Liu's long fight against bias in the jury box

Goodwin H. Liu was teaching constitutional law at what was then Boalt Hall in Berkeley in 2006 when he testified before the Senate Judiciary Committee to oppose the confirmation of Samuel A. Alito Jr. to be a U.S. Supreme Court justice.

Liu didn't hold back. In his lengthy critique of Alito's record, one focus was Alito's views on criminal justice, including racial discrimination in jury selection. 

Liu spotlighted Alito's refusal to infer bias against a Black man on trial for murder before an all-white jury after the prosecution struck all three prospective Black jurors--but not white prospects who had given similar testimony at voir dire. 

In the prior year, prosecutors in the same Delaware county had also struck every prospective Black juror in the three other capital murder trials.

Alito, a President George W. Bush nominee, appeared to trivialize the issue by suggesting other variables might be involved and by likening the situation to the chance of a left-hander winning the presidency. An appeals court accused him of minimizing the history of discrimination against Black people. 

Liu summed up: "Judge Alito's record envisions an America where...a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple-regression analysis showing discrimination. ... Mr. Chairman, I humbly submit that this is not the America we know. Nor is it the America we aspire to be."

Even so, Alito was confirmed. A few years later, the tables turned. Liu himself became a President Barack Obama nominee for the 9th U.S. Circuit Court of Appeals--and Senate Republicans pounced on his trashing of Alito, forced Liu to recant his appraisal as "unduly harsh" and then made it clear his circuit judgeship was doomed.

Liu withdrew his name from consideration. Weeks later, Gov. Jerry Brown appointed him to a seat on the California Supreme Court. He was sworn in on Sept. 1, 2011.

That historic bench swap is freshly relevant because Liu's long crusade against bias in criminal jury selection extends far beyond his accusations against Alito. 

Liu's determined opposition to racially slanted juries was front and center last month when the California Supreme Court for the first time interpreted a 2020 amendment to the Code of Civil Procedure that tells lower courts how to analyze potentially discriminatory juror strikes.

Because the lower courts did not follow the new rules, the justices reversed a defendant's attempted murder conviction. People v. SanMiguel, S287786 (Ca. S. Ct., op. filed July 30, 2025).

It was Liu's lengthy 2013 concurring opinion in a death penalty case that first drew attention to the issue and called out his colleagues for their decades-long refusal to curb prosecutors' illicit efforts to stack juries to win convictions. 

Liu hammered away again on the topic in a 2020 dissent when the majority denied review of a Black woman's attempted murder conviction by a Los Angeles jury after the prosecutor struck an evidently well-qualified Black woman.

"It has been more than 30 years since this court has found racial discrimination in the peremptory strike of a Black juror," Liu wrote. People v. Triplett, S262052 (Ca. S. Ct., rev. denied Aug. 25, 2020).

"As it stands, our case law rewards parties who excuse minority jurors based on ostensibly race-neutral justifications that mirror the racial fault lines in society," he said in another case. "This approach is not dictated by high court precedent, and it is untenable if our justice system is to garner the trust of all groups in our communities and to provide equal justice under law." 

In 2020, scholars at the Death Penalty Clinic at UC Berkeley School of Law, where Liu formerly taught, produced a 166-page analysis of the issue titled "Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors."

Lead author Elisabeth A. Semel, the clinic's director, and her colleagues examined the California cases that came after the U.S. Supreme Court outlined rules for detecting bias in jury selection in Batson v. Kentucky (1986) 476 U.S. 79 and its California predecessor, People v. Wheeler (1978) 22 Cal.3d 258. Their analysis included a close look at Liu's role.

"Justice Liu was the first and only justice on the California Supreme Court to examine the court's Batson/Wheeler record," Semel said this week. "After joining the California Supreme Court in 2011, Justice Liu repeatedly dissented from majority opinions upholding the prosecution's exercise of peremptory challenges, repeatedly raising 'serious doubts' about the majority's adherence to 'Batson's mandate.' He criticized the majority's persistent failure to apply U.S. Supreme Court precedents with the 'vigilance required by the constitutional guarantee of equal protection of the law.'" 

"Whitewashing the Jury Box" added, "The California Supreme Court's record in enforcing Batson is abysmal," and it pointed to Liu's exhortation that it is "past time for a course correction."

Liu's public disclosures of the court's failings and the "Whitewashing the Jury Box" report inspired the Legislature to add section 231.7 to the Code of Civil Procedure to slam the door on discriminatory jury selection practices.

Sen. Scott Wiener, D-San Francisco, who co-authored the new law, described Semel's report as its "doctrinal basis." A news story from 2020 described Liu as having "fielded questions from wavering lawmakers about the legislation's content and existing law on peremptory challenges."

The new law prescribes the procedure when one side uses a peremptory challenge to dismiss a juror, the other side protests the strike as discriminatory, and the striking party gives reasons for the challenge that relate to the potential juror's demeanor, behavior or manner of responding to questions. Under the law, so-called behavioral reasons are presumed to be invalid unless the trial court verifies that the asserted behavior occurred, and the lawyer who made the strike explains why it matters to the case at hand.

That's a sharp U-turn from the longstanding practice, strongly protested by Liu and others, in which prosecutors seeking convictions were generally indulged by courts when they used their peremptory challenges to bar minorities thought to be unlikely to convict a defendant from serving on juries thought to be unlikely to convict the defendant.

In last month's case, Liu and the other justices reversed the attempted murder and assault conviction of defendant Joel SanMiguel, who is Latino, after the prosecutor peremptorily excused the only Latino left in the jury pool. 

The prosecutor explained that the juror didn't have much to say in answer to his questions and that he walked back into the courtroom after the other jurors had been excused. Other jurors were "being more attentive" and "giving more eye contact" while the dismissed juror was "kind of looking down."

The trial judge agreed with those observations but failed to go on to ask why they were relevant to the trial. The Supreme Court pointed out that both confirmation and explanation are required to rebut the presumption that behavior-based reasons are invalid. 

The justices noted that the Legislature's intent was to eliminate the use of group stereotypes and conscious or unconscious bias in peremptory challenges by putting as much information as possible on the record for reviewing courts to see.

The historic biases behind behavior-based juror challenges can be nuanced and hard to drag into plain sight. "Inattentiveness is a particularly fraught demeanor justification," wrote Senior Deputy State Public Defender Laura M. Rogers in court papers supporting SanMiguel and protesting the dismissal of the Latino juror. "People of color in the United States have long been portrayed as lazy and irresponsible. This dehumanizing trope was used to justify slavery and continued systemic discrimination by suggesting that people of color are inherently passive or incompetent and therefore inferior to their White counterparts."

Quoting from an earlier case, the high court's opinion by Justice Leondra R. Kruger said, "An appellate court can read a transcript of the voir dire, but it is not privy to the unspoken atmosphere of the trial court--the nuance, demeanor, body language, expression and gestures of the various players."

Liu's denunciation of juror bias in a trio of reluctant concurrences he wrote in 2013, not long after he joined the state Supreme Court, noted that the court's precedents required him to affirm the convictions and death sentences at hand but protested that the precedents were based on flawed procedures and a misunderstanding of how the U.S. Supreme Court had ruled that juror bias claims should be handled.

His colleagues had abandoned their duty under Batson, Liu charged, and the proof was that over the previous 20 years the California Supreme Court had addressed Batson claims 102 times and found Batson error only once. 

The longest and most detailed of Liu's three concurrences came in People v. Harris (2013) 57 Cal.4th 804, in which a Black man was convicted of raping and murdering a white college student. At the first trial, the sole Black juror voted for acquittal, forcing a mistrial. At the retrial, the prosecutor struck two of three Black jurors and won a conviction and death sentence.

Liu stressed his point by including a chart listing all 102 cases. 

The core of Liu's objection to the way courts decided and reviewed jury selection bias claims was the undue deference they gave to prosecutors' peremptory strikes when defense lawyers questioned them. Often, the challenged prosecutor would deny bias but decline to give a reason for the strike. Then the judge or justice ruling on the matter would in effect do the work for the prosecutor by finding some element of the struck juror's conduct or testimony that allegedly warranted removal.

"Reflexive application of deference where there is nothing in the record to defer to, judicial speculation as to the reasons for a strike where the prosecutor has offered none, and unduly limited and grudging application of comparative juror analysis combine to erect a virtually impossible hurdle for Batson claims to surmount," Liu wrote.

Comparative juror analysis simply means looking at how prosecutors who struck a minority juror handled similarly situated non-minority jurors who were allowed on the panel.

Concluded Liu: "But a jurisprudence of speculation and presumptions does not serve the goal of producing 'actual answers to suspicions and inferences that discrimination may have infected the jury selection process.'"

Liu was quoting from a U.S. Supreme Court case that attempted to set California straight some years before. The California Supreme Court affirmed the capital conviction of a Black man who murdered his White girlfriend's infant daughter. The prosecutor struck each of the three Black prospective jurors on the panel. The California Supreme Court majority ruled that the defense failed to show there was a "strong likelihood" that the strikes were racially biased. People v. Johnson (2003) 30 Cal.4th 1302.

In dissent, Justice Joyce L. Kennard opposed the "more likely than not" standard, especially when the trial court could only speculate on the reason for the challenge.

The U.S. Supreme Court agreed with Kennard, 5-4, and reversed, rejecting the "more likely than not" standard and requiring those who challenge jurors to produce enough evidence that the trial judge can infer discrimination.  Johnson v. California (2005) 545 U.S. 162.

The Johnson v. California opinion by Justice John Paul Stevens also gave the green light to the use of comparative juror analysis. Looking back at the opinion in her Harris concurrence, and considering Liu's endorsement of the process, Kennard wrote, "I am now persuaded" that such an analysis is also useful in rooting out prosecutorial bias.

Kennard added the words of U.S. Supreme Court Justice Felix Frankfurter to explain her change of mind. The quote could sum up California's new effort to eliminate racial discrimination in jury selection: "Wisdom too often never comes, and so one ought not to reject it merely because it comes late."