Bill advances restoring peremptory juror strikes

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Arizona made national headlines last year when it became the first state to eliminate peremptory strikes of potential jurors. But most of the Arizona Supreme Court’s rule change, which took effect in January, would be short-lived if HB2413 becomes law. 

The bill, which passed out of the House Judiciary Committee on February 2 on party lines, would undo the change, allowing attorneys to once again disqualify potential jurors without giving a specific reason. An amendment to the bill limits this to criminal action only, not civil. 

Sponsored by Mesa Republican Rep. Jacqueline Parker, the bill has an emergency clause, meaning it would take effect right after being signed by the governor. Parker said reversing the Arizona Supreme Court’s rule change would preserve an “important component of criminal law and criminal law rights.” 

“We’re codifying the previous rule that was recently stricken by the Supreme Court this year in Arizona, codifying it into state statute, so we can preserve that right to our jury trial,” Parker, House Judiciary vice chair, said during the committee hearing. 

Under Arizona Law, the state Supreme Court can make rules regarding “pleading, practice and procedure” to supplement what’s outlined in statute but that’s not inconsistent with it. 

The Arizona Supreme Court is, predictably, opposed to the bill. Liana Garcia, the court’s director of government affairs, voiced its opposition. She said the issue of peremptory strikes was one of fairness, not partisanship.  

“If you look at the makeup of our Supreme Court, those are all Republican appointees,” Garcia said. “It’s not like this is some crazy, liberal idea.” 

“At the end of the day, they (the justices) said, ‘Look, we have an inherent problem with our juries, in that they don’t look like our communities,’” Garcia said. “‘The fairest way to do this is to say that we can’t let lawyers just get rid of people from serving on a jury based on the way that they look.’” 

The idea of eliminating peremptory strikes wasn’t a sudden one either, Garcia said/ She cited a work group that studied the issue for nearly a year, several petitions and a six-month comment period on the rule that generated hundreds of comments. She said “hundreds of hours” of work went into the decision. 

But Kristin Larish, a trial attorney at Maricopa County Attorney’s Office, said that the rule change felt abrupt. She said working groups, both state and defense attorneys, were discussing how to improve the Batson framework, but that the move to eliminate peremptory strikes altogether was “a complete surprise.” 

The recommendation to eliminate strikes came from two state Court of Appeals judges, Peter Swann and Paul McMurdie, who said the peremptory strike was one of the “most obvious sources of racial injustice in the courts.” 

Garcia told the committee that the Arizona Constitution gives plenary authority to the state Supreme Court to set rules for how trials are run. She said attorneys have unlimited strikes to eliminate bias from juries if they can provide race neutral reasons for doing so. 

When the change was announced, Chief Justice Robert Brutinel said in a prepared statement that getting rid of peremptory strikes “will reduce the opportunity for misuse of the jury selection process and will improve jury participation and fairness.” 

However, Parker said the change seemed like a “one-off, unfair thing” that would limit attorneys in criminal cases from being able to fully advocate for their clients by striking jurors for perceived biases. 

Parker said county attorneys were largely opposed to the change but alleged that some backed off supporting the bill after they were “threatened by some judges.” 

“Both sides of the spectrum, public defenders as well as the prosecutors, were both kind of shocked by this really sudden, massive change and were opposed,” Parker said.

“Both sides of the spectrum, public defenders as well as the prosecutors, were both kind of shocked by this really sudden, massive change and were opposed.” 

Rep. Jacqueline Parker, R-Mesa 

Mohave County Attorney Matt Smith spoke in favor of the bill. Smith argued the change would result in more hung juries and make it more difficult to remove biased or unfair potential jurors. He said the studies pointing to possible racial bias hadn’t been conducted in Arizona and not in his county. 

“I believe that the Supreme Court has done it on the basis that they believe that use of peremptories has been done racially biased; I think that their data is inaccurate,” Smith said. 

Smith also pointed to the U.S. Supreme Court decision in Batson v Kentucky in 1986, which said that striking a juror solely due to race is unconstitutional. If a strike is contested, the other party must give a neutral explanation for the dismissal. 

“The courts themselves are the ones that referee the Batson challenges,” Smith said. “So, it’s almost like they’re not showing confidence in themself.” 

During her testimony, Garcia told the committee that only five cases in Arizona appellate courts have been reversed based on a Batson challenge. 

“That gives you an indication that it’s not necessarily working,” she said.  

Minority Whip Rep. Domingo DeGrazia, D-Tucson, questioned whether the Legislature had more or better information to make a decision about peremptory strikes than the state Supreme Court did. 

“I’m incredibly concerned that we would be supplanting our limited time as lawmakers for the Arizona Supreme Court that has extensive amounts of data and deliberation behind their decision,” DeGrazia said. 

DeGrazia, who is a trial attorney, ultimately voted no. 

Rep. Neal Carter, R-San Tan Valley, said he was only voting yes because of the amendment to leave out civil trials and because of the promise to decrease the number of allowed peremptory strikes via a floor amendment. 

“I’ve done jury trials, and peremptory strikes amount to nothing more than lawyers shopping for jurors,” Carter said. “Why we’re carrying water for trial attorneys to craft the perfect jury for their trial that will render the verdict that they want, I don’t know.”