United States v. Richard Annigoni

KOZINSKI, Circuit Judge,

dissenting.

I agree with much in Judge Hawkins’s opinion and wish very much I could join it. In particular, I could not have expressed more clearly or eloquently the value of the peremptory challenge as a tool for ensuring not only that jurors be impartial, but that they appear so to the parties whose fates and fortunes they determine. I join Judge Leavy’s dissent because it reflects more accurately the Supreme Court’s teaching, and because I fear that the majority’s ruling will undermine the viability of peremptory challenges. I elaborate briefly on these points.

1. What makes this case difficult for me is that the error is not amenable to normal harmless error analysis, as we can never figure out what would have happened if one member of the jury had been struck and replaced by some other, unknown, person. Thus, we are forced to choose from two all- or-nothing rules: the error is always harmless or it is never harmless. There is no practical middle ground.

Given this choice, I believe the Supreme Court would conclude that this kind of error is always harmless. The right to a certain number of peremptory strikes-or to any at all-is not guaranteed by the Constitution; it’s not embodied in the concept of due process. See Georgia v. McCollum, 505 U.S. 42, 57 , 112 S.Ct. 2348, 2357-58 , 120 L.Ed.2d 33 (1992). Since the Court has allowed for the possibility of harmless error even when important constitutional rights are violated, see ante at 1149 (Leavy, J., dissenting), I find it hard to believe the Court would now conclude that it’s always reversible error to deny a defendant a mere statutory right.

In Ross v. Oklahoma, 487 U.S. 81 , 108 S.Ct. 2273 , 101 L.Ed.2d 80 (1988), the Court traveled too far in the other direction. Ross was forced to use a peremptory on a juror who should have been stricken for cause. It’s not accurate to say, as does the majority, that “[t]he court in Ross ... never deprived [defendant] of the right of peremptory challenge.” Maj. op. at 1146. In fact, Ross was entitled to nine not-for-eause strikes but got only eight; he wasted one peremptory undoing the trial court’s error. 487 U.S. at 84 , 108 S.Ct. at 2276 . This was the fulcrum of Justice Marshall’s dissent: “In this case, everyone concedes that the trial judge could not arbitrarily take away one of the defendant’s peremptory challenges. Yet, that is in effect exactly what happened here.” Id. at 91 , 108 S.Ct. at 2280 (Marshall, J., dissenting). By our majority’s logic, this should have resulted in automatic reversal, but did not. In language that speaks to our case, the Ross majority answered Justice Marshall: “[W]e reject the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury.” Id. at 88 , 108 S.Ct. at 2278 . Annigo-ni, like Ross, didn’t get to use a challenge to which he was entitled. But “[s]o long as the jury that sits is impartial,” id., the defendant suffers no reversible error.

2. I also fear that the majority’s ruling will make peremptory strikes too dear a luxury. Batson challenges have become commonplace in our courtrooms; rare is the trial where one side or the other does not rattle a Batson sabre. Today’s opinion turns every erroneous ruling-either wrongfully sustaining or wrongfully rejecting a Batson challenge-into sudden death. Retrials are expensive, especially where the prosecutor, the defense lawyer and the judge are all on the government’s payroll. A rule that turns every peremptory challenge error into a retrial gives a strong incentive to federal and state legislators to cut down the number of perempto-ries-or eliminate them altogether.

Unlike the majority, I do not take much comfort from Purkett v. Elem, - U.S. -, 115 S.Ct. 1769 , 131 L.Ed.2d 834 (1995), because I do not read Purkett as reducing Batson to a formality. Under Purkett , trial courts must still decide whether a proffered explanation is a subterfuge, and this can be a basis for appeal and reversal. We do not *1151 help the noble cause of peremptory challenges by making every error in this delicate process fatal.