The Supremes are scheduled to hear oral argument today in Rivera v. Illinois, finally addressing the issue of what do about a wrongfully seated juror.  This case deals with one of the back-end questions raised by the fundamentally misguided reverse Batson rule, limiting the defense’s right to peremptory challenges based upon the inane jurors “right” to sit.

At the trial, Rivera’s defense lawyer exercised a peremptory challenge to try to block the seating of Deloris Gomez, after discovering during questioning that she worked at Cook County Hospital and had some contact with patients who were gunshot victims. He thought that might make her less willing to hear Rivera’s defense sympathetically. The judge would not allow the challenge, concluding that the defense lawyer’s real reason for seeking to bar Gomez was that she was a black woman. The defense lawyer denied that, but the denial did not change the judge’s mind.

Gomez not only was seated; she was chosen as foreperson. The jury convicted Rivera of first-degree murder, and the judge imposed an 85-year sentence. Rivera’s appeal did not challenge the evidence against him at trial, but claimed the seating of Gomez, despite the defense’s peremptory challenge, was invalid. The error could not be undone, his lawyers argued, since Gomez sat throughout the trial – all the while knowing that the defense had tried to keep her off the jury. Thus, the defense contended, the conviction had to be overturned.

The Illinois Supreme Court agreed that the trial court’s failure to accept the defense explanation for its challenge was wrong, but held that it was “harmless error” as the evidence against Rivera was so strong that “no rational jury – or juror – would have” found him not guilty.  Thus, two misbegotten legal rules, reverse Batson and harmless error, used in tandem, have reduced another right of the defense to a nullity and much of our trial effort to a farce. 

The issue presented really does raise some challenging problems, since Rivera’s attorney failed to argue that his trial was unfair, aside from the seating of Gomez.  On the other hand, it only takes one out of twelve to hang, and that twelfth juror was lost to the erroneous determination of the trial judge, who decided that the defendant’s right to a jury trial was secondary to both the silly notion that jurors have a right to sit and the judge has the ability to decide the defense’s secret motives.

Lyle Denniston’s take at SCOTUSBlog is that the Supremes will avoid the constitutional implications and punt it back to the states.

The harmless error rule is one that the present Court seems to find quite appropriate when the flaws in criminal trials fall short of being constitutional violations. In view of that, the Court may be inclined to conclude that wrongfully seating a single juror, without further evidence that the juror’s presence actually introduced a significant element of unfairness into the trial, is no more than the type of “trial error” that can be left to the states to correct.

The problem, of course, is that it is impossible under almost any normal circumstance to show that the presence of a single juror “unfairly” turned a trial.  Is the defense to go inside the jury room to question whether the improperly seated juror was unduly persuasive or overtly prejudiced?  Short of some mid-trial wrong-doing, or post-trial revelation of over impropriety, what exactly is a wrongly seated juror supposed to do to overcome invocation of harmless error?  In the ordinary course of things, it’s not in the nature of a juror’s function to wreak flagrant havoc.

The real problem, of course, is institutional.  The judge having rules, and the trial having proceeded, no court wants to be forced to retry the case, causing additional expense and changing the dynamic, because of a flaw at the outset that can’t be cured otherwise.  But the question remains, if a defendant has a right to a fair jury, and that right is denied by interference of the trial judge, then what does the court do about it?

Short of a reversal and retrial, there is no remedy for the seating of a properly challenged juror.  It’s an all or nothing proposition, and may well result in the freeing of a defendant who has been otherwise convicted of a heinous crime should a critical witness or evidence be unavailable for the next go ’round.  This too is institutionally unacceptable.

A final subtext consideration is the potential that this is all much ado about legal rhetoric with no actual harm at all.  The facially prejudiced jurors (who haven’t otherwise been rehabilitated by the judge) are tossed for cause, and the use of peremptory challenges is an exercise in legal voodoo, lawyers pretending to know who is fair and who is not.  Should murderers be retried, or possibly freed, as a tip of the hat to a quaint, historic supposition that lawyer “hunches” produce a fairer jury?  It’s a high price to pay for a legal fiction.

The answer seems to be found in the most basic aspect of Rivera v. Illinois, and the one least likely to appeal to the current Supreme Court majority.  Rights without remedies are not rights.  As this has become of increasingly less concern in the context of 4th Amendment issues, there’s no reason to suspect the Court to get upset about giving up the defendant’s right to pick his jury.  And so, expect another right to fall as a consequence of the ill-conceived reverse Batson rule and the odious harmless error analysis.