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Welcome to Al's Corner - "Pouring Gasoline on the Dumpster Fire of Davis Politics" - Volume #5

Bias in jury selection in Yolo County Court

JusticeBy Roberta Millstein

What makes a juror too biased to serve on a case? 

Recently, I was called for jury duty selection for case that involved repeated sexual assault on a person who was a minor at the time.  I was not selected; the prosecuting attorney used one of his peremptory challenges to dismiss me.  I’m OK with that – the trial would have been weeks long – although I do, in an idle curiosity sort of way, wonder about the reasons.  My friends insist it is because I have a PhD (apparently many of my fellow PhDs have been dismissed from juries), but I’d also note that the prosecuting attorney seemed very concerned about having people on the jury who were not in favor of the district attorney, who was on the ballot for re-election.

But it wasn’t the prosecuting attorney’s dismissal of me that I found troubling.  Instead, it was process, largely led by the defense attorney and, if I understand correctly, allowed by the judge, for dismissing people “for cause.”

I know at least some of what I say here will be controversial and perhaps heretical.  It won’t be as well-organized as I’d like because I am still thinking through some things.  But perhaps the reader will think through things with me.

The defense attorney’s questioning of potential jury members was very haphazard.  He asked what was ostensively the same question in different ways, to the point where they seemed like different questions, although I don’t think that was his intent.  Some people were queried more intensively than others.  And it seemed to me that women were queried more intensively than men.

That was bad enough, but as the process went on, it became apparent that anyone who had experienced sexual assault or who had someone close to them who had been sexually assaulted was being dismissed for cause on the grounds of “bias.”  Since something like 1 in 4 women have been sexually assaulted, this was quite disturbing.  A lot of people were being dismissed.  (Of course, some people are going to find it too painful to serve, and those people were rightly dismissed – but the dismissals were going beyond that).

The defense attorney also seemed very concerned with finding jurors who were rule followers – not just that they could follow rules, but that they did follow rules.  People who said things like “rules are there for a reason – I just follow them and don’t question them” were A-OK with the defense attorney.  People who might think to question rules or act on their own ethical beliefs were dismissed for cause.

So, following that process to the end, we are left with a rule-following jury of people who had neither experienced sexual assault or had anyone close to them who had been sexually assaulted.  Also excluded were people who tended to believe women who say that they have been sexually assaulted.  Is that a fair representation of the population?  Is a jury like that going to come to a fairer conclusion?  With all due respect to the people who were selected (and I didn’t stick it out to the end to see who was selected), I think you’re going to end up with a rather odd jury.

People who have been sexually assaulted or who are close to someone who has been sexually assaulted have direct relevant experience in such trial concerning sexual assault and should not be dismissed for “bias.”  People who think for themselves and who know that rules are only as good as the people who make them should not be dismissed for “bias.”

I think we need to rethink what constitutes “bias” in jury selection, at least for cases of sexual assault but maybe more generally.  I think a jury that is going to be that unrepresentative of the population is not, in fact, unbiased.  I think we should move to having larger juries with far fewer dismissals for cause – in other words, seek to have more juries that have a more accurate representation of the population. 

Here are my more controversial thoughts:

I know that we have, for good reasons, a system where a person is believed innocent until proven guilty.  But if, as statistics show, only something like 5% of women lie about being sexually assaulted, should the default assumption be that the accused is innocent?  I think there is something problematic in that assumption: it is statistically inaccurate. 

Of course, the jury should hear the evidence and weigh the evidence, and be open to the idea that the accused is innocent. But should the apparent victim’s testimony be given more weight in cases of sexual assault?  Consider that when women do come forward, they typically find their personal lives under a microscope and suffer personal attacks that can severely damage their careers and futures.  How many women are going to do something like that lightly? 

I left the courtroom relieved not to have been selected but with serious concerns about the way that sexual assault cases are being adjudicated.


Ron O

I would guess that the percentage of people who "lie" about being the victim of any other crime are (also) quite low.

And that those people are excused from juries involving similar cases, as well.

Don't know if it's "with bias".

But you're right, that the result is not an accurate representation of the population. (For that matter, the people who are called for, or show up for jury duty are not an accurate representation.)

Greg Rowe

Based on what you witnessed and heard, I think you had valid reasons to be concerned.

I was recently called for a murder trial at Yolo County Superior Court, and was both surprised and alarmed that virtually no one was wearing a mask. I'm in the potentially comprised age group (71), had the COVID booster last August 2. As a participant in the Pfizer booster trial, informed the judge that I am not supposed to get a 2nd booster until July. The judge then somewhat unpleasantly asked me why I waited until jury selection to raise that point. (I had tried to ask the clerk's office about it the previous week, but was advised to wait until I saw the judge.). He then asked if I would feel more comfortable if the court gave me 2 masks to wear and seated me away from other jurors, and I responded that it would not.

I was fortunately ultimately dismissed by the defendant's attorney, but given the close quarters of courtrooms and jury deliberation rooms, I am disappointed that the court is not following better COVID protection procedures.

Helen Roland

Thanks for the post but I am not sure I am reading it correctly. From your description it almost sounds like the defense attorney was doing the work of a prosecuting attorney. Either way you raise valid points.

Roberta L. Millstein

Ron, interesting. I think you might be right about that.

Greg, yes, that's another good point. I'd say maybe 20% of us were wearing masks. I wore an N95 and otherwise did my best to keep my distance from others, but since we are legally required to be there and are not there by choice, they should require masks (or do more of this stuff over Zoom).

Helen, well, the defense attorney didn't want people who would be "biased" against his client if they were predisposed to believe victims over those accused of sexual assault. The rule following thing was presumably because he was going to use some sort of technicality to get his client off. But I don't know enough about trials to say.

Nora Oldwin

Jury selection is so complicated; there are so many factors to consider when defending (I can only speak to defense since I was never a prosecutor, just worked with them in defense attorney mode-) For instance, I just researched one point Roberta raised and got this interesting hit (and can provide the source if anyone wants to know it)

"Jurors do not report to jury duty as a “tabula rosa” or blank slate. They filter information through their own life experiences, paradigms and prior knowledge. An important caveat to note is that prior “knowledge” can be factually incorrect. For example, everyone “knows” that bigger lumps in breast tissue are more dangerous than small lumps. In fact, this is completely false. A lump can be sizable but benign while smaller lumps are dangerous. When presented with conflicting evidence, jurors rely on what they “know to be true” to make decisions. Lawyers must be aware of such common beliefs in order to properly dispel them or use it to their advantage."

So, this idea of what a potential juror "knows" is very important- and in sexual assault cases you can see how that could play out, in terms of what jurors tell each other about how things "really" are . not just what happened, or was explained, or contested, in the courtroom. . . and while statistics provide an important addition to the overall points raised in Roberta's article, this question of how "truths" are processed has valuable information, I think. My two cents.

Roberta L. Millstein

Thanks, Nora, I was hoping you might weigh in on this.

I agree 100% that we are not blank slates. But that goes for people who have experienced sexual assault (directly or indirectly) as well as those who haven't. When you eliminate the former from the jury but not the latter, I think you end up with a skewed jury. That's one of the things I was trying to get at, anyway.

But it is a complicated issue, there is no doubt about that.

Karen Cohen

Roberta, as someone who has been on a jury twice and as someone who carefully watched the spectacle of the OJ Simpson trial, I believe the jury system is absurd and needs to go. So they put together a jury of 12 based on the attorneys' beliefs that those selected, who know little if any of the law pertaining to the case, will correctly determine whether the defendant is guilty or not guilty. Be glad you did not have to sit there for days and then decide, based on the performance of the attorneys and witnesses, whether the defendant was guilty or not. The jury system is broken. The criminal justice system needs to be revamped. I compare the jury system to asking someone on the street to listen to your heartbeat and make a determination about your cardiac health.

Roberta L. Millstein

Karen, the jury system does seem fundamentally broken, but I don't know what I'd replace it with, which is why I propose fixing it -- adding more jurors, allowing far fewer dismissals. I don't think having one judge decide is a good solution. I suppose professional jurors is another option.

Alan C. Miller

The criteria may seem wrong, but the attorney's do what they believe will work for their client in an adversarial system. It has nothing to do with 'ethics' or 'politically correct'.

Greg Rowe comment should be an article in itself. I know a few older persons called recently for jury duty, and not comfortable with it. Not sure what they are thinking.

Roberta L. Millstein

Alan, yes, of course, attorneys do what they think is in the best interests of their clients. But this is about what we the people think the system should be. It seems to me that the system can be better. I do wonder if all judges are so lenient in allowing so many dismissals "for cause" (assuming that I am correct that it is the judge who is allowing that).

Dan Cornford

There is much I could say about the jury system, and much negative, but in answer to Roberta’s question, “What could replace the jury system?”: No Scandinavian country now has a jury system, and does anyone really think that their system is less just than ours or the UKs (where we got the system from)? That’s also true of other European countries to an extent who have limited, or no jury system. I also found this in a quick Google search: “Only the United States makes routine use of jury trials in a wide variety of non-criminal cases.”

No time to read it, but apparently Norway abolished the jury system in 2019. It would be interesting to know why and what it was replaced with.

One final point: I know from my own previous research that well over 20 million Californians receive a call for jury duty ANNUALLY. Absurd, even if many do not have to show up, or, much more likely the vast majority ignore their summons despite the legal risk. But who has the time to go after them. Finally, I found the Yolo County Court system very reluctant to excuse someone from jury duty on hardship grounds.

I am unequivocally in favor of getting rid of the jury system on many grounds!

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