Outgoing Multnomah County DA changes jury selection for misdemeanor trials

Starting next week, the Multnomah County District Attorney’s office will no longer allow prospective jurors to be dropped without reason for misdemeanor trials.

The change was made to reduce racial bias during jury selection, according to outgoing DA Mike Schmidt. The new policy will not apply to trials involving domestic violence charges and will allow for some exceptions for prosecutors to request a prospective juror be removed. But the move appears to have blindsided Senior Deputy District Attorney Nathan Vasquez who defeated Schmidt in the May primary election and will take over as district attorney in January.

Joining us to share more about this development is OPB criminal justice and legal affairs reporter Conrad Wilson.

The following transcript was created by a computer and edited by a volunteer:

Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Dave Miller. Starting next week, the Multnomah County District Attorney’s Office will no longer allow prospective jurors to be dropped without reason for most misdemeanor trials. Outgoing DA Mike Schmidt says he’s making this change to reduce racial bias. But Nathan Vasquez, a senior deputy district attorney who defeated Schmidt in the May primary, says he’s going to review this new policy when he takes over in January.

OPB’s Conrad Wilson covers criminal justice and legal affairs. He joins us now with more details. Conrad, welcome back.

Conrad Wilson: Hi, Dave.

Miller: I want to start with how jury selection works just in general. What are the explicit reasons that lawyers and prosecutors or defense attorneys can ask to have prospective juries dismissed?

Wilson: Juries are seated through a process called “voir dire” or “to speak the truth” in French. And as part of that process, the judge, defense attorneys and prosecutors ask questions. And then during, kind of this part of jury selection, the parties are really looking for bias of a prospective juror, something that they might not be able to overcome and it would prevent someone from getting a fair trial. These are called “for cause challenges,” just an inability to be open minded about the evidence, or maybe the prospective juror’s related to someone in the case or has a financial interest. So these are things that are just biases they couldn’t overcome.

Miller: Then comes what we’re talking about here. How do peremptory challenges work?

Wilson: So they come after sort of everyone’s been vetted for bias. And really everyone there is in this jury pool, by the time peremptory challenges come, they’ve all decided that they can be open minded, they can be fair. Pretty much everyone there is kind of agreeing to play by the rules of being on a jury. So this next round it’s really a lot more subjective and it involves each side – defense and prosecutors – being able to dismiss a number of jurors and not having to articulate really a reason why they’re doing that. So a much more subjective process.

Miller: What is wrong with peremptory challenges, according to Mike Schmidt?

Wilson: Well, it’s just that … I mean, that it’s subjective, Schmidt says. And because the lawyers don’t really have to state a reason, it’s a place where people can be excluded from a jury for discriminatory reasons, according to Schmidt. The policy he crafted says that the office recognized the use of peremptory strikes to exclude prospective jurors as, quote, “long created credible evidence of racial and ethnic exclusion of jurors.” And in a statement to OPB, Schmidt said, quote, “As DA, I’ve committed to dismantling systemic racism in our criminal justice system.”

Miller: OK. So that phrase, that these strikes to exclude prospective jurors, it has long created credible evidence of racial and ethnic exclusion of jurors. Did Schmidt provide evidence for that?

Wilson: Well, in his statement, he did say that over the last several years, talking to Multnomah County jurors and community members, he had resoundingly heard that juries routinely failed to adequately represent diverse communities that they’re drawn from. And he also cited two cases where the Oregon Court of Appeals tossed out convictions for Black defendants, who were charged with crimes where the only Black jurors in the jury pool were struck.

Miller: So what are examples of these cases where this has been an issue? What happened?

Wilson: In one case in Washington County – 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 a jury, the court found. The prosecutor in that case went on to become Washington County District Attorney Kevin Barton, and he used a peremptory challenge to remove the juror. A judge agreed and it was sort of that action that the court of appeals said, you can’t do that. At the time, Barton replied that it was impossible, that he challenged the juror based on race because he had made his decision before he saw the juror, but the court vacated the conviction all the same.

And Schmidt actually referenced that case, as I said, and he also referenced another case out of Multnomah County, called State v. McWoods. And the appeals court ruled that the defendant, who again is Black, had his constitutional rights violated, after a judge in Multnomah County allowed the prosecutors to use peremptory challenges to remove the only two Black people who were part of the prospective jury panel. And I should note that the U.S. Supreme Court ruled, back in 1986, that it is unconstitutional to use a peremptory challenge to remove a prospective juror because of their race. So really, even despite that ruling, courts across the country have really continued to document racial bias during jury selection.

Miller: The movement to curtail the practice of peremptory strikes, what does it look like nationally?

Wilson: Well, it’s something that actually, many states have taken action. The Arizona Supreme Court ended the practice of peremptory challenges in civil and in criminal cases in 2022, and they cited concerns of racial discrimination. Then a little closer to home, the Washington Supreme Court adopted new rules for all of its jury trials in 2018. They hoped to eliminate the unfair exclusion of potential jurors, according to their policy, and based on race or ethnicity.

The rule in Washington explicitly states that people cannot be removed for expressing distrust of law enforcement or believing that law enforcement officers engage in racial profiling, getting public benefits – things that the court had said people had been dismissed before, had been dismissed preemptively, based on things like that in the past. And the Willamette University College of Law looked at a bunch of these policies and in 2021, recommended that Oregon adopt kind of similar jury rules to those in Washington.

Miller: What is the policy that Mike Schmidt put in place?

Wilson: The policy is going to prevent prosecutors from using peremptory challenges in misdemeanor trials. Low level assaults, DUI trials, things like that, generally lasts like a day, maybe two or three. These are really short trials. There’s six people on those juries and the policy is set to go into effect on August 1st, so that’s next week. It excludes misdemeanor cases involving domestic violence charges. It also prevents an exception if a prosecutor basically has a really good reason to think that the judge made a mistake by not dismissing a juror for a cause, just like there was a bias and the judge disagreed. But in that case, the prosecutor is gonna need to sort of justify that to the office later. And then, the policy also calls on the elected district attorney to sort of track the race of jurors when peremptory challenges are used. All of this idea is kind of ensuring that they’re very limited and very rare.

Miller: If Schmidt says that these strikes basically can lead to racist behavior, why only get rid of them for misdemeanor cases as opposed to felonies that could lead to life in prison?

Wilson: I mean, that’s a good question. I think this is a policy that is something that Schmidt’s going to get quite a bit of pushback from within his office. This is a tool prosecutors have now and it’s being taken away, so it’s going to make prosecutors who have a very hard job as it is, even harder, arguably. So by focusing on just misdemeanor cases and kind of removing cases involving domestic violence, according to Schmidt, it’s sort of lowering the stakes a little bit. And hopefully, in his mind, giving the policy a chance to show that it can be successful during his last few months in office.

Miller: In cases that don’t involve murder, for example?

Wilson: Exactly.

Miller: Well, you mentioned the possibility of pushback among prosecutors. We’ve already seen it from the soon-to-be district attorney, Nathan Vasquez. What has he said about this policy change?

Wilson: That’s right. So, Nathan Vasquez won in May. He’ll be the incoming district attorney, as you said, starting in January. He’s upset. He basically issued a statement just saying, every decision the outgoing DA has made since I announced my candidacy for DA and I’ve now been elected, I was not consulted on the policy. And he said that the timing of this is just really, smacks of “inappropriate motives,” to quote from his policy. And he said it’s something that he is going to, along with other policies, really consider and reconsider once he takes over in January.

Miller: Mike Schmidt has been the DA for four years now. He took over early when his predecessor stepped down in the summer four years ago. Did he say why he’s putting this policy in place only now?

Wilson: I did ask him about that. I didn’t get a super straight answer other than, he said it’s something that he talked about on the campaign trail. It was something that he’s heard from community members about and that’s something that he said he had been considering for a long time.

Miller: And just finally, to be clear, is Nathan Vasquez upset about the policy itself or about the fact that Mike Schmidt announced it near the end of his time as DA?

Wilson: Yeah, after I got the statement from incoming District Attorney Vasquez this week, I did talk to him, called him up yesterday and he did not want to talk about the policy merits itself at all. His focus was really just on the fact that Schmidt’s tenure is winding down. He’s leaving office, he should be wrapping things up, not expanding the kind of policies that are gonna be things that Vasquez said he’s going to have to review. So he didn’t really speak to the policy merits itself. It was more the fact that there was a new policy coming at the end of Schmidt’s term.

Miller: Conrad, thanks very much.

Wilson: You’re welcome, Dave.

Miller: Conrad Wilson covers criminal justice and legal affairs for OPB.

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