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Sunday, December 10, 2023 | Back issues
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Focus Group Debates Reducing Peremptory Challenges in Brainstorming Session

SAN FRANCISCO (CN) - An idea to cut peremptory challenges in misdemeanor trials from 10 to 6 drew judges and lawyers from all over California to a brainstorming session Tuesday to plot the course of state courts for the next 10 years.

California Supreme Court Chief Justice Tani Cantil-Sakauye formed the Futures Commission to examine what the state's courts should like over the next 10 years. The group met with trial court workers and court reporters on Monday before turning its focus to a plan to reduce peremptory challenges in misdemeanor cases on Tuesday.

"We are finding that misdemeanors are challenging the resources of courts," Judge Richard Couzens, a member of the commission, said. "Obviously larger panels are summoned, it simply takes longer, and in my experience the trials often are largely jury selection and the evidence portion is relatively short."

He added, "Frankly, reduction of the number of challenges will focus more on the proper use of the challenges - having too many challenges sometimes may lead to mischief."

While proposals to shorten the number of continuances allowed in criminal cases and reduce certain misdemeanors to infractions were also on the commission's agenda Tuesday, it was peremptory challenges that attracted public comment.

Unlike challenges for cause, peremptory challenges allow an attorney to reject a potential juror without stating a reason. Most spoke in opposition to the idea of reducing peremptory challenges, arguing that if the intention is to save the courts time and money, the result will be the opposite.

Karen Jo Koonan, a jury consultant with the National Jury Project, said peremptory challenges are an essential element in assembling a diverse and unbiased jury.

"Bias is a part of the human experience. And it is universal. And most often, people are unaware of their own biases," Koonan said. "So the process of jury selection is the process of sorting through what kinds of biases people will bring to the decision-making process in a particular case."

She added, "It is really a cause challenge around which the judge does not agree with a lawyer. So when it is implemented properly, the lawyers are excusing people they believe that the judge should have excused for cause."

A singular focus on efficiency, Koonan argued, can "pollute the system."

"If you want efficiency, you could just eliminate jury trials altogether," she told the commission.

Two judges spoke in favor of the idea, including a representative from the longstanding California Judges Association.

"Jurors frequently complain that jury selection in misdemeanor trials takes too long," San Mateo County Superior Court Judge Donald Ayoob, a member of the association's executive board, said. "This reform would make sure selection and participation is more efficient and tolerable without sacrificing due-process rights."

Ayoob, who worked for nearly 29 years as a public defender before his appointment to the bench, said the association has estimated the courts could save $2.4 million annually, and noted that 47 other states use less than 10 peremptory challenges.

Speaking on behalf of the San Francisco Superior Court, Judge Suzanne Bolanos told the commission that the majority of criminal trials in her court are misdemeanors. Sometimes one judge will be assigned to handle two misdemeanor trials simultaneously, one in the morning and one in the afternoon, she said.

"For each one of these trials, we have to summon enough jurors to allow for the possibility that the people and the defense will each exercise 10 challenges. So, as you can see, reducing the number of peremptory challenges will permit us to summon significantly fewer citizens for each misdemeanor trial in the future," she said.

"Significant numbers of our jurors are teachers, small business owners, minimum wage employees," she continued. "These jurors usually are not paid by their employers for their time away from work. Each hour that these jurors serve is one hour of forgone income, which is a very real burden here in San Francisco where the cost of living is very high."

Bolanos added that she was confident that cutting peremptory challenges back will have no adverse affect on a defendant getting a fair trial. If anything, she said, it could prevent lawyers from discriminating against potential jurors - drawing a sharp reaction from San Francisco Public Defender Jeff Adachi.

"Excuse me? That is something that we are taught not to do. And if a prosecutor or a defense attorney abuses that, then the judge should stop that," Adachi said.

The only elected public defender in California, Adachi has come down hard on the effort to cut peremptory challenges statewide over the last two years, and his office has successfully fought against two recent bills in the Legislature.

"The Judicial Council has been trying for years and years to make this change in law," Adachi said, adding that the rule-making body for the courts worked with Gov. Jerry Brown to propose the effort as part of his 2016-17 budget package.

"Now they have managed to get the governor to back this, and to suggest this as part of the budget - sort of a back-door deal - because the hope is that it gets lost in the shuffle," Adachi said. "I believe that this is a farce. There is nothing to support that there is actual real savings."

Adachi pointed to an email he received from Runston Maino, a trial judge in San Diego. "He said, 'What has irritated me is the way that judges accept something without any proof.' He said this change is going to affect due process and just the basic fairness of the court."

Adachi added, "It will elongate the jury selection process because you are going to spend more time on cause challenges and you are going to have more argument over that."

He said if the change becomes law, "we are going to spend the next few months and probably few years trying to reverse this.

"And we are going to put in every resource we can, including pointing out all of the waste that occurs in our courts, because if the accusation is that we are wasting time by using peremptory challenges, then we are going to point out all of the places that the court is wasting time."

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