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The Jack Quatman imbroglio is making painfully clear something The Recorder has been arguing for years: Peremptory challenges in jury selection are a blight on our justice system. Quatman’s testimony — that he and Judge Stanley Golde colluded to keep Jews off a capital jury — besmirches Quatman, Golde and a district attorney’s office that has stood for ethics and integrity for nearly a century. But the greater shame lies with a criminal justice system that encourages and rewards such behavior. This DA’s office has been led by the likes of Earl Warren, Lowell Jensen and more recently Tom Orloff. For someone of Orloff’s stature to be reduced to testifying that he didn’t know Quatman was speaking out against Jewish jurors at a statewide DA’s conference — but that if he had known he might have done something about it — is another way of saying, “This system is broken and it needs to be fixed.” And the way to fix it is to eliminate peremptory challenges. Giving trial lawyers peremptory challenges but telling them they can’t base them on ethnic or gender stereotypes is like handing major league baseball players performance-enhancing drugs that can’t be detected, but making them promise to use them only in the off-season. Baseball has been slow to ban steroids because the players don’t want to be exposed as cheaters, and in the end it’s only the fans who are victimized. It’s the same story in court — lawyers like peremptories because they think it gives them an edge. It’s only the jurors and the litigants who get hurt, so the game stays rigged. To recap the current mess, John “Jack” Quatman was a deputy in the Alameda County DA’s office for 26 years. As a member of the office’s homicide team, he put three men on death row. Quatman had a reputation for doing anything it takes to win — but then again, so do a lot of prosecutors and so do a lot of defense lawyers. Quatman left the office in 1998, four years after Orloff became DA, and now works as a defense lawyer in Montana. His wife, Phyllis, is also a defense attorney and regularly does work on behalf of condemned prisoners. Two years ago, Quatman gave a declaration in the case of Fred Freeman, whom he put on death row in 1987. Quatman said that Alameda County Superior Court Judge Stanley Golde, now deceased, had advised Quatman to remove three Jews from Freeman’s jury because Jews would never vote to put someone in a gas chamber. Quatman also stated that it was the office’s “standard practice” to exclude black women from capital case juries. The DA’s office has fought back hard. Their efforts might preserve Freeman’s conviction, but they’ve done little to inspire confidence in the system. Deputies have painted Quatman as an embittered and profane ethical black hole who can’t ever be trusted to tell the truth. They say he encouraged colleagues to procure testimony by threatening to plant drugs on witnesses, and that he exhorted hundreds of DAs at a 1992 seminar to “never, ever” allow Jews on capital juries. But whether Quatman is telling the truth about Golde, who is now deceased and can’t defend himself, is beside the point. Quatman says he used his peremptories illegally, and his ex-colleagues swear that he was nothing if not a cheater. The problem is that the system is too easy to game. Indeed, Quatman’s testimony has now opened the door for respected voices in the criminal justice field to say what everyone should already have known: Trial lawyers illegally use peremptory challenges on the basis of race, religion and sex all the time. “What we really know is that all lawyers do it,” Hastings professor Rory Little, a former appellate chief at the Northern District U.S. attorney’s office, told the San Francisco Daily Journal earlier this week. “As all competent trial lawyers quickly learn, certain human stereotypes are routinely used in jury selection because, bluntly put, they capture strong statistical tendencies,” wrote former Alameda County Public Defender Jay Gaskill in Thursday’s San Francisco Chronicle. So now that it’s a given that both prosecutors and defense lawyers use peremptory challenges illegally, let’s consider the positives and negatives of changing the system to eliminate peremptory challenges: Positives: � African-Americans, Asian-Americans, Latinos, Jews, Catholics, women and others would no longer endure the inconvenience and humiliation of being called to jury service, only to be excluded due to their race, religion or gender. � The judicial system would no longer be implicitly endorsing this discrimination. � Criminal defendants would get fairer trials. � The shortage of qualified jurors would be eased. Negatives: � Skilled trial lawyers would no longer have as much opportunity to manipulate jury selection to their client’s advantage. The only other possible negative is an increase in the number of deadlocked juries, if one assumes that peremptory challenges are the only way to exclude difficult personalities from the jury panel. But that problem (if it does exist) could be fixed by removing California’s jury unanimity requirement and allowing verdicts on 11-1 or 10-2 votes, as some other states do. A California Judicial Council task force has recommended reducing (though not eliminating) peremptory challenges, and an American Bar Association panel has looked at reducing peremptory challenges while expanding for-cause challenges. Those would be good starts, but don’t get your hopes up. The Judicial Council proposal has gone nowhere. And a member of the ABA panel, Senior Washington, D.C., Judge Gregory Mize, said last year he doesn’t expect big change. “I don’t think we’ll have a recommendation that will do away with them,” Mize said. “The traditional rationale has included a needed safeguard in the event a judge gets a challenge for cause wrong — a backup to correct that error. Judicial error in for-cause strikes is not going to go away.” Neither will invidious discrimination by trial lawyers. Which is more shameful? — Scott Graham Editor in Chief

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