San Francisco Chronicle - (Sunday)
Public defender strives to fix juries’ racial bias
Brendon Woods started banging the drum for jury reform in 2018.
That was the year Alameda County’s first Black public defender spoke out against a Superior Court effort that would force residents to appear for jury duty at any courthouse in the county rather than the one closest to them. Woods said this would make jury participation harder for lowincome Black and brown residents who rely on public transportation. He won that argument. The proposed change never took effect.
But Woods didn’t stop there. The 50yearold New York native recognized that the legacy of racial dis
parity in America’s justice system extends to the often hidden way in which courts choose and exclude a jury of our supposed peers.
“The dominant society aren’t the ones being targeted by police, suffering from mass incarceration, they’re not suffering the same way as Black people,” he told me. “This is why we have to make sure the ones who can and want to serve on juries aren’t being excluded.”
The problem boils down to peremptory challenges, the method attorneys use to exclude someone from a jury without having to say why. The history of peremptory challenges dates back hundreds of years ago to England. In the U.S., researchers say prosecutors disproportionately use them to keep people of color off juries. Efforts to address this have been failing for more than 40 years.
This is reflected in a June 2020 study by UC Berkeley law Professor Elisabeth Semel, the Berkeley Death Penalty Clinic, and other faculty and students. “Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors” analyzed 683 cases in which California courts of appeal heard objections to peremptory challenges from 2006 to 2018. The analysis found that in these challenged cases, prosecutors tried to remove Black jurors nearly 75% of the time and Latinx jurors roughly 28% of the time. For potential white jurors, this happened in less than 1% of challenged cases.
Both the California Supreme Court in 1978 and the U.S. Supreme Court in 1986 issued rulings against using race as the sole reason to strike a prospective juror. But those landmark decisions didn’t stop prosecutors from coding racial stereotypes to keep people of color off juries, according to the UC Berkeley study.
In one of the study’s examples, a Sacramento County prosecutor struck a Black man from a jury for his hairstyle, attributing his decision to how “dreadlocks are somewhat associated with a Reggae culture ... (that) promotes drug use.”
In 2012, a research article in the Quarterly Journal of Economics showed the connection between jury discrimination and high incarceration rates for Black men in Florida. In “The Impact of Jury Race in Criminal Trials,” economists considered felony trial verdicts over a 10year period and found that Florida juries without a Black member were significantly more likely to convict Black defendants than white defendants. As the number of Black jurors increased, the conviction rates for Black and white defendants became almost even.
California took a significant step last year to make it harder to discriminate against prospective jurors based on stereotypes and economic status. SB3070, which will take effect in January 2022, blocks peremptory challenges for a long list of reasons, including how a prospective juror dresses, what neighborhood they live in, if they express distrust of law enforcement, speak another language, have a child outside of marriage or receive benefits from the state.
Written by Shirley Weber, who left the state Assembly to become California’s first Black secretary of state this year, the legislation gets closer to ensuring an individual’s right to a jury of actual peers.
But the state needs to do more. Jurors in California receive only $15 a day for their service. For lowincome residents who live paycheck to paycheck and have to take off work to perform their civic duty, this isn’t close to enough. If we truly want a broad crosssection of citizens to participate, jury compensation needs to match the state’s minimum wage.
Woods could lead this effort.
Two years after being named Alameda County’s public defender in 2012, he led a Black Lives Matter rally calling for police accountability on the steps of the René C. Davidson Courthouse in Oakland. Two years after that, he publicly criticized a problemriddled Alameda Superior Court case management that turned misdemeanors into felonies and resulted in mistaken sex offender statuses, the East Bay Times reported in 2016. In 2017, Woods was again on the steps of the Oakland courthouse, this time kneeling to protest police brutality. And after opposing Alameda Superior Court’s proposed changes to jury service in 2018, Woods became a vocal champion for Weber’s bill.
During a recent phone conversation, Woods and I connected over shared experiences being racially profiled by police. He called America’s criminal justice system “broken” and described its jury selection process as “bulls—.”
The Constitution promises every defendant a trial by an “impartial jury.” We need public servants like Woods to keep the system honest — and call B.S. when it fails.