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2008 Stories

California Defense Attorneys Gain Help in Preserving Fair Jury Selection


Daily Journal Commentary (.pdf)

State prosecutors seeking to exclude African-Americans or other minorities from jury selection may face a tougher task in the wake of People v. Lenix, a recent California Supreme Court decision.

The Court ruled appellate courts must perform a comparative juror analysis (CJA) to determine whether peremptory challenges of prospective jurors were based on race, gender, or other impermissible considerations. A CJA compares similarly situated jurors to decide whether the reasons offered for challenging a juror are credible or in violation of the 14th Amendment"s Equal Protection Clause.

Before, if a defense lawyer failed to include a CJA as part of the evidence supporting his objection, a reviewing court did not have to conduct this analysis on appeal. Now, even if a defense lawyer fails to make a CJA objection in trial court, California appellate courts must conduct one.

Berkeley Law Death Penalty Clinic director Elisabeth Semel joined adjunct faculty members Cliff Gardner and Larry Gibbs in filing an amicus curiae brief on behalf of the California NAACP and a group of denominational leaders. They believe the Court"s decision finally puts California in step with U.S. Supreme Court rulings on the application of Batson v. Kentucky.

"Batson is intended to protect a defendant"s right to be tried by a jury that has been selected without the taint of racial or other constitutionally prohibited bias," Semel says. "A co-equal objective is protecting the right of citizens to serve on juries."

Falling in Line with the U.S. Supreme Court

Lenix is African-American. During jury selection, the prosecutor exercised five peremptory challenges, with his last strike against the only remaining African-American prospective juror. The defense unsuccessfully argued that the strike was based on race.

On appeal, the defense counsel for the first time compared the answers of seated white jurors the prosecutor did not strike to those of the struck black juror. This practice had been approved and used by the U.S. Supreme Court in three opinions in which the Death Penalty Clinic also filed amicus curiae briefs: Miller-El v. Cockrell (2003); Miller-El v. Dretke (2005); and Snyder v. Louisiana (2008).

"It by no means guarantees that more of our state courts will find that race discrimination occurred during jury selection in more cases," says Semel. "But the ruling will require appellate courts to undertake a more thorough analysis of all the circumstances that point to the exercise of peremptory challenges based upon racial bias."

Gardner, who will team with Gibbs to teach a course on post-conviction remedies at Berkeley Law this fall, hailed the ruling and its future impact on jury selection.

"The defense community has been litigating the critical importance of comparative juror analysis since 1989," Gardner says. "For all of us that worked on Lenix, the decision is extraordinarily gratifying and represents a long-overdue return to the commitment and promise of racial equality in the jury system."

— By Andrew Cohen 8-13-08




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