Monday, December 23, 2013

Batson Challenges and Kardashians

random courtroom scene from Google Images

It's three a.m., and I need to be at the courthouse in five hours. I'm wide awake. I would like to write something profound, or at least non-idiotic, but if I started it, I'd feel obligated to finish even if I miraculously became sleepy. Instead, I'll spew forth my usual complete idiocy because it will not bother me to stop it mid-sentence, or even mid-word, if the slightest inclination for sleep possesses me.

I'm helping two attorneys with jury selection in a fairly serious trial. That's as much information as I can give out at this point. After the trial, I'm free to share what I want within reason. So far it's been quite interesting.

My job is to manage juror information so that what the attorneys need is readily accessible to them. Everything is coded  in terms of which answers given on written questionnaries merit follow-up questions if the  prospective juror inquestion actually makes it into one of the jurors' chairs. Then once the jurors make it to the hot seats and face the questions, additional color-coding happens based on their answers. My employers will attempt to have some prospective jurors dismissed for cause.  If there's not much of a chance of outright dismissal, they'll play it close to the vest in hopes that the defense attorney might unwittingly dismiss the same juror they'd like to remove. If any answers have been provided that have given my employers reason to believe the defense attorney might possibly toss a juror that my employers also would like to see ousted, the person is flagged and will be given a lower number in the peremptory challenge ranking in order to give opposing counsel plenty of time to bounce the presumably less favorable juror with one of her own peremptory challenges.

It's all very much like a giant chess game, and most intriguing. Even if I don't go to sleep tonight, I will have no trouble remaining awake and alert in court tomorrow.

I doubt we'll reach the peremptory challenge point tomorrow. An entire twelve-person jury plus four alternates, none of whom were dismissed for cause, must be seated before the peremptory challenge phase even begins. Then both sides will have twenty peremptory challenges, which  are essentially free bounces with no questions asked unless an attorney appears to be making peremptory challenges for the purpose of excluding a particular group from the jury, at which point the opposing counsel may make what is called a "Batson Challenge."

In a Batson Challenge,  the judge, after hearing arguments form both sides, determines whether prospective jurors have been systematically eliminated for no reason other than belonging to a particular group. The term comes from a case in Kentucky in which James Kirkland  Batson, a black defendant, was tried for burglary. Some blacks were removed from his jury for cause. The prosecuting attorney removed then remaining four blacks on the jury via peremptory challenge, resulting in an exclusively white jury. In appeals, it was concluded that the peremptory challenge privilege was abused and that jurors cannot be excluded solely on the basis of race. This ruling was later extended to include other potential groupings beyond race, including those of a religious nature.   A pattern of discriminatory exclusion must be present before a judge will hear a Batson Challenge. The first time an attorney uses a peremptory challenge to dismiss a juror, the peremptory challenge will be upheld. Only after opposing counsel can offer evidence of a pattern of exclusion of a group will a Batson Challenge be considered.

In a trial in which I helped pseudoaunt last winter, a very ignorant assistant district attorney issued a Batson challenge after pseudoaunt's very first peremptory challenge. The judge almost had a coronary over it, yelling at the guy and telling him that he [the judge] refused to conduct a review of Law 101 for the ADA. Pseudoaunt didn't know where in hell he was coming from. The ADA was far from a rookie.

I have non-reality tV playing in the background as I type. It's actually on the Kardashians. It's the episode in which the females tried to exclude Bruce Jenner from the family Christmas card. The whole thing is probably scripted, but if it really happened that way, I'd have to side with bruce jenner on this one, although lately he's been almost as big an idiot as the rest of them are.

I'm not genuinely sleepy yet, but I am going to turn everything off and give sleep one last try before i shower and get dressed in my court attire.

Bon soiree.


  1. You know, it would not surprise me if, after your med school graduation, you decided to do law school after all.

  2. It's not out of the question. I go to an ENT here in town who is also an attorney. He has six kids and still found time to go to law school.