[Edit: I wrote this before I saw that Patrick had posted the far more substantive and thoughtful post below on the same subject. But I will leave it up anyway.]

About twelve years ago, when I was still a federal prosecutor, I was picking a jury for a civil rights case involving a couple of unusually stupid aspiring skinheads who had been harassing a multiracial family in my neighborhood. Race was a predominant issue in the case, and the judge reasonably made racial attitudes one of the subjects of voir dire. The deputy public defender, with whom I had a tumultuous relationship, was relentlessly striking African-Americans from the jury, leading to a regrettable exchange in the hallway in which I told her that if the lawyer thing didn’t work out she had a great career ahead of her as the night manager of the Birmingham Denny’s.

Anyway, just as she was watching for people who would be inclined to convict skinheads for racial harassment whether or not the evidence was sufficient, I was watching for people who were inclined to think that minorities were grievance-mongers who would make up violent harassment. Midway through voir dire, a white woman from Orange County responded as follows to one of the judge’s questions:

“Oh, I don’t have any problem with black people,” she said, “or whatever it is you are supposed to call them these days.”

I stifled a laugh, and she went to the top of my peremptory strike list. Despite this illuminating comment, it’s highly unlikely that I could have gotten the judge to strike her for cause. Yet any rational attorney in my position would have suspected that she would be a terrible draw for the prosecution, inclined to acquit the defendants whether or not I proved my case. She was willing — in fact, eager — to assert her neutrality, thus making a record for the judge to keep her on the jury. But her comment was a tell — one more blunt than lawyers usually get. That day I was damned glad for peremptory challenges.

I bring up this story because a number of bloggers are talking about peremptory challenges today, and whether they ought to be ditched or severely curtailed. Mark Bennett has an excellent roundup of posts on the subject, as well as his own hard-learned impressions. This discussion crops up every few years as commentators fantasize about a “truly neutral” process.

Look, peremptory challenges are problematical. They’ve inspired half a century of bitter racially charged constitutional litigation, and the system has only relatively recently been dragged out of the mire where jury selection was a frank and open exercise in racism. Racism still plays a role. Lawyers still challenge based on race, now after spending some effort to devise race-neutral criteria (and sometimes doing a piss-poor job of it.) And even when lawyers think they have race-neutral reasons, those reasons are informed by the lawyers’ racial attitudes. When they aren’t racial, they are frequently irrational along other social or cultural fissures. (As a prosecutor I once used a peremptory against a ballet dancer. Why? I thought ballet dancers would acquit. My trial partner thought that was utterly irrational. She may well have been right.)

Yet, as my title suggests, I think they are the worst system possible save for all of the others. Jury selection is an art and not a science, no matter how much high-priced consultants would like to convince you otherwise. But it is, on occasion, a useful art. It’s rare to have someone as patently unsuitable as my potential juror who was open in her scorn of blacks wanting to be called African Americans. But it happens, and peremptory challenges are the only reliable way to get rid of such people, given how lax the standards are for challenges for cause. On plenty of other occasions, potential jurors simply rub me the wrong way. Sometimes it’s not even something I can articulate — I’m picking up on nonverbal signals I can’t even identify. I’ve always been happy to get rid of such people when I can, and when I can’t (for instance, because I’ve run out of peremptories), my instincts have often been proved correct — that person has voted against me or wrecked havoc in the jury room. I can’t offer a science-based process for identifying such people, any more than I can devise a science-based formula for an effective closing argument. But experience has taught me that when I have some discretion to strike oddballs and outliers, I am more likely to get a good result — and more likely to get a jury that will focus on the issues rather than on bizarre diversions. That experience has been consistent both as a prosecutor and as a defense lawyer.

There are no crazy-filters on jury service. Of the first twelve people to show up in the box, three may be gadflies, grudgeholders, or nuts. Absent my ability, and my opponents’ ability, to weed some of those people out, that handful of people may shape the experience for everyone in the courtroom. That’s not the way to get a fair trial on the merits for anyone.

Last 5 posts by Ken

• The Reports of Our Death . . . . - December 17th, 2009
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• 'Tis the Season To Compile Dossiers of Politically Incorrect Statements - December 1st, 2009
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