Arizona Eliminates Peremptory Strikes

You sit back down at the defense table after asking juror 19 the usual questions and getting the usual replies revealing nothing. In response to the judge’s question, she says without hesitation that she can follow the law as he gives it and can be fair to the defendant. But you see something in her eye, a glint of hatred as she stares at the defendant. She hates your client. She says she can be fair, but she can’t. You see it. You know it. But if this trial is happening in Arizona, there won’t be a damn thing you can do about it come next January 1st.

Arizona’s top court is eliminating the longstanding practice of allowing lawyers in criminal and civil trials in state courts to remove potential jurors without explanation, a move that proponents said would help prevent discrimination in the selection of trial jurors.

So-called peremptory challenges will end Jan. 1, under a groundbreaking rule change ordered Tuesday and released Friday by the Arizona Supreme Court.

That’s the new rule. No strike except for cause, and as any trial lawyer knows, it can be really hard, if not impossible, to win a strike for cause when a biased juror feigns fairness. What about a juror who’s a cop’s wife? Nope, not if he says he can be fair. A retired DEA agent. Nope, he’s good. A cop’s best friend? Well, they’re usually struck by the prosecution, since every assistant knows that cops love to tell war stories, and war stories always involve how they lied to get the bad dude convicted.

But this isn’t about reality. This isn’t about the defendant. This is about racism.

The justices gave three primary reasons for eliminating peremptory challenges:

-History Does Not Support the Need for Peremptory Strikes: Our Regime of Bilateral Peremptory Strikes Neither Comes From English Common Law, Nor Is It Grounded in the U.S. Constitution;

-Combating Partiality by Offsetting Peremptory Strikes Is Inherently Unfair; and Worse Now Given the Distrust That Comes From the Differential Rates of Exclusion By Race; and

-A Neutral Rule Best Fulfills this Court’s Objective of Building Public Trust and Confidence, and Abandoning Peremptories Demonstrably Eliminates Bias in All Directions.

The justices cite to academic studies reflecting that strikes are used disproportionately against potential black jurors. This comes as no surprise, both because prosecutors want to keep black people off juries when trying a black person and because many black people have negative experience with police due to racism. This, of course, is why the Supreme Court held in Batson that pretextual discrimination against black jurors was unconstitutional, but Batson hasn’t lived up to its aspirations as it’s not hard to come up with at least a facially rational justification to strike a black person to cover up racist motives.

So deny the prosecution peremptories if that’s the problem you’re trying to fix. But that’s not what happened here.

Robert Chang, a Seattle University law professor, said during an interview Saturday that he believed Arizona’s impending outright elimination of peremptory challenges is believed to be a first such step by a U.S. state, though others such as Washington and California have recently moved to place new restrictions on the challenges.

“Arizona clearly has gone further,” said Chang, the director of a legal center that endorsed a competing Arizona rule-change proposal to restrict but not eliminate peremptory challenges. “Arizona’s move is big, and it will be fascinating to see what other states and courts do.”

It might be fascinating for academics and theoreticians. It might be fascinating for the unduly  passionate. But there’s nothing fascinating about this for the defendant on trial who has juror 19 killing him with her stare.

Historically, juries favor the prosecution and the police by a huge margin. Even people who believe that cops, in general, may be bad tend to believe that the nice cop on the witness stand is one of the good ones. And the defendant, not so much after all the bad things people said about him. Hey, it’s not that they’re racist, but that sometimes a defendant did the crime and that’s not cool either.

When you’re picking a jury, empiricism is worthless. You’re not dealing with a study of 10,000 people, but a box filled with twelve, and who those twelve are is the only thing that matters, no matter what some study found. For those, like academics and reformers who have never tried a case, never picked a jury and never stood next to a defendant as the verdict came in, the grand scheme of having more black people on a jury might seem so worthy a cause as to turn away as a defendant gets life plus cancer for not being able to strike the juror with the killer eyes who managed to convince the holdout that the if defendant did it, like the police officer said, it is their duty to convict.

Trials are not hypotheticals, experiments or research projects. For the defendant on trial, they’re life or death. For anyone who has tried a case in the Bronx, with a greater likelihood of getting a black person on the jury than in Manhattan, you know that the race of a juror doesn’t mean you get a not guilty or hung jury.

That delusion may fly on twitters, but not in the courtroom. Black people know crime only too well, because they’re so often its victim, and they can really hate defendants who they believe committed it. And the people who show up for jury duty aren’t the guys selling weed on the corner, but the people who care about their kids surviving a walk to school and crack vials littering the gutters. And don’t even ask about a black jury sitting in judgment of a Hispanic defendant, who can kiss his culo adios.

You want more blacks on juries? Great. You want prosecutors to stop striking blacks based on race? Really great. But undermining one of the few safeguards for a defendant that gives him half a chance to get that juror who he’s certain wants to see him hang off the jury? Eliminating peremptory strikes is a dangerous and terrible idea, no matter how wonderful it may seem in the minds of people who don’t pick juries and aren’t responsible for the life of the defendant sitting next to him. Don’t try new tricks on other people’s lives.

8 thoughts on “Arizona Eliminates Peremptory Strikes

  1. delurking

    You rely on your experience for your position in this post. But, given that you have been doing this for a long time, is it possible you are better than the average defense attorney? In other words, it is entirely plausible that a rule like this would reduce your success rate. However, if on average prosecutors are better at using peremptory challenges than defense attorneys, then eliminating peremptory challenges benefits defendants.

  2. Keith

    I didn’t see any opinion associated with this, so maybe it’s answered elsewhere — but, from the linked story, it appears that the Court acknowledges that merely changing the rule to disallow peremptory challenges is not enough:

    In the meantime, a court task force will recommend possible changes to current court rules that also allow opposing sides in trials to ask judges to remove potential jurors for valid reasons such as stated bias or inability to serve, the order said.

    Perhaps I’m missing something – but if you know that this will require further changes to ensure whatever you think is appropriate, why make the changes now? Why not wait until those other rules can change with it? This strikes me as having all the zero-tolerance we love with none of the rational basis we have come to expect.

    1. SHG Post author

      While “fixing” cause strikes to try to compensate for the loss of peremptories should have been done at the same time (except that we must stop racism NOW and worry about fair trials when we get around to it), it won’t work anyway. All the theory in the world isn’t going to change the sense that someone on the jury hates your guts.

  3. B. McLeod

    Another thing this takes off the table is bouncing a potential juror due to the prospect of undue influence. Even if you can’t tell whether the person is biased, it’s risky to leave a juror with credentials or persona that suggest they may be able to herd other jurors to their preferred result during deliberations. If the only challenge is for cause, that juror is going to be seated.

  4. Pingback: Jury selection is notoriously racist. Arizona has a bold plan to fix it. - Vox

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