The U.S. Supreme Grants Review in Rivera v. Illinois: Reconciling Peremptory Challenges, Racial Discrimination and Harmless Error

In October, the U.S. Supreme Court granted review in Rivera v. Illinois, to address the following question: If a trial judge erroneously denies a criminal defendant a peremptory challenge, believing that the Fourteenth Amendment's Equal Protection Clause requires that denial, must the defendant's resulting conviction be automatically reversed or, alternatively, is this mistake subject to "harmless error" analysis? (Peremptory challenges allow parties to strike prospective jurors prior to trial without giving any reason for doing so.)

The case is set for oral argument on February 23, 2009. Rivera provides a welcome opportunity to consider the strange mixture of jurors' rights against discrimination, criminal defendants' role in molding the composition of their juries, and the counterfactual assessment of a trial known as "harmless error" analysis – which asks what might have happened in a different world where the error at issue had never occurred. In this column, I will take the opportunity to explain the ingredients of this mixture and make some observations about its likely impact on constitutional criminal procedure.

The Facts of Rivera

In Rivera, the defendant, Michael Rivera, was charged with first-degree murder. His attorney exercised a peremptory challenge to strike a woman named Deloris Gomez from the jury panel. The judge, without any prompting from the prosecutor, called both sides into chambers and asked Rivera's attorney to justify the challenge to Gomez. The judge was unsatisfied with the lawyer's explanation and ultimately decided that Rivera's lawyer was discriminating against Gomez on the basis of a prohibited classification (race or gender), in violation of the Fourteenth Amendment's Equal Protection Clause. Accordingly, he decided to seat Gomez on the jury.

Deloris Gomez knew that Rivera's attorney had attempted to strike her from the panel, and she became the foreperson of the jury that heard his case. That jury then found Rivera guilty, after which the judge sentenced him to 85 years' imprisonment.

The Illinois Supreme Court took the case and decided that the trial judge was incorrect in dismissing the defendant's peremptory challenge to Deloris Gomez. Nonetheless, the court affirmed the conviction, concluding that the trial judge's error was harmless.

Peremptory Challenges

As everyone who has had the pleasure of serving on a jury knows, not all who are called for jury duty ultimately serve. Often, a case settles (if it is civil) or pleads out (if it is criminal) before the opportunity to serve arises. Other times, however, a potential juror is stricken – or voted off the island – by one of the attorneys representing a party to the case.

An attorney will strike a juror for "cause" when the juror will not be capable of fairly considering the evidence in an unbiased fashion – for example, a juror who is dating the plaintiff in a civil case will be successfully challenged for cause. In addition to "for cause" challenges, attorneys on both sides of criminal and civil cases also enjoy the ability to strike some number of jurors peremptorily – that is, without having to give a reason for the challenge. A lawyer will be motivated to exercise peremptory challenges for a whole range of reasons. Some reasons will appear legitimate – the juror seemed likely to sympathize with the prosecutor because he is studying to be a prosecutor some day, while other reasons will seem more questionable – the juror is short and unattractive and might therefore envy the tall and handsome defendant.

Peremptory challenges, in other words, allow attorneys to indulge their superstitions and stereotypes or, more charitably, to give effect to their hunches and intuitions about which people would provide a less-than-favorable hearing to the case they intend to present. For criminal defendants, this indulgence is particularly valued because it could, in theory, mean the difference between imprisonment (and even execution) and freedom.

The U.S. Supreme Court has spoken in positive terms about the role of peremptory challenges in increasing the odds of a neutral and fair jury, though the Court has also said that there is not a constitutional right to exercise peremptory strikes and that a State could therefore lawfully eliminate such challenges altogether. In jurisdictions that do choose to provide for peremptory challenges, moreover, each side's ability to strike a particular juror is not absolute.

Batson v. Kentucky

In Batson v. Kentucky, the Supreme Court found a violation of Fourteenth Amendment Equal Protection in a prosecutor's discriminatory exercise of a peremptory strike to eliminate a juror because of the juror's race. This decision promoted the right of a criminal defendant to be tried before a jury the composition of which is not a product of prosecutorial racial discrimination.

After Batson, however, the Supreme Court decided a series of other cases holding that the exercise of discriminatory peremptory challenges by any party – whether a civil plaintiff, a civil defendant, a criminal prosecutor or a criminal defendant – would violate the Equal Protection Clause of the Fourteenth Amendment. The right thus began to evolve into a juror's right against discrimination, a right that could be mobilized not only to shield the criminal defendant but also to block the defendant's ability to challenge jurors with whom he felt uncomfortable. Because jurors are not well-situated to protect their own rights against such discrimination, the Court said, the prosecutor has "thirty-party standing" to raise the Equal Protection claim and thereby prevent the invidious elimination of a juror on account of his race (or other prohibited classification).

The Court's holding in Georgia v. McCollum – identifying the Equal Protection right to block a defendant's discriminatory peremptory strikes – has faced a great deal of criticism. One critique suggests that it is implausible to call a defense attorney's discriminatory conduct "state action" of the sort that would be subject to the Fourteenth Amendment in the first place. In other words, this critique points out that private conduct does not trigger the Fourteenth Amendment's application, and – many argue – there could be nothing less appropriately identified with the government than the behavior of the government's adversary. Beyond this criticism, too, many have worried about the consequences of monitoring and limiting a criminal defendant's efforts to assemble a sympathetic jury.

Harmless Error Analysis in the Jury-Selection Context

Alongside the evolution of the Equal Protection rights of jurors, the Supreme Court has developed and expanded the idea of "harmless error" in reviewing criminal convictions that followed trials in which errors were made that harmed the defendant. When a person challenges her criminal conviction, she typically identifies one or more allegedly erroneous decisions by the trial judge. If the convicted person persuades an appellate court that the trial judge did in fact err, however, the court does not necessarily reverse the conviction and order a new trial. Instead, it performs an exercise called "harmless error analysis" in which it makes a determination of whether the error affected the outcome of the case.

If the error deprived the defendant of a constitutional right (for example, by allowing into evidence a coerced confession), then the government must persuade the court beyond a reasonable doubt that the error did not affect the outcome of the trial. By contrast, in the case of non-constitutional error (such as the admission of testimony that should have been excluded under one of the marital privileges), the judge must be able to "say with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." The latter approach represents the more forgiving of the two, in which a judge is freer to find an error "harmless."

To determine whether an error affected the outcome of a trial, one might imagine an in-depth inquiry about the jury's deliberations. As it happens, however, our system virtually never pierces the veil of jury deliberations. Instead, then, calculating whether an error affected the outcome of a trial requires the appellate judge to imagine a trial in which the particular error did not occur, and figure out whether the ending would have been the same. That is, the appellate judges examine the evidence, absent the error in question, and decide whether the outcome would or would not have been different, in light of the egregiousness and likely impact of the error. If the evidence is overwhelming, for example, and the error minor, the judges will probably find the error harmless. If, on the other hand, the evidence is barely adequate without the erroneously-admitted material, and the error was likely quite destructive, then the judges may well find the error "reversible" – one on the basis of which the conviction must be reversed.

Not all errors, however, are subject to harmless-error analysis. For example, if it turns out that the jurors in a particular case were bribed by the prosecutor to find the defendant guilty, then the conviction of the defendant will be reversed, even if the evidence in the case was so overwhelming that any jury would have convicted. The same is true if the judge mistakenly tells the jury that it should convict the defendant if it concludes "by a preponderance of the evidence" (as opposed to "beyond a reasonable doubt," the correct standard) that the prosecution proved every element of the offense. Such errors are considered "structural" and accordingly not amenable to harmless error analysis.

If a trial is infected with unfairness, in other words, then imagining a fair trial with the same overwhelming evidence looks too much like affirming a conviction without a trial's actually taking place, after imagining that if there had been a trial, the prosecutor's evidence would have convinced any reasonable jury of the defendant's guilt. Structural errors, in other words, taint the entire trial and preclude harmless error analysis.

Batson, McCollum, and Harmless Error Analysis

Is the trial judge's erroneous decision to seat Deloris Gomez subject to harmless error analysis? The question is a difficult one. One the one hand, one could argue that the trial court made an error in interpreting federal constitutional law (Equal Protection) which resulted in a different jury from the one that the defendant should have had. It feels odd to imagine a trial in which the "right" jury had served. In Batson itself, the Supreme Court held that the converse of the error here – a prosecutor's exclusion of jurors on the basis of race – requires automatic reversal and is not subject to harmless-error analysis. The erroneously-included juror in this case, moreover, knew that the defense had tried to exclude her from participating, and she then became a major player on the jury, signified by her selection as foreperson. Unlike the admission of inadmissible evidence, in this case one cannot simply set aside the error (pretend the confession did not come in, for example) and try to determine how well the rest of the evidence stands on its own. The composition of the jury – and its inclusion of Gomez – thus seems like a structural flaw in the defendant's trial.

On the other hand, the Supreme Court has said that a criminal defendant does not have a constitutional right to exercise peremptory strikes at all. Such challenges are only one means of achieving a neutral and fair jury, but they are not necessary. Indeed, if the trial judge had insisted on seating Deloris Gomez for a different reason – such as the judge erroneous view of how many peremptory challenges each side is allowed to exercise under state law – then the case would not have even presented a federal question permitting Supreme Court review.

What makes the case "federal," is the fact that the state judge's mistake was an erroneous interpretation of Equal Protection, rather than some other kind of error that also did not implicate the criminal defendant's federal constitutional or statutory rights. The harm that the defendant suffered is therefore quite dilute – a juror whom he did not challenge for cause (and who does not appear to have been improperly biased or prejudiced or otherwise ineligible for service) was allowed to serve on his jury because the judge erroneously believed that excluding her would have violated her Equal Protection rights. This might not seem like the sort of error that should automatically invalidate the outcome of an otherwise legitimate state trial.