Opinion: California must do more to ensure defendants get a jury of peers

A San Diego man accused of murder went on trial earlier this year. After closing arguments, the jurors — myself included — re-examined hundreds of photos of exhibits and re-listened to hours of testimony before finding him guilty. 

Before we left the jury room, we dropped our anonymity and shared a little bit about ourselves. 

Some jurors were business owners or managers. One was a nurse. Two of us worked in news media. There was an interior decorator, an accountant, a researcher, a computer analyst. 

Almost everyone had attended or graduated college. White people made up half the jury panel.

The defendant, a Latino man, had the equivalent of a high school education and had long been unemployed. He denied killing the victim.

We considered him innocent, until the evidence proved him guilty. Yet as I left the courthouse, I couldn’t shake a nagging question: Were we really a jury of his peers? 

That’s a germane question now, because California lawmakers and the governor just killed a program that was supposed to help diversify jury pools. 

Courts have long interpreted the “jury of peers” standard to mean a jury “of equals,” taken randomly from “a broad spectrum of the population, particularly of race, national origin and gender,” according to Law.com.

But while about 9 out of 10 defendants are too poor to afford lawyers, most jurors aren’t in that low of an income bracket. And for decades, prosecutors have used peremptory challenges — challenges that don’t need a cause — to manipulate the makeup of juries. 

Public defenders say this forces even innocent clients to take plea bargains, rather than face a jury that doesn’t look like them. That isn’t justice.

Yet the state is backing away from a common sense strategy to fix that. 

Gov. Gavin Newsom recently axed $27.5 million from the state budget that funded a two-year pilot program paying $100 a day to jurors serving in Alameda, El Dorado, Fresno, Imperial, Monterey, San Bernardino and Shasta counties. 

The seven counties were part of a study. Supporters hoped higher juror pay would spread throughout California, but lawmakers haven’t put a penny toward it in next year’s budget. 

California courts currently pay jurors $15 a day. The idea behind the experimental raise was to test whether better pay leads to more racially and economically diverse juries.

It could have made a difference in the jury I was a part of. 

For that trial, the judge called a jury pool of nearly 110 people. He explained it takes that many people and two days to select 12 jurors and four alternates for a murder case expected to last several weeks. 

Some prospective jurors won’t serve because of “undue hardship,” he said; too many employers refuse to pay workers on jury duty. California law says employers can’t fire workers serving on juries, but it doesn’t make employers pay them. 

That’s why California consistently fills juries with retirees or people who work white-collar jobs or who can afford to go without pay. 

Add to that a juror’s expenses. In San Diego, jurors paid $25 to $40 a day to park and for lunch paid about $20 at nearby restaurants. 

People in my jury pool described real financial hardship. One man told the judge he’d been unemployed for months. A woman complained she couldn’t afford several weeks of child care. 

Neither were picked for the jury.

Besides finances, life experiences can be factors in shaping a jury. In this trial, the jury candidates took a 75-question survey. Some questions made me suspect I might be disqualified. 

I answered “yes” to a question about whether anyone in my family had been arrested. When my brother was a preteen, he got caught entering an abandoned factory. He took a plea deal and stayed out of jail, but knowing how few Black boys got breaks, I was terrified for him, I wrote.

While scribbling answers I wondered how many other juror candidates had similar responses. Would this make us unsuitable? 

After reading questionnaires, the judge interrogated us. About a dozen people — including several White people — told the judge they were not confident a person of color could get a fair shake in court. 

A woman next to me whispered that some of those people thought that view might get them out of jury duty. 

When the judge grilled me, he asked if I thought my brother was treated fairly by the court. I told him that since my brother didn’t have to serve jail time, maybe he was.

I guess my answer was acceptable. I was the last juror selected.

The right to a jury trial is so vital that it’s spelled out in the Constitution and the Bill of Rights. California should make it easier for jurors to serve, especially those who come from the world the defendant lives in.

If it costs California $27 million to strive for that in seven counties, it’s worth it.

Amos is the California Voices deputy editor at CalMatters, where a longer version of this essay first appeared. The former watchdog and accountability editor at The San Diego Union-Tribune is a San Diego resident.