Honorable Eugene Hyman JD ’77 had a letter published by the L.A. Daily Journal on July 17, 2020 in response to a column which discussed the “straightforward and surprising” history of prosecutorial peremptory challenge abuse resulting from the U.S. Supreme Court decision in Batson v. Kentucky, 476 U.S. 79, (1986). Read the letter (subscription required).
“A hypothetical example: A black potential juror in a police shooting case voices disgust at the killing of George Floyd and strong support for the Black Lives Matter movement. The prosecutor strikes the juror from service and the defense attorney objects. The prosecutor explains they didn’t believe the juror was telling the truth when they said they could decide the case impartially based on their body language.
Even in a post-Batson challenge California, how is a judge equipped to evaluate that? Legislators, admirably, have made efforts to address this deficiency. The recently passed Assembly Bill 242, which goes into effect next year, amends the Rules of Court to provide that the Judicial Council “may” develop implicit bias programs and that they “may provide” them to judicial officers. Given the apparent lack of definition of these program plans, I’m not confident this will supply judges with the tools necessary to identify every racially motivated peremptory abuse, let alone all of them.”
