Sacramento State Capitol building on Capitol Way. Credit: Jason Doiy/ALM

Legislation aimed at rooting out the discriminatory use of peremptory challenges in California jury selection sailed through the state Assembly on Friday without a hint of an intense debate taking place over the bill behind the scenes.

Since late May, the legislation has been the source of pointed exchanges among the Alliance of California Judges, other jurists and Assembly leaders over the role judicial officers should play in ensuring representative juries are chosen. The debate has played out as state judiciary leaders maneuver through public outrage at the death of George Floyd while in police custody and ethical canons that urge restraint in public comments.

The bill in question is AB 3070, authored by Assemblywoman Shirley Weber, D-San Diego. The measure would bar the use of peremptory challenges to remove potential jurors on the basis of race, ethnicity and gender. The bill would require attorneys trying to strike a would-be juror to show by clear and convincing evidence that their rationale is not related to the person's group identity. Appellate courts would be required to review the strikes de novo.

The bill is backed by the California Public Defenders Association and several social justice groups. The California District Attorneys Association opposes it.

Chief Justice of California Tani G. Cantil-Sakauye. (Photo: Jason Doiy/ALM)

The Judicial Council has not taken a position on AB 3070. In January, Chief Justice Tani Cantil-Sakauye, citing actions in other states, pledged to create a working group to study discrimination in jury selection. The chief justice has not yet named the group as branch leaders have been consumed with work related to the pandemic, a spokesman said. Weber said she will not wait for the chief justice to act.

On May 22, the Alliance of California Judges, an organization directed by 19 active and retired judges around the state, sent an email to fellow bench officers. The directors warned that Weber's bill is "nothing more than an attempt to 'stack' the jury with jurors who will not try the case fairly, based on the law and the facts, simply because they are members of a protected class."

The alliance is distinct from the older and larger California Judges Association. The alliance was formed during the last recession and has been a vocal critic of centralized judicial branch administration and, at times, the chief justice. The California Judges Association, which is reviewing the legislation, has not taken a public position.

The alliance's May 22 email called the bill an "insult" to experienced trial judges and a "meddling in the business of the court."

On May 26, one day after Floyd's death, Sacramento County Superior Court Judge Steve White, president of the alliance, sent Weber a less-barbed letter calling AB 3070 "unworkable."

"We know our branch's history," the letter said. "We are aware of the shameful role that discrimination has played in our justice system, particularly in jury selection. We disagree, however, with the assumption that the current system is ineffective."

California's bench has grown more diverse and judges now take coursework in recognizing implicit bias, White wrote.

"By subjecting our rulings on peremptory challenges to de novo review, denying them any deference whatsoever, this bill implies that our on-the-scene assessments of attorney credibility aren't trustworthy," the letter continued. "We deeply resent these implications."

White concluded the letter by saying he was willing to discuss the alliance's concerns with the assemblywoman.

On June 9, the Alliance received a six-page reply signed by Assembly Speaker Anthony Rendon, Weber, and the chairmen of the Judiciary and Public Safety committees, Mark Stone and Reggie Jones-Sawyer. The signatories appeared angry with the alliance's letter and the sharp words in its May 22 email to other judges.

"It requires a response, reflecting the legislative deliberation that your letter dismisses as 'meddling in the business of the court,'" the lawmakers wrote. "In attacking the legislative branch, your letter embarrasses the Alliance and even the judicial branch, in its failure to address the facts and jurisprudence regarding the use of peremptory challenges in jury selection."

The letter from lawmakers presented details of research suggesting ongoing issues related to jury selection and the exclusion of minorities. It cites the writings of U.S. Supreme Court Justice Stephen Breyer and California Supreme Court Justice Goodwin Liu, who have both questioned the use of peremptory strikes and the processes for challenging them.

"The makeup of juries provides one of the reasons that the nation lacks confidence in the justice system's fairness," the lawmakers wrote. "Protests show that our people are frustrated and angry at law enforcement and the justice system. It is our responsibility to address that frustration and anger."

A quick reply by White on June 10 said that he has asked Weber for a meeting.

"Despite our differences about the merits of AB 3070, we have a common goal: the elimination of racism and bigotry in our criminal justice system," he wrote.

An aide for Weber on Tuesday acknowledged receiving the judge's letter but said that no meeting date has been set yet.

AB 3070 is awaiting a policy committee hearing in the Senate.