In 1986, the U.S. Supreme Court ruled that racial discrimination in jury selection was unconstitutional, and ever since, prosecutors and defense attorneys have been required to provide a "race-neutral" reason when accused of striking jurors unfairly.

But concerns over the efficacy of that ruling in Batson v. Kentucky are spurring some state high courts to examine possible ways to strengthen protections against jury selection bias. The Connecticut Supreme Court called for a task force investigation in a Dec. 24 opinion, and last week, the California Supreme Court followed suit in announcing its own plan to create a work group on the issue.

"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 court said in a statement Tuesday. "Today we join this dialogue with the creation of the California Jury Selection Work Group."

Mark Bennett, a retired federal judge who teaches at Drake University Law School and is the director of the Institute for Justice Reform & Innovation, told Law360 that California's work group could give momentum to a movement that began when Washington state modified its rules for jury selection in 2018.

"I suspect that these efforts will continue and that a lot more states will follow suit — especially since it's a big state like California," Bennett said.

He added that the problem California seeks to address is not unique to any one state court system.

"In 24 years as a federal district court judge, I had primarily minority defendants," he said. "But across hundreds of jury trials, I recall less than a single handful of people of color serving on the juries."

The California Supreme Court announcement came the same day it refused to take up an appeal involving alleged jury discrimination in the case of two African American men convicted of murder in 2017.

The defendants had argued that prosecutors illegitimately dismissed all six black potential jurors, including four through peremptory strikes. When challenged at trial, prosecutors relied on reasons like the past arrest of one potential juror's child and the fact that another potential juror had a daughter who'd worked at the American Civil Liberties Union.

An appellate court ultimately upheld the trial judge's decision to allow the strikes. But in a concurring opinion, Justice Jim Humes of the First Appellate District said the case highlighted "serious shortcomings with the Batson framework" — especially the "purposeful discrimination" standard required to stop questionable peremptory challenges.

In announcing the work group, the state high court identified that standard as something worth investigation.

"Does a purposeful discrimination standard impose an appropriate burden on litigants who attempt to show that a peremptory challenge was motivated by improper considerations or on advocates called upon to explain the basis for their peremptory challenges?" the court wrote in its list of questions for the group. "What are the pros and cons of possible alternatives?"

According to research by Thomas Ward Frampton, a Harvard Law School lecturer, every published study on Batson's efficacy has found that, despite its requirements, "prosecutors disproportionately use peremptory strikes to exclude black jurors."

Part of the difficulty in enforcing Batson's protections, according to Bennett, are the dynamics at play in a Batson challenge, especially in small communities where the same judges and prosecutors work together every day.

"The prosecutor gives an alleged nondiscriminatory reason, and then the judge has to say, 'Well, I don't believe you,'" he said. "That's a hard thing to ask a judge to do."

The issue of jury selection bias recently reached the U.S. Supreme Court in a case involving Curtis Flowers, a Mississippi man who was tried six times by the same prosecutor over a gruesome quadruple homicide that occurred in 1996.

In a 7-2 opinion penned by Justice Brett Kavanaugh, the court's majority held in June that the prosecutor, Doug Evans, had relentlessly targeted 41 out of 42 prospective African American jurors with peremptory strikes over the course of the six trials.

While the Mississippi Supreme Court had previously reversed one of Flowers' convictions for prosecutorial misconduct and another for discriminatory jury strikes, it had found that Evans relied on sufficiently race-neutral reasons for striking black jurors in Flowers' sixth trial, which resulted in a death sentence.

In overturning that ruling, Justice Kavanaugh noted that Evans used "dramatically disparate questioning and investigation of black prospective jurors and white prospective jurors," which he said "strongly suggest[s] that the state was motivated in substantial part by a discriminatory intent."

In the wake of the Flowers ruling, some experts lamented a lost opportunity to strengthen protections against race-based jury selection at the federal level. The U.S. Supreme Court's unwillingness to build on Batson jurisprudence, however, highlights the relative boldness of state-level innovations.

Washington state, for example, convened a task force and in 2018 enacted a rule that gives trial judges more authority to block peremptory challenges that seem "disproportionately" aimed at a juror's ethnicity, contact with police or residence. The standard for justification was raised to require that "an objective observer would conclude that race and ethnicity was not a factor."

Whether California will follow suit — and when — remains to be seen. The state high court's announcement did not give a firm timeline for the group's recommendations, saying only that Chief Justice Tani G. Cantil-Sakauye will appoint a diverse group of members "in the coming weeks" to begin studying the issue.

--Editing by Aaron Pelc.

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