Juries

Are Hunters a Protected Class Under Batson?

According to at least one NY trial judge it appears that they are.  In People v. Robar, Judge Frank LaBuda of Sullivan County, NY recently declared a mistrial after the defense attorney used 6 peremptory challenges to strike jurors who had identified themselves as hunters. 

The trial judge stated that hunters were "a class of people recognized by law...Yet, in this case, they are being systematically excluded." The judge went on to say that "the peers of Mr. Robar consist of a broad spectrum of people here in Sullivan County which includes hunters and people who exercise their Second Amendment right...To systematically exclude that recognized and defined class of people in a jury trial is something that raises the court's attention under [People v. Luciano, 10 NY3d 499 (1988)]."

The defendant in this case was being charged with assault for shooting another hunter who apparently mistakenly trespassed onto property that the defendant's hunting club had reserved.  

h/tip to Deliberations Blog.

Barring Hunters From Jury Panel Violates 'Batson,' NY Judge Finds

Jury Expert and Thaler v. Haynes

The latest version of the Jury Expert is now available.  This edition has a good analysis of Thaler v. Haynes, the SCT's most recent effort to clean up and clarify the world of peremptory challenges and Batson v. Kentucky.

Justice Stevens and Peremptory Challenges

Justice Stevens, the Peremptory Challenge, and the Jury

In light of the announcement by Supreme Court Justice John Paul Stevens that he will soon retire, I want to highlight a law review article written by one of his former clerks who also happens to be an expert and scholar on the jury, Professor Nancy Marder.  The article, Justice Stevens, the Peremptory Challenge, and the Jury examines Justice Stevens' jurisprudence with respect to the jury and peremptory challenges. The article also sheds some insight on the future of peremptory challenges.

Massachusetts to Study Peremptory Challenges

Today, the state bar association in Massachusetts announced the creation of a task force to study peremptory challenges.  Specifically, the task force will look at how peremptory challenges have been used historically in the state and the implications of such use.  The list of the members of the task force can be found here.

Rivera v. Illinois (Peremptory Challenges)

Today, the U.S. Supreme Court (SCT) decided Rivera v. Illinois. The issue in Rivera is whether the erroneous denial of a criminal defendant's peremptory challenge requires an automatic reversal of conviction because it undermines the defendant's constitutional right to due process and an impartial jury. The SCT took on the case to resolve a "conflict among state high courts over whether the erroneous denial of a peremptory challenge requires automatic reversal of a defendant's conviction as a matter of federal law."

In Rivera v. Illinois, the trial judge mistakenly prevented the defendant from using his peremptory challenge against a potential juror.  On appeal, the Illinois Supreme Court ruled that the judge's failure to allow the defense's challenge was wrong, but the defendant's conviction did not have to be overturned because the seating of the juror was a harmless error rather than a structural one.

In upholding the decision of the Illinois Supreme Court, the SCT determined that a judge's denial of a peremptory challenge is not a structural error that requires a new trial.  In writing for a unanimous court, Justice Ginsburg stated "[a] state trial court's good faith but erroneous denial of a criminal defendant's peremptory challenge, we hold, does not require automatic reversal of the defendant's conviction, provided that all persons seated on the jury are qualified and unbiased." Had the SCT ruled otherwise, it would have elevated the status of the peremptory challenge—an unlikely outcome in light of the growing criticism associated with using peremptory challenges.

For more background information on the case see SCOTUSblog, the ABA, Cornell's Legal Information Institute and Anne Reed's Deliberations blog. 

 

Peremptory Challenges: Should They Stay or Go?

Three Strikes and You're Out? Critics Seek Juror-Dismissal Cap (WSJ)

In the interest of fair trials, attorneys can dismiss people from jury pools for dressing strangely, for being fat, even for just looking at them funny.

What lawyers can't do is dismiss potential jurors based on their race, gender or ethnicity. Yet, attorneys and academics say, it happens all the time.

To root out discrimination in the jury room, critics have called for a radical solution: Get rid of peremptory strikes, which typically allow lawyers to dismiss a limited number of jurors, no questions asked.

But an outright ban seems unlikely, as the practice is deeply entrenched. "Will the sun shine at night? That is as likely as getting rid of peremptories," says David Baldus, a criminal-law professor at the University of Iowa College of Law

A more realistic reform, some experts say, would be to cut back significantly on the number of potential jurors each side can boot without explanation. But other attorneys argue that peremptory challenges remain a vital tool to help lawyers select a fair jury despite the risk of racial profiling.

Judges already can deny peremptory strikes if they think attorneys are targeting jurors because of their race, gender or ethnicity. But judges often are loath to probe whether attorneys are guilty of discrimination, attorneys say. And when judges do ask questions, it is easy for lawyers to come up with a benign reason for striking jurors.

Rivera v. Illinois (Peremptory Challenges)

Today, the U.S. Supreme Court (SCT) is hearing oral argument in Rivera v. Illinois. The issue in the case is whether the erroneous denial of a criminal defendant's peremptory challenge requires an automatic reversal of conviction because it undermines the defendant's constitutional right to due process and an impartial jury.  SCOTUSblog, the ABA and Cornell's Legal Information Institute provide excellent background information on the case to include the legal briefs that were filed.

In Rivera v. Illinois, the trial judge mistakenly prevented the defendant from using his peremptory challenge against a potential juror.  On appeal, the Illinois Supreme Court ruled that the judge’s failure to allow the defense’s challenge was wrong, but the defendant's conviction did not have to be overturned because the seating of the juror was a harmless rather than a structural error.  Thus, if the SCT overturns the defendant's conviction (highly unlikely) in Rivera v. Illinois it would basically elevate the status of the peremptory challenge. 

This case provides the SCT an opportunity to express its view on the importance of peremptory challenges.  In one camp, you have some who would like to see the peremptory challenge go the way of the Dodo bird because it is too easy to use it for improper purposes.  For example, Justice Breyer is a strong proponent of abolishing peremptory challenges.  On the other hand, there are those who argue that peremptory challenges help ensure an acceptable verdict to the parties involved. Further, these folks don't believe that challenges for cause are sufficient in removing partial or biased jurors. To them, peremptory challenges serve as a second filter that screens out suspected, but unprovable bias.

Whichever direction the justices go in this case, peremptory challenges are going to take a hit.  If the SCT overturns the conviction and decides to elevate the status of the peremptory challenge (require an automatic reversal for failing to allow a peremptory challenge), then many states may decide that these creatures of statute are no longer worth the trouble and completely eliminate them from the books since they are not constitutionally required.  If the SCT goes the other way, then the significance or weight attached to the peremptory challenge will be diminished.