Jury Selection and Attorneys as Agents of Their Clients

Who has the final say about whether to strike a prospective juror – the defendant or his lawyer? That’s the question addressed by the court of appeals today in State v. Freeman. The defendant in Freeman was charged with murder. During jury selection, the defendant and his attorney disagreed about whether to use a peremptory strike on a prospective juror. The attorney wanted to keep the juror, in part “because I generally don’t like using my last strike when we don’t know who else we’re going to get.” The defendant wanted to strike the juror. Defense counsel informed the trial judge of the impasse, and the judge said “I don’t see how that’s my issue. You consult with your client and you decide how to proceed.” The lawyer decided to keep the juror. The case proceeded, the defendant was convicted, and he appealed. The court of appeals held that when a lawyer and a client reach an impasse over a tactical decision, the client’s wishes must control. Because the defendant’s wishes were overridden by the lawyer in Freeman, the court concluded that the defendant was effectively denied his full complement of peremptory challenges. Under State v. Locklear, 145 N.C. App. 447 (2001), that requires a new trial. The court’s explanation of how impasses over tactics must be resolved was based on State v. Ali, 329 N.C. 394 (1991), another jury selection case. In Ali, the defendant wanted to accept a prospective juror whom his attorneys wanted to strike. After noting the [...]