In “Liberty or Laws? – Justice or Despotism?“, I discussed how the case law method provides the government, through judicial proceedings, to move, a decision at a time, away from the intent of the Constitution. In recent events in the second Tier 3 trial, only two-thirds of the trial was declared a “mistrial”, while the other third was not declared a mistrial. I say this because the first trial, by the government’s design, included six defendants, all of whom were accused of wielding firearms on April 12, 2014, when the Bureau of Land Management returned the surviving captured cattle to their rightful owner. Two defendants were found guilty of some of the charges. The remaining four were not found guilty of any of the charges, though they were also not found not guilty. So, there was no mistrial on the two, but there was a mistrial in the same singular trial of the other four.
Now comes the second trial, and the subject of this article. Jury selection occupied the first two days of the trial and much of the third day. Now, in jury selection, each side, Prosecution and Defense, may challenge a juror for cause. Each side also has what are called “peremptory challenges”. This is the definition of peremptory challenges found in Black’s Law Dictionary, Fifth Edition:
Peremptory challenge. A request from a party that a judge not allow a certain prospective juror to be a member of the jury. No reason or “cause” need be stated for this type of challenge. The number of peremptory challenges afforded each party is normally set by statute or court rule.
However, on the third day of trial, the government, apparently butt-hurt over the Defendant’s Peremptory Challenges, brought up what is known as a “Batson Challenge”, historically exercised by the defense, not by the prosecution. They allege that the peremptory challenges were intentionally applied (state of mind) to exclude certain potential jurors. Well, it appears that the Defendants cannot have a state of mind presented in Court as to why they went from their homes to Bunkerville, but they can be held accountable for their state of mind when it comes to jury selection.
Background of the Batson Challenge
The Batson Challenge is based upon a 1986 United States Supreme Court decision in Batson v Kentucky 476 US 79. It deals with the Defendant’s right to challenge a jury makeup if the government’s peremptory challenges create a gender or racial bias in the jury. First, a little background based upon earlier decisions. In reviewing these cases, you will see that the original protection afforded to the people by the Constitution is slowly being chipped away. In this current trial, the right protected for the people is now being used to afford the government the opportunity to claim a right that was intended to be a prohibition against the government.
As early as 1879, the United States Supreme Court ruled on the right of the defendant, with regard to the use by the prosecution of Peremptory Challenges, to stack the jury. The case was Strauder v. West Virginia, 100 US 303. Based upon the 14th Amendment, the decision stated, “that a State denies a black defendant equal protection when it puts him on trial before a jury from which members of his race have been purposefully excluded.” [Quoted portion cited from Batson v. Kentucky.]
Strauder goes on to say that “A defendant has no right to a petit jury composed in whole or in part of persons of his own race. However, the Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race, or on the false assumption that members of his race as a group are not qualified to serve as jurors. By denying a person participation in jury service on account of his race, the State also unconstitutionally discriminates against the excluded juror.” [Quoted portion cited from Batson v. Kentucky.]
Interestingly, that underlined portion from Batson, “By denying a person participation in jury service on account of his race, the State also unconstitutionally discriminates against the excluded juror “, presumes that the juror has a right to sit on the jury, nearly equal to the right of the defendant. This appears to be a very early example of Civil Rights (See Liberty or Laws? – Natural Rights versus Civil Rights), whereby the government grants a civil right at the expense of one who previously enjoyed a natural right.
However, note that since the Bill of Rights, particularly the Fifth Amendment, guarantees the people the right to a trial by jury, it does not grant that right to the jury. If anything, the jury has no right to refuse jury service, unless they are otherwise exempted. The Bill of Rights was to protect us from the government. It was never intended to provide the government the means to remove our protection from the actions of that government.
What the Batson decision does not provide, however, is the background of Strauder. Strauder was indicted for murder. He was an ex-slave, and the indictment was tried in a West Virginia Circuit Court and found guilty. His case then went to the West Virginia Supreme Court, where they upheld the lower court’s verdict. It then went to the United States Supreme Court on a Writ of Error. So, taking from the Strauderdecision, we find what led to the composition of the jury in the Circuit Court trial, to wit:
In the Circuit Court of the State, before the trial of the indictment was commenced, the defendant presented his petition, verified by his oath, praying for a removal of the cause into the Circuit Court of the United States, assigning, as ground for the removal, that ‘by virtue of the laws of the State of West Virginia no colored man was eligible to be a member of the grand jury or to serve on a petit jury in the State; that white men are so eligible, and that by reason of his being a colored man and having been a slave, he had reason to believe, and did believe, he could not have the full and equal benefit of all laws and proceedings in the State of West Virginia for the security of his person as is enjoyed by white citizens, and that he had less chance of enforcing in the courts of the State his rights on the prosecution, as a citizen of the United States, and that the probabilities of a denial of them to him as such citizen on every trial which might take place on the indictment in the courts of the State were much more enhanced than if he was a white man.’
This led to West Virginia, not a seceding state that would have been required to rewrite its constitution, to revise its laws on jury makeup. This, of course, was a consequence of the due process provision of the 14th Amendment.
As I have said in the past, the presumption of innocence was based upon the fact that the Indictment (the alleged story of events) was on trial, not the defendant. However, we have lost sight of that concept and now perceive the guilt of the defendant (the focus) as the purpose of the trial, not the validity of the Indictment. Subtle, but still effective.
The Batson decision also provides the following:
[T]he Kentucky Supreme Court observed that recently, in another case, it had relied on Swain v. Alabama, 380 U.S. 202, and had held that a defendant alleging lack of a fair cross section must demonstrate systematic exclusion of a group of jurors from the venire.
So, in this citation, the defendant has the burden of proving that the prosecution has not used “systematic exclusion” in their use of their peremptory challenges. However, as we will see, in the current case, that burden will be transferred to the prosecution, and the defendant is accused of “systematic exclusion”.
The Batson Court decision goes on to say,
Although a prosecutor ordinarily is entitled to exercise peremptory challenges for any reason, as long as that reason is related to his view concerning the outcome of the case to be tried, the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.
The Court has reiterated that the limitation is on the prosecution, not the defendant. Now, let’s see what happened in:
The Second Bundy Tier 3 trial – Jury Selection
Note: The following quoted material is from the Day 3 transcript, in which the Batson Challenge was made and dealt with. So, let’s look at how this went down.
THE COURT [in speaking to the potential jurors]: … [N]ow we are going to have the attorneys practice what we call the peremptory challenges. So yesterday and the day before I exercised the for-cause excuses and so all we have left now are the individuals who are qualified to sit on the jury and then the parties are going to be taking turns looking at the list, looking at their notes from the last two days, and deciding if there are any further strikes that they want to utilize.
This begins the peremptory challenge portion of jury selection. The removal for cause portion has been completed. After presenting the challenges, the trial takes a twist when the government decides that they want the same rights that were previously afforded only to the defendant.
CREEGAN [Prosecuting Attorney]: We have had an opportunity to review it, Your Honor. And we do have a legal issue that we’d like to bring to sidebar.
THE COURT: All right. So let’s go ahead and meet at sidebar.
* * *
CREEGAN: Yes, Your Honor. Erin Creegan for the United States.
Your Honor, we’d like to make two Batson challenges, one on the grounds of gender, 8 out of 14 of the men in this panel of 36 were eliminated by the defendants; and also on the grounds of discriminating against nonwhite jurors, 6 out of the 11 of the nonwhite jurors were eliminated in this panel.
According to the US Census Bureau, females comprise 50.1% of the population of Clark County and Blacks constituted 12.2% of the population of Clark County in 2016. Consider that those excused by law from jury service are mostly males employed in Corrections, Law enforcement, military, and emergency services, the ratios indicated by the government are not suggestive of either gender or racial bias. However, the discretion of the Judge is all that matters. Justice or fairness is not a factor.
The government, however, is not talking about the final composition of the jury, rather the ratio of the peremptory challenges, taking the Batson test to a whole new level. Going a bit further, the government claims that the defense, not using one of their challenges, has done so to NOT use a challenge in an effort to “stack” the jury. This suggests that the defense HAS to use all of its challenges, whether they want to, or not. If the defense is satisfied with the jury, and still has a remaining challenge, to have to use it would force them to act as if they were not satisfied with the jury.
This is what the government has tried to twist to fit that narrative.
THE COURT: Do you have names so that the . . .
CREEGAN: I do have numbers.
So the males they are — in order of strike — 296; 314; 498; 95; 294; 85; 457; and, by not striking, leaving only 485 excluded.
THE COURT: 485. You said by not striking 485?
CREEGAN: By not exercising a final peremptory, 485 was excluded. However, there was a mark from having originally reviewed him in some manner.
* * *
CREEGAN: Correct, Your Honor. However, there are cases where refusing to exercise a peremptory in order to ensure that a person is not selected has been held to be a conscious action to discriminate. In this case, we believe it was done on purpose to exclude a nonwhite male.
THE COURT: So 485 is a male or female?
THE COURT: Male.
And he — so you’re claiming that he was not excu— or he was not stricken by the defense because if he had been —
CREEGAN: It would have made it more conspicuous that it was a racial-and gender-based challenge. He’s the only juror that — he’s the extra 13th juror that would not be seated. However, even without that juror, that would still be 7 out of 14 males, half of the defendants’ peremptories even though males constitute only one-third of the entire panel. The result is that the final jury would be nine women.
Here, they suggest that since the Defendants did not use their final peremptory challenge, they did so to keep juror 485, a male, from serving on the jury. Nothing exists to demonstrate the accuracy of that claim, except in the argument of the prosecution and the acceptance of the argument by the Judge. So, an opinion becomes a fact.
Then, the Court offers the defense an opportunity to explain why they struck certain jurors with a peremptory challenge. Each one is clearly explained, but the burden still remains on the defense, not as to who is on the jury, rather, who is not on the jury. One example of what was deemed unacceptable follows.
CREEGAN: And, Your Honor, one of the things for the Court to consider when that’s offered as a explanation is to compare them to similarly situated jurors from other groups.
Juror 205 indicated a great deal of respect for law enforcement, that she would always take the advice of a law enforcement officer. Yet, as a white woman, she was seated on the jury.
LEVENTHAL: She also indicated that people arrested at a protest doesn’t mean they’re guilty; they got to go through the process, the court process which is different than other people that we heard say, well, if they were at a protest and they were arrested, then they must have done something wrong. And I think we’ve kicked those people off. So, actually, 205 did say that. She said sitting on a jury’s a privilege; she’s been a leader and a follower and she considers herself to be a peacemaker. So we –chose her [to remain on the jury].
The Defense even pointed out the hypocrisy of the government’s challenge, referring to the number of females that the government chose to strike with their peremptory challenges. However, since they were favoring males over females, I suppose that raises no concern in the eyes of the Judge.
MARCHESE: Yes, Your Honor.
And some of the — in one of the Government’s pretrial motions, they alluded to the fact that it was their belief that our strategy for the trial would be to seat as many women in the jury as possible. If you look at the Government’s challenges, there’s an inordinate percentage of women that were struck by them. As a matter of fact, it’s a larger amount than the approximate 50 to 55 percent that we struck on the two particular Batson challenges that the Government made. So, based upon that, we would make a Batson challenge to the Government that they struck more jurors based upon the fact that they were female rather than male.
Then, the Judge explains how she is applying the law, with regard to Batson.
THE COURT: All right. Well, the reason why they were given peremptory challenges — and the parties agreed to this — was because there was a retrial and there was the realistic threat that there would be more individuals who had heard about the case since it was so recent and was accepted that we would have more peremptory challenges. So they were given — everybody was given more peremptory challenges.
The law says that, to accept the stated nonracial explanation given, the court need not agree with it and the question is not whether the stated reason represents a sound strategic judgment but whether the race-neutral explanation given for the peremptory challenge should be believed. And the nonmoving party must give a — rather — which would be the defense in this case — must give a clear and reasonably specific explanation of a legitimate reason for exercising the challenge. And then the comparison is made for other individuals.
Here we see that the burden that used to be on the prosecution has been turned against the defense, and in favor of the prosecution. The government now has the right that was previously only the right of the defendant. The Court then struck five of the Defense’s peremptory challenges, returning the once removed jurors back onto the jury. The Judge then goes on to say:
If I had found that it was only one, maybe even only two people who were struck without just cause, then it would be easier to say that the defense could keep its challenge and reuse it appropriately. But, when there’s five different people who are struck and the reasons given are not sufficient and not believable in view of the other information that we have about the other jurors, it’s difficult to say that it was not intentional or part of a plan to exclude the males and nonwhites from the jury.
She says that if “only two people who were struck without just cause, then it would be easier to say that the defense could keep its challenge and reuse it appropriately.” This, then, was her justification for denying returning the five peremptory challenges to the Defense. The tables were turned and the prosecution ended up with more peremptory challenges than the defense. This Court managed to achieve a complete reversal of the process that has served the judicial system well, for over two centuries. It has been turned topsy-turvy.
There were other males and nonwhites that were excused from the jury for legitimate reasons, race-neutral reasons, that could be believed. But the reasons provided for these five just do not meet the standard for explanations that could be believed. And I know some of the explanations given were “gut feeling.” I’m not saying I don’t believe that you have a gut feeling, but it has to be an articulated clear and reasonably specific reason. So I don’t find that that — that the gut feeling is sufficient.
This final statement converts the peremptory strike to a for cause strike, and the cause has to satisfy the judge. However, the whole concept of peremptory challenges is that they required “no reason or cause”. That would leave only the “gut feeling” as a justification for such a challenge.
Now, to put a perspective on what has happened with regard to the peremptory challenges, let’s review the events regarding peremptory challenges. At the outset, under the standard Rules of the Court, the government would have six challenges and the defense would have ten. Defense 10; Prosecution 6.
Since there are multiple defendants, the Court can award more to the defense. However, the prosecution argued that it would be unfair to allow the defense to have more and not to allow more to the prosecution. So, the Judge gave the defense four more challenges and then gave the prosecution four more challenges. Now, we have Defense 14; Prosecution 10.
After the Judge approves the Batson Challenge, the defense is denied the reuse of the five challenges and they are not allowed to use the challenge that they chose not to use during the peremptory process, denying them a total of six challenges. So, the final count is Defense 8; Prosecution 10.
What began with a four challenge advantage to the defendant, since they, not the government, are on trial, resulted in the government having two more challenges than the Defense.
More importantly, the right, evolving out of the Bill of Rights and the 14th Amendment, was a right only of the defense. It was never intended to be a tool that the government could use against the people. The through a series of decisions based upon the “case law method”, the government has substituted prosecution for defense, and vice-versa. They have taken a right protected by the Constitution and subverted it to deny the fundamental right of the Defendants and subordinated it to the authority of the government.