Supreme Court strikes proper note in <u>Rivera</u> ruling that peremptory challenges remain a state law question Commentary
Supreme Court strikes proper note in Rivera ruling that peremptory challenges remain a state law question
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Kent Scheidegger [Legal Director and General Counsel, Criminal Justice Legal Foundation]: "The rule against racially discriminatory use of peremptory challenges is one of the very few constitutional rules of criminal procedure that applies equally to the defense and prosecution. See Georgia v. McCollum. So what happens on appeal when a trial judge denies a defense challenge of a juror under McCollum, but the appellate court decides the challenge was valid?

It is well established that in the reverse situation, when a juror is discriminatorily struck who should have been seated, the error is reversible per se. No "harmless error" analysis is allowed. What about a juror who is not challengeable for cause and meets the legal qualifications, but whom the defense should have been allowed to strike under the state-law peremptory challenge procedure? That is the question decided in Rivera v. Illinois, announced March 31. (In the particular case, there is considerable doubt whether the trial judge actually did err, as the Illinois Supreme Court found, or was actually correct. However, the state did not press that point, and the U.S. Supreme Court did not address it.)

Justice Ginsburg wrote the opinion for a unanimous court [PDF file]. Her answer is that the "harmless error" question in a case such as this is not a federal question. "Just as state law controls the existence and exercise of peremptory challenges, so state law determines the consequences of an erroneous denial of such a challenge." Her opinion goes on to reject the perennial attempt to transform an error of state law into a violation of the Due Process Clause of the Fourteenth Amendment.

The Court has once again affirmed the principle that "A defendant is entitled to a fair trial, but not a perfect one, for there are no perfect trials." See Brown v. United States. Michael Rivera was a hit man for a violent gang. He gunned down an innocent teenage boy whom he mistook for a member of a rival gang. He was fairly tried, and the Court's decision means he will be justly punished."

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