Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.  

Jury Selection in the Criminal Trial - Protecting your Professional Integrity
(Part One of a Two Part Series)

Part One: What’s at Stake?
We often hear: “Counsel, we can’t keep the jury waiting. You are limited to 20 minutes for voir dire.” Yet, there are critical interests at stake during jury selection in a criminal trial. Both the defendant and the People are entitled to trial by a jury drawn from a representative cross-section of the community. As such, the California and United States Constitutions specifically prohibit the use of peremptory challenges to excuse jurors based solely on racial, ethnic, or gender grounds. (Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) This prohibition applies to both defense counsel and the prosecution. (Georgia v. McCollum (1992) 505 U.S. 42, 49-50 (McCollum).) When either party exercises peremptory challenges based on cognizable group bias, this violates the ethical duty to uphold the state and federal Constitutions. California Business and Professions Code section 6068(a) also codifies the duty of all attorneys to support the Constitution and the laws of the United States and California. In other words, an accusation of group bias discrimination in jury selection is a direct attack on an attorney’s professional integrity and should be handled carefully despite the rush of trial. 
It should be no surprise that Wheeler applies equally to defense counsel and the prosecution regardless of whether defense counsel is privately retained or court appointed. The defense attorney’s actions during this process are attributed to the state and hence, constitute state action. Public policy also demands that defense counsel be held to the same ethical standard as prosecutors in this regard, otherwise, the defense would be free to publically and invidiously discriminate and, in turn, hinder public confidence in the criminal justice system. (McCollum, supra, 505 U.S. at 48-55.) While prosecutors rarely bring Wheeler motions against the defense, courts have been known to initiate them on their own. (People v. Lopez (1991) 3 Cal.App.4th Supp. 11.) 
The remedies and sanctions can differ depending on the whether the offending party is the defense or the prosecution. Generally, the case-related remedy for a Wheeler violation is dismissal of all the selected jurors and remaining venire unless the innocent party agrees to another remedy. The court has the discretion to fashion other remedies because starting jury selection anew can reward the offending party by obtaining a second and potentially more sympathetic venire. (People v. Willis (2002) 27 Cal.4th 811, 813.) Other possible remedies include reseating the improperly excused juror or providing the innocent party with additional peremptory challenges. (Id. at 821.) If a reviewing court finds that a trial court erroneously denied a Wheeler motion against the prosecution, invariably the conviction will be reversed. 
The professional consequences for a Wheeler violation are monetary sanctions and a State Bar referral. California Code of Civil Procedure section 177.5 gives the court power to “impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500) . . . payable to the court, for any violation of a lawful court order. . .” and is applicable to both criminal and civil matters. (People v. Tabb (1991) 228 Cal.App.3d 1300.) However, a court cannot sanction an attorney for violating Wheeler if there is no pre-existing order forbidding it. (People v. Muhammad (2003) 108 Cal.App.4th 313.) “. . . [I]t appears that the issue usually is raised more than once if it is raised at all, thus giving the court an opportunity to issue an appropriate admonition.” (Id. at pp. 325–326.) In People v. Boulden (2005) 126 Cal.App.4th 1305, the appellate court found no fault with the trial court’s prophylactic order that the attorneys not violate Wheeler, which would have given that court power to sanction after the exercise of any improper peremptory challenge.
Once an attorney is judicially sanctioned, the court must notify the State Bar (Bus. & Prof. Code § 6086.7(a)(3)), and the attorney must self report (Bus. & Prof. Code § 6068(o)(3)) – though this is uncommon. For the prosecutor, a Wheeler violation constitutes prosecutorial misconduct and, if a case is reversed on this basis, the trial court is required to notify the State Bar (Bus. & Prof. Code § 6086.7(b)(2)), and the prosecutor must self report. (Bus. & Prof. Code § 6068(o)(7).)
(See the next edition for Part Two: The Importance of a Good Record, which discusses a recent Wheeler case, People v. Long (2010) 189 Cal.App.4th 826.) 
--Bryn Kirvin
**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**