There have long been a few things that a defendant could count on at trial.  That the judge would be far more polite and happy in front of the jury.  That the police officer would wear his “going to court” uniform, without the blood stains and with the sleeves rolled all the way down to cover his “Death to Defendants” tattoo.  That all the jurors would swear they could honor the defendant’s right not to testify, but didn’t mean it.  And that if one of the jurors gave you the evil eye, you could bump them off the jury with a peremptory challenge.  That changed yesterday.

The Supreme Court issued it’s decision in Rivera v. Illinois.  As described by Anne Reed at Deliberations, the facts were not only simple, but undisputed:

Rivera tried to strike a juror in his Illinois state court trial.  The trial judge said no, finding a Batson violation, and seated the juror.  All sides agree now that was a mistake, and the peremptory strike was proper.

The juror was seated despite the strike, and (natch) made the foreperson.  Rivera was convicted of first degree murder.  There was no claim that the judge who made the erroneous ruling acted out of malice or engaged in some other impropriety.  He just blew the call.  This happens all the time, and provides the best explanation for why we waste all that money on appellate courts. 

So the question in Rivera was clear:  A stricken juror was seated and the defendant convicted.  What now?

From a unanimous Supreme Court, in a decision written by Ruth Bader Ginsburg, the answer rang out:  Nothing.  The salient points, via Anne, can be quickly excepted:

“If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern. Rather, it is a matter for the State to address under its own laws.”

“[T]his Court has consistently held that there is no freestanding constitutional right to peremptory challenges.”

“Because peremptory challenges are within the States’ province to grant or withhold, the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution.”

So that no one makes a mistake, there is no constitutional right to peremptory challenges.  They are a creature of statute, and any error in a ruling about a peremptory does not rise to constitutional proportions, meaning that there is no constitutional remedy.  You lose.  Since there is no scenario, aside from the truly bizarre (which could happen but can’t be relied upon), that would enable a defendant to show actual prejudice or denial of a facially qualified jury, there is no way around the problem.  Peremptories are a gift from the state.  The state giveth, and the state taketh away. 

The irony of this case comes from the cause for the defendant being denied his strike, the glory of reverse Batson.  In typical SCOTUS brilliance, the Supremes have given a jury right to the People.  Just not the People who happen to be on trial.  Rather, it’s the right of the People to be on a jury.  You know, that right that almost every red-blooded American wants desperately to exercise, to waste a few days/weeks of their lives to listen to lawyers ad naseum and then pass judgment over their fellow Americans.  It probably makes your mouth water just thinking about it.

So the strike is negated by the judge because of the right of the People to be on a jury, even though it was all a silly mistake in your average first degree murder prosecution, but there is no right of the defendant to exercise a peremptory challenge to remove a juror who he believes holds a latent bias against him.  While the argument can be made that Batson makes sense applied against the prosecutor, as an officer of the state, it makes absolutely no sense when applied against the defense, who owes no constitutional fairness to anyone.  Of course, there is a statutory “right” to strike the juror, but what’s a right without a remedy?  As Justice Ginsburg made clear, nothing.

Yet another reason why reverse Batson was one of the most bone-headed decisions ever.