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.
About the author: 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.
4 comments for "Op-ed: Legislation advances allowing sleeping, hostile and unintelligible jurors"
surfside 6 says
The best thing about California leftists if you never have to wonder who they are.
Nancy Haydt, J.D. says
D.D.A. Hanisee refers to Assembly Bill 3070 as a bill that will allow “sleeping, hostile and unintelligible” citizens to serve as jurors in a jury trial. AB 3070 says nothing of the sort.
Simply, AB 3070 protects your right to serve as a juror regardless of your race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation. The proposed bill won’t grant a jury pass to sleeping jurors, intoxicated jurors, or jurors who otherwise are unsuited to serve.
What AB 3070 requires is that a lawyer – prosecutor or defense attorney – not exclude you as a juror simply because of your race, gender, gender identity, orientation, national origin, or religion. If a lawyer doesn’t like something about you and doesn’t feel that you can be fair, AB 3070 requires that lawyer to explain to a judge what they don’t like about you and why they think you’re not suited for jury duty.
If you can listen to evidence and follow the law, you have a right to be a juror. Whether you are African American, of Mexican descent, have gang tattoos, are Muslim, or LGBT, if you are a citizen, you have a right to serve as a juror. Even if you look like you’re sleeping, even if your grandmother was a burglar, even if you come from a part of town that the district attorney has never visited, even if English is your second language, if you are a citizen, you have a right to serve on a jury. AB 3070 simply requires the prosecutor or defense attorney to explain to the judge why he or she thinks that you cannot be fair.
Why would an ethical attorney want to hide why he or she doesn’t believe that you are suitable for jury duty?
Don’t be fooled by Ms. Hanissee. If her interpretation of proposed legislation is so wrong, her reading of your potential as a juror will be wrong too.
If Ms. Hanisee had it her way, all her jurors would look just District Attorneys. And most of us would never see a jury box.
To Clarify says
Quote: “Why would an ethical attorney want to hide why he or she doesn’t believe that you are suitable for jury duty?”
“Ethical attorney”? Where can we find one of those? That is like saying “Proffessor Monkey”, or “Prodigy Jackass”… No pun intended.
But seriously, according to you, this new bill has nothing to do with sleeping, inattentive jurors, or jutors who are otherwise unsuitable to serve. (And no one has mentioned “intoxicated” jurors until you did).
Well, when in doubt, check the source
And accordingly, here is a link to the text of AB3070. http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB3070
As of today’s date, the author of this bill proposes adding code section 231.7 California Code Of Civil Procedure, which states in part:
Quoting from the link above:
Subsection (e) of the proposed CCP code section 231.7 states the following:
(e) A peremptory challenge for any of the following reasons is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that the rationale is unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation:
(13) The prospective juror was sleeping, inattentive, or staring or failing to make eye contact, and no reasonable notice was provided to remedy the behavior.
(14) The prospective juror exhibited either a lack of rapport or problematic attitude, body language, or demeanor, and no reasonable notice was provided to remedy the behavior.
(15) The prospective juror provided unintelligent or confused answers, and no reasonable notice was provided to remedy the behavior.”
And so similar to what Ms. Handset stated in her article, “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”. End quote.
As I see it, Ms Hanisee is suggesting that if this bill passes and becomes law, the burden placed on the party seeking the dismissal of a particular (sleepy) juror is too high, whereas IF a juror was caught sleeping (as one example) by the party seeking to dismiss him/her, more often than not, that challenge to that particular juror cannot be easily proven to be non-discriminatory (not based on a protected class). Which might lead to having many sleeping, inattentive, uncooperative jurors impacting many trials if this law were to pass!
I highly agree! Why would she even think to create such a bill? Is she trying to sabotage the system? If it ain’t broke, don’t fix it!