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By William Woods

In every criminal jury trial, attorneys winnow the venire by excusing those panel members they fear will not benefit their side’s interests. With each juror excused, the other side may intone, “Objection, Wheeler/Batson,” thereby invoking the trial court’s obligation to ensure each trial is conducted with a jury representing a cross-section of California’s diverse population.

Since 1978, attorneys in California criminal trials have been forbidden to exercise peremptory challenges based on a lawyer’s belief that certain individuals are biased because they are a member of a specific racial, ethnic or religious group. (People v. Wheeler (1978) 22 Cal.3d 258, 276, citing, Ca. Const., art. 1, § 16 [right to representative trial by jury drawn from cross-section of community], overruled in part by Johnson v. California (2005) 545 U.S. 162, 168-173 [125 S.Ct. 2410, 162 L.Ed.2d 129].) In 1986, the U. S. Supreme Court followed California’s lead and held that jury challenges based on group bias violate the Equal Protection Clause of the Fourteenth Amendment. (Batson v. Kentucky (1986) 476 U.S. 79, 89 [106 S.Ct. 1712, 90 L.Ed.2d 69].) This has commonly become known as the "Wheeler/Batson" rule.

California also prohibits the use of peremptory challenges based on gender or sexual orientation. (Code of Civ. Proc., § 231.5; People v. Williams (2000) 78 Cal.App.4th 1118, 1125.) In 2000, the California Legislature statutorily adopted Wheeler, applying the anti-discrimination standard to both civil and criminal trials. (Code of Civ. Proc., § 192.) Similarly, in Edmonson v. Leesville Concrete Co. (1991) 500 U.S. 614, 630-631 [111 S.Ct. 2077; 114 L.Ed.2d 660], the U. S. Supreme Court barred peremptory challenges based on group bias in civil lawsuits in federal district court.

The focus of this article is application of the anti-bias standard to criminal jury selection in California state courts.

Who is protected?

The Wheeler/Batson process is triggered by an objection from either party, defense or prosecution, that the other side is dismissing jurors in a discriminatory manner. (Georgia v. McCollum (1992) 505 U.S. 42, 59 [120 L.Ed.2d 33, 112 S.Ct. 2348 [defense counsel]; Powers v. Ohio (1991) 499 U.S. 400, 402 [113 L.Ed.2d 411, 111 S.Ct. 1364 [prosecutor].) As well, at least one case held that a judge, without either party lodging a Wheeler/Batson objection, has the inherent power to initiate an inquiry if he or she believes an attorney is employing their peremptory challenges in a discriminatory manner. (People v. Lopez (1991) 3 Cal.App.4th Supp. 11, 15.)

For Wheeler/Batson to apply, the individual juror being dismissed must be a member of a cognizable group. Wheeler held membership in a cognizable group to be “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds…”(People v. Wheeler, supra, 22 Cal.3d at p. 276.) The impetus for the objection is that the attorney’s reason for dismissing a particular juror was his or her belief that members of a particular race, religion, ethnicity, sexual orientation or gender think alike merely because they are a member of that cognizable group. In other words, the attorney "judges" the juror by “the color of their skin [not] by the content of their character.” (Martin Luther King, I Have A Dream, (Aug. 28, 1963).)

Among the racial groups specifically recognized in case law as the subjects of potential group bias have been African Americans (Batson v. Kentucky, supra, 476 U.S. at p. 89); Hispanic Americans (People v. Trevino (1985) 39 Cal.3d 667, 684 (disapproved on other grounds in People v. Johnson (1989) 47 Cal.3d 1194, 1219-1221, but see People v. Gutierrez (2002) 28 Cal.4th 1083, 1123, [non-Hispanic with Hispanic last name, acquired through marriage is not a group member]); Asian Americans (see People v. Bell (2007) 40 Cal.4th 582, 599.); and Native Americans (Kesser v. Cambra (9th Cir. 2006) 465 F.3d 351, 368.) Similarly, cases have found it improper to dismiss prospective white male jurors based solely on their gender and race. (People v. Williams (2000) 78 Cal.App.4th 1118, 1125; People v. Willis (2002) 27 Cal.4th 811, 813-814.) While there are numerous cases involving racial groups, there are limited examples where a party was accused of dismissing a juror because of his or her ethnicity. (See, e.g. United States v. Sgro (1st Cir. 1987) 816 F.2d 30, 33 [Italian Americans].)

It is also improper to dismiss a juror because of their religious affiliation. (People v. Johnson (1989) 47 Cal. 3d 1194, 1217; People v. Schmeck (2005) 37 Cal. 4th 240, 266.) However, a juror whose religious beliefs would prevent him or her from being able to deliberate fairly, such as opposition to the death penalty, may be dismissed without violating Wheeler/Batson. (People v. Ervin (2000) 22 Cal.4th 48, 70.) Finally, jurors may not be dismissed because of gender or sexual orientation. (People v. Crittenden (1994) 9 Cal.4th 83, 115-116 [women]; People v. Williams, supra, 78 Cal.App.4th at p. 1125 [men]; People v. Garcia (2000) 77 Cal.App.4th 1269, 1281 [sexual orientation].)

The protection offered under Wheeler/Batson extends to many different groups, but is not unlimited. To be considered a "cognizable group," members must share common life experiences not possessed by others in the community, and there must be no other group which can represent their perspective on the jury panel. (Rubio v. Superior Court (1979) 24 Cal.3d 93, 98, plurality opn.) Using such a rubric, courts have rejected numerous putative groups for Wheeler/Batson consideration including: the poor (People v. Burgener (2003) 29 Cal.4th 833, 856); individuals over the age of 70 (People v. McCoy (1995) 40 Cal.App.4th 778, 783); ex-felons (People v. Karis (1988) 46 Cal.3d 612, 633-634); non-citizens (Ibid.); jury nullification advocates (Merced v. McGrath (9th Cir. 2005) 426 F.3d 1076, 1080); “people of color” (People v. Davis (2009) 46 Cal.4th 539, 583) and limited English speakers (People v. Lesara (1988) 206 Cal.App.3rd 1304, 1309).

Trial court procedure: Timely objection

If a party believes the other attorney is exercising their peremptory challenges in a discriminatory manner in a criminal trial, they must make a timely objection. “‛[I]t is necessary that a Wheeler objection be made at the earliest opportunity during the voir dire process,' and an objection first raised after the jury and alternates have been sworn is untimely.” (People v. Perez (1996) 48 Cal.App.4th 1310, 1314.) If the parties have accepted the jury panel, but while selecting alternates a Wheeler/Batson objection is made, the issue is reopened not only as to alternates but as to how the party exercised their peremptories for the seated panel members. (People v. Gore (1993) 18 Cal.App.4th 692, 703.) While either party may object, there is no requirement that the party issuing the challenge be a member of the group he is alleging is being improperly dismissed. (Powers v. Ohio, supra, 499 U.S. 400 at p. 402 [upholding white defendant’s challenge of prosecutor’s exclusion of African Americans].)

Step one: Proponent’s burden

Once the objection has been lodged the trial court engages in a three-step process. (Johnson v. California, supra, 545 U.S. at p. 168.) The first step requires the trial court to resolve whether or not the proponent has raised “a prima facie case ‘by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.’" (Ibid. [overruling prior case law requiring proponent to show a strong likelihood of invidious intent.]) It is not enough for the proponent to simply point out that an attorney has dismissed, for example, a Hispanic juror. (People v. Adanandus (2007) 157 Cal.App.4th 496, 503-505.) Instead, the Wheeler court suggested a number of factors which may raise an inference of discriminatory intent including, where a party “has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his peremptories against the group. He may also demonstrate that the jurors in question share only this one characteristic — their membership in the group — and that in all other respects they are as heterogeneous as the community as a whole.” (People v. Wheeler, supra, 22 Cal. 3d at p. 280.) Additional evidence of an invidious intent may be that the opposing party engaged the dismissed jurors in nothing “more than desultory voir dire, or indeed [failed to] ask them any questions at all.” (Id. at pp. 280-281.)

While in most cases the Wheeler/Batson objection is raised where the attorney has engaged in a pattern of dismissing group members, the dismissal of only one juror for an invidious purpose is enough. As one court held, “If a single peremptory challenge of a prospective juror in the subject cognizable group is not justified, the presumption of systematic exclusion is not rebutted.” (People v. Gonzalez (1989) 211 Cal.App.3d 1186, 1193.)

Step two: Race neutral justification

If the court finds a prima facie inference of discriminatory action, the judge then asks the lawyer to provide a justification for each challenged peremptory. In answering the trial court’s inquiry, “The justification need not support a challenge for cause, and even a ‘trivial reason,’ if genuine and neutral will suffice.” (People v. Arias (1996) 13 Cal.4th 92, 136.) “It is true that peremptories are often the subjects of instinct, [citation], and it can sometimes be hard to say what the reason is. But when illegitimate grounds like race are in issue, [an attorney] simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives.” (Miller-El v. Dretke (2005) 545 U.S. 231, 252 [125 S.Ct. 2317, 162 L.Ed.2d 196]

Since 1978 numerous reasons have been found to be a proper justification. Note: This list, while not comprehensive, includes cases where an appellate court upheld the dismissal of a juror even though the specific individual(s) were members of a cognizable group. However, no mere recitation of these reasons will protect any attorney from Wheeler/Batson if they have an invidious intent. Here are just a few those approved reasons:

• Antipathy towards prosecutor or criminal justice system. People v. Mayfield (1997) 14 Cal.4th 668, 724 [juror “expressed some suspicion of prosecutors in general, and … appeared to lack confidence in the ability of the judicial system to ‛convict the right people.’"]
• Bad feelings towards law enforcement. People v. Johnson (1989) 47 Cal.3d 1194, 1217 [“Ms. S.'s ex-husband was a policeman, and she seemed to be prejudiced against policemen.”]
• Family member with criminal conviction. People v. Cummings (1993) 4 Cal.4th 1233, 1282 [juror’s “brother had been convicted of a crime and may have been prosecuted by another deputy [district attorney] in the same office.”]
• Juror’s occupation. People v. Semien (2008) 162 Cal.App.4th 701, 708 [attorney’s dismissal of African American minister was upheld because he believed pastor was in “business of forgiveness” and would not vote guilty despite juror’s assurance to the contrary]
• Hostile looks. People v. Gutierrez, (2002) 28 Cal.4th 1083, 1125 [attorney indicated juror “had given him looks that made him uncomfortable.”]
• Hunches. People v. Hall (1983) 35 Cal.3d 161, 170 [attorneys “may act freely on the basis of ‘hunches,’ unless and until these acts create a prima facie case of group bias, and even then he [or she] may rebut the inference.”]
• Manner of dress. People v. Barber (1988) 200 Cal.App.3d 378, 396 [proper to excuse juror whose “clothes or hair length suggest an unconventional lifestyle.’"]
• Previous service on hung jury. People v. Farnam (2002) 28 Cal.4th 107, 135 [previous service on hung jury “‛constitutes a legitimate concern for the prosecution, which seeks a jury that can reach a unanimous verdict….’”].

Step three: Court ruling

Following the attorney’s explanation, the trial court must decide if the proffered reasons are true or merely a pretext (a lie) cloaking an invidious intent. Of course, lying to the trial court would be a clear violation of Rule of Professional Conduct, Rule 5-200(B), which bars an attorney from seeking to “mislead” a judge or judicial officer by any “false statement of fact...” (See also, Bus. &Prof. Code, § 6068, subd. (d).)

In making this decision, the best evidence of whether a race-neutral reason should be believed is often “‛the demeanor of the attorney who exercises the challenge,’ and an ‛evaluation of the [attorney’s] state of mind based on demeanor and credibility...’” (Hernandez v. New York (1991) 500 U.S. 352, 365 [114 L.Ed.2d 395, 111 S.Ct. 1859].) To evaluate the proffered reasons, a trial or appellate court may engage in comparative analysis in which the judge considers a number of factors to evaluate the veracity of the attorney’s stated reason for exercising a peremptory challenge compared to a number of other factors. (Miller-El v. Dretke (2005) 545 U.S. 231[125 S.Ct. 2317, 162 L.Ed.2d 196].)

For example, did the prosecutor, as the one in Miller-El, dismiss 10 African American jurors out of the 11 challenges he used? As the Supreme Court observed, “Happenstance is unlikely to produce this disparity.” (Id. at p. 241.)

The trial court can also compare the dismissed juror against similar jurors not a member of the cognizable group, whom the lawyer did not dismiss. (Ibid.) For example, if an attorney explained that he dismissed an Asian-American teacher because of her occupation, the lawyer needs to have a good explanation for retaining a similar non-Asian-American teacher on the panel. The judge can also consider whether or not the attorney failed to fully question the juror he or she now seeks to dismiss. (Id. at p. 246.)

Trial court remedies for invidious discrimination

If the trial court concludes a juror has been improperly dismissed, it has a number of remedies, including dismissing the panel and commencing jury selection again with a completely new venire. (People v. Wheeler, supra, 22 Cal.3d at p. 282.) Alternatively, if the moving party agrees, the trial court can order the improperly dismissed juror reseated if they are able to serve. (People v. Willis, supra,, 27 Cal.4th p. 811.) Additionally, if the judge warned the attorneys before starting jury selection to comply with Wheeler/Batson, he or she can also impose monetary sanctions. (People v. Muhammad (2003) 108 Cal.App.4th 313, 324-325.) The trial court may as well give the aggrieved party additional peremptory challenges. (People v. Willis, supra, 27 Cal.4th at p. 821.)

Attorneys have the responsibility to uphold the law. Business and Professions Code section 6068 subdivision (a) specifically mandates that lawyers “support the Constitution and the laws of the United States and of this state.” A lawyer’s use of peremptory challenges for an invidious reason fails to support the law and is arguably a violation of these rules. If the trial court imposes a sanction over $1,000, the attorney must report him/herself to the State Bar. (Bus. & Prof. Code, § 6068, subd. (o).) If the case itself is reversed by an appellate court for a Wheeler/Batson violation, certain State Bar prosecutors consider that to be a self-reportable offense as well. (Ibid.)

William Woods is the assistant head deputy of the Los Angeles County District Attorney’s Training Division and the chairman of the department’s Professional Responsibility Committee. He lectures frequently to both prosecutors and law enforcement officers across California about ethics issues. He is a former member of the State Bar of California's Standing Committee on Professional Responsibility and Conduct (COPRAC). This article appears in the California Bar Journal as part of COPRAC’s outreach and educational efforts. For more information on COPRAC go to calbar.ca.gov/ethics. The views expressed in this article are his alone and not those of the Los Angeles County District Attorney, or of the State Bar of California or COPRAC.