CA Law Authorizes Biased Jurors
A California law which took effect in January prohibits prosecutors from removing people who are biased against police officers from juries in criminal trials. The California jury selection process in criminal cases allows the prosecutor and the defense attorney 10 peremptory challenges for most felony trials, and 20 each for capital cases. Prior law allowed these challenges to be exercised for any reason other than solely on the potential juror’s race, which is unconstitutional. AB 3070 Weber (D Los Angeles) signed into law by Governor Newsom in September of 2020, prohibits the use of a peremptory challenge to remove a juror who considers police and/or the criminal justice system racist. The law also supports objections by defense attorneys if the prosecutor challenges potential jurors who are inattentive, incoherent or threatening. In a courtroom with a impartial judge who allows a challenge to a gang member who admits that he hates cops, the removal of the gang member from the jury will now become grounds for appeal. The law does not prevent defense attorneys from removing potential jurors who express support for law enforcement or have friends or relatives who are police officers, prosecutors or judges, or who have been victims of crime. Essentially Governor Newsom has approved a law that eliminates the constitutional right of an impartial jury. The bill’s author, Shirley Weber, was appointed in 2020 by Governor Newsom to serve as Secretary of State. She is the person in charge of California elections.
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It’s unclear whether presumption of invalidity that this statute purports to attach to a party’s exercise of a peremptory challenge can be overcome by nothing less than a showing that the challenge is “unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups,” and that the reasons articulated [for that challenge] bear on the prospective juror’s ability to be fair and impartial in the case” (subdivision (e)), or it would be sufficient for that party to show that the reasons for the challenge, while not wholly unrelated to the listed criteria, “are unrelated to conscious or unconscious *bias* and instead specific to the juror and bear on that juror’s ability to be fair and impartial in the case” (subdivision (f)). A reason bearing on any prospective juror’s “ability to be fair” might very well also “relate” in some sense—and quite possibly in a way that the juror might even acknowledge—to his or her “race, ethnicity [etc.].”
To the extent the measure disallows challenges for reasons that bear unfavorably on a prospective juror’s ability to be fair and impartial, yet also are in some sense “related” to the listed criteria, it would appear to threaten the affected party’s right to due process and a fair trial. (See generally Cal. Const., art. I, sec. 29.)
To the extent the measure dictates that courts must either (a) “presume” to be constitutionally “invalid” reasons for exercising peremptory challenges that bear unfavorably on a prospective juror’s ability to be fair and impartial but which also “relate” in some sense to that prospective juror’s race, etc., or (b) “deem” to be “prejudicial error” and thus grounds for reversal an occurrence that does not constitute a “miscarriage of justice,” it would appear to contravene the following provisions of the California Constitution: Article I, sections 24 and 29; Article II, section 3; and Article VI, section 13. See generally Le Francois v. Goel, 35 Cal.4th 1094, 1104 (2005).
I think what prosecutors should do is continue to ask veniremen whether pre-existing views about alleged police racism might influence their decision. Under this law, the prosecutor could not then strike the juror, true, but it would remain the case that the judge can strike a juror when the interests of justice require it. Thus sensible and fair-minded judges could still act to create impartial juries. Differently-minded judges wouldn’t, of course, so the overall quality of justice will decline.
Ultimately, I think we’re going to have to look at something like Ron Matthias’s suggestion, and ask trial judges to rule that the state and federal constitutional requirement of an unbiased jury trumps this new state statute. The People are also entitled to a fair trial.