Justices take case concering peremptory challenges of a juror (Oct. 1, 2008)

The Supreme Court has agreed to decide whether a conviction can stand if the defense counsel sought to exclude a juror by making a peremptory challenge, but the juror was seated anyway.

A jury in the Circuit Court of Cook County convicted Michael Rivera of first-degree murder in the shooting death of Marcus Lee. He was sentenced to 85 years in the Illinois Department of Corrections.

Rivera appealed his conviction and sentence to the Illinois Appellate Court, First District, claiming, among other things, that the trial court judge refused his use of a peremptory challenge against a certain juror.

At the completion of the questioning of juror Delores Gomez, the defense counsel announced his intention to use a peremptory challenge to strike Gomez from the jury.The prosecution did not object, but the trial court judge ordered counsel for both sides to chambers and then asked Rivera’s attorney to explain why he was choosing to strike Gomez from the jury. After defense counsel objected that he had no obligation to offer an explanation, the trial court indicated that it was raising, on Gomez’s behalf, a reverse-Batson challenge to the peremptory challenge.

Defense counsel then explained that he was ‘“pulled in two different”’ directions by this potential juror because on the one hand she has an Hispanic surname (like the petitioner) but on the other hand she works in a setting that could expose her far more than others to the victims of violent crime and gunshot wounds. The judge interrupted to point out that Gomez “appears” to be African-American and then asked to hear from the prosecution, who argued that the explanation from defense counsel was insufficient.

The judge determined that defense counsel had not provided an adequate explanation, and concluded that the attempt to excuse Gomez from the jury was discriminatory. The judge allowed Rivera’s attorney to continue questioning Gomez in chambers, who continued to express her view that she could fairly evaluate the evidence. Defense thereafter repeated his request to strike Gomez and the judge again denied the request.

Gomez was seated as a juror, knowing that defense counsel had attempted to strike her. She was selected the foreperson of the jury. The jury found petitioner guilty, and the trial court sentenced him to 85 years in prison.

The Illinois Appellate Court affirmed Rivera’s conviction and sentence, rejecting Rivera’s contention that the trial judge erred in denying his peremptory challenge to Gomez. The Illinois Supreme Court, however, did not affirm in its initial review. Instead, it remanded the case back to the trial court. Based on the record before it at that time, the Illinois Supreme Court could not discern from the trial court’s decision whether there was a sufficient prima facie case of discrimination, or even what the alleged basis of discrimination was (race or gender or something else) to warrant rejecting counsel for defense’s peremptory challenge to Gomez.

On remand, the trial judge attempted to articulate the grounds for its conclusion that a prima facie case of unlawful discrimination and said that he had denied the peremptory challenge because he concluded that defense counsel’s true reason for striking Gomez was her gender.

On review, the Illinois Supreme Court affirmed Rivera’s conviction. However, it did not conclude that the trial court had properly refused to allow petitioner to exercise a peremptory challenge to excuse Gomez from the jury. To the contrary, the Illinois Supreme Court concluded that the trial court should have allowed defense counsel’s peremptory challenge. There was no prima facie case of either race or gender discrimination. Nonetheless, the Illinois Supreme Court affirmed, concluding that the
wrongful denial of a peremptory challenge did not require automatic reversal. The court concluded that the error was subject to harmless-error review, and, further, that in this case the error was harmless.

In asking the court to hear the case, attorneys for Rivera pointed to a split among the appeals courts on whether the conviction should be overturned automatically, or whether the error of wrongly seating the juror can be excused as “harmless.”

“This case presents a mature and deep split of authority on an issue of substantial importance: whether a court’s error in denying a peremptory challenge that results in the seating of an objectionable juror…requires automatic reversal of a conviction, or whether such an error can and should be examined under the harmless-error standard,” the brief states.

On Oct. 1, 2008, the Supreme Court accepted the case for review.

Question presented: Whether the erroneous denial of a criminal defendant’s preemptory challenge that resulted in the challenged juror being seated requires automatic reversal of a conviction.