Walter Olson twitted about the subject of this WSJ Story, and started a snowball effect on the topic of peremptory challenges.  It seems that some lawprof from Iowa named David Baldus came up with a brainstorm to limit strikes without cause to three.  Why 3? Because it’s less than we have now, and greater than none, which everyone agrees would never happen. 

Why any change?  Because Baldus thinks peremptories are unfair to jurors.  Why does that matter?  Because fairness is its own virtue in the Academy.  It’s one of those ideas that one simply accepts blindfolded, as if the world has forgotten why we have juries, why we have peremptories and why anyone hangs out at the courthouse in the first place.  Ultimately, all concepts become homogenized until we’ve forgotten why they existed in the first place.  I doubt that Baldus every tried a case, but if so, it’s a vague memory at best. 

So what’s the problem?  After all, arbitrary compromise is the cornerstone of American law, right?  Well, not necessarily.

Walter Olson, who has been on the vanguard of much of what’s wrong with the law and lawyers, fears that the use of peremptories is one of those things lawyers manipulate to turn the search for justice into a game won by trick.  He’s right to fear, but is the reduction/elimination of peremptories part of the solution?  I think not.

Walter raised two distinct points (note that these were twitted, and appear somewhat stilted given the inherent limitations of twitting). 

Gamesmanship on perempts not only tilts to cleverer lawyer, but could increase lottery effect by ousting skeptic voices.

Quality of delib’ns may droop if not even 1 true-blue left on one side or loyal-red on other. Or is your fear hung juries?

So in the societal interest of a fair outcome, Walter suggests that there are two separate evils caused by the use of peremptory challenges.  First, it works to the advantage of the “cleverer lawyer,” and second, it impairs the “quality of deliberations” by drawing jurors from only the “middle third” of society, thus ousting the left and right thirds from having a voice.

The twits came fast and furious, and so I suggested a blawgversation.

Patrick at Popehat posted first, arguing that trials belong to the participants, not society, and that the use of peremptory challenges by both sides will create, at least, the perception of fairness to the participants:

in the interest of perceived fairness as much as anything else, we allow attorneys to remove potential jurors they suspect might not be able to judge the case fairly.  Since the trial process is adversarial, we can assume that both or all parties will similarly exercise their peremptory challenges to remove jurors who might be partisans for the opponents to arrive at some level of perceived fairness.

As Patrick correctly notes, we can’t say for sure if it’s true that participants receive a fairer verdict since there’s no way to test the thesis, but our acceptance of the legal system as a substitute for bloodshed in the street relies in large part on the belief of the parties that the outcome of a trial will produce a reasonably fair result.

Next to chime in was the Texas Tornado, Mark Bennett at Defending People, who notes that it’s way too easy for a potential biased juror to avoid being challenged for cause by saying some magic words.

It’s not hard for a potential juror to say all the right words to avoid a challenge for cause; if the juror says those magic words, no matter how much nudging and winking he’s done, he’s not challengeable for cause (unless the judge is aberrantly concerned with fairness).

So without peremptories, we are left with a random group of people, but not quite the theoretically random group who would reflect the cross-section of society that might arguably be a fairer judge of outcome.  With only 12 on the jury, they reflect a “smallsampleocracy”, too limited to offer a true microcosm of society.  The hope that the group would bring all points of view to the jury room is just that, hope, without anything approaching a legitimate basis to belief that any random group of 12 represents a fair cross-section.  Thus,

Reducing the number of peremptories to three isn’t a “compromise”; it’s a random gutting of the adversarial system that helps protect us all from the random error of smallsampleocracy.

Next, Popehat’s Ken jumped into the mix, providing some of his experiences in the well:

I think they are the worst system possible save for all of the others. Jury selection is an art and not a science, no matter how much high-priced consultants would like to convince you otherwise. But it is, on occasion, a useful art. It’s rare to have someone as patently unsuitable as my potential juror who was open in her scorn of blacks wanting to be called African Americans. But it happens, and peremptory challenges are the only reliable way to get rid of such people, given how lax the standards are for challenges for cause. On plenty of other occasions, potential jurors simply rub me the wrong way.

You will have to read the rest of Ken’s post to get the full story from his experience as a G-man, but his point is spot on.  Despite all the advice for thinning the jury heard, the hard fact is that it’s rare to have a juror say something that will get him tossed for cause, and easy to rehabilitate a juror if you want to keep him on the jury.  All that need be asked is, “can you be fair?”  Few people respond, “why no, I can’t.”  Most people believe they are fair, though their definition of fair may vary by miles from the next bloke’s. 

And while these guys were busy blogging, Walter let us know that he was too busy to blog about it, so we’re on our own.  I offered to write Walter’s side for him, but I don’t think he felt comfortable about it. 

So now for my 2 cents, to the extent that whatever worthy thoughts I might have aren’t already better developed by those who came before me.  I’ve made clear in the past that jury selection is more art than science.  Actually, more voodoo than anything else.  That said, every trial lawyers knows better than to believe that a juror will be fair simply because he says so.  He may be hiding his bias, or not have the slightest recognition of his bias, but his say-so doesn’t help anyone except the judge who’s trying to move the case along.

Does our use of peremptories always make great sense?  Nah.  It is, as Ken suggests, largely a matter of gut, of instinct.  Are we right?  Who knows.  But to leave it either to random selection or a judge’s willingness to strike for cause leaves both sides believing that they’re screwed. 

This parity is one of the keys to why the fear of peremptories is overblown.  Both sides get peremptories, and are constrained to use them judiciously so that one side doesn’t use theirs all up while the other keeps a bunch in their pocket.  Should that happen, the potential for a severely skewed jury becomes very real, with the other side incapable of tossing any potential jurors who seem particularly troubling.  This isn’t some trick that only a handful of lawyers know, but the most basic approach to jury selection. 

No trial lawyer worth his salt believes that he can use peremptories to get the jury of his dreams.  The best we hope for is to not get the jury of our nightmares.  This goes to Walter’s comment about the “cleverer lawyer,” which I believe may reflect one of the most  troubling and true fears about the legal system in general and juries in particular: That it’s not about justice, but about who has the better lawyer.

Every client hopes he has the cleverer lawyer.  Any client who doesn’t is a fool.  Lawyers are not fungible.  We’re not just suits with heads attached, easily replacing one for another without any notable difference.  Lawyers run the gamut, from “cleverer” to grossly incompetent.  It shows in our argument, our questioning and, yes, in our jury selection.  It shows in everything we do.  It is impossible to level the playing field.  The solution isn’t external, such as limiting peremptories, but retaining the best counsel one can.  
 
Should a lawyer be burdened because his skills are better, mind is quicker, experience is broader and deeper, than his adversary?  There is no cause for complaint when a party retains the legal equivalent of the village idiot.  You have a choice. Make it wisely.  Contrary to Walter’s issue, having the “cleverer” lawyer is something to strive for, not avoid.  The law does not demand that lawyers perform to meet the lowest common denominator, and if that allows one party to gain an advantage in jury selection, or any other aspect of trial, then the fault lies not with the lawyer, nor the system, but the choice of the party represented by the village idiot. 

I doubt, however, that this is where the argument ends.  I suspect the thought is that the advantage of the “cleverer” lawyer is unfair.  While the skill level of the lawyer can’t be helped when it comes to argument and examination, the composition of a jury should not be one of those things that’s subject to the manipulation of the “cleverer” lawyer, and can be fixed by the vissitudes of the draw.  Take your jury as you find them, for better or worse, and remove lawyerly manipulation from the mix.

As Ken wrote:

There are no crazy-filters on jury service. Of the first twelve people to show up in the box, three may be gadflies, grudgeholders, or nuts. Absent my ability, and my opponents’ ability, to weed some of those people out, that handful of people may shape the experience for everyone in the courtroom. That’s not the way to get a fair trial on the merits for anyone.

This is how real trials look to real lawyers.  This isn’t some theoretical vision of juries being comprised of kind, well-intended regular people, or some imaginary perfect jury for the other side.  We are all afraid of what goes on in the minds of the twelve people who ultimately get called, and never really know what they are thinking, or the baggage they are bringing, when we accept them as jurors.  But when pressed to try to understand this random group of twelve, there is one universal belief that every experienced trial lawyer holds:  There are very few normal people out there. 

As much as we may want to believe that the vast majority of people are normal, reasonably intelligent and capable of faithfully following the instructions of a judge, trial lawyers are forced to test the thesis, and find it wanting.  As pessimistic as this may sound, it’s true, as any lawyer who has chatted with a jury after a verdict will tell you. Not that lawyers are any more normal, but it remains our job to make the choices for our client.

So does our exercise of peremptories fix the problem?  Not for us.  Not for Walter.  Not for anybody.  But without it, the lawyers and parties would most assuredly doubt that they’ve got a fair jury.  With peremptories, the comfort level is slightly higher.  And until we come up with a better way, that’s the best we can get.

When Professor Baldus arrived at his three peremptories compromise, it was largely in the name of ending discrimination in the selection of juries.  He’s right about that.  We often make gross assumptions about groups of people, whether racial, sexual or otherwise, because the tools available to unearth hidden prejudice are too limited to do better.  But we try our best not to do so, because we can’t afford to lose a good juror simply because he’s white and wealthy and the defendant is black and poor. 

It doesn’t make peremptory challenges any more scientific, or our choices inherently better.  It’s just the last best chance to protect our client from the nightmare juror.  The exercise of peremptory challenges isn’t about manipulating the system to our benefit, but protecting the integrity of the jury, to the extent humanly possible, from the worst case scenario.  That’s the best we can do, and it’s a good thing for all involved.  Even society.