A lot of people in the threads on peremptory (or causeless) challenges said there shouldn’t be any; commentator Dodd on the main page said it pithily:

There should be no [peremptory - JRM] challenges. None, Zero, Zip, Nada. They are an affront to the very reason we have a jury system.

Commenter tim maguire said that jury selection should be “little more than pulling 12 people off the street.”

Others complained of the removal of experts from the jury pool; often a person with expertise in the field will get thrown off a jury.

In my experience, peremptory challenges lead to more just juries. A lack of peremptories would surely help the defense; the prosecution has to convince twelve, while the defense has to convince one. But more than that, you want to get rid of people with axes to grind, and a lot of times you can tell that what’s coming out of a person’s mouth doesn’t represent their real views.

(more…)

About a week ago, I talked about peremptory challenges, and asked what the rules should be on race/religion/sexual orientation/gender/other as a reason to boot a juror. Peremptory challenges are causeless challenges which the lawyers use to try to improve their chances of winning.

Patterico folllowed up, quoting my hypotheticals. Many excellent comments followed both threads.

First, the actual rules: You can throw off people for no reason at all, but not for a bad reason. Bad reasons vary by jurisdiction a little, but ethnicity and religion (for instance) can’t be used. Age can be used, and often is (prosecutors like older jurors; the more vested they are in the community, the better.)

Here were my hypos, and the actual current rules:

Should the prosecutor be permitted to use his peremptory challenges partly or wholly on the basis that the juror appears to be of French ancestry? Should the defense be permitted to throw off Irish people on the basis that they are Irish? Neither side will throw off all members of the troublesome group, but they wish to use it as a factor.

A court would say no; that’s improper use of ethnicity.

Prosecutor believes that younger jurors are less likely to convict than older jurors, and wishes to use age as a factor. Should he be able to do so? How about the defense?

A court would say yes; that’s acceptable.

Prosecutor believes that gay jurors are less likely to convict than straight jurors. Should she be able to do that? Should the defense be able to kick straight jurors for being straight? Should the defense be able to keep a gay juror based on their orientation.

A California court would not allow that; we’ve got almost-full gay rights here.

Prosecutor believes that on a rape case, male jurors are more likely to convict than female jurors. Should she be able to use gender as a proxy?

And the answer there is, no, you can’t.

There was significant support in the comments for unlimited reasons for peremptory challenges; they’re not for cause, so there’s a case to be made for that. This would permit attorneys to use these sorts of proxies. And let’s not be shy about the reason for peremptory challenges: Lawyers want to win. Prosecutors will throw people off who are wild cards, while defense attorneys are often looking to get some people on the jury who will hang it up. This isn’t always true; sometimes the defense has a good case and wants rational jurors, but that’s not the way to bet. Most criminal defense attorneys view a hang as a win.

The problem with permitting (say) race-based challenges is that you excise a part of the community from the jury process, and maybe they know something that others don’t. I’m certainly for removing most of the criminals, the idiots, and the people who just ain’t right.

But in the end, I think that enabling the government to act in a way that is racist is bad practice. Excluding people based on race simply doesn’t strike me as something that is an overall good for society. Excluding, say, black people from juries is a further distancing of a group from other groups.

I do think the age bias is legitimate practice, because people will get older; no group is permanently excluded. I certainly engage in this bias; if it were illegal, I wouldn’t. I have a significant preference for older jurors.

I think homosexuals ought to be able to be part of jury service, and making bias against them illegal surely increases their numbers on juries. I don’t think government should engage in anti-gay behavior.

I’m less certain that the gender-bias rules are necessary for the inclusive society we want, but my tentative view is that the rules prohibiting gender bias in jury selection are the right ones.

In comments, Kevin Murphy smartly brought up whether the defense ought to have a different standard: Suppose the government has to act in a race-neutral fashion, but the defense can do anything it wants. Kevin didn’t exactly endorse this, but he observed that prosecutors are saddled by a lot of rules that just don’t apply to the defense.

In practice, the defense is much less likely to have a motion against them on this basis than the prosecution. First, the prosecution is limited to meritorious motions. Second, the ability to make a prima facie case is easier with minority groups than it is with a majority group. Third, the usual resolution of successful motions – starting from scratch with a new jury – can delay things, which the prosecution is often less sanguine about than the defense.

But in theory, I’d prefer, as much as possible, parallel rules for jury selection.

Is anyone swayed?

I pose the following question to you, my tender reader:

Will Obama’s next nominee for Commerce Secretary be a tax cheat, or a lobbyist?

Why does the mainstream media frequently identify Israeli leader Benjamin Netanyahu and his Likud Party as “hard-line”?

• CNN: “hard-line, former Prime Minister Benjamin Netanyahu” (2/10/09)
• Associated Press: “Benjamin Netanyahu’s hard-line Likud Party (2/11/09)
• Los Angeles Times: “[Netanyahu's] hard-line agenda” (1/25/09)

For help, I checked the dictionary, which defines hard-line as “adhering rigidly to a dogma, theory, or plan; uncompromising or unyielding.  That didn’t help, since both Likud leaders in general and Netanyahu in particular have shown a willingness to negotiate and compromise in the hope of peace.

Wikipedia (which admittedly is not authoritative) states, “In politics, hardline refers to the doctrine, policy, and posturing of a government or political body as being absolutist, or authoritarian.  Hardline movements are usually extremist, militant, and uncompromising.”

I also found it puzzling to see leaders of Israel’s enemies, the terrorist group Hamas and the insane-ocracy Iran, identified as “hard-line.”  Apparently the defense of Israel and the annihilation of Israel are seen as equally extremist or uncompromising positions.

Does someone have another explanation?

Keith Burgess-Jackson, Associate Professor of Philosophy at the University of Texas at Arlington, has this comment about Cormac Murphy-O’Connor’s column in The Times (UK):

Here is a column about the compatibility of science and religion. Not only is there no incompatibility between science and religion; there can’t be. Science is an attempt to understand the natural world. It has nothing to say about (1) whether there is a supernatural world or (2) what the supernatural world is like, if there is such a world. Think of the natural world as a box. Science makes claims about what’s inside the box. It has nothing to say about what’s outside the box. Religion makes claims about what’s outside the box.

Murphey-O’Conner notes that Darwin wrote,

“It seems to me absurd to doubt that a man may be an ardent Theist and an evolutionist.”

Patterico has more on the Henderson/Karlton/Reinhardt travesty on the main blog, along with links to earlier posts.  A few questions I’d like to see answered, though:

1) How does a special panel of this sort get established?  Two district judges and an appellate judge?  Who picks them?

2) Does this kind of panel have a name?  No, really.

3) How can this be appealed?  Does this count as an action by the 9th Circuit itself, or is it a district-level ruling?  Does one have to go straight to the US Supreme Court?

4) How the &%$# did these three loons get appointed?  Henderson had the case originally, sure, but I thought the idea of a three-judge panel was to give some breadth of viewpoint.

Obviously the system failed here.  Did it fall, or was it pushed?

All House republicans voted against the stimulus, but they knew it would pass anyway.

Exactly three Republican senators voted for cloture, and those were from blue states.

Do the Republicans want the stimulus to not pass, or do they want it to pass without their fingerprints on it?

In his news conference today, President Obama asserted that “although there are some politicians who are arguing that we don’t need a stimulus, there are very few economists who are making that argument.”  He repeated this basic assertion several times, implying that hardly anyone who knows anything about economics opposes the Pelosi-Reid spoils stimulus bill.

Two hundred of those few economists have signed a full-page ad (pdf) stating just such opposition.

CATO is running this in major newspapers over the next few days (but the papers will ignore it all the same).  Among these happy few signers are 3 Nobel laureates in economics who have been instrumental in defining the economics of governmental intervention in the business cycle:  James Buchanan, Edward Prescott and Vernon Smith.

With all due respect Mr. President, that is not true.

Notwithstanding reports that all economists are now Keynesians and that we all support a big increase in the burden of government, we do not believe that more government spending is a way to improve economic performance. More government spending by Hoover and Roosevelt did not pull the United States economy out of the Great Depression in the 1930s. More government spending did not solve Japan’s “lost decade” in the 1990s. As such, it is a triumph of hope over experience to believe that more government spending will help the U.S. today. To improve the economy, policy makers should focus on reforms that remove impediments to work, saving, investment and production. Lower tax rates and a reduction in the burden of government are the best ways of using fiscal policy to boost growth.

There is also a signer named Kevin Murphy (who is not me).

Stephen Reinhardt, Thelton Henderson and Lawrence Karlton have two things in common:  they were all appointed by Jimmy Carter, and they all think releasing 58,000 felons from California prisons is a good idea.

Stupid or Evil?  You decide.

Apparently, they are so concerned that there aren’t enough prison hospital facilities that they are willing to release a THIRD of California prison inmates unless the state ponies up $8 billion of demanded improvements — such as bingo and yoga rooms — because God knows, denying a prisoner access to bingo is a clear violation of his Constitutional rights.

Even Jerry Brown thinks this is hogwash.  It really has to hurt when Governor Moonbeam thinks your Constitutional theories are over-the-top. Hopefully, this will be appealed to the 9th Circuit, and if needed to the Supremes. Too bad there’s no chance they will be impeached.

Over at “that other blog“, there is a thread about an LAT piece on Rush Limbaugh, and I just want to say the following…

I hope President Obama fails, too.

See, I too have listened to Obama for over a year and a half, I have heard his positions and goals and I have seen what he has attempted in his short time in office.

I disagree with so much, it isn’t even funny, and thus I want him to fail.  I want him to not achieve his goals, and that is the definition of failure.  I still hope he is a good President, but in order for him to be one, his goals must remain unfulfilled.

Is this unfair of a new president?  Having just come out of the “Stolen” presidency of Bush the Younger, I have to say “No, you fucking twat, or do ‘fair chances’ only happen for Democrats?”

Non-Liberals (from hard-core Ultra Conservatives to anarchist Libertarians) are the Opposition.  It isn’t our job to make Obama’s life easy.  The Oppositions job is – surprisingly enough – to oppose the Ruling Party.  To act on the best interests of those who elected them.  To try and mollify the insanity of those who have – in my opinion – lied their way into power.

So there.  I hope Obama fails, and considering the number of unforced errors he’s made already, I don’t think I’m out of line by predicting lots more of that same.

Peremptory – or causeless – challenges to jurors can be made for certain reasons, but not others; this story talked about an allegation of malfeasance based on a prosecutor striking a fat juror.

Let me start with how peremptory challenges work. Peremptory challenges are challenges without cause. Challenges for cause (“All cops are liars,” or “He’s obviously guilty. Otherwise, he wouldn’t be sitting there.”) are unlimited. In all jurisdictions I’m familiar with, each side has some number of peremptory challenges, or challenges without cause.

The reasons for those challenges range mightily. Attorneys throw off people for hairstyles, clothes, grumpy facial expressions, crossed arms, occupations, and dozens of other reasons.

As I’m prone to do on these criminal law hypos, we begin with a clean slate. You don’t have to worry about what the law actually is. So, assume you get to make up the law, and this includes the lawyers in the crowd.

Let us suppose that virtually all experienced prosecutors in Irishtown have discovered that, all else being equal, people of French ancestry are far more likely to vote not guilty than people of Irish ancestry. Names are useful to guess what ancestry people have.

By “all else being equal,” I’m saying that if an Irish person and a French person answer the questions the same way, with the same intonations, and have the same job/marital status/everything else, the Irish person is significantly more likely to vote for guilt. Prosecutors suspect this is because the French feel oppressed by the majority Irish population. Please assume, for these purposes, that prosecutors are very likely right about the tendencies of voting, though you need not assume they are right about the reason for those tendencies (maybe the French just like surrendering.)

Should the prosecutor be permitted to use his peremptory challenges partly or wholly on the basis that the juror appears to be of French ancestry? Should the defense be permitted to throw off Irish people on the basis that they are Irish? Neither side will throw off all members of the troublesome group, but they wish to use it as a factor.

Let’s take another one: Prosecutor believes that younger jurors are less likely to convict than older jurors, and wishes to use age as a factor. Should he be able to do so? How about the defense?

And, number three: Prosecutor believes that gay jurors are less likely to convict than straight jurors. Should she be able to do that? Should the defense be able to kick straight jurors for being straight? Should the defense be able to keep a gay juror based on their orientation?

Last one: Prosecutor believes that on a rape case, male jurors are more likely to convict than female jurors. Should she be able to use gender as a proxy?

Again, this is about what the rules should be. What do you think? I will get back to this in a couple of days, though there may be a delay due to a trial and other work duties.

–JRM

The radical difference between the two kinds of knowledge is that the object of speculative knowledge is the necessary, while the object of practical knowledge is the contingent and variable.  It follows from this, says Smiglecki, that no practical knowledge is truly and properly a science, because science, as Aristotle had taught, is knowledge of the necessary.  It would seem to further follow that any attempt to make politics a science on the model of metaphysics or mathematics was foredoomed to failure.  The significance of this for Burke’s thought is obvious.   (Canavan, 1960, 207)

As one of my professors never tired of putting it, it’s one thing to know how to clone a human being.  It is  quite another to know whether we should clone Hitler or Churchill.