Yesterday brought another opinion holding that the "blind strike" method of selecting jurors is constitutional, permitted by the rules, and otherwise just fine.
If you don't practice in courts where the "blind strike" method is used, you've probably never heard of it. Instead, you're used to alternating strikes, where the lawyers take turns exercising peremptory strikes, each knowing which juror the other just struck and taking that into account in choosing the next one. In a "blind strike" voir dire, both sides exercise their strikes simultaneously. If you get four strikes, you strike four jurors, without knowing (until it's over) whether your opponent struck those same jurors too.
You sunk my battleship!
The difference is important because, very often, a few jurors end up on both lawyers' strike lists. Jurors who seem extreme, unpredictable, very opinionated, or just odd can easily seem too risky no matter which side you're on. With alternating strikes, you can delay some strikes you know you'd make if you had to, because you suspect your opponent might strike that juror before you do. With blind strikes, that kind of strategy is off the table; all you can do is make a list and follow it.
Moreover, if you count the total strikes used in a "blind strike" trial, they don't match the number of jurors who actually leave the room after voir dire. Four strikes on each side might only really eliminate five or six jurors.
"No injury was done if the government united with him"
If you found yourself in that situation, you might easily feel that you didn't really get all the strikes you were entitled to, and that's what Richie Bermudez argued to the Second Circuit in a case decided yesterday. The court rejected the argument with little trouble, since there's a very old and undisturbed Supreme Court case directly on point. In 1894's Pointer v. United States, in the kind of grand, fusty language you never see anymore, the high court said:
It is true that, under the method pursued in this case, it might occur that the defendant would strike from the list the same persons stricken off by the government; but that circumstance does not change the fact that the accused was at liberty to exclude from the jury all, to the number, who, for any reason, or without reason, were objectionable to him. No injury was done if the government united with him in excluding particular persons from the jury.
The Bermudez court relied on Pointer, but noted also the five other circuit court cases that have upheld the blind strike method.
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Notes:
- Let's take a moment and be grateful that Justia.com lets us link to full text of 1894 Supreme Court cases, instantly and free. That's pretty cool.
- When I searched "blind strike" on Google, the first hit was my own early post on a D.C. Circuit case allowing lawyers to strike blind jurors without violating Batson. I'll let someone else figure out whether there's some kind of line to draw connecting the two.
(Photo by Amanda Hatfield at http://www.flickr.com/photos/dust/2372626568/; license details there.)
