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In Orange County, CA, Can Jurors Be Removed Simply Because of Their Race?

Can prosecutors strike minorities from a jury simply because of their race?

Since 1978 criminal attorneys in California have not been allowed to remove potential jurors from a jury simply because of their race. During voir dire, or jury selection, counsel on both sides have preemptory challenges and can remove jurors for basically any reason, from being too young, too old, too mean looking, you name it. But minorities are a protected class and a person can’t be excluded from a jury simply because of their racial profile.

But even with this so-called Batson/Wheeler protection, minorities have been getting kicked off of juries for decades. Attorneys who thought having a certain race on the jury panel would disadvantage their case would just kick them off and give other excuses, even if those excuses were flimsy. People v. Gutierrez, 2017 DJDAR 5100 (June 1, 2017), a new case from the California Supreme Court, has recently put some teeth back into Batson/Wheeler challenges.

In People v. Gutierrez a prosecutor used 10 of his 16 peremptories on Hispanics, thereby eliminating 10 of the 12 Hispanics on the panel at the time. When the prosecutor needed an excuse for striking one of the jurors the judge supplied one for him. This case went up to the California Supreme Court and the Court said enough is enough. Courts must now probe each articulated reason for striking a minority juror, decide whether the record supports it, and consider whether it applies equally to unchallenged jurors who are not part of the racial minority. Also, a judge may not improve on or supplement counsel’s rationale in striking a juror.

The Court found that because even one race-based strike violates equal protection, all three defendants in this case had their convictions reversed, including the two defendants who were convicted of premeditated attempted murder.

The make-up of your jury could have huge consequences on the outcome of your case. That is why it is crucial to make sure you have an attorney who is up-to-date on recent changes to the law and can fight for your right to a fair trial every step of the way.


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