Orange County Criminal Defense Lawyer Blog

"A party may not use a peremptory challenge to remove a prospective juror on the basis of an assumption that the prospective juror is biased merely because of his or her race, color, religion, sex, national origin, sexual orientation, or similar grounds." Code of Civil Procedure Section 231.5.

If a party (represented by his or her lawyer) uses a peremptory challenge in an effort to systematically exclude a member of a recognizable group, it is error under both the California State Constitution and the United States Constitution. But, as a trial lawyer, I thought for years that I just wanted fair, impartial, open minded jurors. I thought race didn't matter if someone was "fair". I was wrong. Race matters even more than the strength of the evidence or the law given to the jury by the judge.

To date, I have tried well over one hundred and seventy five jury trials. These trials have been for almost every conceivable charge, from assault and battery, to shop lifting, to sexual assault, to burglary to even health code violations, all the way to first degree murder with special circumstances. In each of these trials the jurors swore they would view the evidence impartially, without bias for or against the Defendant, and would apply the law equally as instructed by the judge.

It has become evident that what a juror sees is influenced by the color of his or her skin. Necessarily, it's not just the color of one's skin that matters to the perceptions of the juror, but all that comes with it. While it's a gross generalization, I have found that the life experiences of a person of color make the conclusions drawn from evidence presented different from someone who has not seen the world through those eyes. If a Defendant is African-American that Defendant wants a jury that has at least some representation from his African-American community. It can and often does make a difference in the outcome of the trial.

One of the distressing facts in defending African-Americans in the Orange County Court system is the simple fact that according to the 2010 census only 1.7% of the population of Orange County is of African-American descent. How does an African-American Defendant get a jury of his peers in Orange County? The truth is, he doesn't. It's not a sinister plot to deprive such a Defendant of his right to a fair trial. There just aren't very many African-Americans who reside in Orange County. Furthermore, it's not grounds to change venue just because the population is so lacking in African-Americans.

This opinion is just my opinion. I want fair and impartial jury panels. It can and does happen. But, to the African-American Defendant who is facing trial in Orange County, who looks at the courtroom full of potential jurors and doesn't see anyone who looks like him, it can be a legitimate concern.

A Defendant has a right to have a jury of his peers decide his fate. Twelve people drawn randomly from the community who come to the courthouse and vote on the guilt or innocence of the accused. The Constitution requires the selection come from a cross-section of the population of the area served by the court.

Source lists are compiled from voter registration roles, driver's license lists, utility company lists, telephone directories, and Department of Motor Vehicles' identification card records. Generally speaking, a prospective juror has to be a citizen of the United States, live in California and be a resident of the jurisdiction in which the case is being tried. The juror cannot have a disability which would prevent him or her from judging the case, speak English well enough to understand the proceedings, not be convicted of a felony or of malfeasance in office, not be the subject of a conservatorship, and not be simultaneously serving on a grand jury.

The picking of a jury requires the attorney to decide who shall sit on the jury to decide his client's fate. The prospective jurors must assure the court that they can decide the case based solely on the law and the evidence. The lawyer looks for body language signals as well as the actual answers to the questions posed to the prospective jurors. It isn't always as obvious as a rolling of the eyes or a shrug of the shoulders. Many times it is the inflection of the voice or a shifting uncomfortably when answering the questions.

Finally, though, it's the lawyer's gut instinct which determine who stays and who goes. In a non-life sentence case the number of challenges a lawyer can make is limited to ten. That is, a lawyer can excuse a juror for no apparent reason up to ten times in most cases.

This blog is continued on Part Two.

How does a lawyer conduct jury selection? What is he looking for? Why did he kick me off the jury panel? How could he think I wouldn't be fair? Jury selection is sometimes called an inexact science at best. At worst, it's like throwing darts at a target blindfolded and hoping for the best.

As a seasoned criminal defense lawyer, I tend to think that jury selection is incredibly important. However, rather than an inexact science, I tend to think I am fighting against the notion that people will automatically side with the District Attorney just because my client scares the crap out of them.

When preparing for trial I think about what kind of a juror would be good to hear this kind of case. In a DUI for example, I want the following: licensed drivers, drivers who will have dinner a glass of wine and then drive themselves home, someone who doesn't have a religious issue with alcohol, and someone with an open mind. The open mind is last because everyone will say he has an open mind (unless he is simply doing everything possible to get out of jury service).

Of course, if one says her mind is made up, immediately the judge goes after her and questions her on how unfair that is, until no juror following the first one who tries that tactic would dare to go down the road of "my mind is made up".

But, in a gang case, who is in favor of gangs? Not even gang members are in favor of gangs (unless it's someone from their own gang). So to find a fair juror in these kinds of cases is very difficult. Someone who isn't shocked easily and who isn't easily afraid is a good juror in these cases.

When picking a juror for a gang case it is very important to find someone who isn't worried about guns, intimidation, or who thinks that all gang members are guilty of something. That is, some prospective jurors think a gang member is guilty because if he didn't do this crime he surely did others, so he is guilty regardless of the evidence. Others think that no matter how weak the case is against the gang member, if he isn't guilty of this crime, he will be guilty of something in the future so might as well get it over with now.

Finding a fair, open minded person, no matter what the race, gender, or other persuasion is the quest for the defense attorney. A juror who will truly follow the presumption of innocence is the golden juror. That juror is a very rare commodity in the gang case. However, never underestimate the power of the juror who takes on your case as his own. Find that juror in jury selection and you, the lawyer, have truly found the holy grail because your arguments will be his arguments and will lead to his not guilty verdict.