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June 16, 2020

"Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors"

The title of this post is the title of this notable new (and massive) report by faculty and students at the Berkeley Law Death Penalty Clinic.  This release about the report provides background and a summary starting this way: "An eye-opening report from Berkeley Law’s Death Penalty Clinic finds that racial discrimination is a consistent aspect of jury selection in California. The exhaustive study investigates the history, legacy, and ongoing practice of excluding people of color—especially African Americans—from state juries through prosecutors’ peremptory challenges."  Here is part of the report's executive summary:

Racial discrimination is an ever-present feature of jury selection in California.  This report investigates the history, legacy, and continuing practice of excluding people of color, especially African Americans, from California juries through the exercise of peremptory challenges. Unlike challenges for cause, each party in a trial has the right to excuse a specific number of jurors without stating a reason and without the court’s approval.  In California, peremptory challenges are defined by statute.

Historically, the main vice of peremptory challenges was that prosecutors wielded them with impunity to remove African Americans from jury service.  These strikes were part and parcel of the systematic exclusion of Blacks from civil society.  We found that prosecutors continue to exercise peremptory challenges to remove African Americans and Latinx people from California juries for reasons that are explicitly or implicitly related to racial stereotypes....

In his concurring opinion in Batson, Justice Thurgood Marshall warned that Batson’s three-step procedure would fail to end racially discriminatory peremptory strikes. He anticipated that prosecutors would easily be able to produce “race-neutral” reasons at Batson’s second step, and that judges would be ill-equipped to second-guess those reasons.  Further, Justice Marshall doubted Batson’s efficacy because the procedure did nothing to curb strikes motivated by unconscious racism — known more often today as implicit bias.

Justice Marshall was prescient: 34 years after Batson was decided, prosecutors in California still disproportionately exercise peremptory challenges to exclude African Americans and Latinx people from juries.

The Berkeley Law Death Penalty Clinic explored the shortcomings of the Batson procedure.  Our report investigates how the California Supreme Court went from a judiciary that championed the eradication of race-based strikes to a court that resists the United States Supreme Court’s limited efforts to enforce Batson.  We conclude that Batson is a woefully inadequate tool to end racial discrimination in jury selection.

June 16, 2020 at 11:29 AM | Permalink


Um,I heard the other day that the percentage of blacks in California is like 7 percent. Isn't a jury filled with American citizens? Why does their skin color matter? There's nothing racist about jury selection. Well, except for the black racists on the OJ jury who told a jury selection consulting firm that they would never vote guilty if the DA used Marcia Clarke to prosecute (this according to Vincent Bugliosi). So, we can conclude that black juries are racist and will not or are reluctant to convict blacks even if they are guilty beyond a reasonable doubt. And this paper was written for some reason other than virtue signalling having nothing to do with logic or facts? Got it.

Posted by: restless94110 | Jun 16, 2020 3:14:02 PM

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