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When the U.S. Supreme Court overturned a Texas capital case last week because the prosecution had engaged in racial discrimination in jury selection, the justices didn’t change their scheme for determining when a peremptory challenge is unlawful. But Justice Stephen G. Breyer made it clear that if he had his way, he might do away with peremptory challenges. “A jury system without peremptories is no longer unthinkable,” Breyer wrote in a concurring opinion. Miller-El v. Dretke, No. 03-9659. And that view sparks controversy. Howard Weiner, a criminal defense attorney in New York’s Law Offices of Lawrence S. Goldman, said it would be a mistake to get rid of them. “There’s nothing in and of itself wrong with the concept of peremptory challenges,” said Weiner. “A defense lawyer needs the ability to remove a juror whom they believe a judge should have let go for cause . . . .Our system is theoretically designed to protect defendants’ rights, so that when the government misuses peremptory challenges as they did in Miller-El [to remove 10 of 11 African-Americans] to make it easier to execute someone, it’s truly insidious.” Baltimore District Attorney Patricia Jessamy doesn’t think much of Breyer’s idea, either. She said that voir dire is so limited in Maryland, and judges so loath to allow challenges for cause, that peremptories are needed. She cites as an example being called for jury duty on criminal cases, and not being excused for cause by three out of five judges although her name appears on every criminal complaint. Even when jurors speak of experiences that cast serious doubt on their professed impartiality, judges won’t let them go, Jessamy said. “Therefore the use of race-neutral peremptories allows us to ferret out those jurors who might otherwise bring their biases into the juror room.” Breyer’s comment that a jury system without peremptories is no longer unthinkable stems from the fact that even stringent Supreme Court rules have not prevented lawyers from introducing unlawful biases into the jury-selection process. “[T]he use of race- and gender-based stereotypes in the jury-selection process seems better organized and more systematized than ever before,” Breyer said. No other justice joined Breyer. The high court has said in an earlier decision that no reason need be stated for this kind of challenge unless opposing counsel suggests that it was made for an unlawful purpose, or the trial judge suspects it on his or her own. Batson v. Kentucky, 476 U.S. 79 (1986). A ‘continued value’ When the American Bar Association revised its principles for juries and jury trials this year, it eliminated the suggested caps for peremptory challenges that had been on its books. “Our goal was to signal their continued value,” said Stephan Landsman, the reporter for the American Jury Project, which drafted the principles. He said that Breyer, an architect of the sentencing guidelines, has always opposed judicial discretion. “[Getting rid of peremptory challenges] would be a disaster in the same way the sentencing guidelines have been,” said Landsman, a specialist on the civil jury system at DePaul University College of Law in Chicago. “In an ideal world, where there was extensive voir dire conducted by lawyers, and judges were energetic in removing jurors for cause, we could do without them,” but those conditions don’t exist in most courts, he said. Several justices on state high courts have expressed views similar to Breyer’s. In 2003, for example, in a concurring opinion in a Batson case, three justices on Massachusetts’ high court-one short of a majority-said it was time to abolish peremptory challenges or substantially reduce their use. Commonwealth v. Maldonado, 439 Mass. 460. In 1998, the D.C. Jury Project recommended doing away with or substantially reducing the number of peremptory challenges if juror questionnaires were standardized, opportunities were expanded for individual voir dire, and expanded legal standards for cause strikes were established.

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