The Death Penalty Clinic at Berkley Law released a study last week that concludes that “racial discrimination is an ever-present feature of jury selection in California.” The study was authored by long-time criminal defense attorney Elisabeth Semel, who runs the Death Penalty Clinic at UC Berkeley. It is clear that many of the erroneous conclusions of this study are the basis for Assembly Bill 3070, a bill that is seeking to radically limit prosecutor’s use of peremptory challenges.

Semel’s conclusions are based on a review of 683 appellate decisions from 2006-2018 in non-death penalty cases where peremptory challenges were made. A peremptory challenge is a request made by either party during jury selection to excuse a juror from serving. No justification need be given during that process for why a particular juror is excused, unless there is a claim that the juror is being excluded based upon their membership in a protected class, e.g. race, religion, gender, age. If the opposing party believes a juror is being excused for an improper reason, they can object to the excusal of that juror.

Semel’s study concluded that in 72% of the cases she examined, an African-American juror was the subject of improper exclusion and in 28% a Latino juror was the subject of improper exclusion. From this she concludes that prosecutors’ use of challenges to exclude African-Americans and Latinx citizens from juries is “pervasive.” 

But by only examining trials in which there was an accusation of discriminatory exclusion of a juror, the study guaranteed a data set with a high percentage of cases in which such an accusation occurred. Moreover, the appellate courts that heard the challenges in these cases did not all conclude that there was purposeful discrimination by the prosecutor. To the contrary, as the study acknowledges, the court of appeals only found that bias was a factor in 18 of the 683 cases examined.

In the 12-year period covered by the study there were approximately 69,503 felony jury trials and 41,276 misdemeanor jury trials for a total of approximately 110,779 jury trials. The cases examined by this study constitute less than 1% of the jury trials conducted in the state. To draw a conclusion that racial discrimination is “pervasive” when the accusation occurs in less than 1% of trials stretches the definition of “pervasive.” 

Even assuming the legal error in every case was the peremptory challenge, that error represents only 2.6% of all cases examined. And in those cases, trial judges upheld the peremptory challenge and a neutral three-justice appellate panel agreed that in 98.4% of the cases, the challenges were made on valid legal grounds, not on racial grounds.

To extrapolate those results, as the authors have done, to all California prosecutors, where there is an accusation in less than 1% of trials and a finding of misconduct by the courts in what equates to .0162% of those cases, is statistically dishonest.

It is the equivalent of concluding that 90% of all California homes keep a vicious dog based on an examination of cases in which a vicious dog was reported to animal control. 

Moreover, the reasons for excusing jurors that Semel characterizes as race-based include where a juror: (1) expressed a distrust of law enforcement; (2) had a negative experience with law enforcement or the justice system; or (3) had a close relationship with someone who had been arrested or convicted or a crime. Defense attorneys routinely excuse jurors who are related to police officers or who articulate any type of bias against the accused or against a system that favors the accused. Yet Semel would have prosecutors forced to accept jurors who have voiced a predetermined bias against the people’s witnesses and evidence.

The study fails to undertake a full examination of the entirety of the jury selection in any particular case, focusing instead only on the excused jurors. For example, the study makes no examination of the number of jurors of color who remained on a jury and heard the trial. As discussed above, the study characterized certain justifications given by prosecutors for striking jurors as race based. Yet the study did not discuss how many times those same justifications were given for excusing white jurors. 

Although the study makes no examination of bias in the defense exercise of peremptory challenges, the study subtly suggests that defense attorneys are free from such bias. The study concludes “the overwhelming majority of Batson objections are brought by defense attorneys against prosecutors’ peremptory challenges.” This statistic would be accurate, but the implied conclusion – that prosecutors are therefore more biased than defense attorneys – is not. First, prosecutors rarely make Batson challenges. On a practical level, it lengthens the jury selection process and delays the start of trial during which time the prosecutor must juggle witnesses who are anxiously waiting to testify and return to their lives. Second, a prosecutor’s Batson challenge to the defense removing jurors in a racially discriminatory manner is almost never going to be appealed so there will not be any appellate cases documenting the practice. If the accused is acquitted, the prosecution does not get to appeal. If the accused if convicted, the accused can appeal, but is unlikely to raise a claim of defense attorney misconduct unless it was detrimental to the result of the case.

But no such critical analysis was undertaken by the media that cited these obviously flawed statistics and irresponsibly headlined, “California prosecutors routinely strike Black and Latino people from juries, report says.” When a study uses a miniscule data set that perfectly fits that agenda of a piece of pending legislation, responsible journalist should ask critical questions about the data and question how one can leap to the conclusion that the dataset represents common practice. 

No amount of racial bias in jury selection is acceptable – from either the prosecution or the defense. But it is unfair and inaccurate of Semel and the media who covered this story to characterize the large majority of prosecutors, many of whom are also persons of color or members of a protected class, as pervasively racist based on her patently inaccurate and misleading characterization of cases that represent less than of 1% of California trials.