Jury selection is the process whereby lawyers exercise their prejudices to prevent jurors from exercising theirs.
The peremptory challenge, limited to ten in California in ordinary criminal cases, but more in murder cases, is the principal means of getting rid of jurors that you or your client don't like, where the prospective juror hasn't provided grounds to be excused for cause, which is the alternative means.
"Your Honor, the (prosecution/defense) thanks and asks the court to please excuse prospective juror Number Six," is the usual way it's done. Politely put the blame on the court. Keep matters impersonal. Sayonara.
We like to think we're beyond racism in jury selection, but race, ethnicity, gender, age, religion, beliefs, and anything else, are what it's all about in jury selection.
Who are your peers? People of a different background? But that's not the test. Both sides are entitled to a fair opportunity to have seated a cross-section of the community, and group discrimination is a no-no. Yet it recurs, human nature being what it is. Each side wants justice, but each side wants to win, believing justice to be on its side, not the other. And so it goes...
Here's an article by a lawyer who didn't like being excused from jury service.
One might think that lawyers were a little thicker skinned, but no, we wouldn't be good lawyers if we weren't sensitive to the rampant injustice all around us, would we?
On the recent Scott Peterson murder-death penalty jury in Redwood City, which brought back both, the first jury foreman was a combination doctor-lawyer, which is a red-flag for kick-off from day one, at least for the defense. He didn't work out and resigned in mid-stream, at the place where the rocks create the rapids. Once he was gone, the jury had no trouble asking for the rope to be sent in.
When you're the defense, and have a sympathetic, more-or-less, defendant, you want jurors who have a heart as well as that thing called a head. You want saviors, mothers, nursing personalities. You don't want former fighter pilots, wealthy bridge-playing grannies, and project-managers. The fighter jock is a killer, the granny will have you figured out before you do, and the project-manager might make it his next project to line up all twelve jurors to convict your client without any unnecessary delay, apart from the mandatory lunch at county expense, of course. Do you have any idea how many guilty verdicts are brought in right after lunch? Certainly before 5:00 p.m. on Friday.
When you're picking a jury for the prosecution, let's say for a DUI case, you want to kick off the painters. Painters inhale a lot of fumes. When they're not inhaling fumes, they may be imbibing the equivalent. Painters only drink on two occasions: (1) when it rains and they can't work; and (2) when it doesn't, and they're working, because painting makes you thirsty.
A very bright law clerk I knew took the bar exam nine (9) times.
He couldn't write, but he could talk.
On being interviewed for a job at the district attorneys office (where the premium is on talking, not writing), he was asked by the Chief Criminal Deputy what kind of jurors he would want to have on a shoplifting jury.
"Merchants," he replied.
The Chief told me this later, and we both howled.
Needless to say the law clerk who couldn't write an exam to save his life became a hugely successful prosecuting attorney.
As long as he didn't have to write anything, and you don't submit written briefs to juries, do you...
***
jurisprudence
One Angry Man
The lament of the peremptorily challenged.
By Dirk Olin
Posted Monday, Dec. 20, 2004, at 12:46 PM PT
A
couple of years ago, I was denied my rights in a Newark courtroom. What
happened to me is a dirty little (open) secret of the American justice
system. It happens hundreds of times every day during jury selections
around the country. It's called a "peremptory challenge." But because
I'm a 40-something male mutt of Northern European extraction, the U.S.
Supreme Court does not recognize me as a "suspect class" under the
equal protection clause of the Constitution. Discrimination against
middle-aged white men raises no constitutional eyebrow, in other words.
So, I had no recourse.
The process is not completely irrational.
At the start of a jury trial, opposing counsel and the judge question
potential jurors in order to weed out candidates who are too biased or
conflicted to serve as disinterested fact-finders. Under challenges for
cause, attorneys must convince the judge that specific would-be jurors
are demonstrably prejudiced or have some relevant relationship to a
party in the proceedings that calls into question their fair-mindedness
at trial. Makes sense.
But in most courts, each side also can
exercise a passel of peremptory challenges. Through these, they may
dismiss potential jurors without providing any reason at all. That's
what happened to me. I'd been called for a case involving two black
guys accused of dealing drugs near a school. A bunch of us had survived
questioning about whether we could be fair, but in the ensuing hour the
prosecution and defense proceeded to winnow the pool further.
When defense counsel said, "Number Eight, excused," I was gone. No questions asked, no reasons given.
Defenders
of peremptories—including many if not most trial attorneys—note that
the practice dates back to ancient Rome. They argue that prejudice is
often hidden, intentionally or accidentally, and that the flexibility
afforded by arming counsel with unexplained dismissals is a time-tested
way to admit a hint of lawyerly intuition into the system. They say it
improves all litigants' confidence in the process, and that its equal
availability to both side makes it fair. But what is fair about unexplained bias?
It's
certainly true that the practice of peremptories is far better
administered than it used to be. It once justified shocking racial
bias. As recently as 1965, in Swain v. Alabama,
the Supreme Court essentially authorized purely racist peremptories by
requiring a given objector to prove the prosecutor had an established
record of discriminatory strikes in prior cases. One commentator
labeled this "the constitutional blueprint for the perpetuation of
all-white juries." Only in its 1986 decision Batson v. Kentucky
did the court finally outlaw peremptories made solely on the basis of
race, and only in 1994 did it add peremptories based on gender to that
prohibition. Peremptories based on some ethnicities are also now banned.
But in practice this all amounts to a fairly empty admonition. Although Batson challenges are commonplace today, one study of 76 cases involving Batson
hearings in federal courts found a meager 3 percent of cases in which
the striking of minority jury candidates was ruled unlawful. That's
because Batson erected a serious barrier to objectors. Even
if they can show that all or most potential jurors from one of the
three protected categories were nixed, peremptories can still survive
if the attorney who made them has the thinnest doily of a
counter-explanation. ("It wasn't because he was black, your honor, it
was because he's a doctor …" or "It's not 'cause she's a woman, your
honor, it's 'cause she lives in a neighborhood that's just like the
victim's.") As long as the lawyer who jettisoned the juror offers a
plausible bias other than race or gender, the dismissal stands.
In
a Texas death-penalty appeal argued before the Supreme Court just this
month, the black appellant argues that his conviction 19 years ago (pre-Batson)
was invalid because the prosecution struck 10 of 11 black jurors—six of
which strikings are now at issue. The state said it dismissed those
jurors because they were mushy on the death penalty. Appellate Counsel
Seth P. Waxman (solicitor general in the Clinton administration) argued
that the state's motives were transparent; that they'd accepted whites
who were just as ambivalent on the death-penalty issue. The-ever spunky
Justice Antonin Scalia raised the state's banner, noting that it had
proffered the necessary explanation for each rejection and that the
burden was on Waxman to make any "buckshot attack" on the jury through
a "pellet by pellet" examination.
Waxman had common sense on his
side. He leapt to a different analogy, invoking a pointillist Seurat
canvas that cannot be parsed up close: "As a reviewing court, you have
to step back and look at this," he urged. But as any law-school student
who has made the mistake of invoking "common sense" to an officious
professor can tell you, the law often proceeds along a more exotic
logic.
The Batson debate doesn't even address all
those classes of jurors who enjoy no protection under the current
interpretation of equal protection. Never mind the middle-aged male
mutts of Northern European extraction: The wrinkled, the pierced, the
fat, the crippled, the unemployed, the devout, the degreed (why do you
think no college graduates sat on O.J.'s trial?) all can be spiked
willy nilly from jury service by someone who has passed the bar and has
an "intuition" about group identity.
One irony of this is that
"peers" are among the first to be bounced from panels, because we
can't, of course, trust Latinos to weigh evidence against Latinos, or
dentists to do the same with doctors. But the costs are broader. Rich
defendants buy high-priced consultants to sift would-be jurors through
a sieve of identity politics (a reality that's either profoundly unfair
or profoundly wasteful, depending on your view of their effectiveness).
And those with the weakest cases can game the system by dumbing down
the 12 through peremptory legerdemain.
The result is surely
better than the old days of juries dominated by white male property
owners. But it's also become a race to the bottom—with character and
intelligence excised from this important instrument of democracy in a
dance of blandification. As long as jury candidates can be excused for
something other than real cause, all of society's "isms" will find
their way into the dynamic impelling the dismissals.
On
occasion, it is likely that peremptories have been exercised by wise
and well-intentioned advocates who used their intuition to keep a bigot
or conspirator off a panel. But let's recall that England and Canada
get along just fine without them. And in the aggregate, the common
costs far outweigh the rare benefits. There's enough sub rosa racism in
the system as it is. The peremptory challenge's effect is to disguise
it, not minimize it. In reality, it's little more than an invitation to
judge-approved jury rigging.
The goal here is not to increase the population of white male jurors. The goal is to pick juries based on fairness and open-mindedness, rather than weight, socio-economics, or facial hair.
Dirk Olin is national editor of American Lawyer magazine.
Article URL: http://slate.msn.com/id/2111247/