Multnomah County District Attorney changes jury selection process upon retirement

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

The changes, which are set to begin next week, are aimed at reducing racial discrimination in jury selection, Schmidt said.

This method, known as jury pruning, is used by prosecutors and defense lawyers to handpick people who will decide criminal cases. Such pruning occurs after the lawyers and judge presiding over a case dismiss a juror due to a conflict of interest or bias that could impede impartiality. During jury selection, prosecutors and defense lawyers ask potential jurors a series of questions to try to better understand their beliefs and backgrounds, as well as to assess whether they are qualified and able to render impartial judgment.

Nationwide, many states and courts have come to view jury exclusion as discriminatory and as having a history of preventing people of color from serving on juries.

Multnomah County's new policy recognizes that the use of unconditional dismissals to remove potential jurors has long produced credible evidence of racial and ethnic exclusion of jurors, and states that our office strongly frowns on it unless clearly necessary.

Outgoing District Attorney Mike Schmidt announced his decision Tuesday, July 24, 2024, that the DA's office will no longer allow the practice of dismissing jurors without cause in misdemeanor trials. In this May 21, 2024 file photo, Claire Schmidt, left, looks on as her husband, Mike Schmidt, speaks to supporters on election night at the Jupiter Next Hotel in Southeast Portland.

Alex Zielinski / OPB

The policy would make exceptions for misdemeanor cases, including domestic violence charges, Schmidt wrote, and when prosecutors have an objective, good faith basis for not dismissing a potential juror because of bias.

In that case, the policy says, the prosecutor in charge may use summary dismissal to remove a potential juror. Immediately after jury selection, the deputy district attorney must explain to his or her superior the reasons for the summary dismissal and the race of the potential juror who was dismissed.

The policy also calls on elected district attorneys to ensure that the use of forced removals is extremely rare.

Schmitt, who lost re-election in May, did not explain why the policy was being introduced just months before he leaves office, but said it was something that had been under consideration for a long time and that he had discussed with district attorneys across the country.

In a statement to OPB, Schmitt said that as District Attorney, he has been committed to dismantling systemic racism in the criminal justice system. “In speaking with jurors and community members in Multnomah County over the last year, I have been painfully aware that juries routinely fail to adequately represent the diverse communities they are selected from. This policy is a small step toward remedying that problem.”

Schmitt was elected in 2020 as part of a wave of prosecutorial reform across the nation, supporting policies aimed at reducing mass incarceration, eliminating bail, prioritizing violent crimes over minor offenses and reducing the disproportionate impact the criminal justice system has had on communities of color.

Senior Deputy District Attorney Nathan Vasquez, who ran against Schmitt in the May primary and won with 53.5% of the vote, appeared frustrated by Schmitt's last-minute policy changes.

“As with every decision made by the outgoing District Attorney since I ran for and was elected, I was not consulted on this policy,” Vazquez said in a statement. “Despite making it clear that he would not create new policy when he leaves office, he continues to create policy at the expense of those who remain and with no regard for victims or public safety. The timing of this new policy poses improper incentives. This policy, and all others, will be reviewed on its merits by my Administration on January 1st.”

Nathan Vasquez, who defeated his boss Mike Schmidt in the recent election, criticized the outgoing district attorney's recent decisions: “Despite making it clear he would not institute new policies upon leaving office, he continues to pursue policies that ignore victims and public safety and at the expense of those who remain in office.”

Multnomah County District Attorney's Office

Outright recusal has emerged at least twice in two recent decisions by the Oregon Court of Appeals.

In State v. Curry, the appeals court overturned the 2015 conviction of a black man because the only black juror in the case was improperly removed from the jury. The prosecutor, Washington County District Attorney Kevin Burton, used his summary challenge right to remove the juror.

Schmidt said in a statement that he is concerned that prosecutors in this case continue to exercise racist bias during the jury selection process.

The Oregon Court of Appeals again addressed jury exclusion in 2016 in State v. McWoods, where the court ruled that a Multnomah County judge violated a black defendant's constitutional rights by allowing the prosecution to use its exclusionary power to exclude the only two black potential jurors from the jury pool.

In 1986, the U.S. Supreme Court ruled that the use of automatic challenges to remove potential jurors because of race was unconstitutional. Despite this ruling, courts across the country continue to document racial bias in jury selection.

The Arizona Supreme Court ended the practice of exonerations in civil and criminal cases in 2022 due to racial discrimination concerns.

To eliminate the unfair exclusion of potential jurors based on race or ethnicity, the Washington State Supreme Court adopted new rules for all jury trials in 2018. The rules explicitly state that jurors cannot be excluded because they have expressed distrust of law enforcement or believe that law enforcement officials engage in racial profiling.

A 2021 report by Willamette University School of Law's Racial Justice Task Force recommended that Oregon adopt a similar rule.

The jury room at the Multnomah County Courthouse in downtown Portland, photographed on Jan. 25, 2021.

Courtney Sherwood / OPB

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