Patterico's Pontifications

6/5/2007

Does Adam Liptak Really Get Paid to Write About Legal Matters?? (Plus a Defense of Peremptory Challenges)

Filed under: Constitutional Law,Crime,General,Law,Media Bias — Patterico @ 12:22 am

The New York Times‘s Adam Liptak writes (falsely) that prosecutors can get away with making racially biased challenges to potential jurors, by advancing implausible and unpersuasive reasons for the challenges:

In Batson v. Kentucky in 1986, the United States Supreme Court tried to put an end to the practice of excluding jurors based on race. The effort has failed, and it is time to consider doing away with peremptory challenges.

In Batson, the court recognized an exception to the general rule that peremptory challenges are completely discretionary. Race, the court said, cannot be the reason.

But all a prosecutor needs to do if challenged by the defense about the rationale for striking a prospective juror is to offer a neutral explanation. That reason, the Supreme Court has said, does not have to be “persuasive, or even plausible.” Here is one reason the court found sufficient: a prosecutor did not care for a potential juror’s long hair, mustache and beard.

That is a very different standard from the one courts use in evaluating requests to remove jurors for cause. If lawyers can persuade a judge that a juror will not be able to hear and weigh the evidence in a case fairly and impartially, that juror ought to be removed.

Liptak’s explanation is technically true, as far as it goes . . . but is so incomplete that the overall effect is a rank distortion — a description of the law that is highly misleading in its implications. Liptak insinuates that the inquiry ends the second the prosecutor offers a race-neutral reason, even if it is not “persuasive, or even plausible.” So a prosecutor can dismiss a juror based on race, offer an unpersuasive and implausible reason, and the inquiry ends there? Wow, that really does sound bad!

Except that, of course, that’s not the law. Here is how it actually works, as described in the Supreme Court case quoted by Liptak, Purkett v. Elem. As you read this quote, note how badly Liptak has distorted the relevant legal requirements. Liptak strongly implies that a prosecutor can defeat a claim that his peremptories were racially biased by offering justifications that are not “persuasive, or even plausible.” Nonsense; the Supreme Court quote you’re about to read says precisely the opposite: that “implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.”

Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race neutral explanation (step 2). If a race neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination. The second step of this process does not demand an explanation that is persuasive, or even plausible. [Patterico sez: this is apparently where Liptak stopped reading. Don’t make that mistake! Read on.] “At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.”

The Court of Appeals erred by combining Batson‘s second and third steps into one, requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive, i.e., a “plausible” basis for believing that “the person’s ability to perform his or her duties as a juror” will be affected. It is not until the third step that the persuasiveness of the justification becomes relevant–the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step 3 is quite different from saying that a trial judge must terminate the inquiry at step 2 when the race neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.

(Italics in original; bold emphasis is mine.)

My only question is whether Liptak knows how badly he misrepresented the Supreme Court’s position in this area.

The point of Liptak’s misleading screed is to rail against peremptory challenges, which he argues should be eliminated. This is an ivory tower argument that would not work in reality, as I explain in the extended entry.

Liptak argues:

In Batson itself, Justice Thurgood Marshall wrote that the decision “will not end the racial discrimination that peremptories inject into the jury selection process.” That goal, he said, “can be accomplished only by eliminating peremptory challenges entirely.”

(As an aside, I note that Liptak is wrong to say that Justice Marshall wrote that “[i]n Batson itself.” Actually, Justice Marshall wrote that in a concurring opinion, which does not have precedential value, as contrasted with statements of majority opinions. If Liptak tried pulling that in a legal brief, the judge would slam him.) Moving on with Liptak’s argument:

Two years ago, in the Miller-El case, Justice Stephen G. Breyer appeared to endorse that view, saying that “peremptory challenges seem increasingly anomalous in our judicial system.” Justice Breyer noted that England has eliminated peremptory challenges but “continues to administer fair trials based largely on random jury selection.”

Peremptory strikes are an odd and arbitrary historical artifact. Unlike equal protection, they are not guaranteed by the Constitution, and in capital cases — where race matters most — they would not be missed.

This argument against peremptory challenges is not new to the pages of the New York Times. The case against peremptory challenges was articulated in an op-ed by Morris B. Hoffman in the New York Times last year. I have to wonder whether Morris B. Hoffman, Stephen Breyer, or Adam Liptak have ever tried a criminal case to a jury, where twelve citizens must be unanimously convinced of the defendant’s guilt beyond a reasonable doubt.

(In my limited research, I believe the answer is “no.” Liptak has been a commercial litigator, among other things. Morris Hoffman appears to have been a commercial litigator and civil trial judge. Breyer was an assistant special prosecutor on the Watergate Special Prosecution Force, but I can’t find any evidence showing that he tried any criminal jury trials while holding that position.)

The problem, which these commentators don’t appear to grasp, is that jurors often tell you in a hundred subtle ways that they can’t be fair to your side — but don’t always do so in a way that amounts to legal cause (or at least that the judge you’re in front of believes is legal cause). Indeed, it is common for jurors that you know could never be fair to your side to claim that they could be.

Let me give you a not-so-hypothetical situation. You are a prosecutor picking a jury, and on your panel are the following two jurors:

Juror No. 1 is a male who claims that he has been harassed by the police numerous times, as have many of his friends. He has so many close friends and relatives who have been arrested and/or prosecuted for crimes that he can’t count them all — indeed, he doesn’t even know where to start. These friends and relatives have been convicted of robbery, grand theft auto, etc. You name the crime, and this guy has a friend or relative that has been convicted of that crime. The potential juror also knows many people who are suspected gang members.

But in your case — a case where all the witnesses are police officers and the defendant is a gang member — he claims that he can be fair.

Juror No. 2 is a woman who has sat through the entire jury selection process with a sour look on her face, as if she were sucking on a lemon. The reason for her discomfort finally becomes apparent: she has a niece whom (she claims) has been unfairly prosecuted for a drug crime. Her niece, she says, was treated unfairly by the system and by the police. She is close with her niece, and believes all the bad things her niece has told her about her treatment at the hands of the police. This juror thinks that if she heard a trial with testimony from police officers, her niece’s experience would always be at the back of her mind.

But, all that said . . . she says that she could be fair.

I’ve been doing this for a while, so trust me on this: in a case that depended heavily on the testimony of police witnesses, you would never, ever, ever get a conviction with either of these two on your jury. I don’t care how credibly the officers testified. I don’t care how well they hold up under the defense’s cross-examination. None of that would matter. With either of these people on the jury, the case would hang (at best), because they would never, ever be able to believe any police officer that took the stand.

But without a peremptory, one or both might end up on your jury.

Juror #1 didn’t even provide a colorable basis for a cause challenge, and no judge would grant one. He said he could be fair, and never gave any hint to the contrary. Of course, you would likely be highly skeptical that he could put aside all the negative experiences he and almost everyone else in his life has had with the police. But that alone is not sufficient to challenge him for cause. Sure, he is an almost certain “not guilty” vote, no matter the evidence — but absent a peremptory challenge, you would be stuck with him.

Juror #2 is a closer case. Depending on the judge, Juror #2 might conceivably be challenged for cause. Her statement that her niece’s experience would “always be at the back of her mind” might cause some judges to find she couldn’t be fair. Other judges, more leery about granting cause challenges, might put more emphasis on her statement (however unbelievable) that she thought she could be fair. Without a peremptory, you would be at the judge’s mercy as to whether you would have to try the case to a jury containing this woman. And if the judge didn’t grant the challenge, the case would be lost (at least hung) before you put on a single witness.

I can hear the liberal hand-wringers already, saying that it’s important to have people who have had bad experiences with police judging police credibility. Let me flip the hypo around for you folks. Let’s say you’re a defense attorney, and through some freakish coincidence, every one of the 12 potential jurors knows someone who has been a victim of the same type of crime your client is accused of committing. Many of them were themselves victims of similar crimes. You notice a number of the potential jurors eyeing your client suspiciously, but they say they can be fair. You don’t believe them — but the judge does, and refuses to excuse them.

Would you feel comfortable with a system that allowed such jurors to sit in judgment of your client?

The bottom line is that peremptory challenges are a critical component of a fair trial, for both sides — particularly in a system that allows relatively minimal questioning of jurors for bias, and that has judges who are reluctant to excuse jurors for cause.

I know there are some of you out there who don’t care if prosecutors ever get convictions. I’ll never convince those folks of anything. But the rest of you should think long and hard before you support a system that takes away peremptories — especially due to flawed and legally unsound arguments like those advanced by Adam Liptak.

33 Responses to “Does Adam Liptak Really Get Paid to Write About Legal Matters?? (Plus a Defense of Peremptory Challenges)”

  1. Should anyone be surprised what is printed in the New York Times?

    They are after all the newspaper that brought us that Pulitzer Prize winner Walter Duranty…LOL!

    juandos (9c8c3b)

  2. Were truth not a defense, prepending the modifier “the New York Time’s” to a writer’s name would be actionable as defamation of character.

    I agree with jaundos: bashing the New York Times has become the equivalent of kicking a dead horse. Expecting accuracy, honesty, and ethics from them on any issue bearing the faintest taint of “social justice” is an exercise in futility.

    great unknown (fc7c50)

  3. Cheer up, Patterico. I’m sure the Times will issue an immediate correction.

    aunursa (d9da41)

  4. (disclaimer–I am a criminal defense attorney, who has tried numerous cases to a jury, and have split roughly 50/50 on wins/losses)

    Pat makes very good points, but there are points on the other side that he does not deal with (that Marshall at least has raised in his writings in several cases). All of these arguments (as well as the ones Pat raised in defense of peremptories) can cut both ways, for/against the prosecution and defense.

    Firstly, that given how difficult it can be to meet the “prima facie” burden under Batston, peremptories are very difficult to challenge. Unless there are so many instances of bias as to make what the judge would find to be a pattern, you don’t even get to the point of making the other side offier its justification. With limited peremptories in most jurisdictions, that will be hard to prove often.

    Secondly, given that any rule change to eliminate peremptories would affect both sides, biases are likely to cancel each other out.

    Thirdly, judges are very reluctant to conduct in-depth voir dire in criminal cases, due to docket pressures/time pressures. This is often justified (by the judges) because both sides have peremptories. Furthermore, peremptories make appellate review of voir dire more difficult–if you challenge someone for cause that should have been granted, and it was denied, you will (of course) use a peremptory to strike him. Unless you run out of peremptories, you can’t prove prejudice on appellate review. So, for both of the reasons in this paragraph, I think that ditching peremptories might have the effect of making judges conduct more careful voir dire, which would help to winnow out the types of cases Pat mentions. Judges hate being appealed, but voir dire errors would be more easily appealable, so the judges would have an incentive to be more careful. Also, fair-minded but lazy judges (a very large quantity, in my experience) would feel that the burden was on them more to get jury selection right. Obviously this would not be perfect, but the current system is not either.

    Prosecutors and defense attorneys blatantly use racial criteria in peremptories, in my experience, and each side simply does not “Batson” much because they don’t want it done to them in return. I do not think this is a good thing. I think the case against peremptories deserves more respect than Pat gives it.

    (I will also note that Justice Marshall was a military prosecutor, who tried cases to courts-martial, and I believe he did some civilian criminal defense work as well.)

    Thanks
    VR

    VR (ec8915)

  5. I’ll try cases to military courts-martial without peremptories. I don’t need them *there*.

    I don’t think voir dire would be thorough enough to address the problem.

    Patterico (eeb415)

  6. I agree with both Liptak and Patterico. Patterico’s right on the law, and that Liptak’s explanation is pretty simplistic. On the other hand, proving that a lawyer is making racist jury selections under Batson really is pretty much impossible, so Liptak’s right about that. But in the end, it really doesn’t make much of a predictable difference, because of the nature of jury selection/striking.

    Lawyers don’t pick jurors, they’re picked at random. Lawyers can only strike jurors. There’s really no way for one party to prove racist motives on the part of the other in striking a juror. Other than saying “judge, he’s striking every black person on the jury,” how are you supposed to show that there is racism going on? After all, the races of the jurors, like everything else, is random.

    Also, concerns about racist jury selection are really based on an assumption that the race of jurors will affect their verdicts in a predictable way, which could be a racist assumption in itself.

    Are there racist jurors? Absolutely. Are there racist prosecutors? Somewhere, out there, probably. Do they make a difference in the jury striking process? Probably not the difference they intend to.

    The jury selection process is random, The lawyers learn very little about the jurors before striking them. Making srikes based on race is like flipping a coin; you might just get yourself a black person who’s furious about drugs, gangs and urban crime, or a white person who thinks OJ was innocent. In other words, racist strikes could hurt you as easily as help you.

    And, of course, lawyers think they’re smart, and don’t like to make assumptions. They’re generally going to try to find some better method of striking jurors then race.

    Phil (427875)

  7. (replying to Pat at #5, who was replying to me at #4)

    The rules of crim. pro., which would have to be changed if peremptories were eliminated, could be changed to provide for better voir dire (i.e. ensuring that both sides can ask lots of questions, providing clear standards, etc . . .)

    IF voir dire could be made thorough enough to address the problems you raise (which, as I said, are valid) then I would be in favor of eliminating peremptories.

    (this would also address the issues raised in #6–the rules could ensure more thorough questioning, which would not even take that much more time as the time used for peremptories and Batson challenges would be eliminated)

    VR

    VR (ec8915)

  8. patterico is dissing liptak because liptak refused to buy into the supreme court’s sophistry. if the bottom line is that prosecutors may freely strike black people because “his goatee was suspicious”, patterico is propounding a distinction without a difference.

    as a jurors’ rights advocate, i think voir dire has gotten way out of hand. the original purpose was to exclude jurors whose bias would prevent them from deciding the case fairly. the modern purpose is not to pick a fair jury, but to pick a stacked jury, with the aid of witch doctor jury consultants. batson precludes racial strikes, but modern jury questionnaires are rife with other instances of discrimination with constitutional implications. what religion are you? what groups do you belong to? the oj jurors were asked whether or not they owned guns. the average juror, cowed by the majesty of the law, rarely objects (unless she’s diana brandborg, an ordinary heroine for our mixed-up times). at 52, i have still never been summoned for jury duty, voting/driving/homeownership notwithstanding, and i would not be an average juror. i’d take my contempt citation all the way to the supreme court, to establish for all time the privacy rights of jurors in these cases.

    assistant devil's advocate (c0336d)

  9. Ah, ada opens with the Ad hominem, which is a well known logical fallacy.

    <sarcasm>Great way to start your argument, ada.</sarcasm>

    You might want to read a manual of style, proper capitalization would make your writing easier to read.

    LarryD (feb78b)

  10. “Jurors’ rights advocate”?

    Surely you jest. There is a jurors’ rights advocate in EVERY courtroom. It’s the judge.

    If you don’t understand that, you have no clue what goes on in courtrooms, civil and criminal, state and federal, on a day to day basis in the real world. I assure you that even in the federal courts, where the judges have life tenure and therefore aren’t worried about voter perceptions, almost all judges continuously pay attention to jurors’ convenience and related concerns.

    I hope you won’t take offense, Ass’t DA, because this is a backhanded compliment, but: That’s the dumbest thing I’ve ever seen you post.

    Beldar (977b40)

  11. Patterico, do you think Batson was correctly decided? I don’t think it is realistic to try to distinguish between good and bad peremptory challenges and they should either be allowed for any reason or banned.

    Also given that you think peremptory challenges are needed, how many are needed?

    James B. Shearer (fc887e)

  12. I look forward to your explanation, Beldar.

    Patterico (eeb415)

  13. I believe Beldar was referring to assistant devil’s advocate’s dumbingness, Patterico.

    And here’s a Batson horror story (for the prosecutor not the defendant).

    nk (c66fe9)

  14. hi beldar. yes, in a perfect world the judge would be the principal jurors’ rights advocate. here on this planet (not your conehead homeworld) judges frequently abdicate their responsibility to restrain counsel during the voir dire from gathering enough information about venirepersons to write biographies of them. why they do this varies from judge to judge, but it’s mostly 1) laziness, a willingness to let counsel do the heavy lifting at the outset while the judge just looks on like a big old owl, and 2) a reluctance to ruffle feathers in the cozy, tightly knit bench/bar college. there’s a whole lot of questions being asked of prospective jurors that have nothing to do with specific biases toward the parties/witnesses/events, and everything to do with the ideal demographic the consultant advised counsel to impanel (and the demographics he/she was advised to avoid like the plague). in the case diana brandborg was summoned for in texas, your “jurors’ rights advocate” cited her for contempt for failing to disclose her income during voir dire. in the oj case, jurors were asked if they or anyone they knew had ever used illegal drugs. somebody needs to stand up and oppose this, and i would regard it as a privilege if i were ever summoned. if i won, it would also have the salutary benefit of reducing the time and cost of litigation.

    assistant devil's advocate (791345)

  15. Ah. I was taking Ass’t DA to refer to me. I see now that it was probably directed at ada. Got it.

    Patterico (eeb415)

  16. Divorced from the entire content of this string is the question of what kinds of “discrimination” are prohibited by Batson.

    Now, I haven’t read the case in a while, but its a common misconception in the public that any form of “discrimination” against any group capable of being defined is prohibited. Wrong.

    Batson specifically dealt with discrimination based on race, which I presume would extend to national origin.

    I can’t say to what extent Batson has been extended to other “suspect” classifications, but I pretty confident that religion is a legitimate basis for inquiry and disqualification. A person’s individual religious beliefs might influence the way they consider the evidence and follow the law. On that basis they can be challenged for cause, and if not granted, they can be struck with a peremptory challenge.

    I have followed the same practice in picking juries for 15 years — a rule of thumb given to be by a very seasoned trial lawyer who is now a federal district court judge. He told me that a good jury really consists of only 3 jurors, with the remainder of the jury made up of 9 sheep.

    Understand who the jurors are, try your case to them, and let them do the shephearding in the jury room.

    No teachers, no social workers, no health care workers.

    There are some other rules, but those are secret.

    I don’t want the Supreme Court to find out.

    wls (c109e2)

  17. ada,

    Where on earth do you practice? The left coast, right? I consider a judge in Cook County to be a flaming left-wing activist liberal if he even allows me to give him a written question for the jury during voir dire.

    BTW: I have responded to jury summons five times but have never been picked. The last time, the county clerk sent me home the minute he looked me up on the computer. I think I made some kind of blacklist.

    nk (c66fe9)

  18. wls, #14

    Seriously? Your wins depend on your jury selection and not “this-is-an-iron-clad-case-no- f#$%ing-way-I’m-pleading-it”-case selection?

    nk (c66fe9)

  19. so if i understand a juror is struck, its challenged the lawyer says its because of his mustache. the other lawyer says no, he didnt strike other jurors w/ mustaches who were of different races than the struck juror, the striking lawyer says but this one has a handlebar mustache, and then produces a study showing men w/ handlebar mustaches tend to be biased against/towards the crime in question, that would be allowed?

    chas (3385c2)

  20. In my opinion, as a long-time prosecutor, peremptory challenges protect the privacy of jurors, by making intense scrutiny of them unnecessary. I also believe (I admit I may not know what the heck I’m talking about) that an experienced prosecutor or defense attorney picks up many little signals about jurors, and what feels like a hunch to use a peremptory is really a conclusion reached on the basis of those signals. I suspect Beldar and Patterico know what I mean.

    For those of you who are not criminal litigators, don’t forget that the State and the Defense get the same number of peremptories. In my experience, the defense is much more likely to win a challenge for cause. The deck is not stacked for the State.

    Rob Ives (36de51)

  21. nk,

    Jury selection is critical.

    Patterico (eeb415)

  22. nk, i practiced in northern california from 1980-1995, when i got to where i couldn’t stand it for another minute and went inactive. then i did techbiz for five years before becoming a cutting-edge bon vivant here on the southern oregon coast.
    jury summonses are very rare in my family; mom was summoned and served once in her life, dad and my brothers – never. i’d like to do it just once, just for the experience, however unlikely it is that all sides would permit me to be impaneled. i disagree with wls that my religion (paganism) is relevant, with the sole exception being a death penalty case where it is legitimate to inquire if i would ever vote to execute someone (if they deserve it, no problem). otherwise, it’s just an entree to religious discrimination.

    assistant devil's advocate (791345)

  23. I’ve got to say that my experience of the jury selection, both as potential juror and from my very young days in the PD office. Perhaps they’re different on the West Coast, but jurors around here will be glad to give you cause if you signal it to them, because most of them don’t want to serve. Just like I do when I get called up every three or four years. Usually I get dismissed as soon as they find out I’ve got a law degree. But if I’m not, I start to mention my PD days, and how every client of ours seemed to be guilty, and how of course I would try not to be prejudiced by that experience, but I had to be honest and admit that I probably couldn’t be completely impartial…For some reason, they never let me be a on a jury :)

    But in all seriousness, one of the first rules I learned back in those PD days was this: if a juror seems to want to be on the jury, you don’t want them on the jury.

    There is another factor in favor of peremptory challenges. It’s a way of getting a juror off the panel without accusing or embarrassing them or other jurors.

    If peremptories were eliminated, one of two alternative would have to be put into effect–broadening the reasons allowed in “for cause” challenges, or using a system in which verdicts don’t need to be unanimous, but only supermajorities (say, 9 out of 12). That way either the rote “I can be impartial” would not keep Patterico’s hypos from being dismissed for cause, or else their votes would not result in hung juries. ( I think if one or two bad jurors could influence the remaining members of the panel to acquit, a guilty verdict would have been unlikely in any case.)

    kishnevi (2dbd61)

  24. […] Read the rest… […]

    Jury Experiences (f515ed)

  25. NK #15 — “ironclad?” You practice much?

    The easy cases plead. The hard cases go to trial.

    The defendant can always plead straight up.

    In federal court, where most of the judges do not allow attorney voir dire, and where it is not unusual to pick a jury before lunch, even where the case estimate is 6 weeks, you only get a limited amount of information to work with.

    Hardship excusals are granted with far greater frequency than are try “cause” excusals. So, the attorneys are left with a lot of question marks next to juror names, no meaningful opportunity to elicit any further information, and about 10 minutes to make your choices.

    More and more federal judges are using the “blind” strike method, which means I do not know who the defense is striking when I make my choices, so there is no way to predict which jurors from 13 to 26 might come onto the jury after the pre-emts are excused.

    So, I strike based on very general characterizations as to personality types that I don’t want in the jury room because they only tend to gum-up the works.

    wls (c109e2)

  26. First: Oh my gosh, yes indeed, when I wrote “Ass’t DA” I was referring to “Assistant Devil’s Advocate” (and specifically, to his comment #8). I apologize for the confusion!

    Let me be as clear as I can be: I agree with every word of Patterico’s post, without reservation. I don’t really much that’s constructive to add to it, other than a link back to an overlong post I wrote after the Miller-El decision in 2005 (on which Patterico commented), plus one amplification on a point Patterico makes here:

    Those of us who work in the trenches of the adversary system, including lawyers and judges, see violent collisions of interests every day — worse even than in the blogosphere! And almost all of us are continually amazed that notwithstanding the violence of those collisions, notwithstanding the fractious nature of modern society, notwithstanding the incredibly broad spectrum of the public from which jurors are pulled, hung juries and mistrials are amazingly rare. The transformation that comes over disputatious, contentious, diverse people when they take that oath, sit together, and then get back into the jury room is nothing short of magical.

    And Patterico (and others who’ve endorsed his comments here) are right: Peremptory strikes are the grease that lets that magic keep working. If you eliminate peremptory strikes, you won’t improve the quality of justice, but you’ll damn sure grind the system to a halt because the number of cranks and martyrs and nutjobs who make it onto juries, and who then resist the magical transformation into responsible citizenship with their peers, will skyrocket. The balance of the adversary system works imprecisely, but reasonably well in my own personal experience with jury selection.

    Assistant Devil’s Advocate (#12): I’ve been trying jury case regularly for 26 years now — dozens of them (including five in the last three years). I don’t think you grasp the relative importance of trials to, on the one hand, the litigants, and on the other, the random assembly of prospective jurors. There are not day to day examples of prospective jurors suffering crippling, life-shattering changes because they are required to answer voir dire questions. But there are day to day examples of litigants having their lives and careers and fortunes and liberty dramatically altered by what happens in civil and criminal courtrooms. In fact, something — just a hunch — tells me, sir, that you’d likely end up being one of my peremptory jury strikes if you were on a panel I was examining.

    Beldar (977b40)

  27. beldar, if you have any peremptories left by the time you’re examining me, it is, of course, your prerogative under current law to strike me, but is this a good idea? there are horses for courses. if you’re prosecuting someone for growing marijuana, or a woman for prostitution, yes beldar, it’s a great idea. in the great majority of prosecutions though, not such a good idea.
    for your information, the prospect of “crippling, life-shattering changes” is not a prerequisite to the exercise of constitutional rights, and “litigants having their lives and careers and fortunes and liberty dramatically altered” is a standard incident of public adjudication, no matter its form. the tension you are positing here is bogus.
    your attitude, as well as that of several other commenters, particularly wls, is self-revelatory. wls openly characterized 75% of the jury pool as “sheep”. sure it’s nice to have twelve sheep harkening raptly to your pearls of wisdom, but you won’t be getting any answers to irrelevant personal questions in aid of your quest from me. if you see me on your venire, you will exhibit an absolute punctilio of respect toward me at all times, or i will make trouble. this goes for your opponent and the judge too. the court can summon another 1000 prospective jurors for you to examine, and not a single one of them will possess the troublemaking potential i have.

    assistant devil's advocate (1cec94)

  28. “if you see me on your venire, you will exhibit an absolute punctilio of respect toward me at all times, or i will make trouble. this goes for your opponent and the judge too. the court can summon another 1000 prospective jurors for you to examine, and not a single one of them will possess the troublemaking potential i have.”

    Indeed. And someone with your attitude *will* find a way to communicate that — which is why no competent lawyer would keep you on the jury.

    Patterico (eeb415)

  29. Of course, there are also potential jurors who talk the big talk about what they would do if they are picked to be on a jury, but they don’t walk the walk if and when they are chosen. It may be different in the criminal arena but my civil trial experience suggests that jurors rarely become “Twelve Angry Men” in real life. Instead, they often work hard to find and reach a consensus.

    DRJ (2d5e62)

  30. patterico, what you say is partially correct. certainly, any competent lawyer whose case depended on

    the art of persuasion to overcome significant holes in the evidence
    the substitution of passion to impair analysis
    the cultivation of sympathy or antipathy toward one of the parties
    the blind deference toward unreasonable state or academic authority, and of course
    the successful prosecution of a victimless morals offense

    would boot me for sure. at this point i don’t ever expect to be summoned, i’m in a funny twilight zone where every government agency except the jury commissioner knows where i am. as fun and interesting as it would be to serve (no more than once every ten years) it would be even more fun and interesting to secure a written charter of a juror’s privacy rights from the highest appellate court i could reach.

    assistant devil's advocate (0ebac0)

  31. Instead, they often work hard to find and reach a consensus.

    That’s my view too, DRJ. That the jury takes its job seriously and struggles to render a fair decision according to the law. And they cannot be fooled. One might miss everythihg; six might miss something; Twelve will miss nothing. Which is why I question WLS’s “sheep” theory.

    nk (c66fe9)

  32. ada,

    Plenty of jurors out there can spot holes in the evidence, use reason instead of passion, etc., who don’t have an “I’m a huge troublemaker” attitude. When I have to get all 12 people to agree on something, I don’t want a troublemaker (i.e. someone like you) on the jury even if I think you *will* agree with me. No offense, but troublemakers are, well, not worth the trouble.

    You’re an interesting blog commenter, but you’d be a disastrous prosecution juror — on *any* case.

    Patterico (eeb415)

  33. Speaking as a practicing criminal defense attorney, Liptak’s arguments are hogwash. Eliminating preemptory challenges would be terrible for the defense bar as jurors (at least here in California’s Central Valley) tend to tilt heavily toward the prosecution. This is especially true in gang, sex, and child abuse prosecutions. Without the ability to use preemps, my clients would be in deep trouble.

    Doug (57a9e1)


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