Are peremptory challenges on the way out?

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It was clear from the start that the 2007 murder trial of Tyson Benoit would be racially charged.

The black teen had been accused of fatally stabbing Anthony Hopkins, a white 18-year-old with whom Benoit shared a history of physical altercations. On multiple occasions, according to Benoit, Hopkins had used racial slurs against him and his friends.

By the time Juror No. 47 was called for individual voir dire in the case, she was the only African-American remaining in the jury pool. So when prosecutors sought to use a peremptory challenge against her, Berkshire Superior Court Judge Daniel A. Ford demanded an explanation.

Prosecutors pointed to statements the potential juror had made during voir dire about serving as a juror in a previous trial.

"The fact that she made a reference to a prior case where she said she actually had sympathy for one of the parties, or one of the principals, I should say, in that case, causes me some concern in this respect," the prosecutor told Ford, according to the court transcript.

Ford agreed, noting that the commonwealth had identified a "race neutral" reason why it could use its peremptory challenge. Benoit was subsequently found guilty of second-degree murder.

But last summer the Supreme Judicial Court ordered a new trial in the case, finding that Benoit's rights had been violated.

"There is no question that the jury selection process is often pressured and difficult, and we have no reason to doubt the desire and good faith attempts of the judge and all the attorneys in this case to conduct the process in a manner that was fair to all concerned," Justice Margot G. Botsford wrote for the majority. "However, the defendant has an unquestionable right to be tried before a jury that has been selected in a manner that is free from discrimination, and this right was not adequately protected in the present case."

The ruling was consistent with previous SJC decisions that put limits on peremptory challenges.

But in a dissent, three of the court's justices complained that the SJC was ignoring "the decision of a highly experienced trial judge who plainly and correctly … ruled that the proffered explanation was legally adequate. … We choose instead to insinuate ourselves unnecessarily into the process, making credibility determinations on a written record years and miles removed from the trial."

For the benefit of those who missed Benoit and what it may ultimately mean for lawyers, Superior Court Judge Peter W. Agnes Jr. is out spreading the word.

Speaking at a recent Worcester County Bar Association bench-bar event, Agnes told the crowd in attendance that peremptory challenges are under attack by academics and are being scrutinized by the courts.

In a later interview with Lawyers Weekly, Agnes said he raised the subject to inform "the bar that if it thinks peremptory challenges serve a valid purpose, the bar should express itself to the court in the appropriate ways."

And while attorneys may not agree on whether the challenges are critical for ensuring a fair jury, there is a general consensus that the current system is imperfect and often confusing.

Limit on unlimited discretion

Agnes says it would be unfortunate if the SJC believed the bar did not care about peremptory challenges.

"Because I think the bar does," Agnes says. "I don't think there will be an immediate change, but I think the court has signaled to the trial bench and bar that at least some of the justices on the SJC question the viability of peremptory challenges."

Agnes predicts that such signals from the court will likely influence the behavior of trial court judges.

"Some judges may think the law has become so complex that perhaps we'd be better off without peremptory challenges, and others may feel that they're not used properly," he says. "We know from the very detailed decision by Justice Botsford that we have to be very careful in how we deal with peremptory challenges," even when opposing counsel doesn't object, he adds.

According to David M. Siegel, a professor at New England Law/Boston who submitted an amicus brief in Benoit on behalf of the Massachusetts Association of Criminal Defense Attorneys, it is not surprising that the courts are struggling to find a solution to the peremptory challenge quandary.

"It really reflects the court's continuing difficulty with racial or ethnic discrimination in the jury system," he says. "That's evident in the split in the decision."

The SJC has issued several decisions involving peremptory challenges this decade involving scenarios in which the only potential minority juror was excluded.

That, says Siegel, indicates that the problem is really low minority representation in the venire.

Benoit is not the first time the SJC has shown concern over peremptory challenges. In the 2003 Commonwealth v. Maldonado case, Chief Justice Margaret H. Marshall wrote in her dissent that "‘rather than impose on trial judges the impossible task of scrutinizing peremptory challenges for improper motives' it is time either to abolish them entirely or to restrict their use substantially."

Siegel says he does not believe the court is ready to abandon peremptory challenges, "but I think it has a lot of difficulty getting a handle on the entire problem of race in the jury system."

The issue is particularly cumbersome because limits on peremptory challenges seem like a contradiction in terms.

"Notwithstanding how many times the SJC has laid out the framework, it is difficult in practice," says Siegel, who notes that the court requires extensive explanations for peremptory challenges, "which by definition can be exercised for no reason. That's the problem – you have a mechanism that gives people unlimited discretion against prospective jurors, except that they can't use the discretion based on a particular reason. That's a very hard thing to ferret out. So it is very appealing to a lot of judges to say, ‘Let's abandon this.'"

Suffolk University Law School Professor Marc G. Perlin says that any efforts by the judiciary to limit peremptory challenges would have to work around state law, which establishes challenges in both civil and criminal cases.

But, he says, the court could "construe what ‘peremptory challenge' means."

Now retired SJC Justice John M. Greaney was among those who expressed their distaste for peremptory challenges on the record when he joined Marshall and Justice Francis X. Spina in the Maldonado dissent.

Not knowing where Greaney's replacement, new SJC Justice Ralph D. Gants, stands on the matter makes it impossible to tell the future direction the court will take, says Perlin.

"Unless a fourth justice is willing to go that way, they'll continue to go the way of looking closely at challenges in criminal cases on a case-by-case basis," he says.

Open-minded Klansmen?

According to Siegel, peremptory challenges are needed for instances in which someone claims to be fair but there are strong indications suggesting otherwise.

"How do you deal with a case where a member of the [Ku Klux] Klan says, ‘I can be fair,'?" he asks.

Agnes agrees that the challenges are necessary.

"I think they play an important role in providing the parties wit
h a sense of fairness about the trial," he says.

Agnes says he frequently observes parties who have a "strong visceral reaction" to a prospective juror. If the peremptory challenge were abolished, the losing side in a trial would be less likely to accept the result, he worries.

While all the SJC cases involving peremptory challenges have involved criminal law, civil trial lawyers have been following the ongoing debate as well.

"You need the peremptory challenge for the person who, regardless of how fair they say they can be, you just don't want on the jury," says Boston attorney W. Paul Needham. "Imagine you were doing a wrongful-termination case and you get a potential juror who belongs to the guild at The Boston Globe. I don't care what their racial or ethnic background is; you don't want them on the jury."

Cape & Islands District Attorney Michael D. O'Keefe says he believes in using peremptory challenges "very sparingly" and that trying to kick off a would-be juror can send the wrong signal to the rest of the venire.

"There's a value to them, but I rarely have used them myself because when I'm trying a case, I like to have the jurors think that I'm satisfied with all of them," he says.

O'Keefe adds that extensive voir dire and peremptory challenges can "really skew the genius of the jury system – which is to have 12 people who are disinterested and who are what the lot of humanity gives us, rather than having [their makeup] tailored by psychologists and other experts so you pick a jury who is favoring your cause."

Meanwhile, Lexington jury consultant Edward P. Schwartz has long editorialized for either the elimination or the reduction of peremptory challenges in published articles and on his blog.

He agrees with academics who worry that they limit the presence of minorities on juries.

"Deliberations that take place in the jury room should reflect the diversity of attitudes and experiences in society," he says. "You need a representative set of voices in the room. Peremptory challenges silence a lot of voices."

Schwartz says he also believes that they "tend to weed out those with strong, unusual or critical opinions. These people might make excellent jurors."

Using voir dire to decide whether peremptory challenges can be allowed actually results in more biased juries, Schwartz argues. He points to studies that have found that jury members who admitted to being influenced by media coverage of a case actually were more impartial when it came time to render a verdict.

"The self-reflective people who say, ‘I can't be sure if I won't be influenced,' tended to be more fair to the parties in the case," he says. "At least they have the common sense to realize that they may need to compensate for what they've read, that their decision-making may have been influenced or contaminated. People who say otherwise are deluding themselves and the court."

Because Massachusetts has very limited voir dire compared to other jurisdictions, Schwartz says attorneys here are just making "a shot in the dark" with their peremptory challenge requests. Basic demographic profiles only explain "5 percent of verdict choices among jurors," he says.