Supreme Court considers race bias in jury selection

Johnson appealed, arguing that the dismissals were unconstitutional under a 1986 Supreme Court ruling that prohibited racially discriminatory uses of peremptory challenges.

The California Supreme Court ruled against Johnson, finding he hadn't shown that ''it is more likely than not" that prosecutors discriminated in selecting jurors.

Johnson's attorney, Stephen Bedrick of Oakland, Calif., told justices yesterday that California's standard was too high.

Under federal law, attorneys should have to justify peremptory challenges when there can be ''an inference" of discrimination, Bedrick said.

''These facts indisputably present an inference of discrimination," he said.

Attorney Seth Schalit, representing California, told justices that the state's standard for peremptory challenges is appropriate.

''California's system makes a proper balance between equal protection interests and states and parties' interests in using a venerable tool to select a fair and impartial jury," Schalit said.

Justice Sandra Day O'Connor said it sounded as if Schalit was asking for a different standard than federal law sketches out, ''and it's a tougher standard than normal."

Several justices also questioned why, given that racial discrimination has been prohibited in peremptory challenges since 1986, having to explain away an inference of discrimination presents any great burden.

''What is such a big deal about adopting a very low standard?" Justice Antonin Scalia asked Schalit.

''You cannot make peremptory challenges for any reason any more. . . . Once those days are gone, what's the big deal about" requiring attorneys to explain their peremptory challenges to judges, Scalia said.

Yesterday was the second time justices listened to arguments in Johnson v. California. They also heard the case in March 2004 before dismissing it because lower courts had not finished deciding some issues. After lower courts resolved those issues, affirming Johnson's conviction, the Supreme Court took the case again.

Also yesterday, the Supreme Court said it will consider whether police may search a home when one occupant consents but another does not.