By Samuel Doncaster, Fraud Fighters Law Firm
Let’s set the scene … you’re going into a jury trial about whether you get to keep your home. On the morning of trial, you probably feel anxious — even if you have a great lawyer and even (or especially) if you know you’re right.
There’s a lot on the line. Your equity; that could easily be a quarter million.
Your family; could you all keep living together without your home? Your job; even if you find another house, would it be close enough that you can keep your job? As a real estate fraud lawyer, I handle these situations regularly, and I know plenty of clients share these concerns.
But now imagine the jury gets seated, and your lawyer expertly questions the panel. One of them makes a negative comment about you. Perhaps he’s targeting your race, religion, sex, or some other protected characteristic. It could be your job, clothes, anything.
How would you feel when you’re on trial defending your property and you hear a juror say he made up his mind before the trial started? You’re in danger of losing the entire life you built because of a biased juror.
The good news? You have an experienced trial lawyer at your side who notes your angst, puts a hand on your shoulder and tells you not to worry. Your lawyer can make sure that biased person doesn’t get on the jury. They strike the juror and moves on. That is, until this past January.
Before January, that’s how the problem would have ended. Your lawyer would have had a right to remove someone from the jury because the lawyer believes they are biased. It’s called a peremptory strike. It exists to let trial lawyers remove biased jurors and give their clients fair trials.
On Jan. 1, the Supreme Court took away the right to use peremptory strikes to secure an unbiased jury for both civil and criminal cases. The ostensible reason is that, about 150 years ago, they were invented to exclude people of color from jury service.
I’m not enough of a historian to comment on what happened during Reconstruction, but as an undefeated jury trial lawyer practicing today, I know peremptory challenges protect people of color from prejudice. I’ve represented minorities in trial and used the peremptory challenge to strike jurors who made negative racial remarks about my client.
Judges should be removing prejudiced people for cause. But too often the judge “rehabilitates” the juror. This means the judge asks the juror 2-3 questions – typically leading questions, which lawyers are trained in law school to use to influence someone to say yes. As a practical matter, these leading questions prompt the juror to mumble that he can lay aside the prejudice that was gleefully and publicly announced five minutes prior.
I’ve never risked my reputation as a trial lawyer over such a shaky claim. Would you risk your home? Peremptory challenges protect honest people with legitimate cases from biased juries.
In Arizona, House Republicans introduced a bill that would restore peremptory challenges and protect people from prejudice in jury selection. That bill in its original form deserves support whether you are currently fighting in a civil case or not. If you want an unbiased jury when you need to protect your property from fraud, it is important to speak up in anyway to protect yourself, family, friends, and Arizona residents.
Recently, on Feb. 28, this bill was revised to allow strikes in criminal cases only. That amendment should be reversed to the original language.
Civil cases involve important justice issues and getting them right protects families in maintaining stable housing, building wealth through home equity, and creating middle class investment opportunities. When unbiased juries get seated, these values are at risk.
If you care about protecting your own property, urge your legislator to restore peremptory challenges in civil case as well.
Editor’s note: Samuel Doncaster is owner and lead attorney at the Phoenix-based Fraud Fighters Law Firm.
