October 14, 2010 was a big day for criminal defense attorneys who pick juries in the state of New York. The Court heard arguments on four cases which examine the trial court’s approach to Batson challenges. (People v. Guardino, ____).
In 1986 the United States Supreme Court addressed the issue of the use of preemptory challenges in a fashion which discriminates against a class of potential jurors. (Batson v. Kentucky, 476 U.S. 79, (1986)) Since that time trial attorneys on both sides of the aisle have been objecting to what appears to be a pattern of discrimination in the opposition’s use of challenges. Trial Court’s have been instructed to employ a three tiered test to determine whether in fact a pattern of discrimination has been established. I will not discuss those tiers at this time, because it is clear that the Court of Appeals is poised to hand down a decision which will attempt to create a new template for the Trial Court judges.
In my opinion, judges should have never opened this Pandora’s Box in the first instance. At its core, the use of preemptory challenges is an exercise in discrimination. Litigators are given a very short time to address, instruct and evaluate the qualifications of a panel of as many as 24 jurors. The tools which the litigator uses for choosing the best jurors for his client are all steeped in stereotyping. It's not just race or ethnicity, but also the neighborhood in which the juror resides, employment status and level of education, for example, which are facts which the attorney digests to determine whether he believes the juror will be pro or anti defendant, or pro or anti prosecution. It is not politically correct to say that an entire group of individuals is more inclined to acquit or convict, but if you ask any seasoned trial attorney about the ideal composition of a trial jury, the answer will reflect a preference in race, ethnicity, neighborhood, education, and employment. When exercising his preemptory challenges, therefore, the attorney then discriminates against those group of individuals who do not fit into his picture of the ideal jury.
How the Court of Appeals is now going to regulate this exercise is a mystery , but it is clear they will set down very specific guidelines when (People v. Guardino, ______) and its companions are decided.