- The Washington Times - Wednesday, October 15, 2003

Lawyers on both sides in the John Allen Muhammad sniper trial listened closely during yesterday’s all-day quiz of prospective jurors to gather clues for the jury-selection phase that will determine who decides the suspect’s fate.

When the 123-member jury pool is reduced to 27 qualified prospects as early as today, the court will hear the first of 12 “peremptory challenges” to reject jurors for reasons that are frivolous — or for no reason at all.

Peremptory challenges are not used to dismiss people for “cause,” such as personal hardship, preconceived notions of guilt, ties to victims or friendship with the prosecutor. In fact, the U.S. Supreme Court has ruled a bad hair day is enough to reject jurors who make life-or-death decisions.

Beards, mustaches, unkempt hair, being too young or a teacher, dressing oddly, showing a poker face or wincing at the mention of severe punishment — all have been ruled valid reasons to exclude prospective jurors. Only racial motives are off-limits.

“Critics of the process say people who observe modern jury-selection practices … are expected to shake their heads in disgust as they watch a spectacle of adversarial, self-interested parties pass judgment on the fairness and impartiality of ordinary citizens,” Mary Rose, a University of Texas law school professor, said in an interview yesterday.

In a Chicago Law Review article earlier this year, Miss Rose said the peremptory challenge phase breeds distrust, calling it “the most controversial aspect of U.S. jury selection.”

The D.C. Council for Court Excellence in 1998 proposed abolishing or drastically reducing peremptory challenges, an idea supported by Denver criminal court Judge Morris B. Hoffman, who calls such challenges “the last best tool of Jim Crow.”

Peremptory challenges rely solely on what Roanoke defense lawyer and former prosecutor Thomas Blaylock calls “a lawyer’s feeling, a gut check — any clue, how they respond, body language, where they live, what occupation they have.”

He says the best lawyers are good listeners.

“When you get prospective jurors talking, you learn a lot about them if you just listen. You get a better feel about what they really think about the case,” said Mr. Blaylock, a past president of the Virginia Association of Criminal Defense Lawyers.

Yesterday’s sniper trial session in Virginia Beach opened with “Juror No. 62” saying she and her husband canceled a trip last year because of the sniper killings. Neither side objected but, unless other jurors present more pressing reasons for doubt, she could be a candidate for ouster when the peremptory-challenge phase starts.

Prince William County Circuit Judge LeRoy F. Millette Jr. has set the sniper trial jury panel size at 27 and will allow six peremptory challenges for prosecutors and six for the defense to reduce the panel to 12 jurors and three alternates.

In ruling on peremptory challenges, the Supreme Court has said any reason given “need not be persuasive or even plausible” so long as it does not reflect racial stereotypes.

“It is an affront to justice to argue that the right to a fair trial includes the right to discriminate against a group of citizens based upon their race,” the court said in 1992.

In its 1995 opinion upholding a Missouri robbery conviction, the U.S. Supreme Court ruled 7-2 that a prosecutor’s exclusion of two black jurors because they had long, unkempt hair, mustaches and goatees was good reason to throw them off the jury. “I don’t like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me,” the ruling quoted the prosecutor.

The Virginia Supreme Court in 1996 accepted as valid a prosecutor’s disdain for a housekeeper because of limited education, and an unemployed woman who was the youngest member of the murder-case jury panel. Both women were black, but the racial barrier was hurdled by “race-neutral” explanations, the court ruled.

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