WASHINGTON — California prosecutors are likely to face more questions before they can exclude blacks and other racial or ethnic minorities from juries, judging from the arguments Monday before the U.S. Supreme Court.
At issue is how to enforce a 19-year-old rule that forbids using race as a reason to keep people off a jury.
Whereas most states tell judges that they should question prosecutors whenever there appears to be racial bias in the selection of jurors, California courts say prosecutors should be questioned only when there is a "strong likelihood" of racial bias at work.
A lawyer for a convicted child murderer from Contra Costa County told the justices Monday that California's rule allowed racial bias to go unchallenged and undetected.
"Here, the prosecutor struck all three black jurors and left a black defendant to be tried by a nearly all-white jury," lawyer Stephen B. Bedrick said.
Bedrick complained about the prosecutor's move during the 1998 trial, saying that there was "no apparent reason" to exclude one black woman "other than her racial identity." But the trial judge rejected the complaint and did not require the prosecutor to explain his reason for removing the potential juror during peremptory challenges.
Bedrick's client, Jay Shawn Johnson, had said that the death of his girlfriend's 18-month-old daughter was accidental, but prosecutors said he had beaten her. Johnson was convicted of second-degree murder.
When Johnson appealed, citing the jury's racial makeup, the California Supreme Court upheld the lower court proceedings, saying that Bedrick had not presented "a strong likelihood" of racial bias.
In his argument Monday, Bedrick urged the U.S. Supreme Court to rule that whenever there was "a reasonable inference of discrimination" at work, the prosecutor should be required to explain his decision to exclude a black juror. "We ask this court to bring California into the mainstream," he said.
Most of the justices said they were inclined to do just that.
"What's the big deal here?" Justice Antonin Scalia asked an attorney representing California, noting that a judge could simply ask the prosecutor to come to the bench and explain why he or she chose to strike a particular juror.
In 1986, the Supreme Court ruled in Batson vs. Kentucky that judges should challenge prosecutors to explain themselves whenever there was prima facie evidence of racial bias in the selection of a jury.
If the prosecutor has a nonracial reason -- for example, the prospective juror said he or she had a relative who was charged with a similar offense -- the judge could uphold the decision to remove that juror. If not, the judge could order the juror to be seated.
"All that is required under Batson," Justice Anthony M. Kennedy said, "is a reason to inquire," not the "strong likelihood" of bias required by the California courts.
"The question is what motivated the prosecutor," Kennedy added.
Given that all three black potential jurors were removed by the prosecutor in the Johnson case, asked Justice Sandra Day O'Connor, "isn't that enough" to demand an explanation?
California Deputy Atty. Gen. Seth Schalit defended the state court's rule. "We should not adopt the divisive assumption that everything turns on race," he said. "The state has an interest in maintaining peremptory challenges."
But he ran into skeptical questioning.
"The whole point of Batson is to explain a suspicious situation," Justice Stephen G. Breyer said. Those suspicions cannot be put to rest unless the judge asks the prosecutor to explain why he removed the black potential jurors, he said.
Only Chief Justice William H. Rehnquist took the state's side during the back-and-forth argument. He dissented in the Batson decision and has continued to argue that both sides should be given the freedom to exclude an equal number of jurors. Batson "set a very low standard" for questioning prosecutors, Rehnquist said. "Why should it be watered down more?" he asked.
For decades, it has been unconstitutional to exclude someone from a jury because of his or her race or ethnic heritage. But enforcing that antidiscrimination rule has not been easy.
Dozens of people in the jury pool may be questioned and considered before a panel of 12 is seated.
Typically, a few potential jurors are dismissed "for cause" -- for example, they know the defendant or the victim. Beyond that, the prosecutor and defense lawyer may remove an equal number of potential jurors based on the hunch that they will not be favorable to their side. Often, these hunches are based on the juror's background as described in a standard questionnaire.
In California, the prosecutor and defense lawyer may each exclude as many as 10 potential jurors without giving a reason in a routine crime case, and up to 20 potential jurors in a murder case that could lead to the death penalty.