By Crescenzo Vellucci
Vanguard Sacramento Bureau
SACRAMENTO – An unusual, if not somewhat unique, defense challenge to the makeup of Sacramento County juries – specifically, that they racially discriminate against African Americans, the poor and other segments of society – failed here when the judge ruled the defense couldn’t meet its burden, largely because it’s impossible to do so.
Defense attorney Claire White, whose bold challenge to the jury selection process outlined how her client, Jaedon Evans, and co-defendant Preston Bouie – both arrested for armed robbery at a Sacramento Denny’s restaurant last May – could not get a fair trial. Both are Black. Bouie is represented by Tom Clinkenbeard.
Sacramento Superior Court Judge Curtis Fiorini granted White’s original challenge in early September, and generously gave her time to pursue the matter – delaying the trial by more than two months.
But the judge last week denied the defense motion to quash the jury venire/pool because defendants could not prove the county jury is tainted with discrimination.
The trial is now expected to resume Friday, Nov. 22.
White said she was moving to “quash” the entire jury venire/pool because “the jury is not drawn from a representative cross-section of the relevant community in violation of the defendant’s federal and state constitutional rights.”
White challenged the county juror selection when only two of 60 jurors in her client’s case were Black. Both defendants in the case are Black.
She said and “the jury selection procedure in Sacramento County has resulted in selection of jurors in a constitutionally impermissible manner; that the jury excludes jurors of a protected class in 
violation of the defendant’s federal and state constitutional rights.”
But the judge denied her request to quash the jury venire, although recognizing in U.S. and California law the “defendant has constitutional…and statutory” rights to “challenge a jury panel” if the challenge satisfied a three-prong test “for a showing of a violation of the fair cross-section right.”
The defendants met the first requirement because they are part of a group “alleged to be excluded,” said the court, but added that they failed on the second and third prongs necessary, because, the judge ruled, “There is no evidence of underrepresentation of African-Americans in the jury pool,” and “Any underrepresentation was not due to systematic exclusion of African-Americans.”
The judge said the “Defendant here has offered no evidence as to the number of African-Americans in the jury pool as compared to the community. Without such evidence, Defendant cannot meet his burden.”
In fact, as both White and the court noted, the jury commissioner is not required to collect information about the makeup of whom is called for jury duty. But without that information, which is not collected and not required to be collected, a defendant can’t prove a claim of underrepresentation of Blacks.
“This Court is not unsympathetic to the burdens faced by defendants in challenging the venire. Even if a defendant has access to the data, questions remain as to the viability of the study, whether to rely on absolute or comparative disparity rates, and what constitutes a disparity of constitutional concerns.”
In a detailed analysis provided the court, White said “it’s a mathematical fact that there is a disparity between the relative number of Black jurors in the venire and the relative population of Black people in the county.”
White maintained in her pleading that “statisticians in analyzing the limited data available to Mr. Evans, namely the presence of only 2 Black jurors out of 60 jurors” indicated that “if the venire is a fair cross section of the community, in this case a community with 10.9% Black population (as noted in the 2010 Sacramento County census), drawing only 2 Black jurors in a group of 60, would only happen 0.000027% of the time.”
White concluded, “In other words, if there were 1000 jury trials in Sacramento county per year, we should only get a panel of 60 potential jurors with 2 potential Black jurors once every 3,600 years. Essentially, it’s a mathematical fact that there is a disparity between the relative number of Black jurors in the venire (jury pool) and the relative population of Black people in the county.”
The Oakland-based attorney added that the “system used inevitably and definitively results in a disparity in the number of Black jurors relative to the Black population of the county,” and that “the venire cannot be a fair cross section of the community. This disparity, or under representations of African-Americans citizens on the jury venires in Sacramento County is not fair or reasonable in relation to the numbers of such persons in the community.”
Judge Fiorini did note, in ruling against White’s motion, that the state legislature had an opportunity, in 2017 legislation, to remedy the situation by passing a bill mandating the collection of statistical data on jurors, but failed to act on the measure.
“This Court declines to order what the Legislature has failed to enact. To order any agent of the government to collect such data would be to engage in impermissible judicial legislation,” he said.
But White charged that “the Sacramento County Superior Court’s jury selection process as currently implemented results in a significant under representation of African Americans.
“The resulting disproportionate number of African Americans on defendant’s jury not only violates defendant’s constitutional right to a representative cross-section of our community on this jury but it also injures the entire community and reflects poorly on the judicial process throughout the county,” White said.
White argued that it was a “mathematical certainty that juries are not a cross section of the community, calling their makeup “unjust and perverted…out of balance.” In addition to race bias, White suggested juries are probably not fair regarding the inclusion of gender, class, wealth and other cross sections of the community.
“This court sits in a different time and place than previous courts. This court can kick (the issue) down the road but the court has the power to require production of data necessary for a fair jury system going forward,” White implored Fiorini.
White’s argument failed, but she did quote former U.S. Supreme Court Justice Thurgood Marshall, who said:
“When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that their exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.”
When White posed the challenge concerning the county jury pool initially, veteran defense lawyers said they couldn’t recall such a request – let alone one that was granted. One attorney said “it’s about time” the jury selection process in Sacramento was examined.
White – a University of California, Davis, law school alum – has a history in Sacramento of pulling off legal miracles. In her first jury trial several years ago, and despite her client admitting his guilty, she convinced a jury to not convict a former homeless veteran after he hit Sacramento Mayor Kevin Johnson with a pie as political theatre.
“the jury selection procedure in Sacramento County has resulted in selection of jurors in a constitutionally impermissible manner; that the jury excludes jurors of a protected class in violation of the defendant’s federal…”
That’s largely correct. I think the only way to stop it is to end peremptory challenges.