The California Supreme Court said Wednesday it will appoint a working group to scrutinize the effectiveness of rules targeting discrimination in jury selection, an issue that has challenged and sometimes divided the seven justices in recent years.

In a statement, the court said Chief Justice Tani Cantil-Sakauye in the coming weeks will appoint "a diverse work group" of judges, prosecutors, defense counsel and other lawyers to consider possible changes to jury instructions and peremptory challenges.

"For more than 30 years, courts have applied the legal framework set forth in Batson / Wheeler for ferreting out impermissible discrimination in the use of peremptory challenges," the court wrote. Batson refers to the U.S. Supreme Court's 1986 ruling in Batson v. Kentucky and the 1978 California Supreme Court case People v. Wheeler. Both opinions bar the dismissal of potential jurors based solely on their membership in a particular group.

"In recent years, some states have adopted or begun to consider additional measures designed to address perceived shortcomings in the practical application of the Batson framework and to better ensure that juries represent a cross-section of their communities," the California Supreme Court's statement continued. "Today we join this dialogue."

The working group announcement follows the state Supreme Court's denial of an appeal Wednesday in People v. Bryant, a case involving two African American men convicted of murder in Contra Costa County in 2017. Gary Timothy Bryant Jr. and Diallo Ray Jackson argued in their appeal that prosecutors improperly dismissed all six African American members in the jury pool.

Two of the potential jurors were dismissed for cause. The other four were the targets of peremptory challenges. During a Batson/Wheeler challenge in the trial court, the prosecutor cited reasons ranging from the past arrest of one potential juror's son to the work of another juror's daughter at the ACLU. Superior Court Judge Clare Maier denied the defendants' motions.

The First District Court of Appeal upheld Maier's rulings on the Batson/Wheeler challenge. But in a concurring opinion, Justice Jim Humes said the case pointed to "serious shortcomings with the Batson framework." The requirement that a court find "purposeful discrimination" to stop questionable peremptory challenges is difficult, he argued.

"Purposeful discrimination is especially hard to prove in the context of peremptory challenges, because attorneys can easily come up with supposedly non-biased justifications to strike potential jurors," Humes wrote. "Under California precedent, even a justification that is trivial, speculative, or objectively unreasonable suffices to disprove purposeful discrimination if it is facially neutral and the trial court credits it as being subjectively genuine."

Humes pointed to the state of Washington, where the Supreme Court in 2018 enacted a rule giving trial courts more authority to block peremptory challenges "disproportionately" aimed at a prospective juror's ethnicity, prior contacts with police or residence in a high-crime neighborhood.

"Our state should not stay on the sidelines any longer," Humes wrote. "The time has come for the Legislature, Supreme Court, and Judicial Council to consider meaningful measures to reduce actual and perceived bias in jury selection."

California's Supreme Court has wrestled with the high bar set for successful Batson/Wheeler challenges. In affirming a death penalty conviction in 2018, the majority found that while the prosecutor deserved "close scrutiny" for excusing every potential black juror her reasons for doing so were "race neutral" and "inherently plausible."

Goodwin Liu. Photo credit: Jason Doiy/ALM.

In dissent, Justice Goodwin Liu noted that the court had not found a prospective black juror improperly excused for discriminatory reasons in 30 years.

"One need not question the overall excellence and integrity of our prosecutors and trial courts in order to pause and wonder whether we have maintained the proper level of vigilance," Liu wrote.