WHITEWASHING THE JURY BOX How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors JUNE 2020 TABLE OF CONTENTS AUTHORS i ACKNOWLEDGMENTS i EXECUTIVE SUMMARY, FINDINGS, AND RECOMMENDATIONS iii I. A BRIEF HISTORY OF DISCRIMINATORY EXCLUSION 1 A. The Exclusion of African Americans from Juries 2 B. The Exclusion of African Americans from California Jury Rolls 3 C. Peremptory Challenges: From Judicial Intervention To Judicial Retreat 5 1. The United States Supreme Court’s Resistance to Remedying Exclusion 5 2. California’s Intervention in People v. Wheeler 6 3. The United States Supreme Court Decides Batson v. Kentucky 7 4. California Codifies the Prohibition Against Discriminatory Strikes 8 5. California Declines to Enforce Batson 9 II. EMPIRICAL FINDINGS 12 A. California Prosecutors Use Peremptory Strikes to Disproportionately Remove Black and Latinx Jurors 13 B. California Prosecutors Rely on Racial and Ethnic Stereotypes to Remove Black and Latinx Jurors 14 1. Reliance on Racial and Ethnic Stereotypes: Case-Level Data 15 2. “Race-Neutral” Reasons: Strikes of Black Jurors 16 3. “Race-Neutral” Reasons: Strikes of Latinx Jurors 19 4. Reliance on Racial and Ethnic Stereotypes: Juror-Level Data 21 5. Strikes of Cognizable Subgroups: Women of Color 22 C. California Courts Rarely Find Batson Error 23 1. The California Supreme Court’s Abysmal Batson Record 23 2. The California Courts of Appeal’s Almost Equally Abysmal Record 24 3. The Ninth Circuit’s More Rigorous Adherence to Batson 25 III. WHY RACIAL DISCRIMINATION IN JURY SELECTION PERSISTS 28 A. Implicit Bias Taints Peremptory Challenges 30 1. Overview of Implicit Bias and Batson 30 2. A Half Century of Research on Implicit Bias 31 3. Pervasive Implicit Bias in the Criminal Legal System and in the Exercise of Peremptory Challenges 33 B. Prosecutors’ Continued Resistance to Batson 36 C. Prosecutors Strike Black Jurors Based on Their Different Experiences with the Criminal Legal System 36 1. African Americans’ Distrust of the Criminal Legal System Is Rooted in Its Racist History 37 2. Blacks and Whites Differ in Their Views of the Criminal Legal System 40 D. Training Manuals Instruct Prosecutors to Conceal Race-Based Strikes 44 1. Identifying the “Ideal” Prosecution Juror 45 2. Racial Stereotyping by Reliance on “Gut Instincts” 46 3. Reliance on Stock “Race-Neutral” Reasons and Other Tactics that Facilitate Discriminatory Strikes 49 E. The California Supreme Court’s Resistance to Batson 52 1. Elevating Batson’s Step-One Low Threshold to an Unconstitutional Burden 53 2. Disregarding the High Court’s Prohibition Against Judicial Speculation at Step One 54 3. Denying Meaningful Appellate Review of the Prosecution’s Reasons for Its Strikes 57 4. Reflexive Deference: Allowing Trial Courts to Avoid Their Gatekeeping Responsibility 58 5. Constraining Comparative Juror Analysis at Step 3: Undermining Batson’s Most Effective Tool 60 IV. REFORM OPTIONS 66 A. Judicial Calls for Batson Reform 67 B. Alternatives to Batson 68 C. The Washington State Supreme Court’s Batson Reform 69 D. Assembly Bill 3070 and the California Supreme Court 70 APPENDICES 72 A. California Courts of Appeal Research Method 73 B. Washington Supreme Court General Rule 37 79 ENDNOTES 81 AUTHORS The report was researched and written by Elisabeth Semel (Clinical Professor of Law and Direc- tor, Berkeley Law Death Penalty Clinic), Dagen Downard, Emma Tolman, Anne Weis, Danielle Craig, and Chelsea Hanlock (Students, Death Penalty Clinic, Berkeley Law Class of ’20). Founded in 2001, the Berkeley Law Death Penalty Clinic seeks justice for individuals facing the death penalty by providing them with high-quality representation; offers students a rich opportu- nity for meaningful hands-on experience in high-stakes, complex litigation; and exposes problems endemic to the administration of capital punishment. More information about the clinic is avail- able at https://www.law.berkeley.edu/experiential/clinics/death-penalty-clinic. ACKNOWLEDGMENTS We are immensely grateful to AJ Kutchins (Supervising Deputy State Public Defender, Office of the State Public Defender) and Elias Batchelder (Supervising Deputy State Public Defender, Office of the State Public Defender) for their subject-matter expertise and advice throughout the pro- cess, and to Brooke McCarthy (Deputy State Public Defender, Office of the State Public Defender) for research assistance and insights concerning California district attorney training manuals. We benefited tremendously from our consultations with Lila Silverstein (Staff Attorney, Wash- ington Appellate Project) about Batson litigation in the state of Washington and the Washington Supreme Court’s adoption of General Rule 37. We are indebted to Berkeley Law Professor Catherine Albiston for her time and essential contri- butions to the empirical analysis of California Courts of Appeal opinions. Our thanks to Elaine Alexander (Executive Director, Appellate Defenders, Inc.), Richard Lennon (Executive Director, California Appellate Project), Patrick McKenna (Executive Director, Sixth District Appellate Program), J. Bradley O’Connell (Assistant Director, First District Appellate Project), and Laurel Thorpe (Executive Director, Central California Appellate Program) for their assistance in our research of the opinions of the California Courts of Appeal. We are grateful to Oscar Bobrow (Chief Deputy Public Defender, Solano County) and Brendon Woods (Chief Public Defender, Alameda County) for their comments on portions of the report. Our research into California district attorney training manuals would not have been possible without the work of the ACLU of Northern California, which collected these materials. Our special thanks to ACLU-NC Senior Staff Attorney Shilpi Agarwal and ACLU-NC litigation assistant Tara Coughlin. Whitewashing the Jury Box | i Berkeley Law has a world-class library staff who support our faculty and students in countless ways and on countless projects. We are especially grateful to Dean Rowan, Berkeley Law Li- brary Director of Reference and Research Sciences, for his endless assistance with source col- lection, and to Reference Librarians Joe Cera, Kristina Chamorro, Edna Lewis, and I-Wei Wang for their responsiveness at any hour of the day. We were fortunate to have the assistance of Berkeley Law Clinical Program Legal Case Manager Olivia Layug Balbarin’s impeccable proofreading and Bluebooking skills. Our thanks as well to Sarah Weld and Laurie Frasier for their exacting editorial, design, and production support, and to Amy Utstein for her administrative leadership. We are grateful to the Vital Projects Fund, including Sophie Cull, for financial assistance in the publication of the report. We also extend our thanks to Dean Erwin Chemerinsky for his ongo- ing support of Berkeley Law’s clinics, and to donors to the Death Penalty Clinic without whom the clinic’s litigation on behalf of individuals facing capital punishment and its research proj- ects would not be possible. Thousands of California citizens have been denied the right to serve on juries because of their race or ethnicity, and thousands of California criminal defendants have been tried by juries from which those citizens were excluded. The authors hope this report will serve as a catalyst for reform that results in vigorous enforcement of the constitutional rights of those whose lives depend upon a fair and equitable jury selection system and of those who are eligible to serve on juries. In this regard, the authors thank Assemblymember Dr. Shirley K. Weber (Dist. 79) for her leadership in introducing Assembly Bill 3070, which offers California the opportuni- ty to eliminate discriminatory peremptory challenges. Cover illustration by Davide Bonazzi Whitewashing the Jury Box | ii EXECUTIVE SUMMARY, FINDINGS, AND RECOMMENDATIONS Whitewashing the Jury Box | iii 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. Un- like 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 Califor- nia juries for reasons that are explicitly or implicitly related to racial stereotypes. In 1978, in People v. Wheeler, our state supreme court was the first court in the nation to adopt a three-step procedure intended to reduce prosecutors’ discriminatory use of peremptory chal- lenges. Almost a decade later, in Batson v. Kentucky, the United States Supreme Court approved a similar approach with the goal of ending race-based strikes against African-American pro- spective jurors. An essential feature of the “Batson/Wheeler procedure” is that it only provides a remedy for intentional discrimination. Thus, at step one, the objecting party must establish a sufficient showing—known as a “prima facie case”—of purposeful discrimination. At step two, if the trial court agrees that the objecting party