I wrote this article as a followup to my Monday article titled, Dzhokhar Tsarnaev and the use of peremptory challenges in jury selection. In that article, I posed a hypothetical question regarding a prospective juror AB who,
insists that he can fairly and impartially decide on the basis of the evidence introduced in court whether Dzhokhar Tsarnaev is guilty as charged in the 30 count indictment that alleges that he and his older brother Tamerlan conspired to construct and detonate two improvised explosive devices near the finish line of the Boston Marathon. Further assume that he lived in the Boston area when the IEDs exploded killing three people, including a child and injuring 260, many of them severely. Also assume that he followed the case in the local and national media and told others at various times that he believed the brothers were guilty.
I pointed out that AB would have survived a challenge for cause, because he insists that he can fairly and impartially decide the case on the basis of the evidence introduced in court, and I asked readers to assume they were defense counsel and state whether they would use a peremptory challenge to dismiss . I also asked readers to explain their answer.
In a word, my answer is it ‘depends.’
Remember that unlike a challenge for cause, which must be justified, no reason must be given to justify the challenge.
Here is my explanation.
The 70 potential jurors who survived voir dire and the gauntlet of challenges for cause will have been sorted from 1-70 based on the original juror number they were assigned when they reported for jury service.
For example, if jurors 1-10 were excused, juror 11 moves up to become Juror 1. If jurors 12 and 13 were excused, juror 14 moves up to become Juror 2, and so on until the semifinal cut of 70 are renumbered 1-70.
This means that the potential jurors from 60-70 are not likely to make the jury, unless they are an alternate.
The clerk will hand the master list of 1-70 to the prosecution and they will exercise their first peremptory by drawing a line through a potential juror. They won’t strike near the end of the list because those people can only make it as an alternate, if at all, and right now, they are working on who will make the 12-person jury.
After they record their first strike, they will hand the master list back to the clerk, who will walk over to the defense table and hand them the master list. They will strike someone and hand it back. And so it will proceed until one side or the other accepts the jury that consists of the remaining potential jurors now renumbered 1-12.
If both sides used their full complement of 20 peremptory challenges, the jury of 12 would be made out of the first 52 jurors (20 + 20 + 12 = 52).
Normally, the prosecution accepts first and the defense continues to exercise peremptories until they run out of challenges. Each time the defense strikes someone, the prosecution can exercise another peremptory, assuming they have one), which is limited to the new person who replaced the person struck by the defense.
And so it will continue until both sides accept the remaining jurors who now make up the first 12, or they exhaust their 20 peremptories.
Then, they move on to select the 6 alternates by following the same procedure, except now each side has 6 strikes.
By now, you should understand why they wanted to get to a pool of 70 jurors passed for cause. If both sides used all of their challenges, they would end up with jury of 12 + 6 alternates.
20 + 20 + 6 + 6 = 52.
70 – 52 = 18
12 + 6 = 18
Therefore, the answer to whether you would strike AB would primarily depend on where he is positioned in the pool of 70 AND whether he is an alpha male who is likely to influence others or a follower/sycophhant who isn’t.
Fred’s Rule: Don’t worry about him, if he is a follower/sycophant. Strike him if you’re not sure. Accept him, if you think he is an alpha and you are reasonably certain he’ll go your way.
Remember to include your client in the decision process because his life is at stake and he may have gotten a good or bad feeling from AB at some point during the voir dire process.
Also remember that a mistake with AB could get your client killed and no amount of post trial rationalizing will eliminate the stain of a bad decision.
This why death penalty lawyers understand like no other person the giddy terror of Icarus flying too close to the Sun.