U.S. v. Martinez-Salazar, Abel (01/19/2000)

By: Kate Givens, Medill News Service

Questions presented

Does exercising a peremptory challenge after being denied an excuse for cause warrant grounds for appealing a conviction?

Brief

""You assume that people are on trial because they did something wrong.""

When the jury was being selected for Abel Martinez-Salazar's drug trafficking trial, a particularly candid prospective juror wrote in his questionnaire, ""I would favor the prosecution.""

Both defense and prosecutors questioned Don Gilbert, the juror, about what he meant.

""You assume people are on trial because they did something wrong, "" Gilbert told Martinez-Salazar's attorney, who asked that Gilbert be dismissed for cause.

Rather than excuse Gilbert, the trial judge said, ""[Gilbert] did say that he could follow the instructions [to be impartial].""

Martinez-Salazar's attorney then used one of his 10 peremptory challenges to excuse Gilbert from the trial.

After he was convicted on two counts of drug trafficking and one count of using a firearm during a drug transaction, Martinez-Salazar appealed his conviction on two grounds. He claimed that he was not ""using"" his gun at the time he was caught with heroin in his car, and that failing to excuse Gilbert for cause forced the defense to use up a peremptory challenge.

The 9th Circuit Court of Appeals agreed that the firearms appeal lacked validity, but held that Martinez-Salazar's case had been prejudiced because Gilbert was not excused by the trial judge.

""[Gilbert] never retreated from his statement of bias; he only cryptically stated that he understood the presumption of innocence 'in theory,'"" wrote Judge Michael Daly Hawkins in a 2-1 decision.

""Prospective juror Gilbert, remarkable if for nothing else but his candor, had no business sitting on this or any other criminal jury.""

Judge Pamela A. Rymer dissented because Martinez-Salazar was in fact able to excuse Gilbert, exercise all his peremptory challenges and be judged by an impartial jury.

""Nor did he ask for an extra peremptory to compensate for the one that he decided to use on Gilbert,"" Rymer wrote.

Furthermore, Rymer predicted an appeals process saturated by such claims.

""Constitutionalizing the impairment of peremptory challenges is not inconsequential,"" Rymer wrote in dissent. ""Trial courts, state and federal, rule on cause challenges by the minute.""

The U.S. Supreme Court granted certiorari on June 21, 1999.

On Jan. 19, 2000, a unanimous Court reversed, holding that a defendant's exercise of peremptory challenges is neither denied nor impaired when the defendant chooses to use the challenge to remove a juror who should have been excused for cause.

In so holding, though, the Court in an opinion by Justice Ruth Bader Ginsburg rejected the prosecution's argument that the federal rules of criminal procedure should be read to require a defendant to use a peremptory challenge to strike a juror who should have been removed for cause in order to preserve a fair trial claim.

Instead, the Court concluded that in Martinez-Salazar's case, he had received and exercised 11 peremptory challenges, and that is all the federal rule requires. He had the option, Ginsburg noted, of letting Gilbert sit on the jury and, upon conviction, pursuing a constitutional challenge on appeal.