SACRAMENTO, Calif. (CN) – Coinciding with a stirring opinion on Monday from U.S. Supreme Court Justice Anthony Kennedy on racial bias in the American justice system, a California state senator says he will introduce a bill that will study the ethnic and racial makeup of the state’s prospective juries.
If passed, Senate Bill 576 will require jury commissioners to collect demographic data on juries via a questionnaire describing each prospective juror’s race, gender, ethnicity, national origin and residential zip code.
“The right to a fair jury trial is one of the pillars of our justice system, and this bill will ensure our jury selection process is delivering on that fundamental democratic promise,” state Sen. Scott Wiener, a Democrat from San Francisco, said in a statement Monday. “Juries should represent the diverse communities they are drawn from, but right now we have no way of knowing if those showing up for jury duty are an accurate representation of these communities. By collecting demographic information, we can analyze our jury pools in order to determine if our current system is working. SB 576 will help us to achieve more balanced and equitable juries.”
Wiener’s announcement comes on heels of Justice Kennedy’s ardent 21-page opinion in Pena-Rodriguez v. Colorado, a case that stemmed from a Colorado jury’s conviction of Miguel Pena-Rodriguez for trying to sexually assault a pair of teenage sisters in the bathroom of a horse-racing track where he worked.
The Supreme Court’s 5-3 decision creates an exception to a longstanding rule limiting the second-guessing of jury verdicts for instances where a juror expresses racial bias. In the Colorado case, a juror had said he believed Pena-Rodriguez was guilty because he is Mexican.
“In this case the alleged statements by a juror were egregious and unmistakable in their reliance on racial bias,” Kennedy wrote.
While not a direct response to a particular case, the state Senate bill is the Legislature’s attempt to study California’s jury diversity to ensure defendants are tried by a panel of their peers.
San Francisco Public Defender Jeff Adachi praised the Supreme Court’s ruling, but added: “At the same time the courts have failed by not keeping demographic and ethnic information on jury panels.”
He continued, “This is a phenomenon that has been studied extensively over the past 50 years. Studies have shown that juries that are more diverse deliberate longer and more thoughtfully and that they are more sensitive to issues involving race and in cases where race is a factor in the outcome. In today’s world, particularly given the fact that people of color are overrepresented in arrest and in the criminal justice system, you really have to look at diversity of the jury effecting the outcome of the case.”
Adachi said Wiener’s bill could help ensure fair trials in San Francisco, where African-Americans are vanishing from jury panels.
“I’ve counted at least a dozen cases in 2016 where there were no [African-Americans] on a panel at all. I tried a case in December where a panel of 100 jurors were brought down and there was not one black [person] on it, and my client was black, and it resulted in a situation where you had a white and Asian jury trying to decide what it felt like to be a black man taken down at gunpoint after being falsely accused of a crime,” Adachi said.
That high-profile case centered around Michael Smith, a 23-year-old who was charged with battery of a police officer after a scuffle with Bay Area Rapid Transit police who received a false report that he was armed. A cellphone video captured the officers wrestling Smith to the ground and punching him in the head while he was pinned.
The jury acquitted Smith of four criminal counts but deadlocked on three other charges that were eventually dropped. Adachi said the jury of white and Asian citizens didn’t understand Smith’s mindset.
“Some were saying he should have complied and done what the police said. They understand the perspective of what it means to be black and have a gun pointed at you and how it makes you feel. Those kinds of attitudes, particularly when held by juries – that a person should comply, that black people are violent and have guns, that can hurt your case.”
By statute, jury pools in California are currently drawn from voter registration rolls and the Department of Motor Vehicles. Oscar Bobrow, a member of the California Public Defender Association Board, said in a statement that his association has received complaints from fellow criminal defense lawyers for decades that this method has only led to a dearth of minorities on juries.
“Requiring jury commissioners to collect demographic data of the jurors who appear for service enables California trial courts to ensure that the right to a fair trial is being protected. Without this information courts are unable to know if they are conducting fair trials and whether they should be taking additional steps to protect the fairness and integrity of our jury system,” Bobrow, who is also a chief deputy public defender in Solano County, said.
Adachi said he has long thought California well behind other states like New York, which passed a law requiring its counties to keep track of demographic information. New York also culls its jury panels from utility bills and property rolls, not just from DMV records and voter registration lists.
“They use much more comprehensive lists that are likely to capture everyone,” he said, adding: “Latinos and [black people] are far more likely to lose their licenses and not be able to serve on juries than their white counterparts. The same with who is registered to vote.”
While he acknowledged the number of black residents in San Francisco has dwindled, Adachi said they shouldn’t be completely absent from jury panels.
“You still expect to see one or two out of 100 but you have so many cases where it’s zero. That should at least cause us to investigate why,” he said.