415 E Spring St
Kingman, AZ 86401 [email protected]
This is Mohave County Superior Court’s response to R-21-0020. The majority of judges in the Mohave County Superior Court oppose this proposed rule change. A minority neither support nor object to the proposed rule change. The judges of Mohave County Superior Court unanimously agree that if peremptory challenges remain that they should be limited to two challenges per party.
The following is the statement of the majority that oppose the proposed rule change:
This proposed rule change proposes to eliminate peremptory challenges to jurors mainly on the basis that by doing so, it would eliminate issues related to Batson. The proposal ostensibly is meant to benefit minority criminal defendants. The proposal also supports the change with the argument that it would lower the number of jurors that need to be summoned for trial, thereby lowering the cost of trial and adding to efficiency in jury selection.
The majority of Mohave County Superior Court judges disagree that eliminating peremptory challenges will eliminate attempts to discriminate based on race during the jury selection process. We also assert that the advantages of eliminating peremptory challenges in the comparatively few cases where Batson is an issue are far outweighed by the advantages peremptory challenges provide to thousands of other defendants, litigants, and courts.
We start by noting the United State Supreme Court has stated, “[w]e have long recognized the role of the peremptory challenge in reinforcing a defendant's right to trial by an impartial jury.” United States v. Martinez-Salazar, 528 U.S. 304, 311, 120 S. Ct. 774, 779, 145 L. Ed. 2d 792 (2000). State v. Hickman, 205 Ariz. 192, 195, ¶ 11, 68 P.3d 418, 421 (2003).
One major advantage to criminal defendants in retaining peremptory challenges is that they allow defendants to remove prospective jurors who hold biases against them. Current case law (regarding striking prospective jurors for cause) allows jurors to remain on a jury who clearly favor one side of the case. For example, the Arizona Supreme Court has ruled that “a prospective juror is not precluded from serving on the jury simply because he favors the death penalty.” State v. Johnson, 247 Ariz. 166, 197, ¶ 109, 447 P.3d 783, 814 (2019), cert. denied, 140 S. Ct. 1154, 206 L. Ed. 2d 205 (2020). If a juror claims that he or she can keep an open mind in spite of his disposition towards the death penalty, the court properly can refuse to strike that juror for cause. State v. Johnson, 247 Ariz. 166, 197, ¶ 109, 447 P.3d 783, 814 (2019), cert. denied, 140 S. Ct. 1154, 206 L. Ed. 2d 205 (2020). State v. Velazquez, 216 Ariz. 300, 306, ¶ 14, 166 P.3d 91, 97 (2007). We are concerned that without peremptory challenges, criminal defendants would be required to acquiesce to jurors who have expressed views that disfavor them, but who promise to keep an open mind. Even though these prospective jurors express the intent to avoid explicit bias or prejudice, we assert that criminal defendants should be permitted to use peremptory strikes to remove these jurors because of the likelihood that implicit bias or prejudice would influence their decisions. For these reasons, promises to keep an open mind do not adequately protect the rights of defendants to a fair trial. Peremptory challenges are an important way to protect this essential right.
All of the judges that are currently serving on the criminal bench in Mohave County Superior Court have had prior experience as trial attorneys in criminal cases. While serving in that capacity, some have experienced situations where the trial court declined to strike jurors for cause that, in our opinion, held biases in favor of the state, but who said they would keep an open mind. Peremptory challenges were successfully used on behalf of the defendants to avoid having these prospective jurors serve on those juries. Eliminating peremptory challenges would remove this valuable protection for criminal defendants.
Peremptory challenges are also advantageous to criminal defendants because they allow defendants to remove prospective jurors who would not be struck for cause, but who would be just as unfavorable to these defendants. Characteristics such as facial expressions, body language, tone of voice, dress and grooming are not verbally expressed by prospective jurors and are rarely reflected in the record. However, they often indicate that these jurors would not favor the defendant. None of these characteristics are likely to be the basis for a successful challenge for cause. This is another reason why eliminating peremptory challenges would unfairly hamper a criminal defendant’s ability to remove prospective jurors whose predisposition is unfavorable.
We note that since the number of peremptory challenges available to the parties was decreased at the beginning of the pandemic, several motions have been filed objecting to the reduction of peremptory challenges. Each of the motions has been filed by a criminal defendant. These motions have cited the defendant’s due process right to a fair and impartial jury. Other criminal defendants have asked to continue their jury trials until the number of peremptory challenges can be increased to its pre-pandemic level. This position taken by these defendants expresses a belief that the elimination of peremptory strikes would be harmful to them. We cite these motions to show that it is the defendants in criminal cases, for whom the proposed rule change is ostensibly meant to benefit, that oppose the reduction of peremptory challenges.
While the focus of our response is that criminal defendants are disadvantaged by the elimination of peremptory challenges, all parties are entitled to a fair trial. It appears that at most a small minority of prosecuting attorneys abuse peremptory challenges in violation of Batson – at least in Mohave County. The mere fact that a small minority of prosecuting attorneys have abused peremptory challenges in violation of Batson should not mean that the remaining prosecuting attorneys should be precluded from using peremptory challenges to remove prospective jurors that hold opinions unfavorable to the state. Likewise, civil litigants should not be penalized because of those who abuse peremptory challenges in criminal cases.
Another advantage to retaining peremptory challenges is that if a judge does err by not striking a prospective juror for cause, and if either the State or Defendant exercises their peremptory strike to remove a juror, reversal of any conviction is not required. State v. Hickman, 205 Ariz. 192, 198, ¶ 28, 68 P.3d 418, 424 (2003). Additionally, if a Defendant has peremptory challenges available and chooses not to remove a juror that should have been struck for cause, the defendant has waived any error (State v. Rubio, 219 Ariz. 177, 181, ¶¶ 13-14, 195 P.3d 214, 218 (App. 2008)) at least if the number of jurors that could have been struck for cause did not exceed the number of peremptory challenges available. State v. Acuna Valenzuela, 245 Ariz. 197, 209, ¶ 23, 426 P.3d 1176, 1188 (2018). For these reasons, one of the advantages to continuing to allow parties to exercise peremptory challenges is that it allows parties to remove jurors that should have been struck for cause, but who erroneously were not. Thus, peremptory challenges allow any such convictions to be affirmed when they would otherwise need to be reversed.
We are aware that the decision on whether to strike a juror for cause is reviewed for abuse of discretion (State v. Lavers, 168 Ariz. 376, 390, 814 P.2d 333 (1991). State v. Acuna Valenzuela, 245 Ariz. 197, 209, ¶ 21, 426 P.3d 1176, 1188 (2018)) and that appellate courts have repeatedly stated that the trial judge is “in the best position to ‘assess the demeanor of the venire, and of the individuals who compose it.” State v. Naranjo, 234 Ariz. 233, 239 ¶ 12, 321 P.3d 398 (2014) (quoting Uttecht v. Brown, 551 U.S. 1, 9, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007)). State v. Acuna Valenzuela, 245 Ariz. 197, 209, ¶ 24, 426 P.3d 1176, 1188 (2018). However, the decision as to whether to grant a challenge to a prospective juror for cause must be made quickly and it may not be clear to a trial judge what the ruling should be. United States v. Martinez-Salazar, 528 U.S. 304, 316, 120 S. Ct. 774, 782, 145 L. Ed. 2d 792 (2000). In contrast, the decisions by appellate courts are made with transcripts and with ample time for reflection on whether the challenge should have been granted. Peremptory challenges create a safe harbor for erroneous decisions on motions to strike jurors for cause. Consequently, peremptory challenges play an important role in safeguarding otherwise properly reached jury verdicts.
We also assert that if peremptory challenges are eliminated, attorneys who might be inclined to discriminate will, during voir dire, be more aggressive in questioning prospective jurors they want to eliminate based on their race. Any such attorneys are also more likely to aggressively challenge these prospective jurors for cause. We recognize the standards for deciding challenges for cause and deciding Batson challenges are different. However, similar issues would have to be decided by the trial court and any subsequent reviewing courts. We also acknowledge that eliminating peremptory challenges may stop one method of discriminating during jury selection. Unfortunately, it will not resolve the issue. Instead, any such discrimination will simply take a different form.
Prior to the COVID-19 pandemic, jury selection in most felony criminal cases in the Mohave County Superior Court typically lasted half a day. In more serious cases, jury selection sometimes took longer. The Mohave County Superior Court has held several jury trials after the pandemic began with the reduced number of peremptory challenges allowed. We agree that fewer prospective jurors have been needed for jury selection. However, the time needed for jury selection has not been significantly less. In fact, for most divisions, it has continued to take about half a day to conduct jury selection even with the reduced number of peremptory challenges available. For this reason, greater efficiency has not been realized by the reduction of peremptory challenges available to the parties.
As explained above, we also assert that if peremptory challenges are eliminated, the parties are likely to challenge more jurors for cause because that will be the only means to eliminate prospective jurors who they realize will not be favorable to their position. This will create additional time needed during jury selection in order to hear challenges for cause. We assert that this will minimize the efficiency benefits of eliminating peremptory challenges.
In a recent opinion by the Court of Appeals, it was calculated that in the 35 years since Batson was decided, nearly 80 Batson-related opinions have been issued in Arizona. State v. Ross, --- P.3d---, 1 CA-CR 19-0214, 2021 WL 869049, at *3 (App. Mar. 9, 2021). A recent Westlaw search shows that just over 150 unreported decisions have been made involving Batson issues. We cannot calculate how many Batson challenges were raised at the trial court level, but which were successfully resolved in a way that no one challenged the trial court’s decision on appeal. While it may not be possible to calculate how many jury trials have taken place in Arizona in the last 35 years, we estimate that it must be at least several thousand. By this calculation, we estimate that thousands of jury trials have taken place in the State of Arizona where peremptory challenges were successfully used in a way that Batson was not a basis to challenge the jury’s verdict. In this way, the number of cases where Batson was an issue is a very small percentage of the total number of jury trials that have occurred in the last 35 years. For these reasons, the criminal defendants and other litigants who have been able to utilize peremptory challenges to remove unfavorable prospective jurors far outweigh the number of those who have been unfairly discriminated against in violation of Batson.
We do not condone purposeful discrimination based on race. Likewise, we do not minimize the effects that such discrimination can create. However, we disagree that it is appropriate that the great majority of defendants and litigants should have this valuable resource eliminated in an effort to rectify this injustice perpetuated on a smaller proportion of litigants. Instead, we assert that other means should be used to address the challenges created by purposeful discrimination in jury selection. In short, the position of the majority of Mohave County Superior Court judges is that the benefits that peremptory challenges provide to thousands of criminal defendants (and to the state and other litigants) should not be taken away because of the few attorneys and parties that abuse these challenges.