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In Orange County, CA, Race Matters In Picking A Jury, Part Two

“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.