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Arizona lawyers can't dismiss jurors without cause. Some lawmakers want to change this new rule

When facing trial by a jury of your peers, who can best decide if the jurors are fair or biased?

That’s the question facing Arizona representatives.

They’re debating a bill to partially claw back a new court rule that stops attorneys from dismissing potential jurors without giving a reason why.

Last year, the Arizona Supreme Court changed court rules to make the state first in the country to get rid of peremptory strikes during the jury selection process.

“They just say, based on what you look like, or how you act, or whether you smile or not, or any number of factors, the lawyer decides, they just want to strike you. So that takes away your constitutional right to be on a jury for, without any explanation,” said Dave Byers, administrative director of the courts.

Judges who advocated for the rule change cited data collected by court administrators. Black, Native American and Hispanic jurors were significantly underrepresented on juries.

Liana Garcia, a legislative liaison for the courts, said there’s nothing in the Constitution protecting an attorney’s right to dismiss a potential juror, no questions asked.

“What is constitutionally required is that a defendant is judged by a jury of his or her peers. Now we know that we have a problem with our juries in that they do not accurately reflect the makeup of our defendants, or the makeup of our community,” said Garcia.

“What is constitutionally required is that a defendant is judged by a jury of his or her peers. Now we know that we have a problem with our juries in that they do not accurately reflect the makeup of our defendants, or the makeup of our community.” — Liana Garcia, legislative liaison

The rule change hasn’t gone over well with some attorneys in the state. Some county prosecutors are even supporting a bill to bring back peremptory challenges in criminal cases.

Mohave County Attorney Matt Smith told the House Judiciary Committee he used to prosecute child sex abuse cases.

“You’re questioning a jury, you have jurors say, ‘Oh, I was a prior victim, or my daughter was a victim, but I can be fair and impartial.’ They now get to remain — the defense cannot get them off the jury,” said Smith.

It’s not as though Smith has no recourse. As Garcia told the House panel, attorneys can make an unlimited number of challenges to potential jurors, so long as they can elicit evidence of bias.

But to Smith, judges can’t always be trusted to strike the right people from jury pools.

“All judges are different. Some of them are aggressive. Some of them they’re very meek and mild mannered. They do not police their courtroom, they do not aggressively strike people,” Smith said.

Many other attorneys voiced similar concerns during a public comment process last year — before the rule change was made. They warned biased jurors would make it more difficult for defendants and victims to get a fair trial.

Smith said the rule change may already be affecting cases in Mohave County. His office worked on 72 jury trials in 2021, with only one hung jury. Of the first six cases heard this year, Smith said half had ended with a hung jury.

Rep. Jacqueline Parker (R-Mesa), the bill’s sponsor, seized on Smith’s testimony.

“It’s already quite clear that this rule change doesn’t work,” Parker said.

But Garcia warned the bill isn’t being pushed in the interest of fairness.

“Ask yourself when you are hearing testimony in support of this bill, is it coming from trial lawyers? Because peremptory strikes are a tool of trial lawyers to attempt to bias the jury in favor of his or her clients time in favor of his or her cause.” said Garcia.

The bill cleared the House committee with Republican support on a party-line vote, but it’s passage through the full House is far from certain.

Republican Rep. Neal Carter voted to advance the bill, but not before expressing his disdain for peremptory challenges.

“I’ve done jury trials and peremptory strikes amount to nothing more than lawyers shopping for jurors. 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,” Carter said.

Carter said he only agreed to support the bill on the condition that it be amended to reduce the number of peremptory challenges available to attorneys in each case.

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Ben Giles is a senior editor at KJZZ.