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Petitions of the week

Justices asked again to consider the consequence of biased jurors

A courier drops off a package at the Supreme Court

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

The Supreme Court has ruled that the seating of a biased juror can violate the constitutional right to an impartial jury. It has stopped short, however, of holding that the violation is so stark as to constitute a “structural error” requiring automatic reversal under the Sixth Amendment, and state courts are divided over whether it rises to that level. This week, we highlight cert petitions that ask the court to consider, among other things, whether the seating of a biased juror is the type of error that always requires a new trial.

Gene Deveraux was sentenced to 100 years in Montana prison for multiple sexual felonies against his former wife and stepdaughter. During a private meeting with the prosecution, defense, and trial judge, one of the jurors revealed that his girlfriend had been a victim of marital rape. The juror told the defense that he would struggle to remain objective and agreed that he “should not be chosen” for the jury “to be fair to” Deveraux. Having already used all of his peremptory strikes to prevent the selection of other jurors, Deveraux filed a motion to remove the juror “for cause” alleging apparent bias. The judge denied the motion.

On appeal to the Montana Supreme Court, Deveraux argued that his conviction should be reversed because the denial of his motion to remove the juror for cause was structural error. The state supreme court disagreed. Even if a juror were biased, the court held, allowing them to remain on the jury does not automatically require a new trial. The court applied its existing test that would have required Deveraux to use a peremptory strike against a specific juror before he could bring a claim that their eventual seating on the jury was structural error.

In Deveraux v. Montana, Deveraux asks the justices to rule that denying a motion to remove a biased juror for cause is a sufficiently egregious Sixth Amendment violation to require a new trial. Earlier this year, the court declined to hear an appeal by Kristopher Love, a Black man on death row in Texas who argued that the seating of a racially biased juror in his case was structural error. Three justices dissented from the denial of review. Deveraux argues that his petition lacks a procedural oddity that obscured the structural-error question in Love’s case, and that the time has come for the justices to provide an answer.

A list of this week’s featured petitions is below:

Deveraux v. Montana
Issue: Whether a trial court commits structural error, requiring automatic reversal under the Sixth Amendment, when it seats a biased juror after erroneously denying a for-cause challenge to that juror.

Carnahan v. Maloney
Issue: Whether individual members of Congress have Article III standing to sue an executive agency to compel it to disclose information that the members have requested under 5 U.S.C. § 2954.

Acheson Hotels, LLC v. Laufer
Issue: Whether a self-appointed Americans with Disabilities Act “tester” has Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation.

Jordan v. Lamanna
Issue: Whether a federal habeas petitioner seeking relief on the basis of a violation of the public trial clause of the Sixth Amendment can demonstrate an “unreasonable application of clearly established Federal law” within the meaning of 28 U.S.C. § 2254(d)(1) in the absence of a Supreme Court precedent involving analytically indistinguishable facts.

Moore v. Texas
Issues: (1) Whether a law that criminalizes expressive speech is immunized from any First Amendment scrutiny if it also criminalizes non-expressive conduct; and (2) whether a law that punishes the repeated sending of electronic communications with intent and likely result to “harass, annoy, alarm, abuse, torment, embarrass, or offend” another is unconstitutionally overbroad.

He v. Garland
Issues: (1) Whether courts of appeals review de novo – as a question of law – or for substantial evidence – as a question of fact – a Board of Immigration Appeals’ determination that established facts do not rise to the level of persecution; and (2) whether being prohibited by government officials from freely and openly practicing one’s religion constitutes persecution as a matter of law.

Recommended Citation: Kalvis Golde, Justices asked again to consider the consequence of biased jurors, SCOTUSblog (Dec. 2, 2022, 5:49 PM),