A pilot program in SF can help pave way to more diverse juries

“I don’t think that I can be a fair juror in this case,” a prospective juror said to me during jury selection in a case that carried a potential sentence of life in prison for my client. “Why not?” I asked. “Because, look at this jury here. Your client is a young person from the Bayview District, and there is no one from that district on the jury and no one of your client’s race on the jury either.” Another juror echoed his concerns. And, then, a third juror raised his hand and said that “(we) have been talking about the importance of a jury of one’s peers but absolutely failed in creating one.” Most of the remaining fifty or so prospective jurors in the room began to applaud. This happened in 850 Bryant Street, at the San Francisco Courthouse where the majority of criminal trials are conducted. These jurors were telling us that we need to do better.

In another instance, when I was a public defender in Contra Costa County before I came to San Francisco, I was trying a case in Martinez, California, that involved an alleged incident in Richmond, California. While Richmond is a city with a majority of people of color, the county has long had an issue with a lack of diversity in its felony jury pools because the felony trials, at that time, were all conducted in the less diverse town of Martinez. The judge in my case ended up pleading with a single juror from Richmond to stay on the jury, despite the economic hardship she would face from missing work, because that judge was aware of the historic problem in that county with jury diversity. That judge knew that we needed a better system.

In San Francisco, we are trying to remedy these pitfalls to justice and pave the way to more economically and racially diverse juries through AB 1452, a bill authored by Assembly member Phil Ting, co-authored by Senator Scott Wiener, and co-sponsored by my office, that will allow us to create a one-year pilot program we’ve named “Be The Jury” which I believe can help us create the better system that we all want.

If passed, this program will compensate eligible low income jurors in San Francisco criminal trials $100 a day. While California law requires that people be permitted to leave work in order to serve on a jury, it does not require all employers to pay their employees for that time. This means that every day, low income people, many of whom are people of color from the communities most impacted by the criminal legal system, ask to be removed from the jury selection process because they cannot afford to lose their income.

For over a year, my office, in partnership with the Financial Justice Project in the Treasurer’s Office, the District Attorney, and the SF Bar Association, has worked to create this first-of-its-kind program, entirely funded through philanthropic dollars, with the hope that this will help remove these economic barriers to serve.

This is an issue of fairness, of equity, and of racial justice.

The best defense attorneys work hard to do the cultural translation necessary to help jurors from whatever walk of life do the work of fairly considering the evidence and following the judge’s instructions. And, I do believe in the potential power of every individual to put aside the all-too-common presumption of guilt, to actually presume innocence, and to follow the law in a criminal case.

However, the fairness of trials and jury deliberations goes down exponentially if we do not make efforts to make sure that we enable a wider cross-section of individuals to participate in the process. Further, every defense attorney has had countless conversations with people we represent who are very wary of going to trial, even if they are not guilty of the charges, because they fear that a jury lacking economic and racial diversity will simply not fairly decide the case. The general public does not want people pleading to charges they are not guilty of because of a fear that the trial will not be fair. This is not justice. We must do better, and I believe AB 1452 is an important step in the right direction.