Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: Trials are too important to be left up to juries.
Speaker 1: The defense has retained Rank and Fitch as their lead
Speaker 1: jury consultant and general, Let's find eleven more jurors just
Speaker 1: like her. They're using video surveillance wire tracks finding out
Speaker 1: things about juror's husband and their wives don't even know.
Speaker 1: The theory behind the movie Runaway Jury and just about
Speaker 1: every other film or novel dealing with selecting a jury
Speaker 1: is that a lawyer can kick off a potential juror
Speaker 1: for any reason, something called a peremptory challenge. However, in reality,
Speaker 1: there are limits on peremptories, and a bill working its
Speaker 1: way through the California legislature would require even more transparency
Speaker 1: around juris strikes to address concerns of implicit racial and
Speaker 1: gender bias and jury selection. But judges and prosecutors say
Speaker 1: there are already checks in place and that the bill
Speaker 1: would just add work to an already overtax justice sist
Speaker 1: without any benefits. Joining me as former federal prosecutor Laurie Levinson,
Speaker 1: a professor Loyola Law School, Laurie tell Us a little
Speaker 1: bit about the bill. What this bill would do is
Speaker 1: create some presumption that if a party used a peremptory
Speaker 1: challenge that they kicked off a juror and it related
Speaker 1: to certain columns of information they had said, Oh, I'm
Speaker 1: picking them off because they know people who have been
Speaker 1: stopped or arrested, or I'm kicking them off because the
Speaker 1: neighborhood they're from, or because they're not a native English speaker,
Speaker 1: and there's a list of at least fifteen or sixteen
Speaker 1: different categories, then the burden would be on them by
Speaker 1: cleaning convincing evidence to show that this is not race related,
Speaker 1: or ethnicity related, or gender or sexual orientation. In other words,
Speaker 1: it would shift the burden to the party using the
Speaker 1: peremptory challenge to say, when I give those reasons, they're
Speaker 1: really not a code for race, gender, or other impermissible category.
Speaker 1: A peremptory challenge is a lawyer dismissing a juror without
Speaker 1: stating a cause. Does this mean that peremptory challenges really
Speaker 1: aren't what they're stated to be. Well, when peremptory challenges
Speaker 1: were first created, a lawyer could kick off a juror
Speaker 1: for any reason, you know, it could be any thoughts
Speaker 1: they had, and then the Supreme Court took a look
Speaker 1: at that and said, well, we should not allow people
Speaker 1: to kick off jurors because of their race or gender
Speaker 1: or categories like that. That's been operating for a while,
Speaker 1: but people say, you know, it really isn't fair because
Speaker 1: what will happen is that there will be a pattern
Speaker 1: of kicking people off. We all know it's for race,
Speaker 1: and then usually it might be the prosecutor who says no, no, no,
Speaker 1: I have these other neutral reasons for kicking them off.
Speaker 1: There's been some studies to show that because the standard
Speaker 1: is so low, it really is easy for people, because
Speaker 1: of their implicit bias or other reasons, to kick off
Speaker 1: jurors who it really is code for race. This bill
Speaker 1: is designed twitch ask that to say, look, if you're
Speaker 1: using these categories, it probably is race related, and therefore
Speaker 1: you're going to need a clear and convincing reason to
Speaker 1: say it not as it stands now, explain what happens
Speaker 1: in court if someone, let's say a district attorney uses
Speaker 1: a peremptory challenge and the defense attorney suspects that it's
Speaker 1: race related. Well, right now, under our current system if
Speaker 1: either side, but it's often a challenge against the district attorney.
Speaker 1: If the district attorney is using peremptory challenges to kick off,
Speaker 1: for example, all the blacks on the jury or all
Speaker 1: the men on the jury, then the other side, the
Speaker 1: defense can say objection your honor Batson, which is the
Speaker 1: Supreme Court decision doesn't allow that. At that point, the
Speaker 1: district attorney is allowed to give a neutral reason for
Speaker 1: why they use the challenge, and then the judge decides
Speaker 1: whether that in fact was true. That's why they were
Speaker 1: doing it for the neutral reason. The thought is is
Speaker 1: that a just too easy to come up with so
Speaker 1: called neutral reason. The juror wasn't looking me in the eye,
Speaker 1: or the other jurors didn't like them, or the jurors
Speaker 1: have negative feelings towards people in law enforcement, and therefore
Speaker 1: it's easy for the d A to disguise when they
Speaker 1: really are making race based challenges. You mentioned studies, and
Speaker 1: one UK Berkeley study concluded that California has a serious
Speaker 1: bats in problem, and the Association of Deputy DA says
Speaker 1: that it was misleading. Do you see a serious bats
Speaker 1: and problem particularly in California? Or is this across the country. Well,
Speaker 1: I think there probably is a serious problem across the country.
Speaker 1: I don't think California is unique. It's accurate that there
Speaker 1: were some questions that could be raised regarding the Berkeley study,
Speaker 1: but that doesn't undermine the overall impression that people who
Speaker 1: are in the courtroom day in and day out, and
Speaker 1: I am a former prosecutor, realized that in fact, there
Speaker 1: are path kicking off people who look like, oh, they
Speaker 1: just don't belong there, and that can have a disproportional
Speaker 1: racial impact. It may not even be prosecutors in their
Speaker 1: minds saying oh, I want to get rid of all
Speaker 1: people from this background, but they're going to look closer
Speaker 1: to find reasons that they think are neutral to kick
Speaker 1: them off. Judge Steve White, who is president of the
Speaker 1: Alliance of California Judges, says almost all judges have a
Speaker 1: problem with this bill, and he said it won't solve
Speaker 1: the problem, and we'll just make jury selection three times
Speaker 1: longer and ten times more difficult. It seems like it
Speaker 1: would make it longer and more difficult. Oh, undoubtedly, I
Speaker 1: think this would make it more difficult. We have to
Speaker 1: decide if this is the way we want to remedy
Speaker 1: the problem. But you know, for the judge, there are
Speaker 1: lists here of things that the judge has to pay
Speaker 1: attention to. For example, the distric attorney could not kick
Speaker 1: off a perspective juror for being inattentive or failing to
Speaker 1: make eye contact, or not being friendly enough with other
Speaker 1: perspective jurors. At least the burden would shift in for
Speaker 1: the prosecutor to say, well, I'm not using that because
Speaker 1: of their race. Now that means you have to have
Speaker 1: a judge who's watching everything in that courtroom all the
Speaker 1: time to see whether that behavior is happening. That's not
Speaker 1: going to be easy to do. What are you gonna
Speaker 1: explain what this means? One public defender said judges must
Speaker 1: now take a radical step to even demand justifications from
Speaker 1: attorneys for peremptories. Well, I think what he's saying is
Speaker 1: is that ordinarily the judges before would wait till the
Speaker 1: party objected and then they'd look at the pattern and
Speaker 1: then they'd say, put on the record, why you excuse
Speaker 1: that person? But under this bill, you have certain exercise
Speaker 1: the peremptory challenges that are presumed to be invalid, and
Speaker 1: those are unless the party using them can show by
Speaker 1: clear and convincing evidence, which is fairly high, that they're
Speaker 1: not doing it on those reasons. So the so called
Speaker 1: radical staff is listening on every use of excuse, demanding
Speaker 1: an explanation and making sure that explanation hits that heightened standard.
Speaker 1: Batson's been expanded over the years. Has it been expanded
Speaker 1: as far as this bill to include gender? California is unique.
Speaker 1: We have a broader category of the juror traits that
Speaker 1: are protected, for example, sexual orientation. The Supreme Court has
Speaker 1: never expanded it that far. Supreme Court, frankly has never
Speaker 1: expanded it even to some religious affiliation. The California does
Speaker 1: have a broad category of how jurors are protected. The
Speaker 1: California bill was apparently modeled after a rule in Washington State.
Speaker 1: Do you know how that rule being applied and whether
Speaker 1: it's working. I don't know, and I don't know if
Speaker 1: any studies set show exactly how well the Washington rule
Speaker 1: is working. What we're trying to do is set up
Speaker 1: rules to govern and guide behavior by people in the courtroom.
Speaker 1: You can try to do that by rule, it's not easy,
Speaker 1: or you can try to do it by changing the
Speaker 1: way people look at their job and the bias that
Speaker 1: they bring into the courtroom. I think a lot of
Speaker 1: people who pose this bill say that this will not
Speaker 1: do the trick. You'll still have people who will have
Speaker 1: other types of questions that will get to what they want,
Speaker 1: and you still will have judges in a tough situation
Speaker 1: of making credibility calls that they're really not in the
Speaker 1: position to make. I just wonder whether it's ever possible
Speaker 1: to really eliminate your bias. Well, you know, justice, they're good.
Speaker 1: Marshal who was a concurrence in the famous bats In
Speaker 1: case where they established you cannot use peremptory challenges impermissively
Speaker 1: against rape. He wrote, you know, this is a good start,
Speaker 1: but I don't know that it will actually work, and
Speaker 1: maybe we should go to a system more like they
Speaker 1: have in Great Britain. In Great Britains, they realize it
Speaker 1: will never work on peremptory challenges. When you tell people
Speaker 1: to use their gut, the gut includes all kinds of bias.
Speaker 1: Who instead, everything has to be a challenge for cause
Speaker 1: you have to show actual bias by that juror, and
Speaker 1: in that way the judge can do a deeper dive
Speaker 1: and get clearer on the record why someone's being excused.
Speaker 1: What's your take? Do you agree with this, would you
Speaker 1: like to see this bill passed? Or do you think
Speaker 1: it's not going to work? I think this bill is
Speaker 1: going to be awkward if it were to pass. I
Speaker 1: think it would be very difficult in terms of enforcement
Speaker 1: and implementation. Having said that, however, I do think we
Speaker 1: do need to do something to address bias in the
Speaker 1: courtroom because it continues on and that's something probably includes
Speaker 1: more than a bill like this. It also includes retraining
Speaker 1: of lawyers, have judges who are trained to look for
Speaker 1: what the biases, making sure that when we ask these explanations,
Speaker 1: we don't take a pace value what the parties say
Speaker 1: about why they're excusing people. And I also think that
Speaker 1: as society changes, as we see it happening on the
Speaker 1: streets right now, but the public and the jurors will
Speaker 1: demand that they be treated not based upon the color
Speaker 1: of their skin, but what their attitudes really are regarding
Speaker 1: the case. I was wondering if you thought this bill
Speaker 1: might pass because of this heightened scrutiny of racial justice
Speaker 1: in light of the protests going on. Well, I think
Speaker 1: that's part of the emphasis of this bill. Having said that, nonetheless,
Speaker 1: there are people in all different branches who are concerned
Speaker 1: about it. I think judges are concerned, Uh, the prosecutors
Speaker 1: are clearly concerned. Even some defense lawyers are wondering how
Speaker 1: this will affect their ability to exercise challenges. So I
Speaker 1: think given that you have enough people from the different
Speaker 1: parts of the justice system, I don't think in its
Speaker 1: current state it's as likely to pass, but it's a
Speaker 1: good starting point for the discussion. The best thing about
Speaker 1: this bill is waking up the system and saying we've
Speaker 1: got a problem, and we can't just keep pretending that
Speaker 1: bats and objections is enough to deal with the implicit
Speaker 1: advice in the system, and these has a real impact
Speaker 1: on cases. The study in Berkeley really should wake us
Speaker 1: up to ask the questions what's happening in death penalty
Speaker 1: cases in particulars now Having said that, it's hard to
Speaker 1: go from the concept the actual bill, and there's language
Speaker 1: in the bill that is vague, things like expressing a distrust,
Speaker 1: what does that cover? Having a close relationship? What does
Speaker 1: that cover? Historically associated? What does that cover? And so
Speaker 1: the problem with this bill is the same problem you
Speaker 1: come up whenever you try to draft legislation, Is it
Speaker 1: precise enough? And will it work? Thanks for being on
Speaker 1: the Bloomberg Law Show, Laurie. That's former federal prosecutor Laurie Levinson,
Speaker 1: a professor at Loyola Law School. I'm June Grasso, and
Speaker 1: this is Bloomberg