Bogus “Study” on Bias in Jury Selection

A recent study from The Death Penalty Clinic (read Anti-Death Penalty Clinic) at Berkeley Law, headed by long-time defense attorney Elisabeth Semel, has found that “California prosecutors routinely strike Black and Latino people from juries,” according to the Los Angeles Times. A piece by Michele Hanisee, of the Association of Los Angeles Deputy District Attorneys,  raises serious questions about the accuracy of the study and the bias of its author. Ms. Semel’s study, entitled “Whitewashing the Jury Box,”  examined 683 appellate rulings between 2006-2018 in non-death penalty cases where defense attorneys objected to a prosecutor’s  peremptory challenge of a juror.

According to Semel’s study, 72% of the cases among her sample involved claims of the improper exclusion of an African American juror and in 28%, a Latino juror was allegedly improperly excused. “From this she concludes that prosecutors’ use of challenges to exclude African-American and Latinx citizens from juries is ‘pervasive,’ ” writes Hanisee.  But there are some inconvenient facts that don’t fit this conclusion.  Of the 663 cases with claims of prosecutor bias, the appellate courts only found 18 of the claims legitimate, just 2.6% of the sample.  About that sample: Over the years used for the study there were 110,779 criminal jury trials in California. The cases in the sample represent under 1% of the cases over the selection period. So looking at less than 1% of the jury trials where the appellate courts found 97.4% of a prosecutor’s challenges to jurors unbiased, supports a conclusion of “pervasive” bias? The study fails to document how many challenges to jurors defense attorneys made among the sample group. The study fails to report how many people of color were accepted on juries in the sample group. But it finds that the overwhelming number of challenges to excuse jurors were made by defense attorneys.   Well duhhhhh. Prosecutors rarely make such claims (called Batson claim) because it would delay the trial and such claims by the prosecution rarely get appealed. Here’s how it works:  if the defendant is found not guilty, the prosecutor is not allowed to appeal. If the defendant is found guilty, he gets to appeal, and Batson claims are commonly made, but, as Ms. Semel’s study inconveniently shows, rarely upheld.  If a defendant cannot get a claim of racial bias in jury selection upheld in California’s notoriously liberal judicial pool, then damn little bias exists.