There was a time when courts treated the peremptory strike like fans treat a football star. These days it's more like the guy who sweeps up the stadium after the game.
Yesterday's Dorsey v. Quarterman, a habeas opinion from the Fifth Circuit flagged on the Decision of the Day blog, is an example. At Dorsey's Texas death penalty trial, his lawyer moved to strike four potential jurors for cause because of their views on the death penalty. One juror "initially indicated a bias in favor of the death penalty, saying that he would automatically assess the death penalty after a verdict of guilty," but after the trial court explained the law, he agreed that he could follow it. The other three jurors said they would not consider Dorsey's youth as a mitigating factor in sentencing.
The Fifth Circuit denied the required "certificate of appeal" on this issue, listing familiar reasons: the trial judge was in the best position to judge the first juror's sincerity, and the decision on the other three jurors had not been raised on direct appeal. And there was another reason. Dorsey's lawyer had used his peremptory strikes to remove these jurors from the panel -- so, essentially, no harm done:
In addition, Dorsey used peremptory challenges to remove the four venire persons from the jury. Accordingly, even if the court erred in denying his challenges for cause, there was no constitutional violation because the jurors were removed from the jury by his use of peremptory challenges and he has not alleged that the jury that sat in his capital murder trial was not impartial. Ross v. Oklahoma, 487 U.S. 81, 88 (1988).
It's true: 1988's Ross v. Oklahoma does hold that there is "nothing arbitrary or irrational" about "the requirement that the defendant must use those challenges to cure erroneous refusals by the trial court to excuse jurors for cause." The requirement simply "subordinates the absolute freedom to use a peremptory challenge as one wishes to the goal of empaneling an impartial jury," the Ross court said.
When peremptory strikes ruled the Earth
It wasn't always this way. In Swain v. Alabama in 1965, the Supreme Court lauded the peremptory challenge, tracing its historic roots back to something called the Ordinance for Inquests in 1305. The court explained:
The function of the challenge is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed for them, and not otherwise. In this way the peremptory satisfies the rule that "to perform its high function in the best way, 'justice must satisfy the appearance of justice.'"
The problem with that deference to peremptory strikes, though, is apparent in Swain's holding: it's the case that said it was fine for prosecutors to strike black jurors, and it was overruled in Batson v. Kentucky. The Batson court said nice things about the peremptory challenge, but demoted it all the same:
While we recognize, of course, that the peremptory challenge occupies an important position in our trial procedures, we do not agree that our decision today will undermine the contribution the challenge generally makes to the administration of justice.
How's it going?
From the moment of the Batson opinion itself, some were predicting that the balance it struck would not work. Justice Marshall, concurring, was ready to get rid of peremptory strikes altogether: "The inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the Court to ban them entirely from the criminal justice system." In 2005's Miller-El v. Dretke, Justice Breyer's concurrence repeated that call: "I believe it necessary to reconsider Batson's test and the peremptory challenge system as a whole."
Looking at how Batson plays out today, it's easy to understand the temptation of a baby-and-bathwater solution to the interwoven problems of biased challenges and biased jurors. The race-neutral justifications Batson requires for peremptory strikes are often themselves racially charged. We're heading inevitably for a line of cases asking whether different ethnic backgrounds, religion, disability, and sexual orientation are acceptable grounds for peremptory strikes. Defense lawyers like Scott Greenfield agree that prosecutors shouldn't be allowed racial strikes but wonder why, with so much of the system aligned against them, defendants can't do it. And then a case like Dorsey reminds us that we're supposed to use peremptory strikes to correct judges' errors and doom clients' appeals.
Not too soon for many jurors
If peremptory strikes do disappear altogether, it will be good news to many jurors, who often can't understand why lawyers get to pick and choose at all. I got a note recently from a reader that echoes many juror blogs I've seen:
A jury of peers? No way. If an engineer or a tech company is being sued, no engineer will be chosen for the jury. If a doctor is being sued, no health care professional will ever see the inside of that jury room. If a person knows anything about or understands the issues being litigated, they are automatically considered 'tainted' and unsuitable for a jury. . . I understand excluding potential jurors who personally know the parties, or who have any other clear conflict. But to exclude someone who followed the story in the media? Where does that compute? . . . When jurors are picked at random, and questioned only about their conflicts with the case at hand[, I will] answer a summons with pleasure.
___________
State law note: Some states still place more value on the peremptory challenge. Robert Kelley's Florida Jury Selection Blog recently detailed this aspect of Florida's May opinion in Kopsho v. State.
(Photo by J. Samuel B. at http://www.flickr.com/photos/lobsterstew/109196638/; license details there.)
