Legislation Advances Allowing Sleeping, Hostile and Unintelligible Jurors

By Michele Hanisee

As a member of the public, who would you choose to serve as a juror on a serious criminal case? Jurors need to be responsible enough to get to court on time every day. They must be attentive to complex evidence. They must listen to and comprehend legal instructions from the judge. They must sit in a room together to discuss the evidence and legal instructions until they unanimously agree on a verdict. The best qualities you can hope for in a juror is that they are intelligent, congenial, cooperative, articulate, attentive and most importantly, fair.

So, would you choose as a juror someone who slept through jury selection? Would you choose a gang member whose friends have committed murders and robberies? Would you choose a person who said they think the whole criminal justice system is bogus and they would never vote guilty no matter what the evidence? Would you choose a person who understands so little English that they are unable to follow the proceedings?

Under existing law, these are all valid reasons for a prosecutor or a defense attorney to ask to have a juror excused. Some are even valid reasons for the judge to excuse the juror over the objection of an attorney. Yet Shirley Weber wants to pass a law making these reasons, and others, presumptive evidence that the attorney who excuses a juror for such a reason is acting on bias against a protected class.

When the Legislature reconvened, Senator pro-Tempore Toni Atkins implored legislators to pursue only COVID related or “essential” bills as the state tackles critical issues as the coronavirus-related crisis threatens the world’s fifth-largest economy. But with the State Capitol closed to the public, and legislators working from their homes, Shirley Weber thought this was an opportune time to introduce AB 3070 to make sure our juries are filled with unsuitable jurors.

Weber’s excuse for this absurdity is that it is necessary to prevent attorneys from excluding jurors from serving based upon their race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation. There is no question that it is both legally and morally wrong to exclude a potential juror from serving due to class bias. But excusing jurors for such bias is already prohibited and there are already legal remedies in place if a court finds an attorney is excusing jurors for an improper reason. If Weber were merely codifying existing law, there would be nothing to debate. Instead, she has included as evidence of an attorney’s bias, some of the most common and logical reasons to excuse a potential juror. Her law would make it presumed evidence of improper bias to excuse a juror who was sleeping, inattentive, had a problematic attitude or who provided unintelligent or confused answers. The language of the bill does not explain why Assemblyperson Weber associates some of these attributes with membership in a protected class.

Weber’s bill, which passed the Assembly Judiciary Committee in its first phase of the legislative process, presumes that an attorney articulating any of the rationales outlined above for kicking a juror was actually motivated by bias against a protected class. If that were not absurd enough, the bill proposes that judges may use bias when ruling on an objection by considering the race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation of the attorney making the objection.

Finally, the bill would place the onus on the party asking to excuse the juror to prove by “clear and convincing” evidence that the challenge was not motivated by bias against a protected group. The judge is then supposed to determine if an objective observe could view bias as a factor. Not would but could.

With California facing significant issues due to the COVID-19 crisis and the health of its residents in question, the Legislature’s priorities must continue to be the physical and fiscal health of its residents. Weber’s AB 3070 should be discarded as swiftly as the sleeping, potential juror, who upon being awakened informs the attorneys to go to hell and that they are not going to convict anybody of anything.

Michele Hanisee is President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.