Should we have peremptory challenges in jury selection?

Judge Jon Newman in the NY Times says we should reduce the number to only a few.  The intro:

THE Supreme Court ruled correctly on Monday when it found that Georgia prosecutors in Foster v. Chatman had illegally barred African-Americans from serving as jurors in a death penalty trial. But the decision does not end racial discrimination in jury selection. The best way to do that is to limit the number of jurors that lawyers can strike for no reason at all to just one or two per side.

Both prosecutors and defense lawyers can exclude any number of prospective jurors for legitimate reasons — if a juror knows the defendant, has formed an opinion about the case or is unlikely to be impartial. But lawyers can also dismiss several more potential jurors simply because they do not want them — without explaining why. In federal felony trials, the prosecutor has six peremptory challenges and the defense usually has 10. In federal death penalty cases, each side has 20. State numbers vary.

In the Foster case, which dates from the 1980s, the prosecutors eliminated people simply because of race. Timothy Foster, a black man, stood accused of killing an elderly white woman when he was a teenager. The prosecutors worked conscientiously to exclude the potential black jurors; they marked their names with a “B” and highlighted each black juror’s name in green on four different copies of the juror list. Those jurors were ranked against one another in case, one member of the prosecutorial team said, “it comes down to having to pick one of the black jurors.” The plan worked, and an all-white jury sentenced Mr. Foster to death.

This was an egregious case, but not a unique one. Far too often in criminal or death penalty cases that involve a black defendant, prosecutors try to exclude black jurors because they believe it will increase the chances of a conviction. In Houston County, Ala., prosecutors struck 80 percent of qualified black jurors from death penalty cases from 2005 to 2009.

I took an even more extreme position back in 2005, when I wrote this op-ed for the Herald saying that we should get rid of all peremptory challenges.  I'm not sure I feel the same way any more.  Here's what I wrote back then, 11 years ago:

Posted on Wed, Jul. 06, 2005
JUSTICE
Eliminate race bias in jury selection
BY DAVID OSCAR MARKUS 

Any trial lawyer who says that he does not consider race as a factor when selecting a jury is not telling the truth. And that includes prosecutors, who -- it has been repeatedly shown -- attempt to exclude minorities from juries.
The problem with selecting juries is that the system is geared for relying on stereotypes and prejudice. Each side in both civil and criminal cases can strike a number of jurors from the panel for no reason. These strikes are called peremptory challenges. The idea behind allowing these sorts of strikes is that if the trial concerns, for example, a lawsuit over a dog bite, the lawyers should be permitted to strike a juror who has had a bad experience with a dog, even if that juror claims that she could be fair.
Peremptory challenges, however, have been used to strike jurors for a whole host of other impermissible reasons, like race, religion, gender and ethnicity. The Supreme Court has been struggling with how to keep race out of the jury selection process for many years.
Back in 1986, the Supreme Court in Batson vs. Kentucky prohibited lawyers from using race in their peremptory challenges. The court's decision in that case was nice as a matter of theory, but has failed miserably in practice. It is nearly impossible to show that a potential juror was stricken for a racial reason. Seasoned trial lawyers explain that they struck a juror for ''race-neutral'' reasons, such as the person gave a hostile look or seemed to have too much or too little knowledge of the subject matter, and so on.
Justice Thurgood Marshall -- the first African-American justice -- wrote a separate opinion in Batson, arguing that peremptory challenges always would be abused and that a just and fair system would abolish them altogether. The only way to ''end the racial discrimination that peremptories inject into the jury-selection process,'' he concluded, ''was to eliminate peremptory challenges entirely.'' No one paid Marshall much attention.
The issue of peremptory challenges again came to the Supreme Court's attention last month in Miller-El vs. Dretke, a death penalty case in which 19 of the 20 black potential jurors were stricken. Finding the prosecution's explanations for its strikes ''incredible,'' the court reversed the conviction, reaffirming the unworkable formula in Batson for determining when peremptory challenges were being used appropriately.
Justice Stephen Breyer, agreeing with the reversal, wrote separately to explain that Marshall had it right almost 20 years ago when he suggested that we do away with these challenges altogether. Breyer points out that lawyers are becoming more savvy in explaining away their juror strikes, going so far as to hire expensive jury consultants to help them base their strikes on the theory de jour regarding a particular group of people. Some jury consultants (as the ones used in the cases of Michael Jackson and Martha Stewart), it has been reported, command as high an hourly rate as the lawyers themselves.
Breyer and Marshall are right -- the only way to cut race out of the jury-selection equation is to do away with the peremptory challenge. To do this, judges need to allow lawyers to conduct a real inquiry into jurors' backgrounds so that jurors who would have obvious biases or problems judging a particular case can be excused for cause by the judge.
The Miller-El case demonstrates the high improbability of ever showing racial discrimination under the Batson formula. Despite the strength of his claim, Miller-El's challenge resulted in 17 years of largely unsuccessful and protracted litigation involving 23 judges, eight judicial proceedings and eight judicial opinions, the great majority of which found no Batson violation.
Amazingly, race still plays a major part in selecting juries. More amazing still is that we continue to ignore an easy solution to this problem. The time has come to do away with peremptory challenges and in so doing, to do away with racial prejudice in jury selection.