Invidious Peremptoriness or Sour Grapes? The Case of the DA Who Turned



Jay B. Gaskill

Former Alameda County Public Defender 1989-1999

Invidious Peremptoriness or Sour Grapes? The Case of the DA Who Turned

The Bay Area media are riveted on the death penalty appeal of a condemned killer named Freeman whose hearing has become a venue for charges, counter charges, character assassination and gossip.

The issue is whether former prosecutor, Jack Quatman, committed misconduct. Quatman now practices law in Whitefish, Montana with his wife (a lawyer specializing in defending death penalty cases). As former County Public Defender, I know the players in this contretemps, including DA Tom Orloff, the two jurists who have testified, Quatman and a number of others.

Jack Quatman claimed that he illegally exercised his client’s peremptory challenges (by kicking several potential jurors because of their Jewish sounding surnames). Then he gilded the lily with additional charges: that he did this on the advice of the trial judge, the late Stan Golde, (a practicing Jew), and that this was a sanctioned practice for jury selection in the Alameda County DA’s office.

Jack Quatman must have known that he would ignite a firestorm with these charges. We’ve been reminded that he left the DA’s office an embittered man because of “differences” with his boss, Mr. Orloff. I’ll not enter that hornet’s nest, except to observe that the credibility of Tom Orloff, Judge Hurley, and Justice Corrigan, who have testified against Mr. Quatman on various points, is excellent.

We need perspective. Here is a sketch of the legal landscape:

The law forbids the use of “invidious” criteria like race and religion for all most official decisions, which means that both are off limits in jury selection. Or are they? Enter the trial lawyers. California allows each side in a criminal case a number of peremptory challenges, which used to mean that “Mr. Smith, you are excused” was never explained. Under current law, a pattern of peremptory challenges suggesting use of an invidious criterion is usually objected to. To meet the objection, the lawyer must come up with a set of non-invidious reasons.

As all competent trial lawyers quickly learn, certain human stereotypes are routinely used in jury selection because, bluntly put, they capture strong statistical tendencies. For example, many Roman Catholics tend to oppose the death penalty but don’t condemn drinking while many Mormons tend to oppose drinking but not capital punishment. Yes these are only generalizations; that’s why they are stereotypes. But if you’re trying a death penalty case or a drunk driving case, you need to know these things. And you need to know that some prospective jurors “lie”, in that they deny or conceal facts about themselves that make them look bad, things like “being unfair” or “not keeping an open mind.”

Even with a jury selection expert at your side (help that few law offices, public or private can afford), picking a good jury for your trial is a crapshoot. Not every prospective juror can be given the third degree and not every answer can be trusted. So experienced trial lawyers learn to go with their educated intuitions. Do stereotypes get factored in? You bet they do.

Stereotypes like the one mentioned in the Freeman – Golde — Quatman imbroglio, that a prospective juror’s Jewish background points to death penalty opposition, would have been consonant with the late Judge Golde’s experience as a former trial lawyer. But the real world meaning of whatever Stan Golde may or may not have told Jack Quatman about this (because both knew the law) would have been to “pay attention”. It would not (and probably did not) prompt a knee jerk rejection of these potential jurors because they might be Jewish. The reports mention other legitimate factors about these jurors in the record sufficient to justify Mr. Quatman’s exercised peremptory challenges. This would normally put the issue to rest.

Hence the additional flame throwing at a respected DA’s office and a highly respected trial judge. Having stood with many of these witnesses at Stan Golde’s graveside, I can imagine what he would say now.


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