By A. Vince Colella
In law school, we were taught the key to effective jury selection was to "indoctrinate" the panel to arguments we wished to advance during trial. However, the notion of jury indoctrination, i.e., changing a juror's opinions, beliefs or past experiences, to align them with your side's position has been debunked over the years as an exercise in futility. Successful voir dire strategists focus on deselection through Socratic questioning to establish legitimate cause challenges. However, trial lawyers recognize that ferreting out the "stealth" jurors is not an easy task and reliance on the peremptory dismissal of a juror is necessary as a last resort. Notwithstanding, the exercise of peremptory challenges has been abused by many trial practitioners who brazenly employ race and socioeconomic factors to select jurors who "resemble" their client. It's a practice that disenfranchises jurists and poisons our system of justice.
"Peremptory" is rooted in the Anglo-Norman French word "peremptorius" ("deadly decisive") from the verb meaning "to destroy or cutoff completely." The word has evolved over time to mean "putting an end to a right of action or debate." [Miriam-Webster.com, 1/31/22] Michigan has recognized the right of peremptory challenges in criminal cases since 1927. [MCL 768.13] Over time, the right has been extended to civil trials despite not being recognized under common law. Abuses of the peremptory challenge had long been rumored in legal circles. However, legal criticism over the lawfulness of pretextual challenges did not occur until the mid-80s. In Batson v Kentucky, 476 US 79 (1986), a black man charged with 2nd degree murder was made to stand trial before an entirely white panel after the prosecutor peremptorily excused all four black jurors in the pool. Defendant's equal protection argument was denied by the Circuit Court (according to the judge) "[because] the prosecutor can use anyone they want." Id. In a 7-2 decision, the Supreme Court held the Equal Protection Clause forbids a prosecutor from peremptorily challenging potential jurors solely on account of race; rebuking the assumption that black jurors are incapable of impartially considering a case against a black defendant. The court further espoused, once a Batson challenge has been advanced, the party opposing must show a "neutral explanation" for the challenge.
The right to oppose race-based dismissals in civil cases has been addressed by the U.S. Supreme Court in Edmonson v Leesville Concrete Co., 500 U.S. 614 (1991). Edmonson, a black construction worker injured on a worksite alleged that the company had purposefully engaged in discriminatory removal of black jurors from the venire, resulting in an 11-1 white majority culminating in a finding of 80% comparative negligence on the part of plaintiff. Recognizing that Batson governs civil jury selection, the majority passionately pointed out that "[i]f our society is to continue to progress as a multiracial democracy, it must recognize that the automatic invocation of race stereotypes retards that progress and causes continued hurt and injury." Id. These are words that we should continue to remind ourselves of when deciding whether race-based challenges should be tolerated.
The Michigan Supreme Court recently questioned the constitutional validity of the peremptory challenge in its entirety. In People v Kabongo, 2021 Mich LEXIS 847 (May 20, 2021), Justice Zahra opined, "the U.S. Supreme Court has recognized that the states need not even provide peremptory challenges, and, if a state does so, then the state is free to decide the remedies available for the trial courts mistaken denial of the challenge." Id. However, the Court refused to adopt a rule requiring "automatic" reversal of race-based challenges, opting instead for a "harmless error" review. Chief Justice McCormack disagreed, because of the "difficulty or impossibility of determining prejudice to the defendant as a result of the error." Id. Ironically, Kabongo partially arose out of a race-based challenge of white jurors to "equalize" the composition that ultimately resulted in a 14-3 predominately white venire.
Debate over the rights, remedies and abuses of pretextual dismissal of jurors has many trial lawyers wondering whether the practice should be abandoned altogether in favor of "cause" based challenges only. However, limiting lawyers to cause-based challenges would only be truly effective if trial courts would allow for comprehensive questioning of potential jurors to expose biases and prejudices, unconsciously or otherwise. In Michigan, there has been a nascent proclivity of courts to conduct their own voir dire. Unfortunately, during these brief and often sanitized panel discussions, little is revealed about the jurors' true feelings, beliefs or opinions to exercise a legitimate cause-based challenge. Should our courts collectively adopt a more lenient approach to jury selection allowing for meaningful and honest discussion, the likely outcome would result in fair and impartial juries. Thus, obviating the need for esoteric peremptory challenges that have been historically prone to racial and cultural abuses that undermine the selection process.
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A. Vince Colella is a co-founder of personal injury and civil rights law firm Moss & Colella.
