Editorial Advisory Board: An experiment in jury selection

In a criminal case, every state in the United States allows the government and defendants to use peremptory strikes to remove undesirable jurors in their attempts to mold a jury of the defendant’s “peers.”

Few judges and lawyers who have had interactions with this system of jury selection would say it works perfectly. Statistics show that peremptory strikes are used to remove minorities in higher percentages than whites.

Arizona’s judiciary has decided to take the lead in what it considers to be a groundbreaking reform meant to prevent racial bias in jury selection and has eliminated peremptory strikes altogether. Almost certainly, in the view of many, Arizona is woefully wrong in this regard.

The truth is the peremptory strike is often a defendant’s last resort to eliminate a juror who both the state and judge has deemed acceptable. Without peremptory strikes, a defendant charged with burglary may find the evidence presented against him evaluated by a juror who has been the victim of three unsolved burglaries in their own home. When speaking specifically in the context of race, without said strike, a poor black defendant might find himself being judged by a jury of 12 wealthy white men simply because without peremptory strikes the court is obligated to take the first twelve people available after voir dire.

In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court barred use of peremptory strikes based on race (and in later cases based on gender or ethnicity). The court laid out a process whereby a party’s prima facia showing of a pattern of racial bias in the use of peremptory strikes by the opponent the trial court can order the disclosure of credible, race-neutral reasons for the use of said strikes. The trial judge then determines if the asserted race-neutral reasons for the contested strikes are plausible and, if not, whether the juror should be returned to the jury pool.

It is not a perfect system, but it does create the record necessary to allow appellate courts to review both the trial judge’s decision concerning the use of strikes as well as the parties’ arguments for or against. Any experienced criminal or civil trial attorney is familiar with this process and takes it into account when employing a peremptory strike on a potential juror.

Arizona’s judiciary apparently thinks that by eliminating peremptory strikes it will minimize racial bias and remove the need for the Batson challenge system. Eliminating the peremptory strike phase of jury selection, however, may only shift the battle from the peremptory strike phase of selection of voir dire and to the strike-for-cause phase.

Or perhaps the members of the Arizona Supreme Court may believe that trial judges cannot properly apply Batson, either because it is unwieldy or time consuming. The expectation may be that somehow these problems are eliminated when the judge essentially does the same thing in the earlier phases of jury selection.

Reports from Arizona point to the low rate of appellate reversals based on Batson challenges and suggest that that fact proves Batson doesn’t work. Whether that is true, Arizona might well ask whether the attorneys and trial judges that try criminal cases need further education and training concerning the parameters of a Batson challenge. Indeed, as for appellate review, one might ask whether trial court biases are simply echoed in appellate court outcomes.

To be sure, Supreme Court Justice Thurgood Marshall was an early and devoted proponent of the elimination of peremptory strikes, believing that they make possible racial discrimination that could only be eliminated from the jury selection process by their outright abolishment. Many progressive thinkers, lawyers, judges, and political scientists as well as laypersons, have endorsed Marshall’s view, which until now has never been tested.

Perhaps this Arizona “experiment” in criminal justice reform will prove the correctness of Marshall’s perspective. On the other hand, this “experiment” might yield statistics that shine a spotlight on continuing discrimination in the legal system.  Time will surely tell.

Editorial Board Members Arthur F. Fergenson, Nancy Forster and Leigh Goodmark did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Andre M. Davis

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Roland Harris

Michael Hayes

Julie C. Janofsky

Ericka N. King

C. William Michaels

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.