In his opinion in Miller-El, Justice Breyer suggests we should seriously be considering either abandoning or limiting the use of peremptory strikes since their "scientific use" is harming our system of justice. I tend to agree. It seems the correct assumption is that the strike is used against someone who is qualified to serve (or least who cannot be demonstrated to be disqualified). Maybe the causes for disqualification need to be broadened or maybe a party should get some "lesser bias or prejudice strikes", but no one can deny the current rules serve cross-purposes.

Of course, one big improvement would be a requirement that a defendant must show harm from the jury selection process other than just the result.

Martin, you are free to abandon peremptory strikes. Just quit using them. But don't make your rule for the rest of us.

Personally, I believe we would be seeing a lot more verdicts like those in California without peremptory strikes to remove jurors who meet the minimum qualifications but just can't make good decisions.

Peremptory strikes give lawyers the leeway to remove jurors who are not or can not giving us a true response to the questions asked during voir dire.

I just tried a murder case in which panel member number 2, a biker in a pigtail, promised he could be fair. Forget that his brother was sent to prison. Forget that everything about him hated authority. I have no doubt that under yours and Justice Breyer's pure world, the citizens would not have seen justice done. They would have seen a juror who prevented justice to achieve his personal goal of screwing with the system.

Every time a judge, particulary one on high, sees an injustice, he wants to replace it with an injustice of his own liking. No thank you.

Maybe justice would not suffer by doing away with preemptory strikes if 1) Verdicts required a simple majority; and, 2) if the jury pool was improved by drawing only from those on the voter list,who own property, and have been gainfully employed for at least 5 years; and, 3) if judges were required to be more aggressive in removing dumkofts, squirrels, and nitwits on motions to strike for cause.

Even then, I'm not sure such reforms would negate the necessity for preemptory strikes.

The problem is that such reforms have no hope. Instead, the trend is in the opposite direction: all judgements about people are discouraged, and we are required to believe that everyone is equally qualifed to serve as a juror.

Which, of course, is not true.

As a former defense attorney, I have to side with John. I would often get at least one cop on a panel who was not directly involved in the case and so had no actual knowledge of the offense but who knew everyone (police and my client included) who WAS involved. Each time I heard the magic words that he could put this all aside and be fair. I used my strikes on those guyes without fail.

John, would your panel member number 2 have taken the option to just leave, if offered? I know that many people do not show up for service and many grumble about it. Others experience true hardship because if they do not work they do not get paid, or they have other hardships. But, if we were permitted to start the day out by asking for a show of hands from those who wanted to leave and did not believe their service is important, and then just let them go, wouldn't we see a lot of the would-be peremptories walk out the door?

I couldn't agree more with John Bradley's comments. If peremptory strikes were done away with the results would disatrous.

Toby, welcome to the debate. I realize you have 4 prior posts, but I guess I missed them. Good to have your voice added to the cacophany.

I realize this must be quite important to you, as you are no doubt very busy with your new duties as special prosecutor for all things drug-related there in Dallas.

While prosecuting the Texas 7 (minus the one who committed suicide) who escaped from prison, did you find that perhaps peremptory challenges helped weed out people who had strange reasons for being in the courtroom?

By the way, peremptory challenges may become even more important now that jurors will be paid $40/day soon. That is more money than some make at their regular job, if they have one.

Except for capital cases nothing in the U.S. Constitution requires unanimous jury verdicts. In fact, courts martial only require 2/3 majority vote for guilt and punishment. Each side gets one peremptory challenge, but the pools are not as big.

John it's good to finally join the discussion. I usually leave Dallas County contributions in John Rolator's capable hands but my blood was up after reading the Miller El decision.
In answer to your question we found all kinds of strange folks with all kinds of hidden grudges lurking in the jury panels. Of course we run into these folks in every case. As you well know it's often hard to convince a Judge to knock potential jurors off for cause. As a result you only have peremptories to fall back on. Also I don't know of any defense attorney worth his salt who would ever endorse the idea of giving up their 10 free shots.
If peremptory strikes were done away with we would see a dramatic rise in hung juries and even further frustration in the administration of justice

Peremptories are necessary unless drastic changes are made to compensate for losing them. Some jurors are clever enough to figure out what the right answers are to hide their bias. How many times have you come across the juror with the I-hate-authority attitude who answers everything just right? Can you imagine how much jury selection would be affected in a death penalty case without peremptories? Hung juries would go up and jury selection would take longer and be much more contested as both sides try to disqualify jurors they don't like for cause.

Like it or not, aren't we kind of heading that way now with Standefer and Barajas? Don't get me wrong, I like having them as well, but they do seem to be under fire lately. It seems to me that the concern about the problems with use of preemptory strikes should call the practical application of Batson into question, not the other way around. After all, that's generally why we now have Crawford, because the legal standards got too hard to use regarding hearsay and the confrontation clause. Same thing with pre-text stops (too hard to apply and based largely upon speculation).

Couple of DWI trials back, had a young lady on the panel whose best friend's 6 day old baby was killed in a car wreck when hit by a drunk driver. Still got very emotional talking about it, but was willing to do her duty and put that behind her for the purposes of the trial if picked. I honestly didnt get the feeling that she was on a crusade - was just being honest.

On one hand, could say would like 5 more just like her, with the same life experiences, etc. to make our job easier.

But, other than the fact that we are seeking justice, and not out to just hang em all, wouldn't most of us feel a little uneasy with having this happen? (probably not as uneasy as the defense attorney, but still...)

Maybe I am still a little niave and haven't been stomped into the ground enough, but I still would rather win by convincing them. Not b/c the other side couldn't unconvince them.

Guess my point is, I don't think either side would be for this.

I noticed that the SC mentioned the State's use of a shuffle as a basis for proving discrimination. More often than not, it's the defense that does a shuffle. Usually to move the races or genders around.

The Texas SC recently had a chance to get rid of the shuffle and didn't. Isn't that something we can all support?

If the supremes eliminate the peremptory strike we may as well close up shop. Every TRIAL lawyer knows that sometimes the venireman has an agenda. The courts erect barriers to sustaining and in some cases even developing challenges for cause and then want to whittle away at the other end.

Is it not interesting that the first item the court mentions is the 91% number? Let a defendant rob 91% of the banks he passes by and try your luck at getting the extraneous material before the jury. The majority saw an anomaly and, having made up their minds, constructed an opinion around it. It would really be nice one day to have at least a few trial lawyers to grade the papers.

Obviously there would need to be some other major changes in practice before the current use of peremptories were changed. One would be the recognition that the statutory grounds listed in 35.16 are not exclusive and that we are truly talking about any fact which renders a juror either "incapable or unfit to serve". See Mason, 905 S.W.2d 570. Trial judges would indeed have to be far more considerate of cause challenges (from either side). But the granting of a state's challenge would receive the benefit of a realistic harmless error rule rather than something as stupid as the automatic harm rule employed in Batson. See Jones, 982 S.W.2d 386. I agree that voir dire might take longer to develop more concrete reasons for excusing a juror and that some jurors are going to lie their way onto the jury, but in my experience we seem to never to have enough time to identify all the bad ones anyway and the defense uses its peremptories to exclude up to 10 perfectly good jurors because they would prefer not to have a rational determination made. I think just maybe that if a few more of those ten were to make it onto the jury- in place of what the current system provides- we might see better verdicts, or hung juries that would otherwise vote for acquittal. I also wonder what the result would be if only those jurors who were "double struck" were excused. Breyer seems to suggest that other countries control crime without using peremptory strikes. I am only suggesting we should at least give some thought to their role and whether they are truly achieving the best result.

In recognition of putting certain jurors in the box that would not be there under the current system it would be essential to allow 10-2 or even 9-3 verdicts. I can almost guarantee no greater percentage of innocent persons would be convicted.

[This message was edited by Martin Peterson on 06-15-05 at .]

Ah, now Martin you draw us into your web with the lure of international law? I should have seen it coming. Well, I would think that the first foreign country that we could use as a model is California. They seem to be having great luck with their juries.