It's unconstitutional to prevent someone from serving on a jury based on their race, but a recent report examining jury selection in California found that Black and Latinx jurors are dramatically more likely to be struck from a jury by prosecutors.

In analyzing more than 700 cases, researchers at Berkeley Law found that prosecutors struck a Black juror using a peremptory challenge — a type of challenge that allows prosecutors to challenge a certain number of jurors without stating a reason — in over 70% of cases, and a Latinx juror in about 28% of cases.

Potential white jurors, meanwhile, were only challenged by prosecutors using peremptory challenges in 0.5% of cases.

Professor Elisabeth Semel, the Director of Berkeley Law's Death Penalty Clinic and an author of the report, told Law360 that the statistics are somewhat skewed by the fact that the researchers could only get reliable data from appellate cases in which a peremptory challenge was being appealed, but that the dramatic difference makes it clear that racial disparities in jury selection are still a major problem.

"In some ways, you could say that this is surprising, but it's only surprising if you haven't been immersed in this as long as I have, if you haven't looked at studies that have been done in other states," Semel said. "The most unsurprising and disheartening part of this report is how similar its findings are to other reports."

The exclusion of Black and Latinx jurors can make a huge difference in case outcomes, particularly for defendants of color. Previous research has found that all-white juries are much more likely to convict such defendants.

For instance, a study out of Duke University in 2012 found that all-white juries in Florida convicted Black defendants 16% more often than such juries convicted white defendants. A 2006 study at Stanford using mock juries in which participants watched a recorded trial of a Black defendant found that racially diverse juries were less likely to presume guilt than all white juries, even before jurors started deliberating.

Despite the fact that prosecutors have been legally barred from using race as a basis for a peremptory challenge since the 1986 case Batson v. Kentucky , Semel explained that unless a prosecutor outright admits to being racially biased, the challenge will often stand.

The report, which examined California appellate cases between 2006 and 2018, found that when questioned about their motivations for striking Black and Latinx jurors, prosecutors often cite reasons that correlate to race, even if they are not explicitly racist.

For instance, the report found, prosecutors successfully defended peremptory challenges against Black jurors because a juror had dreadlocks or wore "blinged out" clothes. Latinx jurors had been successfully struck because of large earrings or negative experiences with Border Patrol, the report said.

In looking at prosecutor training manuals used in different California jurisdictions, researchers also found that prosecutors are often instructed to screen jurors for criteria that correlate to race.

For instance, prosecutors are advised to look for jurors who are middle-class and educated, categories that are disproportionately white, the report said. Prosecutors are also advised to screen out jurors who have had negative experiences with law enforcement, according to the report, experiences that are far more common among Black and Latinx communities.

Manuals also advised prosecutors to rely on gut instincts, which the report argued opened the door for implicit racial bias to run rampant.

The Association of Deputy District Attorneys has criticized the findings in the report, pointing out that looking only at appellate data does not tell the full story on peremptory challenges. Among other criticisms, the ADDA said that the appellate cases relevant to the study accounted for less than 1% of jury trials conducted in the state of California over that 12 year time frame, and that in most cases appellate courts upheld the prosecutors' challenge. 

"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," the ADDA said in a statement.

Semel, however, argued that the courts have not done enough to screen for racial bias and that it is time for the state of California to go beyond the bare minimum standards the Supreme Court established in the Batson case. She said that the research in this report was in fact inspired by talk of reform in the state.

"A group of us began to think about legislation ... and in considering that, it occurred to me that there needed to be very powerful evidence to support the need for change," she said. "I could say, as a lawyer, that all one has to do is read the cases and it's very obvious we need a change, but in dealing with the Legislature and in dealing with public opinion, it seemed that digging more deeply is warranted."

Semel pointed to a reform bill that recently passed the state Legislature that would modify the procedure for objecting to a peremptory challenges and declare certain rationales for peremptory challenges "presumed to be invalid."

Rather than requiring defense attorneys to prove intentional bias, the bill would lower the bar and disallow a peremptory challenge if "an objective observer could view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation as a factor" in the challenge.

Despite enjoying broad support in the Legislature, the proposal has not been universally popular. The Alliance of California Judges, which reports a membership of 700 current and former judges in the state, has formally opposed the measure, calling it a "well-intentioned" but "unworkable" solution that "would only create confusion and delay."

The judges argued in a letter to the Legislature in May that although racial bias had previously been a real problem in the judiciary, judges in the state today are not only more diverse than ever but also have the benefit of implicit bias training. The letter also argued that the protections in the bill would hopelessly bog down the jury selection process, and was unnecessary given the existing protections.

"We know bigotry when we see it," the judges wrote. "We can fight it with the tools we already have."

The alliance also characterized the bill as a lack of faith in the judiciary.

"This bill implies that our on-the-scene assessments of attorney credibility aren't trustworthy," the letter said. "We deeply resent these implications."

The reforms in the bill are not unprecedented, however. The provisions are similar to a reform measure adopted in Washington state in 2018.

"The change that took place in Washington was inspiring," Semel said. Her report recommends a similar change, along with other reforms also included in the pending California bill.

However, Semel noted, there are some things that it would be more difficult for the state Legislature to change, such as the types of training prosecutors receive and the culture in prosecutor's offices.

"It's not unlike the decades-overdue conversations about policing," Semel said. "There are cultures that are ingrained in certain institutions, and they're ingrained in prosecutorial offices as much as they are in police departments."

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

Correction: A previous version of this story incorrectly described some of the reforms in the California bill. This error has been corrected. 

Update: This story has been updated with additional context from the ADDA.