On Monday at 11 a.m., the Supreme Court will hear Rivera v. Illinois (07-9995). Arguing for Michael Rivera will be James K. Leven of Chicago. Arguing for Illinois will be the state’s Solicitor General, Michael A. Scodro, dividing time with an assistant to the U.S. Solicitor General, Matthew D. Roberts. The U.S. government is in the case as an amicus supporting Illinois.

A novel issue of criminal law – trying to figure out how a trial would have come out if all of the jurors had been properly seated when, in fact, one of them was not – underlies the Court’s review of Rivera v. Illinois. The Court will have to decide what kind of error it is to seat a juror wrongly, and then rule on the method for judging the impact of that error on the trial.


The Supreme Court has spent decades sorting out the law on selecting juries to try criminal cases, but it has not yet answered all of the questions that may arise in that process. One that does not yet have a complete answer involves the remedy – if any is to be provided – when a jury is seated and it turns out that one of the jurors should not be there. The answer to that might be a constitutional one, or something short of that. And the answer very likely will have several layers to it. When the question is complicated by issues involving defense lawyers’ use of so-called peremptory challenges to try to shape the jury, and issues of race in selecting jurors, the answer may be even more complex.

Prosecutors and defense lawyers who want to keep some potential jurors from getting seated in a particular case have long been allowed to challenge such a panel member either by spelling out a specific objection, or by using what amounted to an automatic exclusion – that is, a peremptory challenge. The first kind of challenge – “for cause” – could succeed only if a judge accepted the reason. A peremptory could be for any reason, or no reason at all – perhaps just a hunch or a “feeling.” The challenge itself accomplished the exclusion, without second-guess by the judge.

Both sides in a criminal trial value peremptory challenges. They can be an effective way to try to compose a jury that might lean more toward guilt, or toward innocence – especially if the trial is a highly emotional one, involving volatile issues such as race. Peremptory challenges are not required by the Constitution. They are provided by statutes, state or federal, and need not be allowed at all, if that is the choice a legislature makes.

Since the Supreme Court’s decisions in Batson v. Kentucky in 1986 and a 1992 decision in Georgia v. McCollum and some later rulings, a peremptory challenge may not always be truly “peremptory.” If, for example, a prosecutor or a defense lawyers uses such a challenge to try to keep blacks or women off of a jury, that is discrimination and it is no longer constitutionally permitted. If a judge finds that a peremptory was aimed at that result, or actually had that result, a challenged juror may still get on the jury rather than be excluded, or there might even have to be a new trial.

Suppose, though, that a defense lawyers uses a peremptory challenge, and the judge believes – wrongly – that this was a discriminatory challenge rather than one that had to do with legitimate trial strategy, and gives the challenged juror a seat in the jury box over the defense’s objection. That raises a series of questions: Is the wrongful seating unconstitutional? Does it make a trial unfair in some way short of violating the Constitution? If it occurs, may it be excused if it was outweighed by strong evidence of guilt, so it really did not matter in the end? Or, if it occurs, must any conviction be thrown out – even if the rest of the trial was completely fair?

All of those questions – and more, in fact – confront the Court in the case of Rivera v. Illinois. In some real sense, the Court will be working on a clean slate when it reviews the case. The Court has never defined how serious an error it is to seat a juror in error, after a peremptory challenge has been made. And, no matter whether that occurrence is regarded as a “trial error,” or a more serious “structural error,” the Court has never said what remedy is to follow. If it is only a “trial error,” can it be excused as harmless on the theory the outcome was not affected? If it is a “structural error,” does it so thoroughly compromise the trial’s fairness that the only remedy is a new trial?The new case involves Michael Rivera, a member of the “Insane Deuces” gang in Chicago, who is serving an 85-year prison sentence after being convicted of murdering a 16-year-old youth, Marcus Lee. Rivera was regarded as the “chief enforced” of his gang. He was accused of shooting Lee in the head on the mistaken belief that Lee belonged to the “Stones,” a rival gang. Prosecutors put on evidence at trial that Rivera bragged about the killing to gang members.

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 ultimately ruled that the judge’s failure to respect the defense’s challenge to Gomez was wrong, but it ruled that Rivera’s conviction did not have to be overturned. This was not a “structural error,” so it could be overcome if it proved to be harmless. Analyzing the trial as a whole, the state’s highest court said the evidence against Rivera was so strong that “no rational jury – or juror – would have” found him not guilty. Thus, it found, Gomez’s seating was a harmless error.

Petition for Certiorari Rivera’s defense lawyers filed their petition for review in the Supreme Court on Feb. 27, 2008. They raised on question: “Whether the erroneous denial of a criminal defendant’s peremptory challenge that resulted in the challenged juror being seated requires automatic reversal of a conviction because it undermines the trial structure for preserving the constitutional right to due process and an impartial jury.”

The petition’s main thrust was that the lower courts are deeply split on whether such a wrongful seating must always result in reversal of a conviction, or whether such an error can and should be examined under the harmless-error standard. The petition noted that the Supreme Court had declared in 1965 (in Swain v. Alabama) that denial or impairment of a defense peremptory challenge would lead to automatic reversal of a conviction.

However, Rivera’s counsel added, the Supreme Court in a 2000 decision (U.S. v. Martinez-Salazar) had said that statement was only “dicta,” and that Swain had been been based on a series of early cases decided long before harmless-error review had come into existence. Those comments, Rivera’s petition said, have led to the confusion in lower courts – both on whether automatic reversal is required when a juror is seated over a defense peremptory objection, and on whether automatic reversal is required where the judge denied a for-cause challenge, requiring the defense to use a peremptory and thus “waste” it. “The split,” the petition said, “is unlikely to be resolved without this Court’s further intervention.”

The petition also contended that the wrongful denial of a peremptory challenge “is a matter of constitutional significance because the consequent distortion in the power to influence the composition of the jury is a violation of due process.” And, it added, peremptories are of significant value in achieving an impartial jury of the kind the Constitution’s Sixth Amendment requires.

Illinois officials opposed the petition, saying that peremptories are only a matter of state law, so states were free to apply harmless error analysis to any denial of a peremptory, that the split in lower courts either is not a significant one or does not bear on Rivera’s case, and that the Illinois Supreme Court’s decision was correct in any event. Because peremptories are a phenomenon of state law, the response said, the Supreme Court did not have jurisdiction to hear Rivera’s case. The state also argued that Rivera had not made any claim of a violation of a federal constitutional right – an argument vigorously rejected in Rivera’s reply.

The Court granted review of the petition on Oct. 1 among the first new cases accepted for review in the current Term. After briefing, the case was set for oral argument on Feb. 23.

Merits Briefs Rivera’s lawyers, in their brief on the merits, move somewhat away from their earlier emphasis upon a claimed constitutional violation in the seating of juror Gomez over the defense’s peremptory challenge. They argue that the Court “need inquire no further” than applying an “unwavering rule” that an improperly composed tribunal cannot dispense justice, so any judgment it renders must be overturned. With Gomez on the jury, without defense consent, the brief argued, the tribunal was inherently flawed: she had no right to be there.

“This Court,” the brief contended, “has never conducted harmless-error review of a judgment rendered by an improperly constituted tribunal. Errors affecting the composition of a jury have consistently led this Court to reverse without review for harmlessness.” This approach, it added, pre-dates the modern approach to harmless error review.

Still, it the Court reached potential constitutional issues in the case, the Rivera brief contended that his due process rights were violated with Gomez on the jury, and argued that the Illinois Supreme Court’s method of reexamining the entire trial and finding it fair violated his constitutional right to a jury trial. It is only second point that the brief makes the point that there is no way to assess the “harm” that can come from having an improperly seated jury, because there is no way of knowing what a jury would have been like without that juror, and no way of knowing how the trial would have proceeded with a different jury. “Harmless-error review is impossible to conduct” in that circumstance, it contended.

Illinois’ merits brief relied on its early emphasis on the state source of peremptory challenges, contending that a violation of a state law providing such challenges is solely for state courts to address. “Simply put, federal law does not determine the effect of any error in this case,” it asserted.

It also attacked Rivera’s backup argument over constitutional violations, stressing that there is no constitutional right to a peremptory challenge. Specifically addressing the Rivera claim that the seating of Gomez violated his right to due process, the state argued that his brief was attempting to establish a sweeping new right to exclude jurors whose claimed bias is no more than an attenuated supposition. On Rivera’s point that harmless-error analysis is simply impossible after a wrongful juror has sat through a trial, the state asserted that the courts are well equipped to assess the overall evidence in a case without running afoul of any constitutional rights of defendants.

The Justice Department’s brief for the United States as amicus also dwelled on the assertion that the question of improper denial of peremptories is only one for state law, as is the question of whether to judge such denials by a harmless error standard. Responding to the Rivera brief’s challenge to the results of any improperly composed tribunal, the Department said that would “inappropriately constitutionalize the numerous and often conflicting jury-qualification rules of the different states, even though many of those rules are unrelated to ensuring an impartial jury.”

Among the amici filings in the case, Rivera has the support of the National Association of Criminal Defense Lawyers, while Illinois is supported by 30 other states, the National District Attorneys Association, the Criminal Justice Legal Foundation, and Michigan’s Wayne County. The 30 states, in their brief, warned the Court that if it were to put an automatic reversal rule into constitutional terms in Rivera’s case, states could be led to limit or to eliminate peremptory challenges. The Criminal Justice Legal Foundation’s brief makes the point that there was simply no error in Rivera’s trial, and thus there is no basis for judging whether it was harmless.

The Supreme Court very likely will prefer, if possible, to decide Rivera’s case without laying down new constitutional rules to govern judges’ responses to defense lawyers’ use of peremptories. Indeed, it could be deterred from a constitutional declaration not only because of its usual habit of staying away from such issues if possible, but also because it may take quite seriously the states’ argument that such a ruling could impair the whole system of peremptories.

The Rivera argument for a ruling on a basis other than the constitutional rights of the accused may seem to the Justices to be somewhat strained. 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.

Another major factor on Illinois’ side in the case is that the present Court majority seems decidedly less sympathetic to creating new or innovative rules that enhance the procedural rights of those accused of crime.

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