Puerto Rico Association of Criminal Defense Lawyers

Justice Breyer: Get rid of Peremptory Challenges

In Miller-El v. Dretke, 545 U.S. --, No. 03–9659 (June 13, 2005) the Court grants habeas relief to petitioner on his Batson claim. Justice Souter wrote the Court's opinion. Justice Breyer wrote a concurrence in which he posits that peremptory challenges should be done away with altogether.  He seems to be worried about preservation of the democratic institution of the jury when he states

[...] If used to express stereotypical judgments about race, gender, religion, or national origin, peremptory challenges betray the jury’s democratic origins and undermine its representative function.

Of course, when he dissented from Booker's merits opinion and drafted Booker's remedial majority opinion, Justice Breyer's concern for the institution of the jury was nowhere to be found. While there is no doubt that peremptory challenges can and are abused from time to time, I would hate to have to try a case in which there were no peremptory challenges. What you would get is likely more background checks on jurors by the government in attempts to find for cause challenges, with the defendants in most cases not having access to this sort of information. See our post on this here.

Update: Professor Berman writes about Justice Breyer's concurrence here at Sentencing Law and Policy.

Jury Trial at the Max with Defendant Shackled

The opinion in Ruimveld v. Birkett, No. 04-1826 (6th Cir. April 21, 2005) upholds the grant of a writ of habeas corpus to defendant Ruimvelt where his shackling at trial, in view of the jury, caused significant harm to the presumption of innocence.

For the entirety of the trial, Ruimveld was brought into the courtroom in leg shackles, belly chains, and handcuffs. Prior to trial, Ruimveld’s counsel moved to remove the shackles, but the judge denied both this motion and a subsequent motion to cover the shackles so that they could not be seen by the jury. As a result, not only was Ruimveld shackled as he entered the courtroom, but was shackled at all times in front of the jury, even while testifying. See J.A. at 310 (“Sir, to the extent you can, would you raise your right hand for me?” (emphasis added)). [...]

(footnote omitted). The Michigan state courts found that this shackling was improper, but that it was harmless error. The District Court disagreed, as did the 6th Circuit.

What caught my attention in this case, however, was that the original jury trial was held in a special courtroom in the Baraga Maximum Security Prison in Michigan, supposedly used so that the inmates don't have to be transported to the courthouse.  While in this case it was obvious that evidence involved defendant's conduct while in prison (i.e., the poisoning of a prison guard, allegedly by defendant), and testimony would necessarily reveal the fact that everything took place in prison, I wonder whether this special courtroom is used for other cases in which defendants may not be interested in the jury learning of the fact that they are being detained. If anyone has an answer to this, please post a comment.