Supreme Court Warns Parties & Courts Not to Bump Jurors Based on Race or Ethnicity

In a good day for fair jury selection in the State of California, the California Supreme Court reversed a conviction in a criminal case where a prosecutor used 10 out of 16 peremptory challenges to bump Hispanics off of the jury pool.  People v. Gutierrez (June 1, 2017)  17 C.D.O.S. 5040.

This case is equally important to employment cases, where we often find that defense attorneys challenge perfectly fair jurors based on their race/national origin/gender/age and other identifying information that is similar to that of the plaintiff, and thereby deny the plaintiff in employment cases a jury of their peers.

The California Supreme Court sent a message that under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson) a trial court must seriously scrutinize the rationale and motivation presented by any side using its jury challenges to challenge a legally protected and cognizable group.  Here the court noted that 10 out of 16 challenges were used against Hispanics and 10 out of 12 Hispanics who took a seat in the jury box were challenged by the prosecutor.  The Supreme Court warned that, “excluding by peremptory challenge even a single juror on the basis of race or ethnicity is an error of Constitutional magnate”.  The Supreme Court made clear to the lower courts that it is their duty to make sure the parties do not use their peremptory challenges in a discriminatory manner, and that the court must make a “sincere and reasoned attempt to evaluate” the explanations proffered by the party bumping the jurors.

This is good news for employees and their lawyers, who often see defense lawyers bump jurors who would permit the employee to receive a fair jury by his or her peers.  Take note, the California Supreme Court is watching!

Jody LeWitter