Bill to Cut Back Juror Strikes Stirs Dissent

           (CN) – It’s been called both a “modest proposal” and a “win-win”- a bill that proposes cutting back the number of peremptory challenges in misdemeanor trials in California from 10 to 6. But what’s been touted as a time- and cost-saving measure for the courts has also pitted trial judges against local public defenders, defense attorneys and other critics who say the measure won’t accomplish what it claims.
     “I think the bill is a solution in search of a problem. It’s being touted as a time-saving measure but in practice, it will actually result in more time being used to choose juries,” San Francisco Pubic Defender Jeff Adachi said in a phone interview. “Reducing the number of challenges in fact will take more time because we’ll have to spend more time debating whether a juror should be removed for cause.”
     SB 213, authored by state Sen. Marty Block, D-San Diego, is widely supported by members of the California Judges Association, the longstanding professional group representing judges up and down the state. It is also supported by the Judicial Council, the rulemaking body for California’s courts.
     “It’s a modest proposal of common sense reform that will really help the courts,” CJA president Judge Joan Weber of San Diego said in an interview. “The trial courts have been under siege with the budget crisis and we have been asked by the Legislature and the governor to come up with efficiencies in the way we do court operations to assist us in doing our job faster and more efficiently without violating due process.”
     She added, “We think the public is going to appreciate this. We get feedback all the time from jurors sitting on a petty theft case from Walmart and they complain, ‘Why is it taking a day and a half to pick the jury?’ “
     Unlike challenges for cause, peremptory challenges allow an attorney to reject a potential juror without stating a reason. And the idea of cutting them down doesn’t sit well with defense attorneys like Matt Gonzalez, the chief attorney for the San Francisco Public Defender’s office.
     Gonzalez said peremptory challenges help ensure a fair trial for criminal defendants. “The cause challenge system isn’t working and it hasn’t been working since 1991,” Gonzalez told the Senate Judiciary Committee at a recent hearing. “It’s not working because attorneys get 15 or if they’re lucky, 30 minutes to question jurors about potential bias. That’s about a minute for each juror.”
     He added that judges will often deny cause challenges if a potential juror says he or she can be fair, despite past experiences that might color their view of the case.
     “Peremptory challenges are important because it allows attorneys to do what the judges are no longer doing,” Gonzalez said.
     At that same Senate committee hearing Ignacio Hernandez, lobbyist for the California Attorneys for Criminal Justice, said constitutional rights should not be exchanged for efficiency.
     “I support court funding, but having an efficiency that is focused on the rights of criminal defendants and the ability to get a fair trial is the last place we should go,” Hernandez said. “Taking away peremptory challenges runs the risk at that moment when it’s most critical, that you may not get an unbiased jury. It may not be efficient for judges. Well I’m sorry, that’s their job.”
     SB 213 passed the Senate Judiciary Committee with a five-year sunset and an amendment adding a study by the Judicial Council on its results. Only Sen. Mark Leno, D-San Francisco, voted against it.
     “I’m going to err on the side of justice,” Leno said. “These misdemeanor cases are very significant. They can have long-lasting implications in the lives of those who are tried.”
     Sen. Loni Hancock, D-Alameda, voted for the bill because of the sunset and study, but said, “I don’t think it’s a modest proposal. I think it’s a pretty profound proposal.”
     Weber said the bill does not affect a defendant’s due-process rights, and will bring the amount of peremptory challenges in misdemeanor trials in California closer in line with the majority of courts in the state, as well as the Federal Court.
     “California is a complete outlier,” she said. “There are only two other states that use 10 peremptory challenges per side: New York and New Jersey. Even if California goes to six there will still be only two states that offer more.”
     “We’ve had 10 challenges since 1851, and one of the reasons we do it that way is because we have a jury size of 12,” Adachi countered. “In other states you have smaller juries, so it makes sense to have fewer peremptory challenges.”
     And those peremptory challenges actually speed up the process, Adachi argued.
     “If a juror identifies an issue that could be a challenge for cause, you can go in the back and examine the juror in camera. Now we exercise a peremptory challenge, it makes the process faster. You’re going to be certain we’ll spend a lot more time on cause hearings.”
     Still, SB 213 enjoys wide support from the state’s trial judges, including all 58 of its presiding judges. Weber said she canvassed her bench in San Diego and all but two of 128 were in favor.
     One of them, San Diego Judge Runston Maino, said he opposes the bill because it’s imprudent and won’t accomplish what it promises.
     “It seems to me it’s window dressing,” Maino said in an interview. “The waste of money by the AOC and the Judicial Council is what they should be concentrating on. Instead they have this red herring they drag across the public stage. There’s no good evidence that there’s all these savings that they ascribe to doing this.”
     Instead, Maino suggests that the experiment be tried in three counties of small, medium and large size to determine its effectiveness, and whether justice is diminished.
     “Do a study to see if it has savings and see if people’s rights to a good jury panel are affected,” he said.
     On the other side of the argument, San Francisco Judge Sandra Bolanos – speaking at the Senate committee hearing – said, “The judges in California overwhelmingly support this legislation. If this bill were to pass we would only have to call in enough jurors to allow for the possibility of six peremptory challenges per side.”
     She added: “If we call in fewer people it’s going to save time and resources for everyone. It will not only save valuable court time and money it will save money and resources for the entire community.”
     Those savings, Adachi said, are speculative, and the move is a desperate attempt to prove to the governor and lawmakers that the judiciary is looking for ways to save money and become more efficient on the heels of widespread criticism over its spending. Governor Jerry Brown has promised more funding for the courts in this year’s budget with the caveat that the judiciary finds ways of running the courts more efficiently.
     “The idea that this is the way that the judiciary can save money and reform the system is hogwash,” Adachi said, pointing to $500 million spent on a statewide court IT system by Judicial Council staff which was blasted by the State Auditor for draining enormous sums from the judiciary’s coffers while bureaucrats disguised its true cost.
     Adachi also noted the auditor’s most recent report on the Judicial Council and its staff bureaucracy, which had spent hundreds of millions of dollars that should have gone to keeping the courts running during the state’s long-running budget crisis.”The CJA needs to prove to the governor and the Legislature that they’re trying to save time and money because of this whole political battle,” he said. “This is the best reform they could come up with, and it’s a foolhardy way.”
     CORRECTION: An earlier version of this article improperly described the number of judges in San Diego who support SB 123. All but two of 128 were in favor. Courthouse News regrets the error.

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