310
Opinion of the Court
challenge forced Martinez-Salazar to use a peremptory challenge curatively, thereby impairing his right to the full complement of peremptory challenges to which federal law entitled him. Such an error, the Court of Appeals held, requires automatic reversal. Id., at 659.
Judge Rymer dissented in part. She observed that nothing in the text of Rule 24(b) suggests that the exercise of peremptory challenges is impaired if the defendant uses a challenge to remove a juror who should have been excused for cause. Id., at 659-660. Martinez-Salazar, she emphasized, never asserted in the District Court that he wished to strike some other juror with the peremptory challenge he used to remove Gilbert, nor did he question the impartiality of the jury as finally composed. Id., at 660. Assuming, arguendo, that there was a violation of Rule 24(b), Judge Rymer "would not engraft [onto the Due Process Clause] a common law remedy of per se reversal for a Rule violation." Id., at 661. The court's decision "[c]onstitutionalizing the impairment of peremptory challenges," she underscored, ran counter to this Court's decision in Ross and was hardly "in-consequential" in view of the reality that "[t]rial courts, state and federal, rule on cause challenges by the minute." Id., at 659, 661.
The Courts of Appeals have divided on the question whether a defendant's peremptory challenge right is impaired when he peremptorily challenges a potential juror whom the district court erroneously refused to excuse for cause, and the defendant thereafter exhausts his peremptory challenges. The First and Fifth Circuits have indicated agreement with the Ninth Circuit that this circumstance constitutes an abridgment of the right to exercise peremptory challenges. See United States v. Cambara, 902 F. 2d 144, 147-148 (CA1 1990); United States v. Hall, 152 F. 3d 381, 408 (CA5 1998). The Tenth and Eleventh Circuits, on the other hand, have found in this situation no impairment of the right to peremptory challenges. See United States v. Brooks, 161
Page: Index Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 NextLast modified: October 4, 2007