WEBVTT - Bias in Jury Selection Addressed in Bill

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<v Speaker 1>You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

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<v Speaker 1>Trials are too important to be left up to juries.

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<v Speaker 1>The defense has retained Rank and Fitch as their lead

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<v Speaker 1>jury consultant and general, Let's find eleven more jurors just

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<v Speaker 1>like her. They're using video surveillance wire tracks finding out

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<v Speaker 1>things about juror's husband and their wives don't even know.

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<v Speaker 1>The theory behind the movie Runaway Jury and just about

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<v Speaker 1>every other film or novel dealing with selecting a jury

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<v Speaker 1>is that a lawyer can kick off a potential juror

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<v Speaker 1>for any reason, something called a peremptory challenge. However, in reality,

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<v Speaker 1>there are limits on peremptories, and a bill working its

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<v Speaker 1>way through the California legislature would require even more transparency

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<v Speaker 1>around juris strikes to address concerns of implicit racial and

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<v Speaker 1>gender bias and jury selection. But judges and prosecutors say

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<v Speaker 1>there are already checks in place and that the bill

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<v Speaker 1>would just add work to an already overtax justice sist

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<v Speaker 1>without any benefits. Joining me as former federal prosecutor Laurie Levinson,

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<v Speaker 1>a professor Loyola Law School, Laurie tell Us a little

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<v Speaker 1>bit about the bill. What this bill would do is

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<v Speaker 1>create some presumption that if a party used a peremptory

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<v Speaker 1>challenge that they kicked off a juror and it related

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<v Speaker 1>to certain columns of information they had said, Oh, I'm

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<v Speaker 1>picking them off because they know people who have been

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<v Speaker 1>stopped or arrested, or I'm kicking them off because the

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<v Speaker 1>neighborhood they're from, or because they're not a native English speaker,

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<v Speaker 1>and there's a list of at least fifteen or sixteen

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<v Speaker 1>different categories, then the burden would be on them by

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<v Speaker 1>cleaning convincing evidence to show that this is not race related,

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<v Speaker 1>or ethnicity related, or gender or sexual orientation. In other words,

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<v Speaker 1>it would shift the burden to the party using the

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<v Speaker 1>peremptory challenge to say, when I give those reasons, they're

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<v Speaker 1>really not a code for race, gender, or other impermissible category.

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<v Speaker 1>A peremptory challenge is a lawyer dismissing a juror without

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<v Speaker 1>stating a cause. Does this mean that peremptory challenges really

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<v Speaker 1>aren't what they're stated to be. Well, when peremptory challenges

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<v Speaker 1>were first created, a lawyer could kick off a juror

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<v Speaker 1>for any reason, you know, it could be any thoughts

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<v Speaker 1>they had, and then the Supreme Court took a look

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<v Speaker 1>at that and said, well, we should not allow people

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<v Speaker 1>to kick off jurors because of their race or gender

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<v Speaker 1>or categories like that. That's been operating for a while,

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<v Speaker 1>but people say, you know, it really isn't fair because

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<v Speaker 1>what will happen is that there will be a pattern

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<v Speaker 1>of kicking people off. We all know it's for race,

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<v Speaker 1>and then usually it might be the prosecutor who says no, no, no,

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<v Speaker 1>I have these other neutral reasons for kicking them off.

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<v Speaker 1>There's been some studies to show that because the standard

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<v Speaker 1>is so low, it really is easy for people, because

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<v Speaker 1>of their implicit bias or other reasons, to kick off

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<v Speaker 1>jurors who it really is code for race. This bill

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<v Speaker 1>is designed twitch ask that to say, look, if you're

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<v Speaker 1>using these categories, it probably is race related, and therefore

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<v Speaker 1>you're going to need a clear and convincing reason to

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<v Speaker 1>say it not as it stands now, explain what happens

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<v Speaker 1>in court if someone, let's say a district attorney uses

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<v Speaker 1>a peremptory challenge and the defense attorney suspects that it's

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<v Speaker 1>race related. Well, right now, under our current system if

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<v Speaker 1>either side, but it's often a challenge against the district attorney.

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<v Speaker 1>If the district attorney is using peremptory challenges to kick off,

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<v Speaker 1>for example, all the blacks on the jury or all

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<v Speaker 1>the men on the jury, then the other side, the

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<v Speaker 1>defense can say objection your honor Batson, which is the

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<v Speaker 1>Supreme Court decision doesn't allow that. At that point, the

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<v Speaker 1>district attorney is allowed to give a neutral reason for

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<v Speaker 1>why they use the challenge, and then the judge decides

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<v Speaker 1>whether that in fact was true. That's why they were

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<v Speaker 1>doing it for the neutral reason. The thought is is

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<v Speaker 1>that a just too easy to come up with so

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<v Speaker 1>called neutral reason. The juror wasn't looking me in the eye,

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<v Speaker 1>or the other jurors didn't like them, or the jurors

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<v Speaker 1>have negative feelings towards people in law enforcement, and therefore

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<v Speaker 1>it's easy for the d A to disguise when they

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<v Speaker 1>really are making race based challenges. You mentioned studies, and

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<v Speaker 1>one UK Berkeley study concluded that California has a serious

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<v Speaker 1>bats in problem, and the Association of Deputy DA says

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<v Speaker 1>that it was misleading. Do you see a serious bats

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<v Speaker 1>and problem particularly in California? Or is this across the country. Well,

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<v Speaker 1>I think there probably is a serious problem across the country.

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<v Speaker 1>I don't think California is unique. It's accurate that there

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<v Speaker 1>were some questions that could be raised regarding the Berkeley study,

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<v Speaker 1>but that doesn't undermine the overall impression that people who

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<v Speaker 1>are in the courtroom day in and day out, and

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<v Speaker 1>I am a former prosecutor, realized that in fact, there

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<v Speaker 1>are path kicking off people who look like, oh, they

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<v Speaker 1>just don't belong there, and that can have a disproportional

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<v Speaker 1>racial impact. It may not even be prosecutors in their

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<v Speaker 1>minds saying oh, I want to get rid of all

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<v Speaker 1>people from this background, but they're going to look closer

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<v Speaker 1>to find reasons that they think are neutral to kick

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<v Speaker 1>them off. Judge Steve White, who is president of the

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<v Speaker 1>Alliance of California Judges, says almost all judges have a

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<v Speaker 1>problem with this bill, and he said it won't solve

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<v Speaker 1>the problem, and we'll just make jury selection three times

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<v Speaker 1>longer and ten times more difficult. It seems like it

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<v Speaker 1>would make it longer and more difficult. Oh, undoubtedly, I

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<v Speaker 1>think this would make it more difficult. We have to

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<v Speaker 1>decide if this is the way we want to remedy

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<v Speaker 1>the problem. But you know, for the judge, there are

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<v Speaker 1>lists here of things that the judge has to pay

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<v Speaker 1>attention to. For example, the distric attorney could not kick

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<v Speaker 1>off a perspective juror for being inattentive or failing to

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<v Speaker 1>make eye contact, or not being friendly enough with other

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<v Speaker 1>perspective jurors. At least the burden would shift in for

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<v Speaker 1>the prosecutor to say, well, I'm not using that because

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<v Speaker 1>of their race. Now that means you have to have

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<v Speaker 1>a judge who's watching everything in that courtroom all the

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<v Speaker 1>time to see whether that behavior is happening. That's not

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<v Speaker 1>going to be easy to do. What are you gonna

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<v Speaker 1>explain what this means? One public defender said judges must

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<v Speaker 1>now take a radical step to even demand justifications from

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<v Speaker 1>attorneys for peremptories. Well, I think what he's saying is

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<v Speaker 1>is that ordinarily the judges before would wait till the

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<v Speaker 1>party objected and then they'd look at the pattern and

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<v Speaker 1>then they'd say, put on the record, why you excuse

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<v Speaker 1>that person? But under this bill, you have certain exercise

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<v Speaker 1>the peremptory challenges that are presumed to be invalid, and

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<v Speaker 1>those are unless the party using them can show by

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<v Speaker 1>clear and convincing evidence, which is fairly high, that they're

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<v Speaker 1>not doing it on those reasons. So the so called

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<v Speaker 1>radical staff is listening on every use of excuse, demanding

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<v Speaker 1>an explanation and making sure that explanation hits that heightened standard.

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<v Speaker 1>Batson's been expanded over the years. Has it been expanded

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<v Speaker 1>as far as this bill to include gender? California is unique.

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<v Speaker 1>We have a broader category of the juror traits that

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<v Speaker 1>are protected, for example, sexual orientation. The Supreme Court has

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<v Speaker 1>never expanded it that far. Supreme Court, frankly has never

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<v Speaker 1>expanded it even to some religious affiliation. The California does

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<v Speaker 1>have a broad category of how jurors are protected. The

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<v Speaker 1>California bill was apparently modeled after a rule in Washington State.

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<v Speaker 1>Do you know how that rule being applied and whether

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<v Speaker 1>it's working. I don't know, and I don't know if

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<v Speaker 1>any studies set show exactly how well the Washington rule

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<v Speaker 1>is working. What we're trying to do is set up

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<v Speaker 1>rules to govern and guide behavior by people in the courtroom.

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<v Speaker 1>You can try to do that by rule, it's not easy,

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<v Speaker 1>or you can try to do it by changing the

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<v Speaker 1>way people look at their job and the bias that

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<v Speaker 1>they bring into the courtroom. I think a lot of

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<v Speaker 1>people who pose this bill say that this will not

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<v Speaker 1>do the trick. You'll still have people who will have

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<v Speaker 1>other types of questions that will get to what they want,

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<v Speaker 1>and you still will have judges in a tough situation

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<v Speaker 1>of making credibility calls that they're really not in the

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<v Speaker 1>position to make. I just wonder whether it's ever possible

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<v Speaker 1>to really eliminate your bias. Well, you know, justice, they're good.

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<v Speaker 1>Marshal who was a concurrence in the famous bats In

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<v Speaker 1>case where they established you cannot use peremptory challenges impermissively

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<v Speaker 1>against rape. He wrote, you know, this is a good start,

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<v Speaker 1>but I don't know that it will actually work, and

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<v Speaker 1>maybe we should go to a system more like they

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<v Speaker 1>have in Great Britain. In Great Britains, they realize it

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<v Speaker 1>will never work on peremptory challenges. When you tell people

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<v Speaker 1>to use their gut, the gut includes all kinds of bias.

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<v Speaker 1>Who instead, everything has to be a challenge for cause

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<v Speaker 1>you have to show actual bias by that juror, and

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<v Speaker 1>in that way the judge can do a deeper dive

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<v Speaker 1>and get clearer on the record why someone's being excused.

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<v Speaker 1>What's your take? Do you agree with this, would you

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<v Speaker 1>like to see this bill passed? Or do you think

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<v Speaker 1>it's not going to work? I think this bill is

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<v Speaker 1>going to be awkward if it were to pass. I

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<v Speaker 1>think it would be very difficult in terms of enforcement

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<v Speaker 1>and implementation. Having said that, however, I do think we

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<v Speaker 1>do need to do something to address bias in the

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<v Speaker 1>courtroom because it continues on and that's something probably includes

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<v Speaker 1>more than a bill like this. It also includes retraining

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<v Speaker 1>of lawyers, have judges who are trained to look for

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<v Speaker 1>what the biases, making sure that when we ask these explanations,

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<v Speaker 1>we don't take a pace value what the parties say

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<v Speaker 1>about why they're excusing people. And I also think that

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<v Speaker 1>as society changes, as we see it happening on the

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<v Speaker 1>streets right now, but the public and the jurors will

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<v Speaker 1>demand that they be treated not based upon the color

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<v Speaker 1>of their skin, but what their attitudes really are regarding

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<v Speaker 1>the case. I was wondering if you thought this bill

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<v Speaker 1>might pass because of this heightened scrutiny of racial justice

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<v Speaker 1>in light of the protests going on. Well, I think

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<v Speaker 1>that's part of the emphasis of this bill. Having said that, nonetheless,

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<v Speaker 1>there are people in all different branches who are concerned

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<v Speaker 1>about it. I think judges are concerned, Uh, the prosecutors

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<v Speaker 1>are clearly concerned. Even some defense lawyers are wondering how

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<v Speaker 1>this will affect their ability to exercise challenges. So I

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<v Speaker 1>think given that you have enough people from the different

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<v Speaker 1>parts of the justice system, I don't think in its

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<v Speaker 1>current state it's as likely to pass, but it's a

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<v Speaker 1>good starting point for the discussion. The best thing about

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<v Speaker 1>this bill is waking up the system and saying we've

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<v Speaker 1>got a problem, and we can't just keep pretending that

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<v Speaker 1>bats and objections is enough to deal with the implicit

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<v Speaker 1>advice in the system, and these has a real impact

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<v Speaker 1>on cases. The study in Berkeley really should wake us

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<v Speaker 1>up to ask the questions what's happening in death penalty

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<v Speaker 1>cases in particulars now Having said that, it's hard to

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<v Speaker 1>go from the concept the actual bill, and there's language

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<v Speaker 1>in the bill that is vague, things like expressing a distrust,

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<v Speaker 1>what does that cover? Having a close relationship? What does

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<v Speaker 1>that cover? Historically associated? What does that cover? And so

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<v Speaker 1>the problem with this bill is the same problem you

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<v Speaker 1>come up whenever you try to draft legislation, Is it

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<v Speaker 1>precise enough? And will it work? Thanks for being on

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<v Speaker 1>the Bloomberg Law Show, Laurie. That's former federal prosecutor Laurie Levinson,

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<v Speaker 1>a professor at Loyola Law School. I'm June Grasso, and

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<v Speaker 1>this is Bloomberg