Maybe I am behind the times, but I thought Batson was about making sure the Defendant got a fair trial. Using it against the defendant seems to turn that logic on its head.
It's also framed as basically exercising an equal rights claim on the jurors' behalf, which is why it's applied against defense attorneys. And, for that matter, against civil attorneys as well.
Posts: 1116 | Location: Waxahachie | Registered: December 09, 2004
Batson has nothing to do with creating a fair trial for any party; it is to allow protected groups to participate as jurors. It is an example of the extra luggage our courts are required to carry beyond their original purpose: to protect the innocent and punish the guilty.
The professor who wrote the article cited by Boyd has obviously not tried many jury trials. Getting rid of preemptory challenges would be a disaster for the cause of Justice. Of course, it may be the professor cares more about abolishing "stereotyping," and requiring fewer veniremen for jury service than he does in having the courts come to a just verdict and sentence.
quote:The professor who wrote the article cited by Boyd has obviously not tried many jury trials.
Ahem.... "Professor Dorf is a graduate of Harvard College and Harvard Law School. He served as a law clerk to Judge Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit in Los Angeles from 1990-1991 and to Justice Anthony M. Kennedy of the United States Supreme Court from 1991-1992. He joined the law faculty of Rutgers University (Camden), in 1992, where he remained until 1995, when he moved to Columbia Law School. He joined the Cornell faculty in 2008."
Notice what's not there? Any indication that the good Mr. Dorf has any experience, ever, at any level, anywhere, with an actual jury trial. He clerked for two years, and then immediately was hired as a professor. He didn't even do the normal "for appearances" route of working at a white-shoe firm for a year or two while schmoozing with partners. Him commenting on jury selection as an expert is somewhat akin to the high school kid at Blockbuster being an executive producer of the newest Transformers movie. After all, they've both seen a whole bunch of the finished products, right?
I'd feel a whole lot better about the direction of our profession if people like Mr. Dorf (or for that matter, *any* of our Supreme Court justices) had at least tried a traffic ticket in JP court once or twice.
Prof. Dorf's comments ticked me off, so I wrote him an email:
Professor Dorf,
I'm a misdemeanor prosecutor in Texas. I read your article "Are Hunters a Constitutionally-Protected Group? A New York Judge Says Yes" and I was struck by a segment that you wrote about peremptory challenges. While I applaud your efforts to root out stereotyping from our society, I think your conclusion that the peremptory challenge system should be thrown out is ill-conceived and not thoroughly thought-out. Specifically, the last few paragraphs read:
"The real problem here is the peremptory challenge itself. If hunters cannot be fair to someone charged with shooting another hunter, then they should be excused for cause from a case like Robar. But if they can be fair--and if questioning reveals no reason why any particular hunter-juror cannot be fair--then there is simply no good reason to keep them off the jury.
Even when a peremptory challenge is not used to work a systematic exclusion of some suspect or quasi-suspect class, the whole point of such a challenge is its arbitrariness. Why should a lawyer's hunch or stereotype be sufficient grounds for excusing a prospective juror who, after questioning, has been shown to be free of bias?
The fact that peremptory challenges give lawyers an opportunity to "overrule the judge" is simply not a sufficient basis for retaining this wasteful license to arbitrariness. Lawyers should find some other way of venting their anger and frustration with judges who rule against them."
I've tried about a dozen or so trials in the last year, and helped with the jury selection on many others. Before each jury selection, we do a full criminal history check on those on the panel. We work in a smaller county, so sometimes we know that potential jurors have been arrested or suspected of crimes, or are close family members or friends with those sorts of people. I think it is pretty obvious that many of those types of people would not be fair, open-minded jurors. And if we can get them struck for cause, we do that. But I think you can imagine that those sorts of people don't always tell the truth about their criminal history and that of their family in front of a large group of people.
It's not always possible to get a person to admit on the record that a they will have sympathies with the defendant for any number of reasons: the person lies, the person is embarrassed, the person thinks that they will be able to be fair but they are wrong, the person holds a grudge against our office or law enforcement, etc. If a person will not admit this, I cannot stop jury selection and go bring admissible proof to the judge of these facts; I have to use a peremptory strike.
For example: I prosecute theft by check cases, and we decided to change our policy and not take in payday loan checks any longer. I went to the local payday loan lenders and basically told them that I was putting them out of business because they would no longer have the state serve as the enforcer of their loan agreements. One lender in particular was very angry at me for doing this, and had even complained about my decision to my boss and other people in my office. One month later, she was the 2nd person on the jury panel, and would definitely by on the jury if not challenged for cause or with a peremptory strike. When I asked her if she had any potential bias or prejudice against myself or my office, she answered just as sweetly as she could that she did not. There was no other answer I got out of her that would disqualify her from jury service.
Was she telling the truth? I don't know, but I don't think so. Is it worth taking the risk that she will guarantee a mistrial or not guilty for a 2nd time DWI driver? Absolutely not. That's why I was so thankful for the ability to strike her.
Now you might say, "well you are experienced at cross-examination; why couldn't you get the information out of her?" How would the other 40 people in the room, 6 of whom I'm trying to get on my side, react to a relentless attack an older lady who just appears to be trying to fulfill her civil duties? They'll hate me. And I STILL might not be able to get any "challenge for cause" information out of her to get her off the jury. Either a) she was already mad at me before and her mind hasn't changed and she's biased against me, b) she wasn't biased against me until I attacked her and now she is or c) she's of very strong character and she's still committed to being open-minded. Once again, justice in my case would not be served by gambling that the answer is c).
I've had people get on juries who were grateful former clients of the defense lawyer I'm up against. I've had the mother of the defendant in a case I was trying two weeks later on my jury panel. I've had secessionist members of the "Republic of Texas". And those are just the people that I knew about soon enough to strike.
One more example: I lost a DWI case, one where the defendant had a BAC over twice the legal limit. I couldn't understand it, even after talking to the jury after the trial, until the defense attorney told me what he had known that I hadn't: 3 of my 6 jurors had children who were currently facing DWI charges themselves. I had asked that specific question during jury selection and they all lied by remaining silent. I am convinced these people lied to get on my jury and find not guilty because, in some way, they felt like that was justice for their children or because they held a grudge against law enforcement.
The peremptory challenge system, like so many things in the judicial system, is not perfect, but having it is far better a solution for justice that not having it. Your suggestion that "the whole point of such a challenge is arbitrariness" ignores the reality that trial lawyers like myself face every day: people aren't perfect and justice for each party and society is more likely if the lawyers can eliminate as many jurors as possible who hold a bias, admitted or kept secret. Your solution, eliminating the peremptory system, would be disastrous.
This fellow has only seen play acting voir dire at law schools. He has never looked eyeball to eyeball with one single jury pool. His article makes it readily apparent.
How can a hobby or extracurricular activity be elevated to a constituionally protected class? What if my hobby is chemistry and I like to make meth. Seems that a persons hobby could actually say more about the ability to follow the law than anything else. If this "professor" replies to your e-mail, please post it.
Posts: 62 | Location: Richmond, Texas, USA | Registered: May 07, 2003
As an avid hunter, I am tired of all this discrimination we face on a daily basis, and am glad that, for once, someone has stood up and said it is not o.k. It is bad enough we have to go to restaruants that offer vegetarian only options, yet continue to combine vegetables and other non-meat side dishes with entrees. Now we are being denied our constitutional right to sit on a jury and pass judgement on others.
I, for one, am outraged that such a practice has not been more roundly condemned.
Posts: 51 | Location: Throckmorton County, Texas | Registered: March 13, 2008
TCT AnCo, you wrote a brilliant letter, and I look forward to seeing the prof's reply posted here. It is sad that a man with no more experience picking juries than a cast member of Law & Order would be picked to sit on a commission that is supposed to improve the system.
But you said one thing I disagree with. You applauded his effort to root out stereotyping in American society. In my experience, stereotypes tend to be fairly predictive of a person's behavior. Everyone older than an infant stereotypes, and for good reason: it saves you from having to reinvent the wheel every time you meet someone new. Occasionally you'll be wrong, but you'll be right far more often than someone who is devoid of stereotypes.
Advertisers spend the big bucks stereotyping people so they can get the biggest bang for their advertising dollar. That is why the ad mix in Seventeen Magazine is so different from the ad mix in Time or Outdoor Life.
The same is true of politics. People who drive Volvos with "Save The Whales" bumper stickers are more likely to have voted for Obama than people who drive pickups with a .30-06 on the back seat.
If you know nothing else about them (& in voir dire, you often don't know much about a venireman), which man would you rather have on a jury for an Agg. Sexual Assault of a Child case: a 30 year old hair dresser, or a 30 year old rancher? If you say the rancher, I'd say you are stereotyping, and I'd say Good For You. If you say you'd just flip a coin because there's no difference between them, I'd say you have trained yourself to be stereotype free, but you are going to have a tough time picking juries.
Yeah - stereotyping is OK. That's why the "P" professions are seldom left on criminal juries (prosecutors, police, professors, psychologists, psychiatrists, pilots, priests/pastors, prostitutes, etc.).
Posts: 1089 | Location: UNT Dallas | Registered: June 29, 2004
Thanks for your note. I continue to think as I did for two chief reasons:
1) The peremptory challenge system is a very imprecise solution to the real problem you identify of potential jurors not telling the truth on voir dire. As your own examples illustrate, it is hit-or-miss whether either side will discover the dissembling, and then if one attorney does discover it, he has an incentive not to reveal to his opponent when jurors are biased in his FAVOR. A system without peremptory challenges would, among other things, lead judges to be more vigilant in granting excusals for cause.
2) England, which still uses juries for criminal cases, does not permit peremptory challenges, without the disastrous outcome about which you worry.
Best wishes, Mike Dorf"
Also, Terry and Gretchen, I do recognize that stereotypes can be a guide for accomplishing certain ends; I just feel that we can start to use them too much, to the point that we don't look any further beyond an initial impression of someone. They can be useful, but they shouldn't be the only tool in the toolbox.
quote: I just feel that we can start to use them too much, to the point that we don't look any further beyond an initial impression of someone. They can be useful, but they shouldn't be the only tool in the toolbox.
Oh, we are totally agreed on that point. I didn't intend to imply otherwise.
Posts: 1089 | Location: UNT Dallas | Registered: June 29, 2004
quote:2) England, which still uses juries for criminal cases, does not permit peremptory challenges, without the disastrous outcome about which you worry.
Well gosh, if England does it, how could we possibly object? It's not like we fought a revolution to have our own system or anything.
Posts: 1116 | Location: Waxahachie | Registered: December 09, 2004
http://www.law.fsu.edu/journals/lawreview/frames/243/glasfram.html ("In 1967, after discovering that jurors had been bribed and intimidated to acquit criminal defendants, England passed a law that permitted a jury in a criminal trial to conclude deliberations and return a verdict when a majority of eleven to one or ten to two was established.")
a number of commentators, including high-profile judges, have alluded to the fact that England has abolished all peremptory challenges, presumably with no ill effects, and implied inferentially that the English experience can be applied to U.S. juries.10 Notwithstanding the fact that the abolition of peremptory challenges remains controversial within England, there are a number of major differences between the two countries' jury systems.11 Among them is the fact that England effectively has no challenges for cause either; that is, the first twelve jurors called constitute the jury! England has more or less abolished the unanimity rule even for serious cases.
Posts: 527 | Location: Fort Worth, Texas, | Registered: May 23, 2001
The venire pool from whence jurors are drawn also makes a big difference. In Texas, anyone with a state issued ID card can be called for jury service, which means there are a substantial number of people called for jury service who are crazy, criminal, or are just low lifes who don't give a fig newton.
A 100 years ago, juries were restricted to registered voters, which meant only men. To register to vote, you had to come to the courthouse and register to vote. And you had to pay a poll tax, which I think was about $2.00. That would be equivalent to about $50 today. A jury pool of such people would probably need far fewer challenges for cause or pre-emptory challenges to find a good jury.
So I'm wondering: who gets called for jury service in England?
Another possible difference: In Texas the judge cannot comment on the weight of the evidence. Does this rule apply in Britain, or is the judge expected to give some guidance on the testimony heard, and the evidence? If the latter, that would go a long way in correcting some of the problems with bad juries, assuming you had competent judges.
The defendant while hunting shot another hunter and was indicted for assault and reckless endangerment. At voir dire the defense struck hunters. The state raised a Batson challenge, which the judge carried. A jury was sworn, and the state presented its case. The judge then ruled in favor of the state on the Batson objection and declared a mistrial, despite requests from both parties not to declare a mistrial. The appellate decision bars re-trial on double jeopardy grounds and says the judge was wrong on the Batson issue (meaning it is ok to use peremptory challenges to strike hunters).
