JUSTICE BROWN’S RECORD DISTORTED
A number of news stories and opinion columns recently
have stated blithely that California Justice Janice Rogers Brown, nominated
by President Bush for the federal Court of Appeals in D.C., has voted
against protecting black women from discrimination in jury selection.
This is an oversimplification and a distortion of her actual opinion,
according to the Sacramento-based Criminal Justice Legal Foundation.
The question arose in the capital murder trial of Robert Young, who
murdered three people, attempted to murder two others, and committed
three robberies, all within a three week period in 1989. In this trial,
as in all jury trials, the parties exercised a limited number of peremptory
challenges to remove the jurors they think are most likely to favor
the other side. The jury as finally selected in the case included black
men but no black women. The three black women in the pool had been removed
by the prosecution.
The opinion of the court, written by Justice Brown, applied California
precedent that discrimination against black women, as such, was unconstitutional
and found that the facts of the case did not show that the challenges
were discriminatory. This opinion was unanimous.
Justice Brown then added a separate opinion representing her individual
view. The opinion did not question the precedents outlawing discrimination
in jury selection on the basis of race or sex. Instead, she merely raised
the question of whether the analysis needs to be further broken down
to subcategories such as black women. Her opinion does not reject the
possibility that such focused protection might be needed but notes that
discrimination against black women, as distinct from discrimination
against black people generally and women generally, has not yet been
shown to be a major problem.
“Nowhere in the opinion did Justice Brown question the precedents
forbidding discrimination on the basis of race or sex,” said CJLF
Legal Director Kent Scheidegger. “Claims that she did are patent
distortions.”
The Criminal Justice Legal Foundation is a nonpartisan organization
and does not take a position on this or any other nomination. CJLF does
believe, however, that the debate should proceed on a correct understanding
of the nominee’s record.
The case is People v. Young, 34 Cal.4th 1149 (2005). The full
text is available on the California courts’ Web site at: http://www.courtinfo.ca.gov/opinions/documents/S018909.PDF
CJLF Legal Director Kent Scheidegger is available for comment at:
(916) 446-0345.
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