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Strike Three You’re Out – The Case To Eliminate Peremptory Challenges
Robert Frost once said…
Robert Frost, “Quotes By Robert Frost”, Retrieved June 29, 2015, Brainyquote [Ethos]
http://www.brainyquote.com/quotes/quotes/r/robertfros165467.html
“The jury consist of twelve persons chosen to decide who has the better lawyer.”
I wish that was just a joke. It’s not. Unfortunately, the abuse of peremptory challenges continues to this day, promoting the very partiality and bias that puts justice out of the people’s reach. That is why my partner and I firmly believe that: The United States Federal Court System Should Be Significantly Reformed.
Thomas Jefferson stated in his inaugural address that some of essential principles of government are equal and exact justice to all, and trial by juries impartially selected. We agree with Jefferson, trial by juries impartially selected is key to achieving justice. That’s why you should use the Criterion of an Impartial Jury to decide on the policy today. Impartiality is simply making decisions based on objective facts and not bias or prejudice. But, you might be wondering, why is impartiality important?
- Without impartiality, harmful or unjust decisions are made. One example is in the case of Brown v. Mississippi. Three african-american sharecroppers were on trial for allegedly killing a white farmer, despite the fact all the police officers readily admitted in court that they tortured and beat confessions from the three men. Nevertheless, the all-white jury convicted the three men despite ample evidence the men were not involved whatsoever in the crime, because of their bias against african-americans.
- Without an impartial jury, justice cannot be served and injustice prevails.
But how has the system been manipulated to deprive defendants and prosecutors alike an impartial jury? We will examine three facts to consider whether jury impartiality is best protected now (hint: it’s not), then look at how our policy proposal increases impartiality.
FACT 1: Two Types of Jury Strikes
When the jury selection process begins, the attorney’s involved have two tools to eliminate prospective jurors in a case: for-cause challenges and peremptory challenges.
FACT 2: For-Cause Challenges Eliminate Bias
This method requires a reason to strike a juror, within narrow constraints.
For-cause strikes allow any party to strike a juror who shows bias or partiality to one side or another during jury selection. However, the second tool attorneys use to eliminate jurors is far less benign as we will see in
FACT 3: Peremptory Challenges Encourage Bias
A peremptory challenge does not require the attorney to provide a reason for striking a juror and can be used to strike any potential juror. Two reasons:
- Sordid Past
From the very beginning peremptory challenges have been used improperly to disqualify jurors. During the era of segregation in the United States, attorneys regularly used peremptory challenges to disqualify jurors based exclusively on race. If a white defendant was on trial for a crime committed against an african-american, the defense would use peremptory strikes to remove african-american jurors from the jury. If a black defendant was on trial for any crime committed against a caucasian, the prosecution would once again use peremptory strikes to remove african-american jurors from the jury.
The Honorable Judge Thurgood Marshall explained in his concurring opinion in the Supreme Court case Baston v. Kentucky,
The Honorable Thurgood Marshall, “Marshall, J., Concurring Opinion”, 1986, Cornell University School of Law Legal Information Institute [Ethos]
https://www.law.cornell.edu/supremecourt/text/476/79#writing-USSC_CR_0476_0079_ZC1
“Misuse of the peremptory challenge to exclude black jurors has become both common and flagrant. Black defendants rarely have been able to compile statistics showing the extent of that practice, but the few cases setting out such figures are instructive. See United States v. Carter, 528 F.2d 844, 848 (CA8 1975) (in 15 criminal cases in 1974 in the Western District of Missouri involving black defendants, prosecutors peremptorily challenged 81% of black jurors), cert. denied, 425 U.S. 961 (1976); United States v. McDaniels, 379 F.Supp. 1243 (ED La.1974) (in 53 criminal cases in 1972-1974 in the Eastern District of Louisiana involving black defendants, federal prosecutors used 68.9% of their peremptory challenges against black jurors, who made up less than one-quarter of the venire); McKinney v. Walker,394 F.Supp. 1015, 1017-1018 (SC 1974) (in 13 criminal trials in 1970-1971 in Spartansburg County, South Carolina, involving black defendants, prosecutors peremptorily challenged 82% of black jurors), affirmance order, 529 F.2d 516 (CA4 1975). [n2]Prosecutors [p104] have explained to courts that they routinely strike black jurors, see State v. Washington, 375 So.2d 1162, 1163-1164 (La.1979). An instruction book used by the prosecutor’s office in Dallas County, Texas, explicitly advised prosecutors that they conduct jury selection so as to eliminate “‘any member of a minority group.'” [n3] In 100 felony trials in Dallas County in 1983-1984, prosecutors peremptorily struck 405 out of 467 eligible black jurors; the chance of a qualified black sitting on a jury was 1 in 10, compared to 1 in 2 for a white.”
While Marshall’s courageous decision in Baston v. Kentucky disallowed the use of the peremptory challenge based on race, it failed to address the true problem.
- True Problem is Who Decides
Attorneys were using the challenge to create stacked juries and not impartial ones. The University of Maryland Law Journal further elaborated on the failure when it wrote in 2011,
Matt Haven, JD Magna Cum Laude From The University of Maryland’s School of Law, “Reaching Baston’s Challenge Twenty-Five Years Later: Eliminating the Peremptory Challenge And Loosening The Challenge For Cause Standard”, 2011, University of Maryland Law Journal of Race, Religion, Gender, and Class Volume 11 Issue No. 1 [Ethos]
http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1194&context=rrgc
“Batson was a large and historic step towards eliminating racial discrimination in the selection of juries, so it may be unfair, to a certain extent, to criticize Batson for not going far enough. Yet, Batson and its progeny remain inherently flawed because the Court trusts litigants too much, and it simply does not possess the tools necessary to determine if a litigant’s strikes are legitimate. Therefore, Batson has done little to remedy the problem it intended to fix – to properly ensure that defendants receive their “right to be tried by a jury whose members are selected pursuant to non-discriminatory criteria.”
PLAN
Fortunately, however, there is a remedy to the problem of partiality in jury selection. Our plan is simple
Mandate: Congress and the President shall remove peremptory challenges provisions from the Federal Rules of Criminal Procedure and from U.S. Code, eliminating the option from all federal criminal and civil trials.
[Exact legal action 1 (for criminal): The Federal Rules of Criminal Procedure, Title 6, Rule 24, Section B “Peremptory Challenges” shall be removed in its entirety, and other references to Peremptory Challenges shall also be removed
Exact legal action 2 (for civil): U.S. Code Title 28, Part V Chapter 121 section 1870’s first paragraph shall be removed in its entirety, and other references to Peremptory Challenges shall also be removed]
The U.S. Federal Court system and Dept. of Justice will ensure our plan is executed.
No funding is needed
Now that we know the way towards the path of impartiality let’s look at the
POLICY ADVANTAGE: Jury Impartiality is Increased
With the elimination of a tool used by lawyers to create stacked and partial juries the one remaining tool for attorneys provides a clear route to justice as we’ll see in four points.
- Rational Basis Required
When a juror shows signs of partiality in a case, the attorneys involved can ask the judge to strike the juror. The party wishing to strike the juror must state a specific reason as to why the juror in question would be partial in this case. Then the judge either rules to strike the juror or keep the juror. For example, jurors can be struck using a for-cause challenge because the juror committed a felony similar to the one being tried or is related to one of the parties involved. Furthermore, each side receives an unlimited amount of for-cause challenges. As Coburn R. Beck explains in the William and Mary Law Review in 1998,
Coburn R. Beck, JD From William and Mary College of Law, “The Current State of the Peremptory Challenge”, 1998, William and Mary Law Review, Volume 39 Issue No. 3 [Ethos]
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1614&context=wmlr
“To understand the history of the peremptory challenge, it must first be distinguished from its counterpart, the “for cause” challenge. Traditionally, the peremptory challenge permitted a party to strike a member of the venire” without needing to explain to the court the reasoning for the strike.”‘ In contrast, the for cause challenge demands that a party give a “narrowly specified, provable and legally cognizable basis of partiality” for the strike. Litigants often ground for cause challenges on a prospective juror’s familial or social relationship to one of the parties, failure to meet statutory qualifications for jury duty, or other specific evidence of bias.”
- Rational Basis Reviewed
Unlike peremptory challenges, for-cause challenges must have a stated reason and are subject to the review of a judge. This puts the impartiality not in the hands of an attorney who has an interest in the outcome of a trial, but in the hands of a judge who is best suited to creating an impartial jury. As the Fordham University Law Review explained in 2006,
Nancy S. Marder, JD From Yale Law School and Professor of Law At The IIT Chicago-Kent College of Law, “Justice Stevens, The Peremptory Challenge, and the Jury”, 2006, Fordham University Law Review Volume 74 Issue No. 4 [Ethos]
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4135&context=flr
“Allowing only for-cause challenges, with a standard developed by trial judges over time, would result in an important shift in roles during jury selection. It would leave to trial judges, rather than to lawyers, the decision about when to remove a juror. Leaving the decision to an impartial trial judge, rather than an advocate, seems appropriate in light of the way in which peremptories frequently mask discrimination.”
So a key shift in who decides re-introduces the proper check and balance between expensive lawyers and the public servant judges who facilitate justice.
- The Review is Reviewed
Nancy’s above paragraph goes on to explain…
Nancy S. Marder, JD From Yale Law School and Professor of Law At The IIT Chicago-Kent College of Law, “Justice Stevens, The Peremptory Challenge, and the Jury”, 2006, Fordham University Law Review Volume 74 Issue No. 4 [Ethos]
http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4135&context=flr
“Having for-cause challenges for which the trial judge provides reasons on the record, rather than peremptories that often do not require any explanation, should reassure participants in the courtroom that jurors are only excused for legitimate reasons that are subject to appellate review. Having the trial judge, rather than a legislature, develop a standard over time leaves these matters to the person who is present in the courtroom and who is in the best position to decide.”
That means judge decisions will be scrutinized later by even better judges. Talk about incentive to get justice right!
Furthermore, the removal of peremptory strikes eliminates one of the major causes of bias and partiality in a jury as we’ll see under
- Impartial Juries More Likely
Only total removal of this severe cause of jury bias will ensure your Constitutional rights aren’t blocked. Matt Haven, JD, said exactly that in 2011,
Matt Haven, JD Magna Cum Laude From The University of Maryland’s School of Law, “Reaching Baston’s Challenge Twenty-Five Years Later: Eliminating the Peremptory Challenge And Loosening The Challenge For Cause Standard”, 2011, University of Maryland Law Journal of Race, Religion, Gender, and Class Volume 11 Issue No. 1 [Ethos]
http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1194&context=rrgc
“There can be no middle ground; it is impossible to allow litigants to use peremptory challenges and ensure that jury members are selected pursuant to non-discriminatory criteria simultaneously. 90 Total elimination of peremptory challenges is necessary because racial differences will continue to exist, and lawyers, either consciously or unconsciously, will continue to exercise peremptory challenges in a discriminatory fashion because doing so increases their chance of winning. 191 Although Miller-El and Snyder have made it more difficult for litigants to get away with blatant discriminatory practices, all but the least astute trial lawyers will always be able to stay one step ahead of the Court in finding ways to strike venire members in a way that will increase their chances of winning.192 Thus, a total elimination of peremptory strikes is necessary to protect individuals’ Constitutional right to a fair jury trial.”
Our policy is advocated by key members in the justice system, not merely CNN or pundits – your justice matters, and your right to an impartial jury is a key ingredient.
Will our plan guarantee fair juries? No. You probably cannot systematize that. But the NEG will be hard-pressed to demonstrate that the current system somehow promotes a justice or impartiality benefit, after decades of American trials allowing peremptory strikes… that’s because in the justice system, rationality is the key to impartiality. Removing the barrier standing in the way of an unbiased jury of your peers, brings us one step closer to achieving the goal of any court system, justice.
It has been said that one powerful lawyer anywhere is a threat to people everywhere. Don’t let the best paid lawyers run our justice system – vote for rational review by accountable judges. Let’s start crafting juries, not just to decide who has the better lawyer, but to discover the truth in all cases brought before it.