Walter Olson, a scholar who blogs at Overlawyered, Point of Law, and Secular Right, has, not surprisingly, some rather strong and well-informed views on the excesses of the American legal system, particularly in the field of tort law. Philosophically (and full disclosure: I practice law in the field of insurance defense), I agree with many of Mr. Olson's views and enjoy his writing. But if Mr. Olson were to appear on a jury panel in a personal injury case I was defending, even though I would believe him when he promised to decide the case fairly to both parties, on its merits, and applying the law as instructed by the judge, I would fully support my opponent's decision to remove the author of Overlawyered ("Chronicling the High Cost of our Legal System") from the jury pool by peremptory challenge.
Mr. Olson, on the other hand, would prefer that the plaintiff not be able to make that decision. And he has plenty of company:
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.
The peremptory strike, or challenge, has an old pedigree in American law. It allows one of the parties to a case (civil or criminal) to exercise his judgment and discretion to remove potential jurors he believes cannot or will not judge the case fairly, without going through the painful and alienating process of questioning a juror to the point where he breaks down, in the style of a witness on Perry Mason, with the admission, "No! I cannot give your client a fair trial because I am biased against grocery stores accused of leaving banana peels on their floors!" … or more commonly, against large corporations or civil plaintiffs generally, or against accused criminals generally, or against people of certain races and ages. In some courtrooms, before some judges, that open admission is what it takes to get a juror dismissed for "cause," where the court itself recognizes that the juror should not serve.
In a society where racism is now considered one of the worst social sins, it can be difficult to get people to admit that they have even a little bias, even arguably sensible bias of the sort that compelled Jesse Jackson once to admit that when he's walking on the streets of DC, he feels relief when the person following him turns out not to be a young, black male. When a criminal defendant is a young, black male, and his freedom is on the line, he has a deep interest in seeing to it that those who share similar biases not sit in judgment of him, especially those who aren't as honest about their prejudices as Jesse Jackson.
And so, in the interest of perceived fairness as much as anything else, we allow attorneys to remove potential jurors they suspect might not be able to judge the case fairly. Since the trial process is adversarial, we can assume that both or all parties will similarly exercise their peremptory challenges to remove jurors who might be partisans for the opponents to arrive at some level of perceived fairness.
One check on the peremptory is that, since Batson v. Kentucky, at least in criminal cases, the use of peremptory challenges to exclude jurors solely on the basis of race is prohibited and judges are expected to conduct inquiry where that's suspected to be the case. Opponents of the peremptory challenge, as in the Journal story linked above, cite abuses of peremptories with ridiculous excuses, such as the attorney who claims he dismissed the sole black juror on a panel for being obese, because obese people cannot be fair, but that's a breakdown on the judge's end. We expect and allow judges to rein in this form of abuse, and many others, in the course of a trial, and where judges don't do their jobs we have appellate courts. Yet opponents of the peremptory challenge don't lobby for abolishing the closing statement, or the use of scientific evidence, even though there is as much room for judicial error or abuse in control of statements and witnesses as there is in jury selection.
Or opponents of the peremptory challenge complain that its use creates only perceived fairness, rather than actual fairness. That may or may not be true (because actual fairness is impossible to achieve in a courtroom not run by God) but consider the importance of the perception of fairness to actual litigants illustrated in State v. Thomas, decided this week by the North Carolina Court of Appeals:
After the jury was impaneled and the trial was underway, the trial court learned that one of the seated jurors attempted to contact an employee in the District Attorney's Office prior to impanelment. The juror visited the District Attorney's Office with the intention of greeting a friend, but was unsuccessful in his attempts to speak with her. Voir dire was reopened, the trial court questioned the juror, and allowed the parties to do so as well. After questioning, defense counsel requested that the juror be removed. The trial court denied this request and found that there would be no prejudice to either party to keep the juror seated. Defendant argues that his counsel informed the trial court that he had a peremptory challenge left and wished to use it to remove the juror.
The trial court denied that request, and the case went forward. In reversing Thomas's conviction, the Court of Appeals emphasized the importance of the peremptory challenge. Even if the court was satisfied that this juror, who had friends in the DA's office and wished to socialize with them before trial, could give Thomas a fair hearing, it seems that Thomas felt differently.
I'll bet you would too, if you were in Thomas's shoes.
Opponents of the peremptory emphasize the errors created by use of the peremptory, and "society's" interest in a smooth litigation process, free of bothersome appeals and reversals. Or they claim that individual excluded jurors somehow have a right to sit on a jury (if that's true, it's a right most would prefer not to exercise). Like Scott Greenfield, I don't consider jury service a right. I consider it a duty. A trial does not belong to society, nor does it belong to a juror. It belongs to the parties, the plaintiff and the defendant (or in criminal cases, the defendant who is facing the crushing weight of the state). Their perceptions are what matter, and impeding their ability to get what they perceive to be a fair trial creates the perception of injustice.
Which in a democracy that depends for its legitimacy on public faith in the courts, surely and certainly leads to actual injustice.