Patterico's Pontifications


L.A. Times Editors Proclaim: “We Are Utterly Clueless About Trials”

Filed under: Dog Trainer,General,Morons — Patterico @ 11:22 pm

The editors of the L.A. Times editorialize in favor of removing lawyers’ ability to use peremptory challenges — thus confirming that the editors of the L.A. Times have no idea what real trial lawyers face.

Words can’t express the depth of my contempt for such clueless posturing. But I tried putting my contempt into words here. What I said then is equally applicable to today’s daft editorial. In my post, I said:

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.

Add “or the editors of the L.A. Times” to the list of clueless know-nothings catalogued in the preceding sentence.

This one earns the “Morons” tag.

31 Responses to “L.A. Times Editors Proclaim: “We Are Utterly Clueless About Trials””

  1. Since when did editors of major newspapers ever have the ability to comprehend all they read? Or for that matter do any “real” fact checking as well?

    They don’t and be happy they are probably not in the court room while a jury is being selected, or have the ability to override the SCOTUS!

    Oh if my initials ever show up as a potential, just throw me away cuz I’d make life miserable for all. Or just start tying uni knots for angeling practice only you understand. 🙂

    Oh and if the “justice ” system desires great juries, start paying them their worth as well. Once you do you might actually start getting some folks that can actually think and reason to be a part. Otherwise your jurors will be construed of those not smart enough to get out of serving! Oh and aint it amazing how many of those serving seem to be lacking something? Anybody ever heard of you get what you pay for?

    I figure reasonable wage would be one half of the average of the wages of the prosecutor and defendants attorneys wages.

    TC (1cf350)

  2. So if I understand correctly, Patterico, myself saying someone I disagree with is “stupid” is beyond the pale, but “morons” is fine?

    Awesome — people I disagree with — you’re all a bunch of morons!

    Christoph (92b8f7)

  3. Suppose you removed peremptory challenges but allowed 10-2 verdicts?

    James B. Shearer (fc887e)

  4. Pat,

    I’m gonna intrude slightly on your hospitality by re-asking (and clarifying) a question I had for you in the previous thread on peremptory challenges (linked above) that got lost in the shuffle of comments. I’d love to flesh out your thoughts more.

    (I commented at #4 in the previous thread, Pat responded at #5, and I wrote again at #7, but the discussion proceeded away from me before Pat came back on, and I never got back to the thread.)

    While I agree with many of the concerns you raise in the original post, and they conform with my experience as a public defender, why wouldn’t greatly expanded attorney-conducted voir dire serve to mitigate those concerns? (To be clear, I would not favor ditching peremptories UNLESS voir dire was greatly expanded.) With lots of extra info on the record from the voir dire, and a slight loosening of the standards for cause challenges, the kind of people who now get struck by lawyers with peremptories in an unreviewable fashion, could be challenged more effectively in an above-the-board fashion.

    I believe that Batson is a very imperfect remedy to racial discrimination in jury selection, which is why I’m interested in ways to get around peremptory challenges. Again, you raise valid concerns, and I’m not sure my solution would work, but I’d like to probe your thoughts more on any possible alternatives. Thanks.

    VR (ec8915)

  5. criminal case to a jury, where twelve citizens must be unanimously convinced of the defendant’s guilt beyond a reasonable doubt.

    Actually, the jury need not be unanimous. Apodaca v. Orgeon, 406 U.S. 404 (1972). Add Patterico to the list of clueless know-nothings.

    Moops (444e9b)

  6. Moops,

    Apodaca v Oregon allows state court juries to convict defendants on the basis of a less than unanimous vote but only if state law permits. Subsequent cases clarified that a jury must have at least 6 persons and in those cases, the decision must be unanimous.

    Here is a 2004 Justice Department publication, specifically Table 42 at pp. 243 et seq., that addresses your comment. In felony cases, Table 42 indicates that every state (except Oregon and Louisiana in some non-capital cases) requires unanimous verdicts and almost all require 12 jurors. In misdemeanor cases, every state requires unanimous verdicts, apparently because most states have opted for smaller, unanimous juries in misdemeanor cases.

    DRJ (09f144)

  7. You are kinder to Moops than I would have been, DRJ.

    nk (6061ba)

  8. Thanks, DRJ. I don’t see how that addresses my comment, except to support it. Patterico says that criminal convictions require a 12-person unanimous jury. I recalled from Crim Pro that that is not the case, and I pointed out and provided a cite to the relevant case. The DOJ document provides additional information but it doesn’t contradict my point.

    Yes, nk, it was very kind of DRJ to provide additional information buttressing my point. That you apparently can’t grasp that suggests your unkindess would have had great comedic value, and it is unfortunate that you deferred to DRJ.

    Moops (99fd9d)

  9. Moops, its simple. You are confusing the constitutional minimum requirement with the state’s statutory requirements that govern the actual practice.

    SPQR (26be8b)

  10. Who can argue with the expertise of someone who recalls Crim Pro?

    nk (6061ba)

  11. Moops,

    Every state requires unanimous verdicts in criminal cases except Oregon and Louisiana, and even those two states require unanimous verdicts in some cases. (Not surprisingly, Apodaca involved Oregon law.) Thus, Patterico’s point was correct except as to some cases in two states – and I can’t see any reason for you to quibble over this.

    DRJ (09f144)

  12. Moops, I’m going to try to be patient with you, even though you don’t deserve it.

    I’ll preface my comments by noting that it’s obvious to me that you’re one of these know-it-all big firm civil lawyers who has probably never tried a case to a jury. You’re speaking to someone who has tried more than 50, and to an audience containing others who collectively have tried hundreds. In short, you’re out of your league, and the sooner you recognize that and show a little humility, the less silly you’ll look.

    My post asserts that the ability to exercise peremptories tends to be opposed by people — like the LAT editors, or you — who have no experience trying criminal cases to a jury, where twelve citizens must be unanimously convinced of the defendant’s guilt beyond a reasonable doubt.

    That is not the same as asserting that the law prohibits non-unanimous juries. It’s just talking reality, from experience. The fact that 2 of 50 states allow convictions in some felony cases if 10 of 12 jurors vote guilty is completely irrelevant to my point.

    I know that unanimous juries aren’t legally required. What’s more, I know that, not as a civil lawyer who sits on his ass all day in an office building but once took a Crim Pro class, but as a professional in the relevant field. (That is also why I know that peremptories are necessary when you have to convince 12 people — all 12 — according to the highest standard of proof known to the law.)

    Gil Garcetti, who hired me, pushed hard to get California to pass a bill allowing non-unanimous juries. He pointed to the example of Oregon. I remember the debates — and was struck by the fact that the DAs I ran into in the hallways often disagreed with Garcetti. Many of them, believe it or not, believed (and still do) in the concept of convicting people only when 12 citizens all agree.

    I can hear you saying: But the way your statement was worded, it sounded like you were saying juries must always be unanimous!!!!1!!1!

    No, it doesn’t. Let me explain it with an analogy.

    I can imagine a hypothetical conversation between you and me that goes something like this:

    PATTERICO [who in this hypothetical conversation is a professional campaign consultant]: The editors of the Los Angeles Times claim that presidential candidates should attempt to persuade every constituency in a state, even the ones in the minority. They have obviously never done any actual campaigning, or they would realize that you have to target the majority constituencies, because the electoral votes all go to the winner.

    MOOPS [speaking in the ultra-nerdy voice of Professor John Frink from “The Simpsons”]: Au contraire, my ignorant friend. Mhey. This Wik-i-pedia entry clearly states, if you listen, that states are NOT — I repeat, NOT, my good man — required to utilize a winner take all system. In fact, Maine AND Nebraska — [stops abruptly as Patterico whacks him in the back of the head with a sap]

    Ask any of the trial lawyers here about the need for peremptories, Moops. Any of them. JRM, WLS, nk, Beldar, Mike Lief, Alta Bob, or anyone else here. Especially the criminal lawyers.

    And also ask them if they think you made a telling point when you screamed that PATTERICO IS WRONG AND JURIES DON’T HAVE TO BE UNANIMOUS!!!!!11!!!1!!!!

    Really, my friend, you need to show a lot less arrogance when you wade into waters with which you are unfamiliar. I can tell you were one of those people who was always the smartest person in the class (at least in your own mind) and let everyone else know it. But you aren’t an expert on everything. Especially what it takes to convince juries. Trust me on this. It’s obvious.

    Patterico (faeccf)

  13. Patterico, I haven’t tried any criminal cases and haven’t done any civil litigation in a few years, but please don’t lump me into Moops’ cohort.


    SPQR (26be8b)

  14. Why would I? You weren’t a dick like he was.

    Patterico (faeccf)

  15. Well, no, but that’s just ’cause I was lucky …

    SPQR (26be8b)

  16. Quiet. Is Moops moping?

    JayHub (68f44c)

  17. Never mind Moops, Patterico. If I were ever to appear on one of your venirs, would you pick me? I have been called for jury duty four times and never been picked. The first time, the judge asked me, “Counsel, would you like to go home right now?” Like an idiot, I said “Judge, I want to stay if the lawyers will have me”. The fourth time, the clerk looked me up in the computer, gave me my $17.19 check and sent me home as soon as I checked in.

    nk (6061ba)

  18. Patterico, it’s pretty simple. Your statement that “twelve citizens must be unanimously convinced of the defendant’s guilt beyond a reasonable doubt [to convict]” wasn’t, in fact, true, but it was “truthy” in the sense that most criminal convictions do require a unanimous twelve-person jury.

    This is pretty obvious, as DRJ appears to acknowledge. If you could refute it directly I’d imagine you wouldn’t need to resort to a strained analogy or asinine ad hominem.

    I’m not discussing the importance of peremptories. Does refuting claims nobody has made really impress those state court judges?

    You made a claim. That claim wasn’t true. I pointed it out. End of story.

    I can’t see any reason for you to quibble over this.

    I wonder if that would be the prevailing attitude were a similar statement to appear in the Los Angeles Times.

    Moops (99fd9d)

  19. I’ve been picked actually by the defense in a PI case and served, though the jury didn’t listen to my wisdom and gave the defendant far more money than I thought appropriate. The judge in that case had the philosophy that if lawyers weren’t picked, they would never have the experience of being inside a jury room, so he encouraged it. Defense counsel spent a lot of time picking my brain about wait happened after they lost.

    JayHub (68f44c)

  20. Moops, no Patterico didn’t make a false claim. He just didn’t explain all the more trivial details. You just told half the story and claimed to be more accurate. You were not.

    SPQR (26be8b)

  21. Moops,

    Theoretically, in the constitutional minimalist requirements you read about in Crim Pro, twelve jurors are not required to find a defendant guilty beyond a reasonable doubt.

    In real life, twelve jurors are required to find a defendant guilty beyond a reasonable doubt if he is to be deprived of his freedom for even one minute or ordered to pay a fine of more than 500 dollars where I practice and I imagine where Patterico practices.

    nk (6061ba)

  22. Moops, your latest post reminds me of a lawyer’s joke I used to tell when speaking before the business people in the company I worked for. Two guys in a hot air balloon are hopelessly lost. They see a guy done on the ground and let out some air to descend and ask him where they are. They call down to him, “Where are we?” He answers, “In a hot air balloon!” One guy turns to the other and says, “Must be a lawyer.” The other guy says, “How do you know?” “Because what he said was perfectly correct and absolutely useless!!”

    They always loved it, of course.

    JayHub (68f44c)

  23. Perhaps we can have the Editorial Board of the LAT decide a defendant’s guilt or innocence?
    Though, it would probably be more fair to take their verdict, and just reverse it.
    Case over!

    Another Drew (a28ef4)

  24. The analogy isn’t strained, Moops. It’s actually perfect. It’s winner take all/unanimous juries except in two states, and the fact that winner take all/unanimous juries isn’t legally required doesn’t mean it’s not the practice in almost every state.

    It’s hard to imagine a more perfect analogy.

    Patterico (a57268)

  25. You made a claim. That claim wasn’t true. I pointed it out. End of story.

    If I had claimed: “no state in the U.S. is allowed to have a non-unanimous jury in a criminal case” then you’d have a point.

    I didn’t make that claim, so you don’t have a point. You just look like a nitpicking nag.

    I wouldn’t make that claim, Moops, because — as I already explained — I already knew it not to be true.

    So in effect, you are demolishing a strawman. What’s more, it’s a strawman that has nothing to do with the point of the post, so it’s a stupider strawman than most.

    Now that we have dismissed your foolish, inapt, and irrelevant strawman, may I ask: “Do you have an opinion about peremptories? That we can laugh at?”

    Take a break from writing your brief or scrutinizing your contract or whatever you’re doing around midnight on a Friday night and let us know.

    Patterico (faeccf)

  26. Breyer suggested a better solution: Abolish peremptory challenges altogether, requiring prosecutors and defense attorneys alike to challenge jurors only for cause, not because of a hunch.

    Sometimes a lawyer’s hunch is the only thing that protects the parties, the case, and justice from a juror who seems to have made up his mind before the case started.

    DRJ (09f144)

  27. You cannot cross-examine a juror like he is an opposing witness. The judge won’t let you and you just shouldn’t. Most peremptories have an articulable basis. It’s better, however, that it not be articulated unless it has too. You’re not going to antagonize only him, you will antagonize the whole jury. His house was burgled, his sister was raped, his bicycle was stolen when he was eleven, a policeman stopped him and harassed him for no reason, his insurance company screwed him on his last claim, etc., etc., etc. but he insists that he can still be fair. It’s important to be able to say, “We excuse juror #__ with our thanks”.

    nk (6061ba)

  28. I agree, nk. Most lawyers where I practice say: “The People [or defense] ask the Court to thank and excuse Juror # __.” I always modify that slightly and say: “The People thank, and ask the Court to excuse, Juror # __.” I don’t see why I should have the Court thanking the jurors for me.

    I will add this: I have, very gently, cross-examined jurors when they express an outrageous opinion — such as, for example, that they consider the defendant guilty until proven innocent. I might ask: “But didn’t you hear the judge saying the defendant is innocent until proven guilty? You realize that principle comes from our Constitution, right? Aren’t you willing to follow the judge’s instructions?” The answer isn’t important; that juror is gone anyway. It’s my chance to show the other jurors that I don’t agree with his outrageous statement.

    Patterico (962671)

  29. The typical practice in Texas civil courts is that challenges for cause are urged outside the hearing of the jury, so that the side which has made the challenge won’t be prejudiced if it is denied and it nevertheless decides that it can’t spare a peremptory challenge for that juror. Particularly sensitive or personal questioning of individual jurors, especially when it might have a tendency to “pollute” the rest of the panel, is often conducted at the bench, and even if it does reveal biases sufficient to cause the judge to excuse that juror for cause, the juror isn’t told that at the time, but remains among the other members of the venire.

    Peremptory challenges are then generally made by each side simultaneously noting its “strikes” on a list of the entire venire and turning in those lists simultaneously, so neither has the benefit of knowing the other’s strikes. (This permits double-strikes, which are in fact fairly common.)

    The clerk then seats the jury by calling the first 12 names who’ve been neither stricken for cause nor stricken through a peremptory challenge. The remaining members of the venire who weren’t chosen then leave, usually without knowing whether they were stricken for cause or, if through a peremptory strike, by which side. It’s entirely common for jurors to go through the entire drill without being aware how, why, or at whose instance they didn’t end up on the jury.

    So I’ve never had the occasion to “excuse” any juror to his face.

    The importance of this sort of topic is one of the reasons why I think there ought to always be someone with broad and deep first-hand trial court experience on the SCOTUS. Patterico’s right — you can’t possibly appreciate just how vital something like peremptory strikes are to the just and efficient working of the system unless you’ve actually practiced in that system. Doing away with peremptory challenges would be catastrophic for the system and for all of its participants.

    Beldar (8e82bf)

  30. I think the fact that verdicts are not constitutionally required to be unanimous is in fact important. It allows a tradeoff in which peremptory challenges are abandoned but 10-2 verdicts are allowed. This would serve some of the same purposes of peremptory challenges in that lone nuts could not prevent a rational verdict. Are peremptory challenges still essential when verdicts don’t have to be unanimous?

    James B. Shearer (fc887e)

  31. Psuedo intellectual pissing contests by lawyers, does it get any lower or is this the bottom of the universe? JM

    Manson48 (f19dd6)

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