In October and November, I wrote about the fact that we each create, then operate within, our own constantly-changing but unique realities. We each construct these independent realities by subjectively interpreting the electrochemical signals used by our data receptors to describe the world around us. In an effort to conserve energy, we also utilize "internal models," which are predictive templates of what we expect to see and experience in the external world. The delay involved in adjusting and correcting our internal models results in us bumping into furniture which has recently been moved, changing lanes directly in front of another car immediately after "seeing" the lane empty, and describing to others, including police officers, what we expected to see and experience, rather than what actually occurred. Magicians understand the way our brains work - shouldn't more of us consider these scientific facts about disparate perception as we interact with, and judge, one another.

This inherent subjectivity means that we each immediately perceive and memorialize the same events, both big and small, differently, including evidence introduced at a trial. These differences in perception, when combined with robust and respectful deliberation, should combine to make the American jury one of the best decision-making bodies ever designed. However, laws allowing the use of peremptory strikes detract from any serious contention that our jury system is as fair as it could be. Peremptory strikes were utilized in England before our Constitution was written, and were an unremarkable part of our jury system until the Civil Rights Act of 1875. When legislation was passed granting Black citizens the right to serve on juries, resistant attorneys and judges rummaged through their toolboxes, and retrieved the peremptory strike as a way of perpetuating racial injustice.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the U.S. Supreme Court addressed the widespread practice of utilizing peremptory strikes to keep Black people off juries, and created a three-step analysis to evaluate the propriety of a peremptory strike. In the thirty-five years since Batson was decided, trial and appellate courts, both state and federal, have spent significant resources assessing the credibility of attorneys and the plausibility of creative arguments made by those attorneys to explain why certain individuals were dismissed during the jury selection process. See People v. Beauvais, 393 P.3d 509 (Colo. 2017). Courts in Colorado, and elsewhere, repeatedly cite Batson, and conduct the three-step analysis, stating that "[t]he exercise of even a single peremptory challenge on the basis of race [or, now, gender] violates the Fourteenth Amendment." Peolple v. Madrid, 494 P.3d 624, 626 (Colo.App. 2021).

Upon reviewing just a few cases involving Batson, it is easy to conclude that lawful peremptory strikes fit better within the realm of the palm-reader than the legal practitioner. It is also clear that peremptory strikes are routinely used to accomplish unlawful racial, gender, religious, and other discrimination. Many jurisdictions have considered legislation abolishing peremptory strikes, and, in January 2022, Arizona will become the first state to eliminate peremptory strikes from the jury selection process. Colorado should follow Arizona's lead.

District Judge Morris B. Hoffman recommended the legislative elimination of peremptory strikes more than twenty years ago, stating in an article re-published in the September 1998 Colorado Lawyer that:

By giving lawyers the power to veto prospective jurors for no reason at all, we of course give them license to act on the basest of human prejudices. [Even lawyers who] believe they can detect hidden biases . . . [are] making crass and, by definition, unjustifiable generalizations about large classes of jurors [when they exercise peremptory challenges] . . . In this sense, the proposition that black jurors will not convict a black defendant is no more offensive than the proposition that jurors who wear pocket protectors are pro-prosecution. Neither our rules of evidence nor even our most basic ideas of due process tolerate such preposterous propositions, and it is amazing that we tolerate them in jury selection.

At worst, these homegrown theories are our old friends racism, sexism, and class hatred, all dressed up in twentieth century psychobabble, still stubbornly resistant to the most well-intentioned fine-tuning of Batson. At best, they are animus-free nonsense, but nonsense nonetheless. In either case, the daily infliction of these theories on our citizen-jurors is exacting a palpable cost in lowered public confidence in the quiet rationality of our jury system.

Judge Hoffman's words continue to ring true today. A jury comprised of people from varied backgrounds, with different experiences, internal models, and realities, would be the best way to satisfy the impartial jury requirement of the Sixth Amendment. More diversity typically results in increased impartiality. However, the use of Batson as the primary tool to both combat unlawful discrimination in the selection of a jury and satisfy the impartial jury requirement, serves as a costly distraction. The continued sanction of peremptory strikes and the Batson three-step analysis actually undermine the goal of seating an impartial jury, and raise concerns about the legitimacy of our jury system.