03,320 --> 00:06:05,960 Speaker 1: the prosecutor to say, well, I'm not using that because 105 00:06:06,000 --> 00:06:08,800 Speaker 1: of their race. Now that means you have to have 106 00:06:08,839 --> 00:06:12,120 Speaker 1: a judge who's watching everything in that courtroom all the 107 00:06:12,200 --> 00:06:15,919 Speaker 1: time to see whether that behavior is happening. That's not 108 00:06:16,040 --> 00:06:18,800 Speaker 1: going to be easy to do. What are you gonna 109 00:06:18,800 --> 00:06:22,359 Speaker 1: explain what this means? One public defender said judges must 110 00:06:22,400 --> 00:06:27,720 Speaker 1: now take a radical step to even demand justifications from 111 00:06:27,720 --> 00:06:31,760 Speaker 1: attorneys for peremptories. Well, I think what he's saying is 112 00:06:31,760 --> 00:06:36,000 Speaker 1: is that ordinarily the judges before would wait till the 113 00:06:36,160 --> 00:06:39,719 Speaker 1: party objected and then they'd look at the pattern and 114 00:06:39,760 --> 00:06:42,640 Speaker 1: then they'd say, put on the record, why you excuse 115 00:06:42,680 --> 00:06:47,000 Speaker 1: that person? But under this bill, you have certain exercise 116 00:06:47,080 --> 00:06:51,200 Speaker 1: the peremptory challenges that are presumed to be invalid, and 117 00:06:51,240 --> 00:06:55,000 Speaker 1: those are unless the party using them can show by 118 00:06:55,000 --> 00:06:57,599 Speaker 1: clear and convincing evidence, which is fairly high, that they're 119 00:06:57,640 --> 00:07:00,640 Speaker 1: not doing it on those reasons. So the so called 120 00:07:00,760 --> 00:07:06,840 Speaker 1: radical staff is listening on every use of excuse, demanding 121 00:07:07,120 --> 00:07:11,400 Speaker 1: an explanation and making sure that explanation hits that heightened standard. 122 00:07:12,000 --> 00:07:16,040 Speaker 1: Batson's been expanded over the years. Has it been expanded 123 00:07:16,040 --> 00:07:21,120 Speaker 1: as far as this bill to include gender? California is unique. 124 00:07:21,120 --> 00:07:25,000 Speaker 1: We have a broader category of the juror traits that 125 00:07:25,080 --> 00:07:29,600 Speaker 1: are protected, for example, sexual orientation. The Supreme Court has 126 00:07:29,640 --> 00:07:32,960 Speaker 1: never expanded it that far. Supreme Court, frankly has never 127 00:07:33,000 --> 00:07:37,200 Speaker 1: expanded it even to some religious affiliation. The California does 128 00:07:37,280 --> 00:07:41,280 Speaker 1: have a broad category of how jurors are protected. The 129 00:07:41,400 --> 00:07:47,240 Speaker 1: California bill was apparently modeled after a rule in Washington State. 130 00:07:47,880 --> 00:07:50,920 Speaker 1: Do you know how that rule being applied and whether 131 00:07:50,960 --> 00:07:54,600 Speaker 1: it's working. I don't know, and I don't know if 132 00:07:54,640 --> 00:07:57,840 Speaker 1: any studies set show exactly how well the Washington rule 133 00:07:58,080 --> 00:08:01,440 Speaker 1: is working. What we're trying to do is set up 134 00:08:01,520 --> 00:08:06,280 Speaker 1: rules to govern and guide behavior by people in the courtroom. 135 00:08:06,960 --> 00:08:10,360 Speaker 1: You can try to do that by rule, it's not easy, 136 00:08:10,480 --> 00:08:12,800 Speaker 1: or you can try to do it by changing the 137 00:08:12,840 --> 00:08:15,520 Speaker 1: way people look at their job and the bias that 138 00:08:15,600 --> 00:08:17,920 Speaker 1: they bring into the courtroom. I think a lot of 139 00:08:17,920 --> 00:08:21,240 Speaker 1: people who pose this bill say that this will not 140 00:08:21,360 --> 00:08:24,480 Speaker 1: do the trick. You'll still have people who will have 141 00:08:24,600 --> 00:08:27,559 Speaker 1: other types of questions that will get to what they want, 142 00:08:27,960 --> 00:08:30,760 Speaker 1: and you still will have judges in a tough situation 143 00:08:31,240 --> 00:08:35,120 Speaker 1: of making credibility calls that they're really not in the 144 00:08:35,160 --> 00:08:39,839 Speaker 1: position to make. I just wonder whether it's ever possible 145 00:08:40,040 --> 00:08:46,240 Speaker 1: to really eliminate your bias. Well, you know, justice, they're good. 146 00:08:46,280 --> 00:08:49,240 Speaker 1: Marshal who was a concurrence in the famous bats In 147 00:08:49,320 --> 00:08:53,360 Speaker 1: case where they established you cannot use peremptory challenges impermissively 148 00:08:53,400 --> 00:08:57,040 Speaker 1: against rape. He wrote, you know, this is a good start, 149 00:08:57,520 --> 00:09:00,200 Speaker 1: but I don't know that it will actually work, and 150 00:09:00,240 --> 00:09:02,400 Speaker 1: maybe we should go to a system more like they 151 00:09:02,440 --> 00:09:06,160 Speaker 1: have in Great Britain. In Great Britains, they realize it 152 00:09:06,200 --> 00:09:09,400 Speaker 1: will never work on peremptory challenges. When you tell people 153 00:09:09,400 --> 00:09:13,480 Speaker 1: to use their gut, the gut includes all kinds of bias. 154 00:09:13,480 --> 00:09:16,800 Speaker 1: Who instead, everything has to be a challenge for cause 155 00:09:16,920 --> 00:09:20,960 Speaker 1: you have to show actual bias by that juror, and 156 00:09:21,000 --> 00:09:23,560 Speaker 1: in that way the judge can do a deeper dive 157 00:09:24,000 --> 00:09:27,479 Speaker 1: and get clearer on the record why someone's being excused. 158 00:09:28,200 --> 00:09:30,920 Speaker 1: What's your take? Do you agree with this, would you 159 00:09:30,920 --> 00:09:33,040 Speaker 1: like to see this bill passed? Or do you think 160 00:09:33,080 --> 00:09:37,160 Speaker 1: it's not going to work? I think this bill is 161 00:09:37,200 --> 00:09:39,440 Speaker 1: going to be awkward if it were to pass. I 162 00:09:39,480 --> 00:09:42,440 Speaker 1: think it would be very difficult in terms of enforcement 163 00:09:42,679 --> 00:09:46,440 Speaker 1: and implementation. Having said that, however, I do think we 164 00:09:46,520 --> 00:09:49,960 Speaker 1: do need to do something to address bias in the 165 00:09:50,040 --> 00:09:55,040 Speaker 1: courtroom because it continues on and that's something probably includes 166 00:09:55,120 --> 00:09:58,360 Speaker 1: more than a bill like this. It also includes retraining 167 00:09:58,559 --> 00:10:02,440 Speaker 1: of lawyers, have judges who are trained to look for 168 00:10:02,480 --> 00:10:06,800 Speaker 1: what the biases, making sure that when we ask these explanations, 169 00:10:06,840 --> 00:10:09,840 Speaker 1: we don't take a pace value what the parties say 170 00:10:09,880 --> 00:10:13,400 Speaker 1: about why they're excusing people. And I also think that 171 00:10:13,440 --> 00:10:16,240 Speaker 1: as society changes, as we see it happening on the 172 00:10:16,280 --> 00:10:19,960 Speaker 1: streets right now, but the public and the jurors will 173 00:10:20,000 --> 00:10:22,960 Speaker 1: demand that they be treated not based upon the color 174 00:10:23,000 --> 00:10:25,680 Speaker 1: of their skin, but what their attitudes really are regarding 175 00:10:25,679 --> 00:10:28,760 Speaker 1: the case. I was wondering if you thought this bill 176 00:10:29,080 --> 00:10:34,120 Speaker 1: might pass because of this heightened scrutiny of racial justice 177 00:10:34,160 --> 00:10:38,400 Speaker 1: in light of the protests going on. Well, I think 178 00:10:38,440 --> 00:10:42,240 Speaker 1: that's part of the emphasis of this bill. Having said that, nonetheless, 179 00:10:42,400 --> 00:10:45,280 Speaker 1: there are people in all different branches who are concerned 180 00:10:45,320 --> 00:10:49,640 Speaker 1: about it. I think judges are concerned, Uh, the prosecutors 181 00:10:49,640 --> 00:10:53,720 Speaker 1: are clearly concerned. Even some defense lawyers are wondering how 182 00:10:53,760 --> 00:10:57,720 Speaker 1: this will affect their ability to exercise challenges. So I 183 00:10:57,800 --> 00:11:00,320 Speaker 1: think given that you have enough people from the different 184 00:11:00,320 --> 00:11:03,160 Speaker 1: parts of the justice system, I don't think in its 185 00:11:03,240 --> 00:11:06,520 Speaker 1: current state it's as likely to pass, but it's a 186 00:11:06,520 --> 00:11:09,880 Speaker 1: good starting point for the discussion. The best thing about 187 00:11:09,920 --> 00:11:13,360 Speaker 1: this bill is waking up the system and saying we've 188 00:11:13,400 --> 00:11:17,400 Speaker 1: got a problem, and we can't just keep pretending that 189 00:11:17,520 --> 00:11:20,920 Speaker 1: bats and objections is enough to deal with the implicit 190 00:11:20,920 --> 00:11:24,320 Speaker 1: advice in the system, and these has a real impact 191 00:11:24,840 --> 00:11:27,840 Speaker 1: on cases. The study in Berkeley really should wake us 192 00:11:27,880 --> 00:11:31,320 Speaker 1: up to ask the questions what's happening in death penalty 193 00:11:31,360 --> 00:11:35,840 Speaker 1: cases in particulars now Having said that, it's hard to 194 00:11:35,880 --> 00:11:40,280 Speaker 1: go from the concept the actual bill, and there's language 195 00:11:40,280 --> 00:11:45,439 Speaker 1: in the bill that is vague, things like expressing a distrust, 196 00:11:45,600 --> 00:11:49,040 Speaker 1: what does that cover? Having a close relationship? What does 197 00:11:49,080 --> 00:11:54,200 Speaker 1: that cover? Historically associated? What does that cover? And so 198 00:11:54,320 --> 00:11:57,120 Speaker 1: the problem with this bill is the same problem you 199 00:11:57,160 --> 00:12:00,400 Speaker 1: come up whenever you try to draft legislation, Is it 200 00:12:00,559 --> 00:12:04,280 Speaker 1: precise enough? And will it work? Thanks for being on 201 00:12:04,320 --> 00:12:08,600 Speaker 1: the Bloomberg Law Show, Laurie. That's former federal prosecutor Laurie Levinson, 202 00:12:08,679 --> 00:12:12,320 Speaker 1: a professor at Loyola Law School. I'm June Grasso, and 203 00:12:12,440 --> 00:12:13,440 Speaker 1: this is Bloomberg