In a case that reform advocates say exposes a recurring flaw in the justice system, a California appeals court ruled last week that a Contra Costa County prosecutor’s excusal of every African-American from the jury pool in a 2017 murder case against two black defendants was legally protected.

But while the court upheld convictions against Antioch residents Gary Bryant Jr. and Diallo Jackson, one of the three judges also wrote that the case exposed “serious shortcomings” in existing laws, which he said make it too hard for judges to identify racial discrimination and too easy for attorneys to “mask bias” by coming up with excuses for why they are dismissing potential jurors of a particular race or religion.

Several of the jurors in question were dismissed after recounting bad experiences with police or unease about the justice system.

“Our state should not stay on the sidelines any longer,” First District Appellate Court Judge P.J. Humes wrote in a concurrence attached to the Sept. 27 decision. “The time has come for the Legislature, Supreme Court and Judicial Council to consider meaningful measures to reduce actual and perceived bias in jury selection.”

A spokesman for the Contra Costa County district attorney said the office would be open to such reforms, while adding that the appeals court “correctly found that the District Attorney’s Office, during the course of the trial, did not exclude any jurors based on their race.” A transcript from the case shows the prosecutor, Senior Deputy District Attorney Chris Walpole, also accused defense attorneys of attempting to bar Asians from serving on the jury, and the trial judge appeared to agree with him.

“Our office strives to ensure that no one is treated differently simply because of the color of their skin, and to help reach that goal, our office remains open to any type of reform that would help bring about a fair and just system,” spokesman Scott Alonso said in an email.

But justice reform advocates say this and similar cases reveal that people who have been discriminated against can be barred from serving on juries simply by being open about their experiences. And while it is illegal for attorneys to try and keep members of a certain race or religion from serving on juries, reversing a conviction requires clear evidence of racist intent, such as what happened when the U.S. Supreme Court in June overturned the murder conviction of a Mississippi man. The high court noted the prosecutor in that case had a history of keeping black people off prior juries and exhibited a strong disparity between how whites and blacks were questioned.

“Black jurors are routinely dismissed because of a negative experience with the racial bias of a police officer. That does not mean they are any less impartial than someone who has only had positive interactions with law enforcement,” said Brandon Banks, president of the Contra Costa County Public Defenders Association. “The result is that defendants of color don’t have diverse juries, and again the criminal justice system is rigged against them.”

Bryant and Jackson were convicted of murder and robbery, along with gang enhancements, in the 2014 killing of 23-year-old Kenneth Wayne Cooper, of Pittsburg. Cooper was shot as he sat in a car on a July 2014 afternoon at an apartment complex in the 3900 block of Delta Fair Boulevard in Antioch.

Six African Americans answered calls for jury service in Bryant and Jackson’s 2017 trial. During jury selection, prospective jurors were questioned on a variety of topics relevant to the case, including whether they had biases for or against law enforcement and whether they would be able to reach a verdict based on the testimony of a lone witness. They also were asked about their general feelings of how African Americans fared in the criminal justice system, as both Bryant and Jackson are black.

Some of the six said they had been discriminated against by police — one mentioned being pulled over three times in Union City for no justifiable reason, for instance, and another said she felt cops were unfair to her underage son when they questioned him without an adult present.

All six were excused from the jury. Two were excused for cause, one because she said the entire judicial system was corrupt and another who believed she knew one of the defendants.

The other four were dismissed when Walpole used some of his limited juror challenges to remove them. Defense attorneys unsuccessfully objected, accusing Walpole of purposefully keeping African Americans off the jury.

Walpole is currently the acting third in command of Contra Costa County District Attorney’s office. The head of the district attorney’s union, Aron DeFerrari, wrote in an email that the appeals court had “vindicated” him.

“Our prosecutors are dedicated to selecting fair and impartial jurors, regardless of their race, ethnicity, religion or sexual orientation; Mr. Walpole did just that,” DeFerrari wrote. He noted that the trial judge had admonished defense attorneys over allegations of barring Asians from the jury and added, “People who live in glass houses should not throw stones.”

Jury selection

In every trial, both prosecutors and defense attorneys are given a limited number of chances to excuse potential jurors from the case. These are known as peremptory challenges, and attorneys do not need to state their reasoning behind them, though Walpole did in this case.

Walpole gave varying explanations for each dismissal, noting one juror had expressed a belief that minorities were treated unfairly throughout California, and another said her nephew had an “unfair” interaction with police.

Walpole dismissed another of the four because her son had been convicted of a crime and because she worked for a “pro-environment” agency, which Walpole said was indicative of having a “liberal slant.” Another was a retired journalist, which Walpole called “not a good occupation for district attorneys, much like teachers,” according to the appeals court decision.

Both attorneys for Bryant and Jackson objected to the dismissals at the time, accusing Walpole of trying to weed out African Americans from the jury. Trial Judge Clare Maier ruled in Walpole’s favor, noting that attorneys are allowed to excuse jurors who may be biased.

Meanwhile, Walpole accused the defense of trying to make sure Asians weren’t on the jury, and at one point in the hearing, Maier noted that the defense had objected to one prospective Asian juror from serving because she said she didn’t like tattoos, but didn’t object to an African-American woman who also voiced an anti-tattoo bias.

Maier said she was “troubled” by the discrepancy, and admonished both defense attorneys, according to the transcript.

The appeals court judges agreed with Maier’s finding that Walpole’s dismissal of the four African-American prospective jurors was supported by “substantial evidence.” The judges cited two U.S. Supreme Court cases — Batson v. Kentucky, from 1986, and People vs. Wheeler, from 1978 — that have been used as the standard for how to identify discrimination in the jury selection process. The cases require evidence, such as a pattern of exclusion or lack of other characteristics that would justify striking the jurors, in order to prove malfeasance.

“Because none of (Walpole’s) explanations lacked inherent plausibility or were contradicted by the record, we defer to the trial court’s determination the prosecution was not motivated by a discriminatory purpose,” the appeal court’s decision says.

But in his concurrence, Humes wrote that Walpole’s rationales to keep the four African Americans off the jury grew “progressively weaker” and that the reasons behind the dismissal of the sixth prospective juror — let go because of her son’s incarceration and her employment at an environmental protection firm — were “flimsy.”

“In my view, something is wrong … when such flimsy reasons essentially insulate from review the striking of the sixth and final black person in the venire,” Humes wrote. “Purposeful discrimination is especially hard to prove in the context of peremptory challenges, because attorneys can easily come up with supposedly non-biased justifications to strike potential jurors. Under California precedent, even a justification that is trivial, speculative or objectively unreasonable suffices to disprove purposeful discrimination if it is facially neutral and the trial court credits it as being subjectively genuine.”

This is not the first time elements of Contra Costa County’s judicial system have come under fire for allegations of racism in the jury selection process. A 2018 study and list of recommendations by the county’s Racial Justice Task Force blasted a 2011 decision to start picking jurors from a countywide pool, instead of basing the selection on the region where the alleged crime in question was committed. Critics said this has led to juries that are weighted with people from the central region of the county such as Walnut Creek — where there are larger percentages of white residents — and excludes those from the more diverse eastern and western ends.

“When courts accept justifications for removing potential jurors of color which purport to be race-neutral on paper but are clearly proxies for race, everyone in the room knows what’s happening,” said Bryant’s attorney, Evan Kuluk, when asked for comment on the appeal decision. “The systemic exclusion of all potential black jurors in a trial only perpetuates distrust in the justice system for people of color. It’s not fair to those jurors, the defendant or the legitimacy of the verdict.”