ROSS v. OKLAHOMA

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ORAL ARGUMENT OF GARY PETERSON, ESQ. ON BEHALF OF PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument next in No. 86-5309, Bobby Lynn Ross versus Oklahoma.

Mr. Peterson, you may proceed whenever you're ready.

Gary Peterson: Thank you, Mr. Chief Justice, and may it please the Court.

The issue in this case is whether it's constitutional for a State to take away a preemptory challenge from a defendant in a capital case, to take it away by forcing him to use it to remove a juror from the jury who should have been removed for cause because he was unable to consider a life sentence.

This case was the type of case historically in which preemptory challenges have been regarded as most valuable.

The defendant was black, he was charged and tried in a virtually all white community for the murder of a white police officer.

The trial judge specifically found that the defendant's race was an issue in the trial.

Unidentified Justice: Had there been a change of venue granted?

Gary Peterson: Yes, there was.

It was moved to the next adjoining county.

The case had received a lot of publicity before trial.

Unidentified Justice: Whereabouts in Oklahoma was it?

Gary Peterson: This was in western Oklahoma, far western Oklahoma about 150 miles west of Oklahoma City.

Although he tried to kind of remedy the publicity by changing the venue, it turned out not to be... the crime occurred in Elk City, Oklahoma.

Unidentified Justice: Elk?

Gary Peterson: Elk City.

Unidentified Justice: That's way out in the panhandle, isn't it?

Gary Peterson: Well, it's on Route 66 in western Oklahoma.

The case was actually tried in Cheyenne, Oklahoma, which is a little town of 1300 people about 30 miles from Elk City.

He tried to remedy the publicity by changing the venue but it turned out really not to have very much effect.

Almost all the jurors that were called had heard about the case and it appeared not to have been a very effective move.

There was a real danger of prejudice against the defendant under these circumstances, and challenges for cause or not an infallible way of obtaining an impartial jury.

There's a real risk that some prejudice jurors are going to get by challenges for cause, are going to get by voir dire, and are going to get on the jury.

That's where preemptory challenges are valuable.

Unidentified Justice: Well, how many were given here?

Gary Peterson: Nine.

Unidentified Justice: Pardon?

Gary Peterson: Nine in first degree murder statute.

Unidentified Justice: Right.

And your argument essentially is that one of them had to be wasted to remove the juror who should have been removed for cause anyway.

Gary Peterson: That's right.

Unidentified Justice: Now, you don't deny that Oklahoma could have provided only eight to begin with, or maybe even only what, two to begin with?

Was there any obligation to provide any preemptory challenges at all?

Gary Peterson: No, there's not.

Unidentified Justice: None at all.

Gary Peterson: There's only an obligation to have an impartial trial, but I don't think that there's any particular number that's required by the Constitution.

Unidentified Justice: So your contention is that it violates fundamental fairness to give him only eight instead of nine, that's what it comes down to?

Gary Peterson: That's right.

I think the State legislature has to make a judgment of how many preemptory challenges are needed in a particular State to secure a fair trial.

Pretrial publicity, the news media may be more pervasive in one State than another.

Juror qualifications may be higher in one State than another.

So I think the fact that some States may have a smaller number of preemptory challenges doesn't necessarily answer the question.

I think the only way that we can be sure that the defendant received due process is if he got the statutory number that's allowed.

Unidentified Justice: What if the Statute allowed the prosecution ten challenges and the defense nine?

Gary Peterson: I think we have a problem with that.

That's kind of a Wardius v. Oregon situation where there are non-reciprocal benefits where the State has a procedural edge on the defendant in conducting a trial.

Unidentified Justice: What provision of the Constitution do you think would be violated by that, if any?

Gary Peterson: The due process clause.

Wardius v. Oregon was a situation where a notice of alibi statute applied only to the benefit of the prosecution and not to the defense, and the Court held in that situation that it was a denial of due process.

And we think the same argument would apply here.

Unidentified Justice: Well, what if the Oklahoma legislature had found in connection with enacting a statute, like Justice O'Connor poses, that we'd looked into all the jury challenges that have come up in Oklahoma, and on the average, we think the typical juror is a little more prejudice in favor of the defendant than in favor of the State.

And therefore, we think we have empirical basis for saying that a ten/eight ratio will put them back to parity.

Gary Peterson: It's hard for me to square that with Wardius v. Oregon, and I guess the legislature in Oregon concluded that the defense doesn't need this discovery as much as the prosecution does.

I don't think it's fair and I think that no State gives the prosecution more preemptory challenges than the defendant, and a lot of States give the defense more.

Unidentified Justice: And that's how we decide.

We say, is it fair, the way you do, is that how we decide this case?

Gary Peterson: Well, I'm not sure that the question of ten versus nine really controls this case.

I think the due process clause question turns on whether there's been a statutory right that's important enough that's been denied in this case that is entitled to the production of the due process clause.

Unidentified Justice: Well, if you had eight challenges and one of them was just like this and you used the preemptory on that one, and you didn't use any of your other preemptories?

Gary Peterson: I think it's easier to find harmless error in that situation, if the defendant didn't really need the preemptories in the first place, it's hard to see how it really harmed him to have to use one on this particular jury.

Unidentified Justice: And the difference between that one and this one is?

Gary Peterson: In this case, the defense used all their preemptories and asked for more, and didn't get them.

Unidentified Justice: Did you ask for more preemptories?

Gary Peterson: The defense lawyer asked for additional preemptories before the trial, but under our law in Oklahoma, the trial judge couldn't do it.

Unidentified Justice: I know, but he didn't after this event, and he passed every juror, didn't he, that proceeded?

Gary Peterson: He didn't try to prove challenge for cause against any of the jurors that were seated.

Under our law, the trial judge could have given him more than nine preemptory challenges and he denied it once before and the law hadn't changed between the time of the pretrial ruling and the time of the stay.

Unidentified Justice: Well suppose the judge, do you think, couldn't the Judge have, if he'd have asked and argued, the Judge could have changed his mind on disqualifying for cause, and in which event, the eight preemptories wouldn't have been exhausted.

Gary Peterson: I think that the defense attorney had to accept the trial judge's ruling for whatever it was.

Unidentified Justice: Counsel, you've been speaking of due process.

I thought your case also rested on the Sixth Amendment?

Gary Peterson: That's true.

We have two arguments in this case.

One is that the rule of Oklahoma procedure that requires you to use an preemptory challenge in order to remedy a Sixth Amendment violation in order to enforce the right to a Sixth Amendment impartial jury penalizes the exercise or the enforcement of the Sixth Amendment right.

Unidentified Justice: Because in this case, you came up with a different jury than you would have had had the Judge ruled correctly?

Gary Peterson: It could have been a different jury if the Judge ruled correctly.

Unidentified Justice: Well, isn't it almost inevitable it would have been?

Gary Peterson: The defense attorney certainly wanted more preemptories and I think if he'd had them, he would have used them.

Unidentified Justice: Like one more?

Gary Peterson: He wanted one more.

Of course--

Unidentified Justice: Does the case go off on more preemptories?

Doesn't it go off on the proper use of such preemptories as were available to him?

He had nine and he wanted the Court properly to permit him to use them?

Gary Peterson: --That's right.

Unidentified Justice: I think we're going down a blind alley when we speak of different numbers of preemptories.

Gary Peterson: The juror who was challenged for cause in this case.

I don't think there was much dispute that he should have been removed.

He said twice that he was going to return the death penalty upon conviction.

He went on to say that he wouldn't consider any other possible penalty.

The Oklahoma Court of Criminal Appeals specifically found that his responses were unequivocal, and that it was error to seat him.

Unidentified Justice: Aren't we bound by that finding?

Gary Peterson: I would say since our argument depends on a finding of a Sixth Amendment violation, that the Court has the power to examine the facts and redetermine it.

There's certainly no reason to.

I think that it's clear that his answers were unequivocal and the Oklahoma Court was certainly right in its finding that it was error.

Unidentified Justice: This is not a First Amendment case, this is a Sixth Amendment case.

I would have thought that finding was binding.

Gary Peterson: We would be happy if the Court considered it to be binding.

Unidentified Justice: Of course, that juror was not, I mean, he was seated but didn't participate in the trial, right?

Gary Peterson: That's right.

Unidentified Justice: Because one of the preemptories was used to eliminate him, so basically what you're... we really don't know what the effect of this was.

You're saying one other juror might have been challenged for cause who... you're not asserting that any of the jurors that were on the jury was known to be biased on in any way contrary to your client.

You just think if you had one more preemptory, it would have been nice.

Gary Peterson: We don't know if any of the other jurors on the jury were impartial or not.

We do know that the defense attorney thought they were not impartial, because he specifically said that at the end of the jury selection.

And of course, that's the type of situation where preemptory challenges are most valuable, when the defense attorney thinks the jurors are biased but can't sustain a challenge for cause.

So we think that the laws of a preemptory challenge in the situation here was harmful.

It wasn't an option for the defense attorney just to leave this juror on the jury and complain about it later on appeal.

Under our Oklahoma procedural rule, he had to use a challenge on him in order to preserve the right.

If he had not used a preemptory challenge on this juror, he would have really been stuck with the result of the trial which was with a biased juror.

Unidentified Justice: So there's no remedy at all then, effectively?

Gary Peterson: As the Oklahoma Courts have treated this, yes, that's right.

On the question of harmless error, Chapman v. California says that the burden of proving that a constitutional error is harmless is on the beneficiary which is the State in this case.

It also says that the burden of proof is proof beyond a reasonable doubt.

While we don't have to prove anything on the harmless error issue, we think that the evidence gives every indication that the error was in fact a harmful one.

There's no dispute that if the defendant had another preemptory challenge, he could have used it to change the composition of the membership of the jury.

Unidentified Justice: Yes, but might not the argument be made that in order to show the argument was harmful, or not harmless, you would have to show that the other juror would have done something different?

What you're talking about substituting one random juror for another really.

Each of them passes challenge for cause.

That one juror would have done something different than the one who was seated did?

Gary Peterson: I think the burden is on the State to prove that the randomly selected another juror whose identity we don't know, whose background, whose beliefs we don't know, would have done the same thing as the actual juror.

I think it's impossible for them to show that.

It's unclear that a harmless error analysis can ever be applied in a situation like that.

This Court's jury selection cases going back to Strauder v. West Virginia have never tried to figure out what another juror would have done, or how he would have decided the case if the Constitutional error in jury selection had not occurred.

I think it would be unprecedented for the Court to try to apply a harmless error analysis in that situation.

The evidence in this case was in conflict on the issue of guilt and the murder charge.

The defendant said that he did not intend to kill the decedent.

If a jury accepted that testimony, they would have to acquit him of murder.

And there is conflicting evidence on the sentencing issue as well.

Unidentified Justice: Did you represent the defendant on appeal?

Gary Peterson: No.

Unidentified Justice: Has there ever... was there any, at any time, a statement by the attorney for the defendant that had he had another preemptory, he would have used it, and he would have used it against Mr. X or Mrs. Y?

Gary Peterson: No, there was not, it's not in the record, no.

And of course, that's part of our argument on the harmless error case, is that that type of statement, even if it was made in the way that the Oklahoma Court asked for it, wouldn't prove anything.

Unidentified Justice: Well, it would prove something if the lawyer said, if a judge happened to ask the lawyer representing him on appeal, would you have used your preemptory to challenge anyone on that jury, and if so, who, and if he said, I wouldn't have used it, that's certainly harmless error, I suppose?

Gary Peterson: I agree, it would be harmless error in that case.

But what the defense attorney did in this case was simply--

Unidentified Justice: He didn't say anything.

Gary Peterson: --Well, he said he believed that the jury was not impartial and it was not fair.

I don't think that if he had identified a particular juror that he would have challenged, that it would have proven anything under the Gray v. Mississippi case.

The reason is that the error that the trial judge made happened in the sixth round of jury selection.

The statement that the Oklahoma court demanded a counsel that he didn't make would have been made after the ninth round.

If the sixth round had happened differently, if a judge had ruled differently, there could have been a bunch of different jurors on the panel by the time of the ninth round.

Unidentified Justice: But when the petitioner's lawyer said he didn't think the jury was impartial, he was talking not in any legal sense because he agreed they weren't subject to challenge for cause.

He just meant they weren't the kind of jury he would have liked to have try the case, don't you think?

Gary Peterson: I think what he meant was what he said that it was not a fair and impartial jury.

Perhaps he could not find evidence that he would need to sustain a challenge for cause.

Unidentified Justice: He was speaking at least of his intuition and something that he couldn't prove to the satisfaction of the judge?

Gary Peterson: Apparently so, that he did not have the proof.

Unidentified Justice: Counsel, was the procedural due process claim ever made below?

Gary Peterson: In some sense it was.

Certainly the Sixth Amendment claim was made more clearly, but counsel in the lower court did invoke Swain v. Alabama and some cases like that, which we think kind of recognize a due process right preemptory challenge.

Unidentified Justice: Mr. Peterson, I'm having some trouble with the notion that what constitutes harm is the substitution of one impartial juror, that is, lawfully determined to be impartial, not challengeable for cause, for another impartial juror.

Suppose that there's some error made by a judge that causes the case to be delayed, some legal error that causes the case to be delayed.

Because it's delayed, you get a different jury than you would have had had the case come up earlier.

Now, I assume it's impossible in that case also for the State ever to prove that the jury you would have gotten on the earlier date would have convicted you just as the jury you got on a later date is.

But I fail to see any constitutional violation there, and similarly here, it seems to me that once you've determined that you have seated a jury that is not challengeable by cause, that is fair and impartial, hasn't your client gotten substantial justice?

Gary Peterson: Well, in the trial delay situation, the defendant doesn't have a right to have a particular jury hear his case.

There's been no right relating to the composition of a jury.

Unidentified Justice: To a particular jury to hear his case in this instance either.

Gary Peterson: He does have a right to exclude particular jurors from the case as a result of a preemptory challenge, and the inevitable consequence of the right to exclude is the right to bring on somebody to replace him.

And I think that's a distinction.

Unidentified Justice: Well, I can think of a hypothetical under the legislation requiring criminal trials to be brought on for trail promptly, so you could say he's entitled to have a jury selected as such and such a date, and because of some error by the Government, he isn't tried in time, how could you ever prove that the different jury he got would not have come out to a different result?

Gary Peterson: One way to look at it, I guess, is the nature of the preemptory challenge right as opposed to some statute that just requires that a trial begin on such and such a date.

A preemptory challenge is a right that this Court, itself, has said that this is one of the most important rights secured to the accused.

Unidentified Justice: But here it's only a State law right, isn't it?

You're not contending that there's any Federal Constitutional principle that requires preemptory challenges?

Gary Peterson: That's right, but it's still an important right, and this Court has said so in its own decisions.

Unidentified Justice: Yes, but you agree that Oklahoma wouldn't have had to accord any preemptory challenges at all?

Gary Peterson: That's right.

It is an important right.

It has six and a half centuries of history behind it.

I think it is regarded as a basic, a fundamental right of the criminal justice system.

It's universally recognized in every State and Federal jurisdiction.

It's the type like the right of appeal that the Court considered in Evitts v. Lucy, that's a right that's important enough that the loss of it is a grievous loss.

It's the type of grievous loss that brings the due process clause into play.

Whereas, perhaps some other State procedure may not have quite the same magnitude and it may not be entitled to due process.

Unidentified Justice: Mr. Peterson, if there had been one preemptory challenge that the defendant didn't exercise, would you be here?

Gary Peterson: That's a harder case.

Unidentified Justice: You said there might have been quite a difference in the jury, there might have been several different jurors.

But what if there'd been one preemptory left over?

Gary Peterson: There are tactical reasons why a defense attorney might not want to use the last one, because if he uses the last one, the last juror that comes on he can't strike, no matter how unfavorable he perceives that juror.

I think it's a higher... it certainly would be a stronger case for harmless error than this one, but I'm not sure that the Court could say beyond a reasonable doubt that if he'd reserved one, that an additional preemptory challenge in the sixth round wouldn't still have changed the jury's composition.

The likelihood of a different outcome in a criminal case in Oklahoma if a jury membership is changed is especially strong on the question of sentencing.

The reason for that is that Oklahoma's laws do not require a unanimous verdict on the question of sentence, if the jury should decide to impose a life sentence, one juror, if that juror should become committed to returning a life sentence, can force the verdict of a life sentence.

The Judge has to discharge the jury if they disagree and return a life sentence, even if there's just one juror on that jury whose in favor of a life sentence.

The State cannot prove beyond a reasonable doubt that the additional juror who would have been brought on if another preemptory challenge had been used would not have been that juror.

And we think that that pretty much disposes of their harmless error argument, especially on sentencing, but that same juror could have led the whole jury to a different result on the whole case as well.

On the question of whether an additional preemptory challenge, if it had been available, would have been used in a way to change the jury's membership, the record shows that the defense lawyer did everything he could to get as many preemptory challenges as he could and use them all.

He used all the ones up that he had.

He tried to get some before... some extra ones before trial unsuccessfully, in view of the fact.

Unidentified Justice: Mr. Peterson, when did he use his last?

This occurred on the sixth round, when was the last one used?

Gary Peterson: The last one was used on the ninth round.

Unidentified Justice: Toward the very end.

Gary Peterson: There's every reason to believe that if he had had another preemptory challenge in the ninth round, he would have used it and it would have changed the jury's composition.

There were only two things he didn't do.

He didn't ask for more challenges after the Judge made his mistake; that would have been futile.

The Judge had already ruled that he wasn't entitled to them under the State law.

The only other thing he didn't do was make a statement about who he would have challenged if he'd had another challenge, which he didn't, which the Oklahoma Court said should have been made at the end of the ninth round.

If the sixth round had been played out differently, the jurors of the ninth round would have been completely different, so what counsel did or didn't say at the end of the ninth round doesn't prove what would have happened if the Judge hadn't made the mistake earlier.

And that's just, as we see it, is virtually the same as Gray v. Mississippi.

In Gray, the Court said that a statement by counsel about how he would have used his preemptory challenges if the Judge had ruled differently on the previous challenges for cause, just didn't have any value in determining what would have happened.

It didn't have any value in deciding whether harmless error occurred or not.

And we think the same ruling should be applied here.

Unidentified Justice: Mr. Peterson, the harmless error requirement is not under the due process part of the case, right, but under the Sixth Amendment?

Gary Peterson: As we see it, the harmless error analysis has to be gone through at least in some way no both.

Unidentified Justice: Well, how does it work under the Sixth Amendment, what he was deprived of under the Sixth Amendment, you say, was an impartial jury, by seating the biased juror incorrectly, right?

Gary Peterson: No.

What we say on the Sixth Amendment argument is that the state impermissibly burdened the enforcement of the Sixth Amendment right by requiring the defendant to use up preemptory challenges, all of them, in order to preserve his right to obtain appellate review on the seating of a jury that was biased.

It's kind of like Griffin v. California or those cases where the State has put some type of burden on the defendant's exercise of his right.

Unidentified Justice: But that assumes you have a Federal right to nine preemptory challenges.

Don't I have to accept that in order to agree with that analysis?

Gary Peterson: No.

I disagree.

I think it just depends on what kind of right you have in the State.

If the State says you have nine challenges, and as a condition of enforcing your Sixth Amendment right, they say, well, in that situation, you're only entitled to eight, I think they're burdening the exercise of the Sixth Amendment right, the enforcement of the Sixth Amendment right, I think that's an unconstitutional burden.

Unidentified Justice: Any time in jury selection where a judge refuses to disqualify this or that juror for cause, and the defense uses preemptories, then it's just open to have a court say well, the trial judge was wrong in seating those jurors and making the preemptories be used.

Gary Peterson: Well, the State doesn't have to have a rule that says you have to use preemptories to correct this kind of error.

In fact, a lot of States don't.

Unidentified Justice: Well, it's a pretty poor risk, I suppose, but you wouldn't have needed to use your preemptories against those people and you certainly then could have had review of it.

And you had review of it anyway in this case.

Gary Peterson: If he hadn't used the preemptory challenge on Mr. Huling, it would have been waived.

It could not have been reviewed by the appellate court.

And there's a lot of decisions where they've said, we refuse to review it because you didn't exhaust your preemptory challenges, you had the ability to +/-

Unidentified Justice: Well, in any event, any time the judge makes a mistake in refusing to ask a juror to step down for cause, any time he makes a mistake and a preemptory's used, then we've got this kind of a case.

Gary Peterson: If the State elects to enforce that type of rule where defendants have to use their preemptory challenges to correct the judge's error.

If they don't do that, there's no problem.

The defense can simply make a tactical decision about whether to remove the juror and if he doesn't, he can argue about the juror as impartial, and if he does, there's probably going to be a--

Unidentified Justice: Well, he's taking a terrific risk I suppose in that way.

Gary Peterson: --That's true.

Unidentified Justice: In a death case.

Gary Peterson: That would be a difficult choice to make.

Unidentified Justice: What if a judge wrongfully under State law excuses someone on a hardship claim.

Now, does that raise the same kind of problem?

Gary Peterson: With respect to our due process clause claim, I think it does.

I think that what our argument depends on is that there is an error of State law and that the judge didn't follow it.

Unidentified Justice: That's all it takes to make a Federal due process claim.

Gary Peterson: If the State Court requires that the defense use up preemptory challenges to remove these challenged jurors, I think that a mistake by a judge that takes away something valuable like a preemptory challenge is a denial of due process.

That was what the Court held in Hicks v. Oklahoma.

Unidentified Justice: Well, what if in the case I hypothesized, the trial judge says this person is granted a claim of hardship exemption.

You say that's a violation of State law and you appeal to the Oklahoma Court of Criminal Appeals.

That Court says, no, it wasn't a violation of State law.

Do you think you can bring that question here, was it a violation of Oklahoma law to excuse that person saying that the Oklahoma Court improperly construed Oklahoma law?

Gary Peterson: I think the Court is going to have to give a very high degree of deference to what a State Court says it's State law is, and I think that the only situation that the Court is going to come... that's going to come up here, is when the State Court says, yes, this is State law but we're just not going to follow it.

Unidentified Justice: Your claim here I thought was the trial judge's refusal to disqualify that juror was a violation of Federal law?

Gary Peterson: Analytically, I don't see that it matters on the due process claim what the reason was that the judge had for his mistake as long as it was mistake.

It happened that the mistake in this case was a Sixth Amendment violation.

Our other argument about the burden that the State put on the Sixth Amendment right of course depends on there being a Sixth Amendment violation.

Unidentified Justice: Mr. Peterson, don't you think one reason that States may have as many as nine preemptory challenges is that it's always a close call whether somebody ought to be excused for cause or not?

Don't you think that one of the very reasons is that sometimes a judge may make a mistake, let somebody on... refuse to strike somebody for cause who ought to be and therefore we give you nine preemptories.

If he makes such a mistake, then one of those--

Gary Peterson: I think the reason the number is nine is that our legislature felt it was needed to empanel an impartial jury and that defendant should have all nine.

Unless there are further questions, I'll save the rest of my time for rebuttal.

Chief Justice William H. Rehnquist: Thank you, Mr. Peterson.

We'll hear now from you, Mr. Nance.

ORAL ARGUMENT OF ROBERT A. NANCE, ESQ. ON BEHALF OF RESPONDENT

Mr. Nance: Mr. Chief Justice, and may it please the Court.

The petitioner in this case was convicted of armed robbery and capital murder for the execution style slaying of a police officer.

As the petitioner left the scene of the robbery, the police officer drove up and the petitioner shot the officer three times in the head with a 25 caliber pistol.

Unidentified Justice: Are these facts really very important?

Mr. Nance: They are to the extent that if we get into harmless error, and I'd be happy to defer any presentation on that until the harmless error point comes up.

Unidentified Justice: I think we can all agree that it was an offensive murder.

Mr. Nance: Well, it was offensive and to the extent that petitioner's counsel has said there's a doubt about the guilt or it was a close case, I need to emphasize that it wasn't.

The murder weapon was found in his pocket less than half an hour later.

He confessed.

The officer's stolen service revolver was found right next to him in the car.

The stolen money and the deposit slips from the motel were found in the car.

He was identified as one of the robbers and his footprint was found near the scene.

There's really in this case no question about his guilt.

I'd also like to emphasize two things.

That this is not a Witherspoon case in which a death prone jury has been empaneled.

Nor is it a case when any member of any racial minority has been improperly excluded from the jury.

As some of the earlier questioning pointed out, all of the jurors who sat were accepted for cause by the defense.

I think that means that the defense was satisfied at the time of trial, that there was no biased juror or no juror who was legally disqualified to sit in this case.

The Court has repeatedly stated, and I understand counsel to have conceded that there is no Federal right to preemptory challenges.

That that is a State-created right, and not a Federally created right.

Unidentified Justice: Do you also concede that it was error for the Judge not to have excused this particular juror for cause?

Mr. Nance: I do, Justice O'Connor, I concede that's error.

I'd very briefly like to summarize why we think this Court should--

It was error not to exclude Juror Huling.

Unidentified Justice: What kind of an error?

Mr. Nance: Your Honor, I think it was an error in the common law preemptory challenges.

I don't think it was an error of constitutional dimension at that point because the final trial jury had not yet been set.

It was just a preliminary ruling in the jury selection.

Unidentified Justice: Suppose that... suppose there were no preemptories and the Judge refused to disqualify that juror and he sat?

Mr. Nance: If he sat, Your Honor, I think we would have a Witherspoon problem in this case.

And I think given the ruling of the Criminal Court of Appeals, there would have been a reversal at that level.

But as it turned out in this case, the preemptory challenge acted something as a self-correcting mechanism as it is required to be under Oklahoma law.

The petitioner has cited several cases and has correctly stated the law.

In Oklahoma, you have to use a preemptory challenge.

Unidentified Justice: Under the opinion of the Court of Appeals, if this had been the ninth juror with his ninth preemptory up, what would he have done?

He's used up nine preemptory challenges and this man comes up and says this.

Under the opinion of the Court of Criminal Appeals of Oklahoma, wouldn't he have had to do something?

It said it was error?

Mr. Nance: He would have had to make his challenge for cause which I think Justice Marshall, you assume he did.

Unidentified Justice: Well, he did, and the Court said, no.

Mr. Nance: Then in that case, Your Honor, I think the Court of Criminal Appeals would have reversed.

Unidentified Justice: That's what I think too.

And is it not true that there would have been reversal because there was a Federal Constitutional error?

Do you think that it would be consistent with the Federal Constitution to seat this juror?

Mr. Nance: Oh, no.

I think not.

Unidentified Justice: So at the time of the trial judge's error, although it may well have been harmless because of later events, at that time, he did commit a Federal Constitutional error?

Mr. Nance: Your Honor, I think not.

Because I think... well, under an old case of this Court, Ex parte Spies which was decided in 1887, a similar thing happened.

There was a challenge for cause which was denied.

The Court at that time said that because that person had been taken off by preemptory, there was no violation.

I think that is and should be the rule--

Unidentified Justice: The error isn't complete yet.

The error isn't complete until the juror is finally picked and seated.

Mr. Nance: --I think that's correct, Your Honor.

And in Spies, the Court went on to discuss two jurors who were seated, but didn't discuss the ones who were not.

That's an older preemptory challenge case.

Also, the petitioner cites a case called Pointer v. United States in which this Court affirmed a conviction when the defense and the Government simultaneously presented their challenges and they could have overlapped.

And the defense argued that they had been deprived of some of their challenges or at least potentially so.

And the Court said, no, you had your 20 challenges, you had your right, and it was affirmed.

The Oklahoma, as I say, petitioner correctly states, you have to use your challenge to remove a biased juror.

It is not, as the petitioner kind of suggests, an unconditional right that unconditionally must always be given.

The petitioner cites several cases.

I have one which I've shared with the petitioner that's not the briefs.

I might invite your attention to the Stott case which is at 538 P. 2d 1065, where a similar situation happened here.

And the Court of Criminal Appeals cited an even older case from 1908 for the proposition that if there has been an error on a challenge for cause, you're still required to purge that juror with a preemptory challenge.

And I think that that is a sensible rule.

It's sensible for both the State and for the defendant.

It's sensible for the State because it eliminates errors early on.

You don't have to worry about having tried a case perhaps futilely with a reversible error in it.

It's as I said before, a self-correcting system whereby these errors can be fixed early.

And it's beneficial to the defendant in the sense that it requires a defendant to act in his own best interest and remove that potentially biased juror from his jury.

Unidentified Justice: I don't understand what the relevance of this is?

Are you saying that it's the law of Oklahoma not that you have nine preemptory challenges, but that you have nine or however many less than nine may remain after you use those that you're required to use to correct judge's errors in seating jurors, is that what the law is?

Mr. Nance: Your Honor, it's relevant, I believe, because of one of the arguments made by petitioner under Logan v. Zimmerman Brush which was in that case, the State law created a right to a hearing and that that right had been deprived by an established State procedure essentially a short statute of limitations to set a hearing.

There is established State law here that you have to use a preemptory, but unlike in Logan, in Logan it was arbitrary, it was irrational and almost bizarre that the plaintiff didn't get his handicapped employment hearing.

In this case, the State of Oklahoma has a rational reason for what it does.

That's the distinction and really the only reason I bring it up.

The petitioner also relies on Hicks v. Oklahoma, which I'd like to distinguish very briefly.

In Hicks, this Court reversed a decision of the Oklahoma Court of Criminal Appeals because the Oklahoma statutory right... not a constitutional right or a direct constitutional right... but there was an Oklahoma statutory right to jury sentencing, and the Court in that case said that the due process clause would protect that statutory right because it created a substantial and legitimate expectation that you would not be deprived of your life and liberty in that case except by a jury.

We think that the provision of preemptory challenges doesn't create such a substantial and legitimate expectation of practical control over a deprivation of life or liberty.

The petitioner's rule, I think, as Justice White pointed out, would almost require a trial judge to be perfect in his rulings for cause, because if he made a mistake and then the defendant had to use a preemptory challenge on that, there would be necessarily constitutional error.

I don't think that that's a good rule, and I don't really think that is the law.

Unidentified Justice: Mr. Nance, would Oklahoma law have allowed the Trial Court to give a tenth preemptory challenged?

Mr. Nance: Your Honor, it would not have allowed tenth preemptory, although I concede I have no cases on it, I think it would have allowed the Judge to have the inherent authority to reverse himself on Juror Huling, if the trial counsel had made that argument.

Unidentified Justice: Did the Court below find some procedural bar in this case because of the failure of defense counsel to do something at the end of voir dire?

Mr. Nance: It really didn't that I'm aware of.

It went ahead and ruled on the issues, and then basically said there was no ground for reversal.

Contrary to some of the petitioner's suggestions, there isn't any evidence in this record that trial counsel would have wanted or would have needed an additional preemptory after Juror Huling came up.

Unidentified Justice: But the Court of Appeals did say it was error.

Mr. Nance: It did indeed, Your Honor.

Unidentified Justice: Well, are you saying it's not error?

Mr. Nance: Well, the Court of Appeals said it was error to seat him because he had been taken off by--

Unidentified Justice: It said the Court was in error.

It didn't draw any limitations on it.

It said the only excuse was that preemptory was available.

That was the only excuse.

Mr. Nance: --Well, that's essentially what it said, Your Honor.

Unidentified Justice: That's essentially what they said.

So I don't appreciate any of your argument that it wasn't error.

Well, you agreed that it was error.

Mr. Nance: Well, yes, it was erroneous to seat him, although in my view, it's not a constitutional error as it turned out because the preemptory cured it.

If I was unclear in what I said before, I apologize.

I think that the self-correcting mechanism of the preemptory saved a Witherspoon violation in this case.

Unidentified Justice: Well, what would happen if the Judge just never granted cause, and so you had to use your nine preemptories.

Would that violate anybody's law?

Mr. Nance: Your Honor, I think it would, or could, at least.

Unidentified Justice: Whose law?

Federal or State?

Or both?

Mr. Nance: Both, and this Court, of course,--

Unidentified Justice: So this is just one-ninth of that?

Mr. Nance: --That's right.

I think the proper standard, because the preemptory challenges are State created rather than Federally-created rights, is did it make the trial fundamentally unfair, did it so affect the proceedings as to make the trial fundamentally unfair.

In your hypothetical, Justice Marshall, it's conceivable that if you just never got a challenge for cause sustained, and you had to use each and every one of your preemptories,--

Unidentified Justice: It had to be removed because of publicity, didn't it?

Mr. Nance: --That is correct, from one county to another.

Unidentified Justice: And the county they moved it to was the county that the defendant's lawyer said, please don't send it to?

Mr. Nance: It was one of several that he did not want.

The trial judge had to move it somewhere and he just made a call to send it to Roger Mills.

The trial judge did, Your Honor, on his own motion, remove three jurors who had been exposed to publicity and didn't feel like they should sit.

And he did remove on the defense challenge for cause three more.

I don't really have any sense in this case that the trial Judge was biased, or there's any allegation that the trial judge didn't do anything right except this one call.

Unidentified Justice: May I ask one question.

I know there's no Batson issue in this case.

This was an all white jury and a black defendant and a white victim?

Mr. Nance: That's correct.

Unidentified Justice: If there had been another preemptory, is there any possibility the racial composition of the jury would have been different?

I don't know how many blacks were on the panel, but conceivably, that could--

Mr. Nance: It doesn't appear in the record.

it's my understanding there were no blacks on the panel, Your Honor.

Unidentified Justice: --No blacks on the panel at all, I see.

Mr. Nance: And it's again not in the record, but I have consulted the census figures for 1980 for that county.

There were 4,799 residents in 1980 and there was only one black resident.

Unidentified Justice: I see.

Mr. Nance: Now, this case was tried three years later.

That could have change a little bit.

Unidentified Justice: So my hypothesis is very unlikely on this?

Mr. Nance: It is, Your Honor, I think, if you're hypothesizing there could have been a black waiting in the wings.

Unidentified Justice: It's unlikely that there might have been a little prejudice around?

Mr. Nance: No, I'm saying it's unlikely that just by the luck of the draw, there would have been black jurors ready in that county to come on.

There is no allegation here that black jurors were excluded improperly, either from the veneer or from the trail jury.

Justice Stevens is correct.

We don't have a Batson problem here.

Back to the trial counsel, he did not argue as he could have been that the ruling for cause was incorrect, and he did not ask to have the preemptory challenge returned to him.

And his only compliant afterwards was that the jury contained no blacks and that he thought his client couldn't get a fair trial from a jury of his peers.

Although again, I hasten to say, there's no Batson problem with improper racial exclusion here.

The Court has stated that the Constitution presupposes a jury chosen from a cross section of the community is impartial if the jurors can conscientiously and properly discharge their duty under the law.

As I understand petitioner's argument in this case, there is no argument that it wasn't selected from a cross section, or that the jurors weren't impartial or able to do their job.

Basically, the petitioner wants a reversal without any showing of prejudice.

We think that would be senseless, it would be wasteful, and it would particularly be senseless and wasteful if there was no violation of the Constitution.

I'd like very briefly to distinguish the Gray case which petitioner relies on.

In the Gray case, there had been, unlike this case, a Witherspoon error, that is, there had been a juror improperly excluded and at least theoretically, there had been a tribunal empaneled to return a verdict of guilt.

In that case, this Court said that there could be no harmless error, and if the error itself caused any change in the composition of the jury, it would have to stand.

I think the petitioner's rule of automatic reversal in this case wrenches that no-harmless-error language from Gray from its foundation of a Witherspoon error and wants to engraft it in this case where there has been no such error, and no such death-prone jury empaneled.

This Court stated that when a juror is tried to an impartial tribunal and there's no serious argument that this jury was not impartial, and when a defendant has counsel, and of course, this defendant had good counsel,--

Unidentified Justice: Still have three judges on the Court of Appeals?

Mr. Nance: --There are three now, Your Honor.

It's scheduled to be expanded--

Unidentified Justice: I notice there were only two here.

Mr. Nance: --Only two sitting, that's correct.

Unidentified Justice: But they usually have three, don't they?

Mr. Nance: Yes, sir.

Where there's an impartial jury and defendant has counsel, this Court has stated, you can presume any other errors are subject to harmless error analysis.

I want to hasten to say I don't think there's been a constitutional error, and I only address this because it's part if the petitioner's argument, and should you disagree with me, I certainly want to get--

Unidentified Justice: Why did the Court below think there was harmless error?

Mr. Nance: --It didn't really resolved it.

It didn't say harmless error.

Unidentified Justice: What did it say?

Mr. Nance: It said that because there was no juror who was objectionable sitting, there was no ground for reversal.

Unidentified Justice: So in effect, they said the exercise of the preemptory removed any harm from the error?

They didn't say that.

Mr. Nance: That's not explicitly what they said.

It can be read to say that.

Unidentified Justice: But they didn't say that the evidence was so overwhelming that it's beyond a reasonable doubt any juror would have arrived at the same result?

Mr. Nance: No, they did not say that.

Unidentified Justice: Mr. Nance, would it not be true that the same reasoning, if you say, well, the jury that was empaneled was all free of bias because there's no challenges for cause, that you could give the same answer if the Judge had simply said, I think I'll only let you have seven preemptories, and the other have nine.

I know the law requires nine, but I'm only going to give you seven because I think you only really need seven in the facts of this case.

Because his ruling on this particular denial, it seems to me, was rather flagrantly wrong.

And that would be a rather flagrant error too.

Wouldn't the reasoning say that you haven't shown that your jury was not impartial, so that's just too bad?

Mr. Nance: I think that would be worse than what we have here, Your Honor.

Unidentified Justice: Why?

Mr. Nance: Because on the hand, more like Logan v. Zimmerman Brush, that would just be an arbitrary and irrational sort of thing for a Judge to say.

Unidentified Justice: Well, this is pretty extreme here.

He says, the juror says no matter what the evidence shows, I'm going to vote for a death penalty.

You don't want jurors like that on juries, do you?

Mr. Nance: Absolutely not.

Unidentified Justice: So it seems to me you cannot have a much more flagrant error in denying a challenge for cause than that, and I don't see why that's so different from saying I think that the jury that's on there is a pretty good sound jury, they're all local citizens that are unbiased, and I think you only need eight preemptories.

And why would you reverse that one, I don't understand, if you apply the reasoning of the Oklahoma Court of Appeals?

Mr. Nance: Well,--

Unidentified Justice: They might reverse it in the State Court, but do you think it would violate the Federal Constitution?

Mr. Nance: --I think it would come to a point, and quite frankly, Justice Stevens, I don't know where on the countdown from nine, I would say it happened, where it could infect the whole proceeding and make if fundamentally unfair.

If a judge gives no reason, an there is no reason for his action, and assuming, you know, that no bigot or no--

Unidentified Justice: Mr. Nance, I just also thought of another consideration.

I don't know if it's a legitimate consideration.

I'd like your reaction to it.

Is the appearance of fairness in capital trials of this kind of any Federal significance.

In other words, is there some value at stake in making the community feel that the trial has been conducted with a completely even hand before a man is sentenced to death?

Mr. Nance: --There is, Your Honor.

I think this Court has said the appearance of fairness is important.

The Court, of course, has also said that reversing for inconsequential errors would cause the public to criticize the judicial process.

I think that a reversal in this case would be closer to the second problem.

I think the public would have difficulty understanding why in a case where the defendant is so obviously guilty and the trial so obviously fair, there has been a reversal over--

Unidentified Justice: That isn't what the Court below said.

Mr. Nance: --Well, on the whole, they said the trial was fair.

I think, as I was going to say, the public would have a hard time explaining or understanding a reversal over one preemptory challenge.

I think that would just cause them puzzlement and I think it would also cause criminal defendants--

Unidentified Justice: You're for fundamental justice?

Mr. Nance: --Yes, sir, and I think this was a fundamentally fair trial.

Unidentified Justice: And where in the world do you find that in the Constitution or any place else?

Mr. Nance: Well, Your Honor, I find it in cases like Donnelly v. DeChristofor where this Court says that when an error not specifically of constitutional origin like I think we've conceded here, about preemptory challenges, only merits reversal--

Unidentified Justice: Well, fundamental justice says there's no constitution is needed.

Fundamental justice is what the people want.

And you said, yes.

I don't think you mean that.

I'm sure you didn't.

Mr. Nance: --You are rapidly persuading me that I didn't mean it, Your Honor.

What I meant was--

Unidentified Justice: You're worried about a sentence of death plus life.

How do you do that?

How do you do that?

How do you execute both of those sentences?

Mr. Nance: --Well, I don't know, Your honor.

I guess if you execute the death, the life sentence becomes moot.

But when I think of fundamental fairness, I think of cases like Donnelly where unless the error infects the whole trial and makes it fundamentally unfair, there's no justification for reversal.

And I really think that's the standard in the present case.

The central purpose in a criminal trial is the fair and rational determination of guilt.

That was certainly done here.

Guilt was fairly and accurately established in both phases.

In the guilt phase, virtually everyone who knew anything first hand about the crime had a chance to testify.

In the sentencing phase, both sides had an opportunity to put on their testimony either in aggravation or in mitigation.

Unidentified Justice: Perhaps this is repetitious, Mr. Nance, but all those arguments would equally apply if the Judge had simply said I'm not going to allow the defense any preemptory challenges.

All those arguments would still be available.

The reasoning of the Oklahoma Court of Appeals would be available.

The only thing that would be different is that it wouldn't seem so trivial because it's nine instead of one.

But analytically, it would be precisely the same issue, I think.

Mr. Nance: Well, analytically, Your Honor, under the standard I think should apply, that of the fundamental fairness standard, the result at least in my mind ought to be different because... I don't want to get into fundamental justice here.

Unidentified Justice: Because the judge looks biased in the case that I put.

Mr. Nance: That's right.

Unidentified Justice: And you're not willing to say he looks biased in the case before us where he says I have no trouble with a juror who is perfectly willing to say in advance that he would impose the death sentence no matter what the evidence is.

Of course, in that example, the State is treating one defendant differently than others.

Mr. Nance: That's correct.

And while the Judge clearly made a mistake, I don't think there's anything in the remainder of this record that indicates bias on his part.

if you look at his challenges for cause, he let off a number that would have prejudiced the defense on his own.

He sustained I believe three challenges for cause for the defense and several for the State.

He pretty well went right down the middle.

Unidentified Justice: Well, he's treating one defendant differently from others in your case, too.

I mean, he's in effect by his incorrect ruling deprived this defendant of one of the preemptories.

So you really do have to confront the question, whether fundamental fairness means that you treat all of the criminal defendants exactly the same, or whether it means something less than that, that is that the process, even though it might be somewhat less than another criminal defendant got, is nevertheless a fundamentally fair one.

Isn't that basically what you have to support?

Mr. Nance: Yes, sir.

Unidentified Justice: That equivalence is not a part of, precise equivalence is not a part of fundamental fairness is what you're saying?

Mr. Nance: That's right.

The Court has repeatedly stated that defendant's entitled to a fair trial, not a perfect one.

If we had to have exactly the same trial for different defendants, we could never do it.

It would just be impossible.

In conclusion, I think that the Court's error, or the error as it was corrected by use of the preemptory challenge was not an error of constitutional dimension.

Nor did it make the trial fundamentally unfair.

And in my mind then, this Court's inquiry under its narrow due process standard and jurisdiction to reverse constitutional errors should cease.

We did not burden the right to an impartial jury any more than well simply the use of that preemptory challenge made an impartial jury a reality.

It helped to effectuate an impartial jury.

Alternatively, if you find that there was some sort of due process problem here, I think because of the weight of the evidence, the almost acknowledged impartiality of the trier of fact and the presence of counsel for the defense, that error was harmless beyond a reasonable doubt under either analysis, my analysis or harmless error analysis.

And therefore I would ask this Court to affirm the judgment of the Oklahoma Court of Criminal Appeals.

Chief Justice William H. Rehnquist: Thank you, Mr. Nance.

Mr. Peterson, you have three minutes remaining.

Gary Peterson: Unless the Court has further questions, I have nothing further.

Chief Justice William H. Rehnquist: The case is submitted.

Unidentified Justice: The honorable court is now adjourned until tomorrow at ten o'clock.

Print this transcript Transcript: 

ORAL ARGUMENT OF GARY PETERSON, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We'll hear now argument in Number 86-5309, Bobby Lynn Ross versus Oklahoma.

Mr. Peterson, you may proceed whenever you're ready.

Gary Peterson: Mr. Chief Justice, and may it please the Court:

Oklahoma has a statute that grants a defendant in a first degree murder case nine preemptory challenges.

The issue in this case is whether it's constitutional for a state to take away one of those preemptory challenges during a capital murder trial.

The way that this issue came up was when the trial judge made what everybody now agrees was a very serious mistake.

During the jury selection in this case, the trial judge overruled a defense challenge for cause against a juror, Mr. Huling, who said that he would return only a death sentence upon conviction and that he would not consider any possible other penalty.

This juror was plainly unqualified under the Sixth Amendment and even the state now concedes that he was unqualified to sit on the trial.

But once the challenge for cause was overruled, there was only one thing to stop this juror from sitting on this case and that was if one party or the other removed him by a preemptory challenge.

The way that jury selection proceeded in this case was that the parties used their preemptory challenges in alternation.

One side would use a challenge, they would bring on a replacement juror, and then the other side would use a challenge.

The first party to come up with a preemptory challenge to use, after Mr. Huling was seated, was the state, and what did the state do with its preemptory challenge after Mr. Huling was seated?

They waived it.

They didn't use it on anybody.

They were quite happy to see Mr. Huling sit as a juror in this case.

The state apparently was not interested in correcting with its own preemptory challenges what they now concede to be a rather flagrant error by the trial judge.

They apparently felt it was the better use of the challenge to just waste it.

Unidentified Justice: Do they concede that it was a flagrant error?

I think they've conceded that it was wrong, but I thought that, if I recollect their brief correctly, they do make the argument that there was some ambiguity in that juror's responses, that some of his earlier responses were inconsistent with that statement that you quoted.

Gary Peterson: Your Honor, I was relying on the last oral argument in this case.

Mr. Nance conceded that it would violate the Sixth Amendment for this juror to sit.

Unidentified Justice: Well, but, I understand that, but that's a little different from saying that it was a flagrant violation, so that you can make the statement that the state must have known there was a violation and the state could have solved the problem by using one of its preemptories.

Gary Peterson: The state conceded it was a Sixth Amendment violation.

We contend that the Sixth Amendment violation in this case was a flagrant one.

Unidentified Justice: Okay.

Well, I thought the state took the position that in view of Oklahoma's procedure of letting a preemptory be used to solve the problem of the failure to excuse the juror that, in fact, there was no error at the end of the line.

I mean, that was what I understood the argument to be.

Gary Peterson: That was their argument, but they did concede that if this juror had sat, it would have violated the Sixth Amendment.

We--

Unidentified Justice: Well, but the juror didn't sit, of course.

Gary Peterson: --That's correct, but the cost of that to the defense was that it lost one of its nine preemptory challenges.

The only way to keep this juror off was for the defense to use a preemptory challenge of its own.

There was no help coming from the state to correct the error.

Unidentified Justice: Just before we leave the question about the juror, this doesn't come up to us on habeas.

There was no findings.

There were no findings that a particular juror would have been challenged?

Gary Peterson: The defense attorney did not specifically identify any juror that actually sat on the jury whom he would have removed.

He did specifically say that he did not think that the final trial jury was fair and impartial.

Unidentified Justice: But he didn't say that as to any particular juror he would have exercised his last preemptory challenge?

Gary Peterson: He didn't have any preemptory challenges left.

Unidentified Justice: Or that he would have exercised an additional preemptory challenge?

Gary Peterson: He didn't say as a hypothetical matter, if I had more preemptory challenges, I would use it upon Juror X.

Of course, it's part of our argument that even if he had made such a statement, it wouldn't have proved anything because the mistake happened earlier in the jury selection and if the mistake hadn't happened, we could have ended up with a different panel of jurors facing him by the end of jury selection.

So that it just doesn't prove anything and, of course, we're relying on the Gray v. Mississippi case on that issue.

Unidentified Justice: Well, you are going somewhat beyond that, aren't you?

Aren't you saying that if any juror is wrongfully excluded... wrongfully included, calling for a preemptory challenge that you have automatically as a lawyer?

Gary Peterson: Well, I don't think it's necessary to argue that in this case.

Of course, this was a death penalty case, and we would say that in a death penalty case, there should be a very scrupulous adherence to procedures, perhaps more so than in other cases.

Unidentified Justice: Well, suppose the judge just makes an error and seats a juror that he shouldn't, and you use one preemptory challenge extra, automatic reversal?

Gary Peterson: It would depend on whether the state had a rule that required you to use a preemptory challenge in order to correct the judge's error.

If there was no such rule, there would be no problem.

It would just be a tactical question about whether to remove a juror or not use a challenge and then argue on appeal that the juror shouldn't have been seated.

So, I think that the constitutional violation depends on the defendant being forced to use a preemptory challenge to remove somebody, be forced to give up a valuable right as a result of a mistake.

Unidentified Justice: One reads the Oklahoma Code of Criminal Appeals opinion and one gets the impression that that is one of the purposes of preemptories in Oklahoma, is to correct that sort of thing, that this is not a miscarriage of the preemptory system, but it's one of the things you use it for.

Gary Peterson: We disagree.

I mean, the statutes do not say that.

In fact, the statutes, Oklahoma statutes, say the direct opposite thing.

They say preemptory challenges are not to be used until people who are challengeable for cause are removed from the jury.

I think the most you can read into the Oklahoma court decisions is that they have prescribed some kind of procedure for bringing appeals on claims of error based on overruling challenges for cause.

They haven't said that the right of preemptory challenge is extinguished if the judge happens to make an error in a case.

In fact, in this case, they seem to say that the right of preemptory challenge... if the defendant had been able to point to somebody objectionable or in another case, they used the expression unacceptable, that was still on the jury, they would have a grant of relief.

So, I don't think they're saying that you just have to sacrifice your preemptory challenges for the cause of justice in Oklahoma.

I just don't think that's the law in Oklahoma.

Unidentified Justice: Well, are you complaining that you had to use the extra preemptory challenges?

Gary Peterson: We are complaining that we had to effectively waste a preemptory challenge by using it to excuse Juror Huling.

Unidentified Justice: But are you complaining that you had to use all of your preemptory challenges in order to make... bring this appeal?

Gary Peterson: I think that that puts a very big burden on the assertion of the Sixth Amendment right to an impartial jury to have to exercise all of your preemptory challenges and that's one of our arguments on our Sixth Amendment claim, is that the state has prescribed procedures that are so burdensome to enforce the right to an impartial jury, and one of those rights is you have to exhaust all your preemptory challenges even though there may be a tactile reason to save one.

Unidentified Justice: Well, if you had four and you only lost one, and you only had to use one improperly, then you're not hurt if you had three extra ones that you more or less had to burn, shall we say, simply in order to take an appeal.

Gary Peterson: I think if you had--

Unidentified Justice: I don't see where the harm is.

Gary Peterson: --I think if you had a situation where three were left, I think you'd have a pretty good harmless error case.

Of course, in this case, the defense alleges every single one of his preemptory challenges--

Unidentified Justice: But you are saying that you're concerned that he was forced to do this in order to appeal, and I'm saying he either used them properly or he didn't need them.

Gary Peterson: --We don't know why he exercised his preemptory challenges the way he did.

In fact, our statute says he doesn't have to state any reason why he did it.

I think what we're saying is that the procedure does put a burden on the enforcement of the Sixth Amendment right in this case.

Of course, the case that you've posited would be a good case for harmless error.

Oklahoma had a procedural rule, as I've said, that required this defense attorney to remove Mr. Huling from the jury.

If he hadn't done that, he would have been basically saddled with the result of the trial.

He would have had an unappealable, uncorrectible trial in violation of the Sixth Amendment.

He would not have been able to claim on appeal that Mr. Huling should not have sat on the jury.

He really had no choice in this matter.

He had to use the preemptory challenge in order to protect the defendant's constitutional rights to a fair trial under the Sixth Amendment.

Once he used the preemptory challenge on Mr. Huling, he had one less that was available to use on other jurors.

This loss of a preemptory challenge violated the Constitution.

The Oklahoma court agreed that Mr. Huling should have been removed by the trial judge for cause, but they refused to give any remedy for the loss of the preemptory challenge that followed from following Oklahoma's procedure.

In effect, the court said that the loss of the preemptory challenge was a harmless error.

We disagree.

Preemptory challenges are valuable because they change a jury's membership, and a change in jury's membership can lead to a change in the outcome of the case, that could have led to a change in the outcome of this case.

There was conflicting evidence at the trial of this case.

For example, on the question of whether the defendant had the intent to kill.

That was an element of the defense.

There was also conflicting evidence on the sentencing issues.

A different jury could have resolved those conflicts differently.

This was the kind of case where the defense needed all nine of its preemptory challenges and not just eight of them.

My client was black.

He was tried in a virtually all-white community for the murder of a white police officer.

The officer and his family are residents of the area.

My client was not.

The trial judge specifically found that my client's race was an issue in the trial.

The homicide had received extensive pre-trial publicity, so much so that the trial judge granted a change of venue in the case, but he only moved the case to the next adjoining county where virtually all of the jurors that were called for service had read the same pre-trial publicity as in the original county.

It turned out really not to have been very effective at all.

There was a very real danger of prejudice in the community against my client in this case, and there was a corresponding need for the full complement of preemptory challenges, all nine, to remove prejudiced jurors from the jury.

The defense lawyer in this case unsuccessfully asked for extra preemptory challenges before trial.

He used up all the ones he had during trial.

Although he didn't specifically challenge any of the jurors that actually sat on the case for cause, he did say at the end of jury selection that he did not think that the jury was fair and impartial.

That's exactly the situation in which preemptory challenges are most valuable.

When the defense believes the jurors are not impartial and believes they are biased, but he doesn't have the proof that's needed to establish a challenge for cause.

Unidentified Justice: Well, he also said that he couldn't get a fair jury in that locale anyway, hadn't he?

Gary Peterson: That's what he said in his change of venue motion.

Unidentified Justice: Right.

So, I mean, there's no reason to attribute that statement to the fact that... to this one juror.

He didn't think he could get a fair jury in this locale no matter how many preemptories he had been given.

Gary Peterson: Well, let me back up.

He said he couldn't get a fair jury trial in Beckham County, which is where the case was originally held.

He also said that he didn't want the venue moved to Roger Mills County.

I'm not sure he ever said one way or the other whether he could or couldn't get a fair trial in Roger Mills County.

It's clear that he didn't want the case tried there, though.

That was where it ended up, though.

Preemptory challenges are especially important on the question of punishment in Oklahoma.

If even one juror becomes committed to a life sentence during the penalty trial in a death penalty case, the judge has to discharge the jury and return a life sentence in the case.

So, a change of even one juror brought about by a preemptory challenge can change the outcome of a penalty trial in Oklahoma from death to life and, of course, that one juror could lead the jury to a different outcome on the guilt phase of the trial as well.

Unidentified Justice: So, you're saying that any time a preemptory challenge is improperly required of the attorney, because of for cause challenges, improperly-denied, automatic reversal?

Gary Peterson: If the defense, as in this case, has used up all of its preemptory challenges, has asked for more, has expressed a need for every single preemptory challenge that they get and they don't get the full number, as a result of an error by a government official, in a death penalty case, in particular, yes, I think that that would be grounds for automatic reversal.

While a change of even one juror could have been critical, it's important to note that one preemptory challenge could have made more difference than just one juror on the final jury.

When the judge made his mistake in this case, the parties between them had a total of eight preemptory challenges left and only eight of the actual trial jurors had been seated at that point.

It's conceivable that if the judge had ruled differently on the challenge for cause, the parties could have been motivated to exercise their preemptories differently in response.

That's the teaching of Gray v. Mississippi.

It's conceivable that the parties could have used their eight remaining challenges to remove the eight actual jurors from the jury and it could have resulted in a completely different jury panel by the end of the trial.

Under the circumstances of this case, the loss of a preemptory challenge was a serious loss.

It was one of constitutional dimension.

The right to preemptory challenge is, of course, a state-created right, but it's nonetheless an important one.

The Court has called it in its own decisions one of the most important rights secured to the accused.

It has six and a half centuries of history behind it.

It's recognized in every single state and federal jurisdiction as an essential part of jury trial.

When a preemptory challenge is taken away, as here, it's a significant loss.

It's like the loss of another kind of state-created right that the Court considered in Evvits v. Lucey, rights to an appeal.

Even though it's created by the state, an appeal can't be taken away after it's given without denying due process of law.

The loss of a preemptory challenge is the same kind of grievous loss that brings the due process clause into play.

The decision of this Court that comes closest to the situation here is Hicks v. Oklahoma.

That case involved another state-created right, the right to jury sentencing.

The defendant in the Hicks case had a right under state law, not under the Constitution, to be sentenced by a jury.

Although there's no constitutional right to be sentenced by a jury, the Court still held the denial of the state-created right to jury sentencing denied due process of law.

The right to jury sentencing in Hicks was important because the jury could return a different sentence than a judge could return.

The right to preemptory challenge is important because one jury can return a different verdict than another jury, and a preemptory challenge is the tool, is the instrument that brings about a change of one jury into a different jury.

The right to preemptory challenge should be treated in the same way as the right to jury sentencing in Hicks.

If it's taken away by mistake, by a government official, then there has been a serious deprivation, a denial of due process of law.

Unidentified Justice: I presume the same thing would be true if the judge wrongfully excuses somebody for cause as opposed to wrongfully not excusing for cause.

I mean, you really have to make every call right or you would have affected the jury panel, and if getting a jury, a different jury panel, although a jury panel that is found to be fully fair,... you have no constitutional claim this wasn't a fair panel, right?

Gary Peterson: We don't know whether it was fair or not.

All we know is that a defense lawyer didn't think it was fair because that's what he said.

Unidentified Justice: Well, if you could bring a constitutional claim that it was not fair, that there was someone there who had a bias, who should have been excused for cause, you'd have a different case, wouldn't you?

Gary Peterson: We don't have the proof that this Court would require.

Unidentified Justice: Yon don't have that case.

So, we have to assume it was a fair jury.

You're saying any mistake that alters the composition of the jury, but you alter the composition of a jury if you excuse somebody for cause erroneously.

Right?

Gary Peterson: I disagree.

The right... you don't have any right to have people... there's no corresponding right... there's no inverse preemptory challenge.

There's no right to have people that you want to have on the jury on the jury.

There is no right personal the defendant can assert.

Since there's been no invasion of a right, the defendant has a right to insist that somebody stay on the jury.

I don't think that an erroneous ruling on excluding a person from a jury, unless it offended Witherspoon or some of these other cases, would create a constitutional problem under the due process clause.

Unidentified Justice: Well, it seems to me the notion you've been urging, that somehow there has to be one expected jury and if you don't get that, even though there's no reason to think it was an unfair jury, you've been deprived of something of significance, is simply not consonant with that notion.

There are a lot of different juries you might have gotten.

Gary Peterson: The whole purpose of a preemptory challenge is for the defense to remove people that it thinks are bias from the jury when it doesn't have the proof to sustain a challenge for cause.

The fact that we don't have the proof I don't think really answers the question of whether it was important or not to deny a preemptory challenge.

Here, the defense lawyer wanted preemptory challenges.

There was a background of prejudice, potential prejudice, against my client in the community.

He used up every one he had.

He asked for more and couldn't get them.

I think it was a serious loss in this case, and the cases that you perhaps hypothesize wouldn't create the same situation.

Unidentified Justice: Why do you say that there's no right to not have a juror excused for cause?

Do you think that... don't you have a right to a panel fairly selected from the veneer that shows up?

Gary Peterson: I know of no right in the Constitution or any statute in Oklahoma that says that--

Unidentified Justice: You think a judge can shave it down.

I bet you you'd be up here in another case if the judge just arbitrarily dismissed nine of the veniremen just because he didn't like them.

Gary Peterson: --There's no statute in Oklahoma that gives the defendant the right to insist that somebody stay on the jury.

There has been no violation of any state-created right that would create a due process clause problem.

The state here really has two arguments why the due process clause was violated.

One is that you're not really entitled to nine preemptory challenges under Oklahoma law.

You're really only entitled to nine preemptory challenges less however many mistakes a judge makes in the case.

If you have a real top-notch trial judge that rules right on challenges for cause, you're entitled to nine.

If you have maybe a more mistaken-prone trial judge, you're entitled to eight or six or zero or whatever the judge decides to give you.

Unidentified Justice: Well, a lot of cause challenges are pretty close calls, aren't they?

Gary Peterson: They can be.

Unidentified Justice: And in your... still under your view, any error for cause challenge requires reversal?

Gary Peterson: Certainly in--

Unidentified Justice: Where a preemptory challenge is used.

Gary Peterson: --In a death case, if the state has a rule requiring the defense to use preemptory challenges to correct the trial judge's error, and if the defense has manifested in some way that they need the preemptory challenge, if it's clear that it's not a harmless error, yes, in that case, there should be an automatic reversal.

There's been a loss of a very serious right in that situation, and there's no way to say it's harmless.

The problem with the state's argument about the defendant really isn't entitled to nine preemptory challenges is unsupported by our statutes.

The statutes just do not say that.

They say the defendant is entitled to nine and they don't put any conditions on it.

The case law doesn't say that the right to preemptory challenge is extinguished by a trial judge's error either.

In fact, in this case, they said that the defendant's... they certainly didn't say it in this case.

In fact, they seem to suggest if the defendant had followed a little different procedure, one that we say has no meaning under Gray v. Mississippi, they would have granted the reversal in this case.

So, the defense doesn't have to sacrifice its preemptory challenges in order to correct the trial judge's error.

The state is wrong when it says that you're entitled to something less than nine preemptory challenges under Oklahoma law.

The state's other argument is that even if the defendant is entitled to nine preemptory challenges, a trial with eight preemptory challenges doesn't deny what they call fundamental fairness.

The state hasn't been too clear on what... how you judge what is or isn't fundamentally fair.

Certainly it doesn't seem fair for my client to be getting eight preemptory challenges in his case while other first degree murder defendants in Oklahoma are getting nine.

Presumably, the statutes of Oklahoma are some evidence of what the people of Oklahoma speaking through their legislature regard as fundamentally fair, and those statutes say that the fair number is nine, not eight.

Unidentified Justice: Did the state use its nine?

Gary Peterson: They used five and waived four.

Unidentified Justice: So, then, it used five and you had eight.

Gary Peterson: Effectively, yes.

Unidentified Justice: Without including the one you had to use improperly.

Gary Peterson: Effectively, yes.

Of course, the state had the opportunity to use all nine and that may have influenced how the defense used theirs.

But instead of focusing on fundamental fairness, a more appropriate inquiry, we submit, is whether the defendant received the process that he was due under the law.

Since that's what the Fourteenth Amendment says, this Court has said that the law in due process of law includes state law.

Just like the law in this case, that require nine preemptory challenges.

The defendant was due nine preemptory challenges under Oklahoma's law.

He only received eight of them.

If he is imprisoned and executed as a result of a trial which he receives only nine... eight of his nine challenges, the state has deprived him of his life and his liberty without due process of law and that violates the Fourteenth Amendment.

On the question of harmless error, Chapman v. California says that proving a constitutional error is harmless as the burden that's on the beneficiary there, which is the state in this case.

It also says that the burden is proof beyond a reasonable doubt.

We don't have any burden of proof on this issue, but the record gives every indication that the error was, in fact, a harmful one and not a harmless one.

To establish harmless error, there's no dispute that if the defendant had had another preemptory challenge, he could have used it to alter the membership of the jury.

To establish harmless error in this kind of situation, they would either have to show one of two things.

One, that a different jury would have decided the case in the same way, or, two, that even if the defendant had had the full use of all nine of his preemptory challenges, he wouldn't have used them in a way that would have changed the jury's membership.

It would be impossible for the state to establish either of those propositions in this case beyond a reasonable doubt.

On the question of whether a different jury would have decided the case in the same way, this Court's harmless error decisions in jury selection cases going back a hundred years have never tried to go back and figure out what a different jury would have done in a case, but for a constitutional error in jury selection.

It would be unprecedented for the Court to start doing that now.

But even if it did, the evidence in this case was in conflict.

For example, on the question of intent to kill.

A different jury could have reached a different result.

On the question of whether additional preemptories would have been used, if it had been available by the defense attorney, the record shows that he asked for additional preemptories before trial and was denied them.

He used up all the preemptories he had during trial.

In view of the fact he told the trial judge that he was dissatisfied with the twelve actually-impanelled juries, there was every reason to believe that if he had had the full use of his nine preemptory challenges, he would have used the one that had to be used on Mr. Huling against another juror and by doing that, he would have changed the jury's membership.

There were only two things that he didn't do.

He didn't ask for more preemptory challenges after the judge made his mistake.

That would have been futile.

Under Oklahoma law, the judge couldn't increase the number of preemptory challenges for the party.

The other thing he didn't do was to say as a hypothetical question that he would have exercised a challenge if he had another one available against some juror that actually sat on the panel.

But that's the same kind of statement by counsel that the Court considered in Gray v. Mississippi, and the Court said in that case that it had no probative value as to whether an error was harmful or harmless.

The error in this case occurred in the sixth round.

That was when the judge made his mistake.

If the judge had ruled differently in the sixth round, there could have been an entirely different panel by the time the ninth round came around.

So, what counsel did or didn't say about the panel that was left after the ninth round doesn't prove one way or the other what would or wouldn't have happened if the judge hadn't made his mistake in the sixth round.

The state cannot prove beyond a reasonable doubt that the constitutional error in this case was harmless.

We ask that the judgement of the Court of Criminal Appeals of Oklahoma be reversed, and I would reserve the balance of my time for rebuttal.

Chief Justice William H. Rehnquist: Thank you, Mr. Peterson.

We'll hear now from you, Mr. Nance.

ORAL ARGUMENT OF ROBERT A. NANCY, ESQ. ON BEHALF OF THE RESPONDENT

Mr. Nance: Mr. Chief Justice, and may it please the Court:

There are three issues presented in this case, and I believe there are three that are not.

The first is whether the circumstances of the removal of potential Juror Huling from the panel by a preemptory challenge rather than by a challenge for cause deprived the Petitioner of his Sixth Amendment right to a fair and impartial jury.

The second issue that is presented is whether the circumstances of the removal of that potential juror deprived the Petitioner of life or liberty without due process of law.

The third question as presented by the Petitioner is if there was a constitutional violation, is that violation harmless beyond a reasonable doubt.

The three issues that I think are not present in this case are that this is not a Witherspoon death-prone jury case.

This is not a Batson improper-racial exclusion case.

And this is not a case in which there is any demonstrable, articulatable bias or prejudice on the jury that actually sat.

As I think is agreed here, trial counsel accepted for cause each and every juror who sat and made no objection to those jurors, but only complained that there were no blacks on the jury and that the Petitioner was, therefore, denied a fair trial by a jury of his peers.

I'd like very briefly to summarize why I believe that the circumstances of this case present no constitutional error, and why this Court should affirm the judgment of the Court of Criminal Appeals.

This Court has stated, and I think it appears conceded here, that preemptory challenges in this sort of case are creatures of state law rather than creatures of constitutional law.

Some members of this Court over the years have sought the complete abolition of preemptory challenges in criminal cases.

The Sixth Amendment to the Constitution requires a fair trial before an impartial and differently-chosen jury and there is no argument whatsoever that the Petitioner in this case did not receive such a trial.

There is no allegation here that the judge's error with regard to Juror Huling or potential Juror Huling affected the impartiality of the jury that actually sat.

We believe the Oklahoma statutes in this case do not create a substantial and legitimate expectation of influence, direct influence over the deprivation of life or liberty and, therefore, preemptory challenges as a state right are not constitutionalized by the due process clause.

The longstanding Oklahoma law which requires the use of a preemptory challenge to correct a trial judge's error on a challenge for cause is a reasonable and legitimate state rule which benefits both the petitioner or the criminal defendant and the state.

The error in this case, as we see it, did not affect a specific constitutional right and, therefore, we are bound by the narrow due process formula of fundamental fairness and that there was nothing about the procedures in the trial court that was fundamentally unfair.

The trial was fair.

Guilt was reliably established beyond a reasonable doubt, and the Petitioner had competent trial counsel.

Unidentified Justice: You keep emphasizing the trial was fair.

Was the refusal to exclude that juror because of his statement, was that fair?

I'm using your word, fair.

Mr. Nance: It was an error, Your Honor.

So, I would say that it was not fair.

Unidentified Justice: Does an error keep a trial from being fair?

Mr. Nance: An error may or may not affect the fairness of the whole trial.

I think the trial judge was wrong, but there were inconsistent statements by the particular juror.

On two occasions, he said that he would not consider anything but death.

Unidentified Justice: He never explained his reasons.

Mr. Nance: He never did, Your Honor.

That's correct.

Unidentified Justice: So, how can I assume that you say what he said when he didn't say it?

Mr. Nance: Well, I don't guess you could assume that I speak for the judge.

Unidentified Justice: I can't accept your reading of his mind.

Mr. Nance: I don't... I wouldn't pass myself off as reading his mind.

I could talk about what's in the record.

He said twice that he would only impose death, but he told the prosecutor once and the defense lawyer once that he would consider a life sentence.

So, he basically kind of said I'll go this way and I think the trial judge was wrong, but he wasn't flagrantly wrong or flagrantly unconstitutional.

I wouldn't say that.

I think as Justice O'Connor stated, in our view, at the end of it, there was no error because of the availability of a preemptory challenge, and in any event, as the Court has said and as has been conceded, preemptory challenges aren't constitutionally required.

In some of the earlier cases,--

Unidentified Justice: Well, does any state give more preemptory challenges to the prosecution than to the defense?

Mr. Nance: --I frankly don't know, Your Honor.

I'm not aware of any.

Unidentified Justice: I believe some states give more to the defense than to the prosecution.

Mr. Nance: That wouldn't surprise me, but I'm not aware of any state where the converse happens.

Unidentified Justice: Well, suppose a state gave the prosecution twice as many preemptories as to the defense, violation there?

Constitutional problem?

Mr. Nance: I think there very well could be because that would be, at least in my mind, fundamentally unfair.

Unless there was a question in the first argument about empirical evidence that showed jurors leaned to the defense and you had to rebalance it.

In the absence of something very good along those lines, I'd say that would make things unfair.

I need to take issue, I think, with--

Unidentified Justice: So, a misallocation or a disproportionate grant of preemptory challenges can give rise to a constitutional problem, then it's just a question of degree, correct?

Mr. Nance: --I think so.

I think that's correct.

Unidentified Justice: And here you say that one more preemptory challenge does not rise to the degree of the constitutional violation?

Mr. Nance: That's true.

That's precisely what we say.

I need to take issue, if I may, with the argument that the Petitioner only got eight and the state got nine.

The Oklahoma law and the cases cited by the Petitioner and in the Farrell case, which was an Oklahoma case, relied upon by the Court of Criminal Appeals in this opinion, and I think in the Stock case, which I mentioned in the first argument, has long required the use of preemptory challenges to correct an error of this sort.

So, to say what the law in Oklahoma requires based on the statute and ignoring the case law doesn't fully characterize and fairly characterize what the law is.

The Petitioner had a legitimate expectation to nine preemptories, and he got them and used every one.

One of them he used to correct what I concede was an error, but that is consistent with the Oklahoma scheme of things and he didn't lose anything that had been granted him thereby nor was there a different rule really imposed in this case than there would be in any other criminal case in Oklahoma in which something similar happened.

The Court has said that nothing in the Constitution requires the grant of preemptories, but the trial by impartial jury is what is required.

So, I turn my emphasis to looking at whether or not the trial was impartial.

In Lockhart, this Court said that the Constitution presupposes a jury selected from a fair cross section of the community is impartial, regardless of the mix of individual viewpoints on that jury, so long as the jurors can conscientiously and properly carry out their sworn duty under the law, and the facts of a particular case.

There is no argument whatsoever in this case that the jury that sat in Mr. Ross' trial did not meet that standard.

There was a potential Witherspoon problem had Mr. Huling been seated, but the use of the preemptory challenge was a self-correcting mechanism that took care of that problem.

There is no evidence in the record that the trial counsel wanted or needed additional preemptory challenges, and that's significant.

I think we can get into trouble if we try to adhere too closely to Gray.

If the trial lawyer had had a problem, had had a real problem with that jury, he could have spoken up and should have spoken up and tried to get the judge to give him a preemptory back or articulate that problem that he was trying to remove.

That would have shown, whether he was successful or not, that would have shown the possibility of some problem with that jury, which simply is not there.

He didn't ask for additional preemptories after the mistake was made.

He didn't argue that he had been improperly deprived of a preemptory or that the ruling on the challenge for cause was wrong.

He only complained, as I said before, that there were no blacks on the jury and he didn't think his client could get a fair trial by a jury of his peers.

That jury that was seated was indifferently chosen and was accepted by that lawyer as a jury in which there was no one who was challengeable for cause.

No one biased or prejudiced on that jury.

Unidentified Justice: Where was the trial?

What city was it in?

Mr. Nance: It was in Cheyenne, Your Honor, which is in Roger Mills County.

Unidentified Justice: I know where that is.

Mr. Nance: It's in far western Oklahoma.

It abuts the Texas Panhandle.

There was no allegation at trial and there's really no allegation even now that there was any specific problem of bias or prejudice with any specific juror on that jury.

If there were, either the Court of Criminal Appeals or this Court could address that problem.

Instead, we want basically or the Petitioner wants basically in this case a rule of reversal without showing of prejudice, and I think Justice Kennedy's question is apropos.

You would have a rule of automatic reversal every time there had been an erroneous ruling on a challenge for cause that required you to use a preemptory.

Unidentified Justice: Of course, in fairness, Gray v. Mississippi points in that direction.

I recognize you can distinguish it factually, but isn't the teaching of that case that we're just not going to speculate about what another jury would have been like?

Mr. Nance: It does, Your Honor.

It does point in that direction and that, of course, is one part of the Gray opinion I like and would like the Court not to speculate about the jury that might have been impanelled, but to look at the fairness of this jury because there simply isn't any complaint that can be made about it.

Unidentified Justice: One way where this case differs from Gray, does it not, in Gray, there was a juror seated who was subject to challenge?

Mr. Nance: Well, as I recall Gray, there was a woman excluded who should have been seated under Witherspoon and went out on a challenge for cause.

So, there was a Witherspoon, if I'm remembering Gray correctly, there was a Witherspoon error in Gray, and under those circumstances, circumstances which aren't present here, the Court said it would not speculate on what the jury might--

Unidentified Justice: In Gray, a woman was excluded.

A juror was excluded who should have been included.

Mr. Nance: --That's correct.

Unidentified Justice: Here, there was a juror who was excluded who should have been excluded, but under the wrong challenge.

Mr. Nance: That's correct.

I would agree Mr. Huling should not have sat and ultimately, of course, didn't sit.

Unidentified Justice: And a juror included who might not have been included.

Mr. Nance: That is also correct, although--

Unidentified Justice: And some other juror excluded who might not have been excluded.

Mr. Nance: --If you say so, Your Honor.

I'm not sure I follow.

But, in any event, I assume all of the jurors or potential jurors we're talking about are fair jurors, and you're talking about the substitution of one fair juror for another.

I don't think that anywhere in the scheme of things there was one right jury for this case, and it was just a matter of--

Unidentified Justice: No, but isn't it true that that argument would apply no matter how great the disproportion between the number of preemptories to the defense and the number for the prosecution?

You could always make that argument, it seems to me, if you can't prove anything wrong with anybody who actually sat.

Mr. Nance: --Well, you could make the argument, Your Honor.

I'm not sure that it would be persuasive, and I think it probably would be fundamentally unfair.

Unidentified Justice: If it's not persuasive in that case, why is it persuasive in this one?

Mr. Nance: Well, if, on the one hand, for instance, you're permitting the state just to keep excluding until it's perfectly happy,--

Unidentified Justice: Well, no.

Say they had nine preemptories and the defense has none.

Then, maybe they got a fair jury.

It's perfectly possible.

You can have a fair jury if you just took them out of the hat by random.

I often think that would be better than having all these complex procedures we have, to tell you the truth.

But the question really is, is it fair to tilt the scales just a little bit.

Nine to eight isn't very serious, but why is it different in terms of what you can actually prove than if it was fourteen to seven?

You never know what's in a juror's mind.

You presume they're all doing their best.

Mr. Nance: --Well, that is correct, Your Honor, and I suppose there comes a time when a difference of degree becomes a difference in kind, and--

Unidentified Justice: It's clear that there's a difference in kind between nine versus eight and eight versus eight.

It's a difference in degree when it's eight versus nine instead of eight versus ten or eight versus eleven or eight versus twelve because one is equal, the other it is unequal.

Mr. Nance: --Well, I guess I have to differ with the idea that it was unequal in this case.

But accepting that, eight to nine isn't very serious.

That's... I couldn't have said that any better.

Unidentified Justice: And you would say that they're not unequal because what each side got was nine preemptories with the understanding that they might have to use a certain number of them to exclude jurors who were wrongfully seated.

Mr. Nance: Just so, Your Honor.

That--

Unidentified Justice: And the state got the same number on that assumption.

Mr. Nance: --Correct.

Unidentified Justice: The state was lucky enough in this trial not to have to use one of them to exclude a jury that was wrongfully seated, but all it got was nine minus whatever it would have to use.

Mr. Nance: And it could have happened the other way, that there might have been a juror who should have come off under Witherspoon and didn't.

Unidentified Justice: Don't you agree that if the judge had said at the beginning of the trial or some place during the trial that the defendant shall have eight challenges and the prosecution shall have nine, that that would be error?

Mr. Nance: It would, indeed, be error.

Unidentified Justice: That would be error.

Mr. Nance: Yes, sir.

Unidentified Justice: What's the difference between that case and this one?

Mr. Nance: The difference between that case and this one is that in this case, the judge acting as a judge simply made a mistake.

In that case, where the law guarantees both sides nine, he just says--

Unidentified Justice: Suppose in the first one, he made a mistake.

Mr. Nance: --Well, it was just a mistake of law or whatever that--

Unidentified Justice: Mistake in what you said.

I'm using your words.

Mr. Nance: --Well, it would clearly be erroneous, and it probably would be--

Unidentified Justice: Error?

Mr. Nance: --It would be error.

It would definitely be error.

Unidentified Justice: It would be error?

Mr. Nance: Yes, but before I get into--

Unidentified Justice: Well, if it's error, it's error here.

Mr. Nance: --Well, Your Honor, it would clearly be an error of the common law of preemptory challenges or the statutory law of preemptory challenges in Oklahoma.

I don't know and I'm not really willing to concede that it would make the trial fundamentally unfair, which I think would be the more narrow ground that this Court would look at it on.

Unidentified Justice: To use Justice Scalia's example, we start out each gets nine and they just have to use them to correct judge's errors, so that's equal.

It just happens the judge makes nine rather obvious, I don't want to use the word flagrant, but clear errors that benefit the prosecution, so all nine of one side have to be used and the other nine aren't, is it still equal?

Mr. Nance: I think not there, Your Honor, and--

Unidentified Justice: So, you don't really look at the way it starts out because it's true, as they started out, they all had nine and they all were subject to the problem they might have to use them to correct judge's errors, but you sort of lose the equality if the judge's errors got in one direction and not the other.

Mr. Nance: --And then you have a serious suspicion of a biased judge or whatever.

Unidentified Justice: We don't have to presume bias.

Mistakes just happen to tilt the scales in that particular way.

I would assume the judge acted in good faith.

Mr. Nance: Well, yes, and that's the point of the difference in degree becoming a difference in kind.

You'd have what at eight and nine may not look very serious, begins to look very serious, indeed, if it went all the way.

If I could, I'd like to turn for a moment to the due process argument.

Unlike Hicks v. Oklahoma, the law in preemptory challenges in this case does not create a substantial and legitimate expectation of direct influence from the deprivation of life or liberty.

In Hicks, this Court said that the Fourteenth Amendment protected the Oklahoma provisions for jury sentencing because the jury directly fixed the terms of the fundamental deprivation of liberty.

I don't read anything in Hicks to say that the Fourteenth Amendment constitutionalizes every trial procedure or provision of state law for criminal trials.

The Petitioner, I think, in this case, had a substantial and a legitimate expectation to nine preemptories with the traditional caveat of Oklahoma law that if the judge erred on a challenge for cause, you had to use a preemptory to correct that in the first instance.

He, of course, received his nine and used them in one case to remove Juror Huling.

I think the use of preemptory challenges is too tangential to the final verdict and sentencing to give a substantial and legitimate expectation of influence over the verdict or deprivation of life or liberty because, of course, there's been no evidence taken, no argument made, no instruction by the Court, no deliberation by the jury.

It's one of the earliest things that happens in a trial, and one error in that case with the law of preemptory challenges, I think, is just too attenuating.

The Petitioner in the brief also relies on the Logan v. Zimmerman Brush case and makes the argument, which has been advanced here, that there's an Oklahoma procedure that deprives him of his right to preemptories.

I think that is based upon the false premise that preemptories have to be in Oklahoma completely free and clear of any interference.

As we discussed before, both sides have, there is a state procedure that requires their use to correct errors.

The Petitioner cited some cases.

The Court of Criminal Appeals relied on the Farrell case.

I cited Stock, I think, in the first argument, but unlike the irrational state procedure which in Logan deprived the plaintiff of his right to a cause of action, this rule is a reasonable rule.

Unidentified Justice: But, General Nance, isn't the reason for the rule... correct me if I'm wrong on this... is that the state wants to be sure that the defendant is not taking advantage of an objection that he really wasn't sincere about, that they really wanted to be sure that juror didn't sit, and, so, they insisted that if they want to rely on the error as a ground for reversal, that they actually have exercised a preemptory to make sure it wasn't just an objection that sort of pro forma to something they really didn't care about?

It seems to me that would make a very sensible rule, and it wouldn't create any problem at all as long as there are plenty of preemptories to go around.

The only problem that's created is when it does have this unusual effect, having one side having more than the other.

See, if you had unlimited preemptories, then you would certainly insist on that, then the rule would solve the problem of the sort of phony objection by the trial court.

Mr. Nance: Well, I think the purpose for the rule is to remove error in the first instance, to remove it when it can be addressed by the trial court, much like making you object to improper evidence.

Once it's in, it's in.

So, you have to make a timely objection and apprise the court of why you think this evidence shouldn't come in or a confession or whatever it is.

And that point is legitimate.

I suppose there could be an element of worrying about the defense just challenging everyone for cause and trying to build error.

I think the main thing is to require the defense to correct that error when it's correctable, not try the case and go up on appeal and have to do it again, and that's legitimate.

If, in fact, there is a biased juror or a biased potential juror, to make the defense take him off, and the equality of it is in the other case, as in Gray, I guess, if there was someone who just said adamantly they would never consider the death penalty, and there is a challenge for cause made and not sustained, then the prosecution has to take them off.

The circumstances of that rule could go either way in individual cases, but the rule is the same either way, and the law, of course, benefits the state by making those trials which really ought to be socially significant events as error-free as possible and, therefore, our rule is not the irrational sort of rule the Court condemned in Logan.

On the harmless error question, I think it is clear and I don't hear any argument to the contrary that the error in this case did not affect the truth-seeking function of the jury.

I don't hear any evidence... I hear hints, but I don't hear any serious argument that the error in this trial did not affect any of the non-truth-seeking constitutional values that the court would be interested in, like having racial bias.

In Batson, a racially-biased jury may or may not be fair to the defendant, but there are independent constitutional grounds in the Fourteenth Amendment, equal protection clause, that just say we're not going to permit it.

Whether that jury is in any given case fair or not, we won't permit racial discrimination.

There's no argument in this case that there was any error in that sort of constitutional value, and unlike in Gray, there was no tribunal impanelled to return a verdict of death, and, so, I think the Petitioner's suggested rule that anything that would change the composition of the jury really doesn't apply because it kind of takes that part of Gray out of context.

In Gray, there had been a Witherspoon violation.

Here, there has not been.

There's been some suggestion now that there was evidence in dispute, particularly about the intent to kill.

I think not.

The evidence in this case was that the Petitioner shot a police officer in the head with a 25 calibre pistol at close range three times.

I just cannot see any conceivable circumstances in the fact when a man who does that doesn't intend to kill.

The evidence was that as he left the robbery of a motel, the police officer drove up, he shot the police officer, was arrested in a nearby town half an hour away, half an hour later.

The murder weapon when he was patted down was found in his pocket.

The officer's service revolver was found next to the seat where he was sitting.

The booty from the robbery was in his car.

His foot print matched the foot print at the scene.

He was identified as one of the robbers, and after being Mirandized, he confessed.

There is simply no question about the evidence of this man's guilt.

In the sentencing proceeding, the jury found five aggravating circumstances.

This Court has stated that when a person is tried to an impartial jury and has counsel, you can strongly presume that any other error is harmless.

Counsel suggests that harmless error in jury selection just doesn't work and it would be unprecedented.

I, of course, don't want you to find any constitutional error, but I can explain why I think harmless error would apply in this case.

That is, because your usual jury selection error occurs because there is some sort of bias that has happened to that jury.

Whether it's racial bias or it's bias because of pre-trial publicity or there's bias because people in the jury know the defendant and think he's a rascal or whatever, there is some bias on that jury, and under the harmless error doctrine, you assume there's been an impartial decision-maker or the other kind of jury error is a non-fact-finding/non-biased prejudice-kind of error that's, for instance, based on a race, that the court just says and rightly so won't be tolerated.

This Court has previously stated that it should affirm where a finding of guilt is made beyond a reasonable doubt and that everyone is entitled to a fair trial but not a perfect one.

The central purpose of the criminal trial is the factual determination of guilt, and it was determined beyond a reasonable doubt unquestionably in this case.

The Court has stated that it shouldn't reverse for inconsequential errors because that encourages litigants to abuse the judicial process and the public to ridicule it.

That would be the precise result here.

If there were an initial preliminary error in the jury selection in an otherwise fair trial in which the defendant is clearly guilty, the public would be dumbfounded, I must submit, and would only be caused to disrespect the judicial process.

Any error, if it was constitutional, and we think it was not, is harmless beyond a reasonable doubt.

It didn't affect or abort the trial process.

Therefore, for those reasons, we respectfully ask the Court to affirm the judgment of the Court of Criminal Appeals.

If you have no further questions, that concludes my presentation.

Chief Justice William H. Rehnquist: Thank you, Mr. Nance.

Mr. Peterson, you have three minutes remaining.

ORAL ARGUMENT OF GARY PETERSON, ESQ. ON BEHALF OF THE PETITIONER -- REBUTTAL

Gary Peterson: What the state says, in essence, is that the right to preemptory challenge in Oklahoma is conditioned by the state's right to arbitrarily take those challenges away as a result of mistakes.

Even if that were the rule, it wouldn't be consistent with the due process clause of the Fourteenth Amendment.

The state may not have to give these challenges in the first place, but once it does, it can't just take them away as a result of mistakes by government officials.

It has to comply with the due process clause.

Unidentified Justice: It depends upon what you regard the state as having given.

I mean, why can't you regard the state as having said, look, it's often a close call whether a juror should be seated or not, and we don't want to ruin the trials with that, so we're going to give you many more preemptory challenges than we think you need.

But the deal is you get nine but both sides, we're treating you equally, you both have to understand you have to use these when you think the judge has made a mistake in seating a juror.

Why is that unfair?

Why is it unequal?

Gary Peterson: They don't have to give the right in the first place, but when they do, I think it's just a constraint of the Fourteenth Amendment.

It's like the right of appeal.

You may not need it in eighty percent of the cases, but if they just take it away arbitrarily, as a mistake, it's still a serious loss.

Unidentified Justice: The state is subject to the same rules.

If it wants to get a juror off the panel the judge seated, they have to exercise it.

Maybe... what if the state has exercised the preemptory to get such a juror off in this case, would you be here?

Gary Peterson: No.

The state doesn't have to give these preemptory challenges, but once it does, it has to not take them away as a result of mistakes and when it does, it's violated the due process clause.

Unidentified Justice: My question again.

The defendant in this case exercised the preemptory challenge to get off a wrongfully-seated juror, is that right?

Gary Peterson: Correct.

Unidentified Justice: Now, what if in the same case, the state had had to do the same thing, would you be here?

Gary Peterson: If the state had had to remove the juror in this case?

Unidentified Justice: No, no.

Just another juror.

Gary Peterson: Oh, I see.

Unidentified Justice: They both started out with nine and they both ended up with eight, according to you.

Gary Peterson: Well, the due process clause doesn't protect the state, it protects individuals.

Unidentified Justice: Well, I still ask you.

Would you be here?

Gary Peterson: No.

Unidentified Justice: The state says we're going to give preemptories only for the purpose of challenging people who you think were seated improperly, can't be used for any other purpose, it can only be used where you believe the juror was improperly allowed on in the face of a for cause challenge, would that be okay?

Gary Peterson: I think if they defined that rule in advance to where the defense knows about it before the trial begins, and it's fair to both sides, then that would be a legitimate limitation.

Unidentified Justice: But this Oklahoma case law was in effect at the time this case was tried.

It was clear under Oklahoma law that that's the deal.

You get nine and you use... both sides use as many of them as you need to remedy the errors.

Gary Peterson: You didn't know when the jury selection began whether the judge was going to make a mistake or not, and I think that's the difference.

You can't know how to exercise your preemptory challenges correctly and effectively unless you know whether the judge is going to make a mistake.

He isn't going to come in and say, counsel, I'm going to make three mistakes during this jury selection and you can plan out your strategies accordingly.

That didn't happen and because it didn't, the defense couldn't use its preemptories effectively and it did violate the due process clause.

Chief Justice William H. Rehnquist: Thank you.

Thank you, Mr. Peterson.

The case is submitted.