On his way out, Multnomah County district attorney makes change to jury selection

The Multnomah County District Attorney’s Office will end the practice of dismissing jurors without a reason during jury selection for misdemeanor trials, according to a new policy announced Monday by outgoing District Attorney Mike Schmidt.

The change is set to begin next week and, according to Schmidt, aims to reduce racial discrimination during jury selection.

The practice, known as peremptory challenges, is used by prosecutors and defense attorneys to selectively shape who decides the outcome of criminal cases. These challenges happen after lawyers and the judge overseeing the case have already dismissed jurors for conflicts of interest or bias that may prevent a person from being fair. During jury selection, prosecutors and defense attorneys ask potential jurors a series of questions to get a better understanding of the jurors beliefs and backgrounds, all while trying to assess whether potential jurors are qualified and can be impartial.

Across the country, many states and courts increasingly view peremptory challenges as discriminatory, and having a legacy of blocking people of color from serving on juries.

“This office recognizes that the use of peremptory strikes to exclude prospective jurors has long created credible evidence of racial and ethnic exclusion of jurors, and is deeply disfavored by our office except in cases of manifest need,” Multnomah County’s new policy states.

The policy excludes misdemeanor cases involving domestic violence charges, Schmidt wrote. It also provides an exception if a prosecutor “has an objective, good-faith, basis” that the judge erred by not dismissing a prospective juror for bias.

“In that case, the line prosecutor may exercise a peremptory strike to remove that prospective juror,” the policy states. Immediately after jury selection, the deputy district attorney will be required to explain to their supervisor the reason they used a peremptory challenge and include the race of the prospective juror who was removed.

The policy also calls on the elected district attorney “to ensure that the use of peremptory strikes is exceedingly rare.”

Schmidt, who lost re-election in May, did not explain why the policy was coming months before he leaves office, though he said it’s “been a policy long in the making” and one he consulted on with district attorneys across the country.

“As DA, I’ve committed to dismantling systemic racism in our criminal justice system,” Schmidt said in a statement to OPB. “Over the last year talking to Multnomah County jurors and community members, I resoundingly heard that juries routinely fail to adequately represent the diverse communities they are drawn from. This policy represents one small step to remediate that issue.”

Schmidt was elected in 2020, as part of a national wave of reform prosecutors, many of whom backed policies aimed at reducing mass incarceration, eliminating cash bail, prioritizing violent offenses over low-level crimes, and reducing the disproportionate effects the criminal justice system has had on communities of color.

Senior Deputy District Attorney Nathan Vasquez, who ran against Schmidt and won with 53.5% of the vote in the May primary election, appeared frustrated with Schmidt’s last minute policy change.

“Like every decision the outgoing DA has made since I announced my candidacy for DA and have now been elected, I was not consulted on this policy,” Vasquez wrote in a statement. “Despite stating he would not be making new policies as he leaves office, he continues to do so at the expense of those who will remain in the office and without regard for victims and public safety. The timing of this new policy smacks of inappropriate motives. This policy, and all others, will be reconsidered by my administration on its merits on Jan 1.”

Peremptory challenges have surfaced at least twice in two recent decisions by the Oregon Court of Appeals.

In the case, State v. Curry, the appeals court overruled the 2015 conviction of a Black man because the sole Black juror in his case was wrongfully struck from the jury. The prosecutor, Washington County District Attorney Kevin Barton, used a peremptory challenge to remove the juror.

Schmidt said in his statement that he was “alarmed” in that case by the “continued racial bias exercised by prosecutors in the jury selection process.”

The Oregon Court of Appeals again took up peremptory challenges in the 2016 case, State v. McWoods. They ruled the defendant, who is Black, had his constitutional rights violated after a judge in Multnomah County allowed prosecutors to use peremptory challenges to remove “the only two black persons on the panel of prospective jurors.”

The U.S. Supreme Court ruled in 1986 that it was unconstitutional to use a peremptory challenge to remove a prospective juror because of their race. Despite the ruling, courts across the country have continued to document racial bias during jury selection.

The Arizona Supreme Court ended the practice of peremptory challenges in civil and criminal cases in 2022, over concerns of racial discrimination.

The Washington Supreme Court adopted new rules for all jury trials in 2018, to “eliminate the unfair exclusion of potential jurors based on race or ethnicity.” The rule explicitly states that people cannot be removed for “expressing a distrust of law enforcement or a belief that law enforcement officers engage in racial profiling.”

A 2021 report by the Willamette University College of Law Racial Justice Task Force, recommended that Oregon adopt a similar rule.