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Nov. 22, 2023 - Epoch Times
31:42
How a New Law Is Changing California's Judicial System | Nicole Castronovo & Meagan McCarthy
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I came to California as an immigrant, partly because of the great legal system here.
But a new law meant to fight bias is actually turning things upside down for everyone.
Lawyers, judges, and locals alike.
I think that the list, it houses some very ugly racial stereotypes.
And in its attempt to eliminate implicit bias, it's actually really codifying racial stereotypes.
Almost 50% of my jurors had already made their mind up about my case before they even heard it.
My guest today is Nicole Castronova, a trial attorney fighting this new controversial law, and Megan McCarthy, a former police officer with a story now making waves all over California.
I mean watching a video like that of someone getting shot at and pleading for their life and it's on a video clear as day a crime being committed and watching someone walk away from that.
And we need people to Wake up and stand up and support the first responders because we're seeing a big crisis right now.
Join us as we dive deep into one simple law shaking the core of California's entire justice system.
I'm Siam Akorami.
Welcome to California Insider.
Nicole, it's great to have you on.
Welcome.
Thank you for having me on.
You know, when I came to this state, when I moved to California and moved to the U.S., the legal system is something that I really cherished.
Coming from third world countries, this is something I could really trust and it will always have my back and everybody around me.
And there are some changes into the judicial system.
There was a law that was passed last year in California that will have an impact on the judicial system here in California.
There was good intention behind passing this law.
Can you explain to us what this law is about?
It's AB 3070.
So, AB 3070, like you said, is a well-intentioned law.
It was aimed at trying to eliminate implicit bias in jury selection.
Before AB 3070, the law of the land for jury selection was a case law called Batson-Wheeler, and it basically said that no one can intentionally discriminate against a juror based on their race, ethnicity, religion.
So that's not a lawful grounds for an attorney to excuse a juror in jury selection based on their ethnicity.
So when we get those letters in the mail, and then we have to go do jury, and we sometimes try to get out of it, but we have to go, and then we go there, and then we're selected randomly, right, for each Yes.
So that's step one, right?
You get your jury summons in the mail, you go to jury service.
If you actually get called and put into the box, the jury box, attorneys get an opportunity then to ask you questions in voir dire and determine if you are a suitable juror to sit for that trial.
So, jurors can be either excused based on what's called a challenge for cause, and that's something that a judge determines, okay, this person can't be fair and impartial, so we're going to excuse them.
And then there's challenges that are called preemptory challenges.
So that's a challenge that I as an attorney can make, and I get a limited amount of those.
So say for a trial, I get six, ten peremptory challenges.
So I have to be very judicious about how I use those, right, to make sure that I'm getting the best jury I can for my client seated in this jury box.
So under the law previously, before AB 3070, the law of the land was called Batson-Wheeler.
That comes from the Supreme Court case law.
It said that an attorney cannot intentionally basically discriminate and excuse a juror based on a reason such as their ethnicity.
And it was presumed before that, you know, you're excusing for a lawful reason.
So say I excused a juror myself.
The other attorney could then challenge my cause and say, I think that Ms.
Castronovo is excusing for an improper reason.
And then the burden would be on the other attorney to show the court that I was excusing for an improper reason.
Now the law has changed under AB 3070.
And there is a list of challenges that say, for example, now if I were to excuse a juror for being inattentive, that's presumptively invalid now, meaning the burden is on me to prove that I'm not doing that for any sort of racial reason.
So that's a huge shift, right?
We shift the burden from the other attorney having to prove that an excuse is improper, whereas it used to be it was presumed that it was proper.
Let's say I was a Latino.
I'm Iranian.
Let's say I'm Iranian, and I was in the jury.
I was selected, and I wasn't paying attention.
So that's what attentive means, right?
Yes.
I'm not paying attention to the case.
I don't care.
And if you want to remove me as a lawyer, and you feel like I'm not going to be fair to your defendant or your client, Then you cannot do that now with this law.
It makes it very difficult.
So now, if I were to excuse you, say you were being inattentive, say you were nodding off while I'm presenting my case, which happens regularly during jury selection.
People get bored, they get tired, they zone out.
And I were to say, you know what, I think I'm going to excuse juror number two because he's not paying attention.
This is a very critical case for my client.
I need 12 people that are paying attention.
Now the other attorney could say, well, Ms.
Castronovo is not just excusing him because he's inattentive.
It's really because he's Iranian.
It's because of his ethnicity and it places the burden on me.
To prove that you are not doing it based on race.
Yes.
Yes.
And the standard for doing that now under this law, under AB 3070, is what's called clear and convincing evidence.
So we have three standards of proof in the legal system, one being a preponderance of the evidence.
That's the lowest standard.
So think of it as like 51% over 49%.
That's preponderance of the evidence.
So if you're just over the line of halfway there, that's okay.
Then we have our highest standard, which is reasonable doubt.
You have to have this abiding conviction that this is the right verdict.
You have to be certain of it.
You have to be able to wake up tomorrow, the day after, and be certain of it.
And then right under reasonable doubt is the clear and convincing evidence.
So clear and convincing evidence is a very high standard of proof.
So now it makes it very difficult for me as an attorney to explain, well, no, I'm excusing juror number two because he was sleeping, not anything to do with his ethnicity.
It makes it very difficult.
Now, this law was passed because they wanted to make sure it's fair, have more races be involved in the jury, right?
Is that what they were trying to do?
Yes.
If you look at the legislative intent of AB 3070, it was intended to get rid of implicit bias in jury selection.
But I think that this law has gone too far.
By shifting this burden and making it so hard to remove jurors from a jury that maybe shouldn't be there, it really endangers the justice system because how is that fair?
If you're sitting on trial for very serious charges where you could go be incarcerated for the rest of your life and you have 12 people who don't, who aren't paying attention.
May not be cheering or like, I may not even want to be there and I may say, you know, I And I couldn't excuse you because this dispersion is immediately cast upon me that I have some untoward reason for excusing you as opposed to I have a reasonable purpose for excusing you because I want my client to have the best opportunity to fair trial.
A real life example of how this has affected someone recently is Megan McCarthy.
She is now a medically retired sheriff's deputy and she was assaulted by someone on duty.
She responded to a call for service, domestic violence call for service, a mother had called who was in distress.
She was calling about her son saying, oh my god, oh my god, get my son out of here.
So I respond to the house to try and figure out what I can do and when I arrive, the suspect comes walking out down the driveway right towards me and he's angry and his mom's walking right behind him holding a knife still on the phone with dispatch.
So I'm talking to him, I'm asking him, relax, relax, what's going on?
And he is just very aggressive.
So I conduct what we call a detention, just trying to place his hands on the small of his back, figure out, you know, make sure he doesn't have any weapons on him, and he becomes assaultive.
We end up fighting for about three minutes and he is able to overpower me and we fall to the ground and he mounts on top of me and we're fighting over my gun at this point and he's able to take my gun from me and I roll onto my hands and knees and I'm looking up at him and he's pointing my gun at my forehead and he pulls the trigger.
And I heard the trigger click and I had so much pain to my face, the only thing that I thought was I had just been shot.
But my heart's still pumping, my legs are working, so I turn and I run for cover and I hear another gunshot go off.
So he's shooting at me as I'm running away.
Right at that time as I'm hiding, my partners come down the cul-de-sac and save my life.
They get into a gunfight with him and he's taken to the hospital for his injuries.
And in Megan's case, many jurors expressed a distrust of police and those jurors were not excused from the jury and sat on the jury and then this man essentially got away with nearly murdering a woman, a female deputy who was doing her job protecting the community.
Can you tell me about the moments that you realized this is happening?
Can you take us back to what was it like when you realized that there's people that don't like the cops, the jury, they're making decisions on your case?
It was probably the first day of cross-examination.
The defense attorney is asking me very heinous questions, very inappropriate questions about my appearance, about me being weaker because I was a woman, and if I had unreasonable fear because he was a man and I'm a female.
And I'm looking at the jury because I'm speaking to them, and a lot of them are, you know, their head's back, they're taking naps, they're looking down at their fingernails, they're drawing in their notebooks.
They don't care what I have to say.
There were jurors that expressed distrust of beliefs.
There was jurors who thought that maybe the video was a hoax, and they were allowed to stay on the jury.
So the body cam video was a hoax, that's what?
It was actually a bystander cell phone video, so it was taken by a third party.
It wasn't taken by a department member.
It was just a citizen who took the video, and people still didn't trust that evidence.
And there was a moment, I think on day two, where I had a legitimate panic attack.
You know, I'm having to re-listen to my audio, and I'm having to look at pictures of my broken face, all bruised, and reading my 60-page report.
And I was cross-examined for three days by the defense.
And after all of this evidence was presented to the jury, they acquitted him.
They found him not guilty of attempted murder, not guilty of assault with a deadly weapon.
They were unable to convict him on three other felonies, and they found him guilty of a misdemeanor, negligent discharge of a firearm.
And a huge contributing factor to that was Assembly Bill 3070.
We pulled the jury afterwards, and 5 out of 12 jurors had implicit bias towards law enforcement, meaning it didn't matter what evidence they heard or saw.
They didn't like the cops, so my testimony was invalid to them.
So he had no punishment for what he did?
No punishment.
He wasn't held accountable for any of his actions.
He didn't have to go and seek treatment.
He was just released.
But one of the parts of the law that made that trial very difficult for the prosecution is that one of the reasons that you can no longer just excuse a juror without proving all these extra things is if a juror expresses bias towards police.
If a juror expresses bias towards police, it's presumed, presumptively invalid that I'm excusing them for some untoward reason.
So if you say you don't like the police and you have a case where you're kind of, the police is involved, then you can't be removed as a...
It makes it very difficult, like I explained.
It puts the burden on me to show, right?
By clear and convincing evidence.
I'm not doing this for an improper reason.
What do you have to show if I already say I'm biased towards the police or I don't like the police thing?
Well, what makes it really difficult is, say in the sentence, you say, you know what, I'm Iranian and I've been pulled over by the police and I have a bias towards police.
Now the race and the bias towards police are tied together.
So you tell me, how do you think that someone can prove that I'm not excusing you based on your race?
I'm excusing you just because you don't like the police.
It's very, very difficult to do.
It's very difficult to do.
And before Assembly Bill 3070 was written into law, if you had a bias towards law enforcement, so if you said, I don't like the cops, you would be excused because that is not fair for an impartial trial.
Now, with Assembly Bill 3070, you can say, I don't like the cops, I don't trust the cops, I have bad experiences with law enforcement, and you can still sit on that jury and be a part of that.
So after the verdict was read, my attorney pulled the jury form in and she told my attorney that there was 5 out of 12 jurors that had implicit bias towards law enforcement.
They openly said it.
One of the alternates told the court, do not pick me.
I do not like cops.
I've had bad interactions with cops.
I don't trust them.
She still was selected anyway.
And then she sat in one of the 12 seats because a juror had to be excused.
So now you have somebody basically waving the flag, don't pick me, and she's being picked anyway.
So, you know, almost 50% of my jurors had already made their mind up about my case before they even heard it.
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Now let's go back to the interview.
And Nicole, was there a time you started seeing this?
Was it because of McCarthy's case or was it before?
Were you following this?
How did you start paying attention to this?
So I started following this because I do defend police officers in criminal cases quite often and I became aware of the law and was following this.
And then I became aware of Megan's story and followed the aftermath of her trial.
And I realize this law is very dangerous, you know?
I mean, watching a video like that of someone getting shot at and pleading for their life, and it's on a video clear as day, a crime being committed, and watching someone walk away from that.
And do you think there's more officers like you that have been victims of situations and then they go to court and the court is actually, the jurors are doing this?
I can guarantee it.
Just in San Bernardino County alone, I know of three other deputies that this has happened to, where Assembly Bill 3070 has swayed a jury and they're releasing very dangerous criminals into the community or they're finding them guilty on lesser charges that don't have a sentencing benefit.
So in my case, my suspect was looking at 55 years to life.
Very extensive criminal charges he was looking at.
And the court of law found him not guilty and he was released.
So instead of holding people accountable in jail, they're being released into the community.
And it's causing this doom loop of problems for our entire communities.
And this, in your case, your suspect is in your community, right?
You live in this community with the suspect, right?
I live 10 minutes away from him.
You know, I live 10 minutes away from where I was almost murdered.
And I don't have the luxury to pick up and move.
And, you know, I have three children.
My husband is in law enforcement.
So we don't have the luxury to say we don't want to live here anymore.
We have to.
And I was hoping that I would get some justice and some closure from trial and he would spend his, you know, years in prison and I wouldn't have to worry about it.
But now I worry if I'm going to run into him at the store.
But taking it a step further, we've got to think even in criminal trials or civil trials, a lot of times a police officer is a star witness.
Say you were to get in a car accident today on the freeway and a police officer witnessed that car accident and then you're severely injured and you need to take that case to a civil trial.
Well, if you have jurors that say, I don't trust the cops, now they're not going to believe my report and you could potentially not get the justice you need for your car accident.
So Assembly Bill 3070 doesn't just impact law enforcement, it impacts everybody.
When you were dealing with the justice system, when you went to court, did you expect something like this to happen?
Never.
I mean, when I sat on the stage and I raised my right hand and I took an oath for law enforcement to serve and protect, you're upholding constitutional laws for everybody.
You know there's a standard that you have to uphold.
And I'm working in tandem with that justice system.
So now that I'm on the other side and I'm a victim of one of those crimes, I'm hopeful that the justice system I protected would protect me.
And that was the exact opposite.
The state of California failed me.
The justice system failed me.
You know, there's a slew of problems that we're seeing now and I fell victim to that.
So a lot of the cases, they're going to get impacted by this based on this change.
Yes.
It's not just about police officers.
It's about all of us.
It's about everybody who is sitting in a criminal or civil trial.
There was a case in San Jose where a criminal defense attorney was defending a Latino client in a murder trial and he excused a Latino juror and he was accused of racism in that reason for excusing the juror.
So although this law was put forth by defense attorney organizations, and I myself am a defense attorney, it's actually having negative impacts on criminal defendants already.
We should be very concerned about that.
You know, we're innocent until proven guilty.
And this is really hobbling an attorney's ability to put on a case.
So was there a lot of racism in the judicial system?
Why did they propose this law?
I think that that was the thought behind it.
It's not my personal opinion that there was a lot of racism in the jury system.
We already have law that protects against, you know, excusing a juror for improper reasons such as their race.
I don't think a juror should ever be excused because of their race, but that's been well-established Supreme Court case law.
And this law, AB 3070, is taking it It's a way step further and I think it's taking it to a step that's dangerous for criminal defendants because how can I get a fair trial from my clients if I have 12 people who aren't paying attention to my client's case?
What about the judges?
What do they think of this?
You know what?
I haven't asked any judges what they think of this, but I would think it puts them in a very difficult position because it means almost every peremptory challenge is going to have to go to the judge and the judge has to make a call on it, right?
Is it proper if I excuse juror number two because he's He's expressed a bias towards police but he's also Iranian so am I excusing him for an improper reason based on his race?
So it really puts the judge in the hot seat quite literally because they're making the call on all these Race-related decisions?
Yes.
Yes.
And so it puts them in a position where they could be reversed on appeal if they make the wrong call.
I can't imagine that judges are thrilled about having 12 people in the box who really aren't...
Fit for the trial or maybe who aren't attentive to the trial.
It makes it very difficult for the judge as well.
The judge is the one who reads the instructions to the jury, who tells them, you know, the rules of deliberation.
So it makes a judge's job very hard, too, if they don't have 12 people that they can trust that are going to be fair and impartial.
What about your colleagues, your other attorneys?
What do they think of this?
Attorneys are very concerned about this law, especially because it affects both criminal and civil trials.
So that's all trials.
So all the trial attorneys I talked to are very concerned about this law.
You know, it's really already was difficult to pick a jury anyway.
No one wants to do Jury duty, right?
It's something that everybody dreads when they get their summons in the mail.
But then, once you get your jurors, having this law that really hampers the way you can select a jury is nightmarish for any trial attorney.
And then Nicole, do you have any other thoughts for our audience?
My thoughts are, you know, it's really important to pay attention to these little bills, even though sometimes it's boring to read about things.
Granted, this passed through our assembly, so it wasn't done by our voters, but it's really important to pay attention to our local politics, who we're putting into the state assembly, what they're doing.
Are they really speaking on our behalf?
Are they really working for us?
Are they doing things that are just well-intentioned that are furtherance of their career and not going to really help the citizens of California?
How does all of this make you feel, seeing where we are now and after this thought passing and the changes we're going through in California?
It makes me feel Frightened, to be honest.
You know, the clients that I deal with, I have people who I'm defending criminally, so they're facing potentially prison sentences.
It makes me very frightened for them if I can't have 12 people who even care to be on the jury, and I can't excuse those folks even if they're inattentive.
They're not paying attention to what I'm saying.
I mean, these are really high stakes.
We're talking about someone's life, their liberty, the things that we really fight for, right?
Things that our Constitution is very centered upon is our life, our liberty, our freedom.
And that is about as high stakes as it gets is talking about incarcerating someone.
And it makes me feel frightened that our jury system is being torn apart in a way that's not allowing for really a fair trial.
That was what our founding fathers had envisioned for people.
I hate to harp on this, but When you're at the most peak, pinnacle, crucial point in someone's life, whether they're going to face prison, they could face the death penalty, we need to at least have people who are paying attention.
And I just think that this is a horrible law that's been passed, and it's very concerning, it's very frightening.
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Nicole, it's pretty strange the way, I was looking at the details of the type of people where you can't question.
It's like, it's a strange list of things, like child out of wedlock, bias towards the police.
Where did they come up with this list of things?
I don't know exactly how the legislators decided that that list of things would be their list, but I think it's an incredibly racist list.
I think that the list, it houses some very ugly racial stereotypes, and in its attempt to eliminate implicit bias, it's actually really I'm codifying racial stereotypes.
I'm a Latina.
I have a child out of wedlock.
I can still have a mind and a brain and sit as a juror.
And just because of those things, I shouldn't be stereotyped at all.
And so I really am against the stereotyping that's in this law.
I think it's incredibly offensive.
So they were trying to fix racism in the judicial system by these very racist ideas, right?
Is that what happened?
Yes.
I think that they hearkened back to some very ugly racial stereotypes in writing this law.
And I think it is sort of a racist law, to be honest.
And what do you think is the solution?
There's a couple ways it can be solved.
I think the best way for it to be solved is some sort of voter initiative, ballot initiative, to change this law.
That would be the best way that it could happen.
And for that to happen, people have to become first aware of it.
So I thank you for having me on here so people can learn about this and become educated about it.
Because you can't care about something that you don't first know about.
You don't understand.
That you're not invested.
That you're not invested in, right?
So the first step is really getting people to be aware of this and be invested in it.
But another way that this law could change is potentially if we were to have someone who's convicted under this law who appeals.
And the appellate court were to find this to be unlawful.
You know, I do think that it is a law that affects due process.
You have a right to a fair trial.
And this is not a fair trial if you have people who are not paying attention.
Or if they have a bias against it.
Or if they have a bias against you and they're allowed to remain on the jury.
That's the irony of this law, right?
It's to eliminate bias, but it's also allowing bias.
But it could create a lot of bias on the other side.
Yes, exactly.
I just think we need to wake up and take charge.
You know, I'm starting to see a bit of the pendulum swinging back.
I'm having a lot of soccer moms and a lot of people that are asking me, how can I help?
What can I do?
What can we do?
And people are starting to want to take charge, but we just have to keep that initiative for 2024 and the years to come.
We have to know that California isn't just for us.
It's for our kids and our grandkids.
And it's up to us right now to stand up and do something.
I mean, our crime rates are through the roof.
Our police force is down 25%.
That's going to take 15 years just to maintain the status quo.
That's not to have extra units for those smash and grabs or for the child cases.
That's just to keep law and order.
So if we don't start getting California back, then it's not going to be a place for any of us.
Your husband is a cop.
You're a cop.
How can people support you guys?
People that like the police and they think we need the police.
How can they help?
It's hard because, you know, this job isn't what it was decades ago when people respected the cops and you kind of knew, hey, don't do X, Y, and Z because there is things that will hold you accountable.
So you can't go into a store and rob because you'll go to jail.
That's bad.
Well, now we've enabled crime.
We've gone soft on punishment so people aren't being held accountable.
My husband works for the same sheriff's department that I did.
He's on the SWAT team.
So he's dealing with the most dangerous hostage rescues and active shooters.
You know, he's the last ditch effort to keep us safe.
So we need people to stand up and say, listen, these cops aren't the one writing the laws.
They aren't the ones writing the penal codes.
They are the ones just trying to enforce it.
And if you happen to stumble into a crime, there are methods and ways to be acquitted, you know, guilty or innocent.
But that doesn't mean you have to go murdering cops.
That doesn't mean, like in my case, because he didn't want to be held accountable for, you know, whatever he did to his mom, that you can murder me.
I think those standards have gotten really backwards and we need people to wake up and stand up and support the first responders because we're seeing a big crisis right now.
Hopefully it doesn't have to result in someone being wrongfully convicted on a case and having to appeal it.
Hopefully there's some sort of voter initiative, ballot initiative that happens prior to that ever happening.
Do you think this is going to happen?
Do you think Californians will make a change in this?
It's my hope.
I'm doing everything in my power possible to try to make a change for this.
I hope that the viewers that watch this are, you know, can help try to make a change in this.
Nicole Castronova, trial attorney.
It was great to have you on California Insider.
Thank you for having me.
It was a pleasure.
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