Opposition Brief — Gene Deveraux, Petitioner v. Montana

Supreme Court briefFeb 13, 2023

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No. 22-418

In the Supreme Court of the United States

GENE DEVERAUX,

STATE OF MONTANA,

Petitioner,

Respondent.

On Petition For A Writ Of Certiorari

To The Montana Supreme Court

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

AUSTIN KNUDSEN

Attorney General

CHRISTIAN B. CORRIGAN

Solicitor General

PETER M. TORSTENSEN, JR.*

Assistant Solicitor General

*Counsel of Record

MONTANA DEPARTMENT

OF JUSTICE

215 N. Sanders Street

Helena, MT 59601

Peter.Torstensen@mt.gov

(406) 444-2026

Counsel for Respondent

QUESTION PRESENTED

Whether a trial court commits structural error,

requiring automatic reversal under the Sixth

Amendment, when it seats a biased juror after erroneously denying a for-cause challenge to that juror.

STATEMENT OF RELATED PROCEEDINGS

Montana Supreme Court

State v. Deveraux, No. DA 19-0671 (July 5, 2022).

Montana Twenty-Second

Court, Carbon County

Judicial

District

State v. Deveraux, No. DC 17-01 (Nov. 19, 2019).

iii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

STATEMENT OF RELATED PROCEEDINGS ........ ii

TABLE OF AUTHORITIES ....................................... iv

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

CONSTITUTIONAL PROVISIONS INVOLVED ...... 1

INTRODUCTION ........................................................ 1

STATEMENT OF THE CASE .................................... 3

REASONS FOR DENYING THE PETITION ............ 9

Deveraux’s petition is a poor vehicle for determining whether seating a biased juror is

structural error requiring reversal....................... 9

A. There is no basis in the record for finding

that the trial court seated a biased juror..... 10

B. State laws requiring defendants to exhaust peremptory challenges to preserve

claims of juror bias are constitutional ......... 15

II. Deveraux’s report of a split among state supreme courts and lower federal courts is

greatly exaggerated............................................. 19

CONCLUSION .......................................................... 24

TABLE OF AUTHORITIES

Cases

Arizona v. Fulminante,

499 U.S. 279 (1991) ................................................ 21

Austin v. Davis,

876 F.3d 757 (5th Cir. 2017) .................................. 22

Batson v. Kentucky,

476 U.S. 79 (1986) .................................................. 16

California v. Ramos,

463 U.S. 992 (1983) .......................................... 19, 20

Canfield v. Lumpkin,

998 F.3d 242 (5th Cir. 2021) ............................ 21, 22

Commonwealth v. Hampton,

928 N.E.2d 917 (Mass. 2010) ................................. 19

Connors v. United States,

158 U.S. 408 (1895) ................................................ 10

Georgia v. McCollum,

505 U.S. 42 (1992) .................................................. 19

Hernandez v. New York,

500 U.S. 352 (1991) ................................................ 16

Irvin v. Dowd,

366 U.S. 717 (1961) .......................................... 11, 14

J.E.B. v. Alabama ex rel. T.B.,

511 U.S. 127 (1994) ................................................ 16

Johnson v. United States,

701 A.2d 1085 (D.C. Ct. App. 1997) ...................... 19

Manuel v. Joliet,

580 U.S. 357 (2017) ................................................ 14

Mu’Min v. Virginia,

500 U.S. 415 (1991) .............. 2, 12, 13, 15, 16, 19, 22

People v. Abu-Nantambu-El,

454 P.3d 1044 (Colo. 2019) .................................... 18

Ries v. State,

920 N.W.2d 620 (Minn. 2018) .......................... 19, 20

Ristaino v. Ross,

424 U.S. 589 (1976) ................................................ 10

Rivera v. Illinois,

556 U.S. 148 (2009) ...................................... 2, 11, 16

Ross v. Oklahoma,

487 U.S. 81 (1988) ....................... 2, 10, 15-18, 20, 23

Skilling v. United States,

561 U.S. 358 (2010) ....................................... 9-14, 17

Smith v. Phillips,

455 U.S. 209 (1982) .................................... 11, 12, 14

State v. Carrera,

517 P.3d 440 (Utah Ct. App. 2022)........................ 19

State v. Gesch,

482 N.W.2d 99 (Wis. 1992) .................................... 19

State v. Good,

43 P.3d 948 (Mont. 2002) ..................................... 7, 8

State v. Johnson,

437 P.3d 147 (Mont. 2019) ....................................... 8

Thomas v. Lumpkin,

995 F.3d 432 (5th Cir. 2021) .................................. 22

United States v. Martinez-Salazar,

528 U.S. 304 (2000) ............................... 1, 2, 9, 16-18

United States v. Mitchell,

690 F.3d 137 (3d Cir. 2012) ............................. 12, 22

United States v. Nelson,

277 F.3d 164 (2d Cir. 2002) ................................... 22

United States v. Tsarnaev,

142 S. Ct. 1024 (2022) .................................. 1, 10, 11

Weaver v. Massachusetts,

137 S. Ct. 1899 (2017) ....................................... 21-23

Constitution

U.S. Const., amend. VI ................................................ 1

U.S. Const., amend. XIV ............................................. 1

Statutes

28 U.S.C. § 1257(a) ...................................................... 1

28 U.S.C. § 2254 ........................................................ 21

Mont. Code Ann. § 46-16-115(j) .................................. 8

OPINIONS BELOW

The Montana Supreme Court opinion (Pet.App.1a24a), is published at 512 P.3d 1198. The Montana

district court’s decision denying Deveraux’s motion

for a new trial (Pet.App.25a-50a) is unpublished.

JURISDICTION

The Montana Supreme Court entered judgment

on July 5, 2022. Pet.App.1a. On September 16,

2022, Deveraux applied for an extension of time to

file a petition for writ of certiorari. Justice Kagan

granted that application, extending Deveraux’s time

to file a petition to and including November 2, 2022.

Deveraux timely filed the petition. This Court has

jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const., amend. VI:

In all criminal prosecutions, the accused shall enjoy the right to … trial, by an impartial jury ….

U.S. Const. amend. XIV:

No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law.

INTRODUCTION

The Sixth Amendment guarantees criminal defendants the right to a trial by “an impartial jury.”

United States v. Tsarnaev, 142 S. Ct. 1024, 1034

(2022). Impartial juries, of course, must necessarily

be composed of impartial jurors. See United States v.

Martinez-Salazar, 528 U.S. 304, 307 (2000) (holding

that a “defendant … convicted by a jury on which no

biased juror sat, … has not been deprived of

any … constitutional right”). Peremptory challenges

are used under federal and state law to secure an

impartial jury, but they “are not of federal constitutional dimension.” Id. at 311. Subject to federal constitutional baselines, states have broad authority to

regulate the jury selection process. See, e.g., Rivera

v. Illinois, 556 U.S. 148, 152 (2009); Mu’Min v. Virginia, 500 U.S. 415, 422 (1991); Ross v. Oklahoma,

487 U.S. 81, 89-90 (1988).

Viewed through Deveraux’s frame, this Court’s

impartial-jury jurisprudence is in disarray. The lack

of a square holding that the deprivation of the right

to an impartial jury is a structural error has imposed

untold costs on lower courts. And in the absence of

needed clarity from this Court, state supreme courts

and lower federal courts have applied conflicting

standards to assess for-cause challenges to prospective jurors, leaving only confusion in their wake. And

until this Court steps in, this ever-widening confusion will persist.

But pulling back from Deveraux’s framing reveals

a far different jurisprudential landscape. On closer

examination, many of the purportedly different approaches to assessing for-cause challenges to prospective jurors are nothing more than states doing what

the Sixth Amendment and state law have long permitted them to do. Rather than confusion run amok,

much of what Deveraux identifies is simply the product of healthy federalism. Even if Deveraux is right

that confusion reigns and that Montana’s structural

error rule may, at times, fail to weed out biased jurors, it didn’t fail to weed one out here. For that reason, his case is a poor vehicle to consider whether

Montana’s structural error rule violates the Sixth

Amendment. This Court should deny the petition.

STATEMENT OF THE CASE

Gene Deveraux and B.J. married in March 2008,

and they lived together with three of B.J.’s four minor children. Pet.App.3a ¶ 3. B.J.’s fourth child lived

with her father but visited Deveraux’s and B.J.’s

home from time to time. See id.

About a decade later, the State of Montana

charged Deveraux with two counts of incest, two

counts of sexual intercourse without consent, and one

count of felony sexual assault, all against the same

child. Id. The State also charged Deveraux with one

count of sexual intercourse without consent against

B.J. Id.

Deveraux’s alleged conduct against B.J. was

grievous. Three years after they were married, B.J.

suffered severe injuries after a drunk driver struck

her car, leaving her with a broken pelvis, shattered

femur, injured spine, and severe nerve damage. Id.

After the accident, B.J. depended entirely on

Deveraux, but Deveraux exploited her dependance

for sexual favors. See id. Deveraux continued to

abuse B.J. until they separated in 2014, id., but B.J.

never reached out to law enforcement because she

believed her marital status prevented her from seeking charges.

During voir dire, the trial court asked the potential jurors if any of them had any “deep-seated is-

sues” or “personal relationships with people” who had

dealt with rape or child sexual abuse. Pet.App.4a

¶ 5. Five potential jurors, including R.G., identified

themselves. Id. ¶¶ 5-6. The trial judge conducted

private voir dire with each of these potential jurors.

Id. ¶ 5.

During R.G.’s private voir dire, he disclosed that

his girlfriend’s ex-husband raped her during their

marriage. Pet.App.56a. After R.G. explained that

his girlfriend had been the victim of marital rape, id.,

Deveraux’s counsel followed up:

Stephens: … [M]y client has been … accused

of raping his wife. Is that an issue you think

you can overcome and extend to my client the

presumption of innocence[?]

R.G.: It’s an emotional thing that I understand—I know the penalties for things like

this are huge…. And I know the hardness of

the person coming forward to testify on the

stand, how incredibly horrible that would be.

And I may have a problem in this area, out of

sympathy.

Stephens: … If you were my client, would you

want you on the jury?

R.G.: I don’t believe so.

Pet.App.57a. Deveraux’s counsel pressed, and

R.G. elaborated: “I think to be fair to [Deveraux], I

should not be chosen.” Id. Deveraux moved to dismiss R.G. for cause. Id.

The State’s attorney followed up on R.G.’s responses, clarifying that R.G. “[found] rape repug-

nant,” that he understood that there were laws

against rape, and that the law forbids marital rape.

Pet.App.58a. Recognizing that there was not a problem with a prospective juror believing that rape is

repugnant, the State’s attorney clarified:

Nixon: … [C]an you put that aside and basically fulfill your duty as a juror to listen to the

judge, to be impartial, and to listen to the testimony of the witnesses?

R.G.: I can judge fairly. It’s just uncomfortable thing.

* * *

Nixon: … My only question is, can you be fair

and impartial?

R.G.: I can be. I just—well, I’m just like everybody else, I suppose. I just don’t like it at

all.

Pet.App.58a-59a. Based on R.G.’s testimony, the

State objected to Deveraux’s motion to excuse for

cause. Pet.App.59a.

The Court took the opportunity to address R.G.

directly and to reiterate that the primary concern of

all parties was whether, given what happened to his

girlfriend, R.G. could set all that aside and render a

fair and impartial verdict based on the evidence.

Pet.App.59a-60a. The Court elaborated:

Court: I do not mean to imply that the answer

is yes. Okay? I’m asking you that because

both parties deserve the answer.

… I’m just asking you, given the facts that you

dealt with through your friend, whether that is

of a magnitude that you do not believe that

you can be fair and impartial and base a verdict solely on the evidence here, or whether

you think you can put that aside and go ahead

and judge this case based on the information

and evidence just provided in the courtroom?

R.G.: I can judge this case by the evidence

provided in the courtroom.

Pet.App.60a. After hearing R.G.’s responses, the

Court denied Deveraux’s motion to exclude R.G. for

cause. Id.

Deveraux opted not to use a peremptory challenge

against R.G. Instead, he used all six of his peremptory challenges on other prospective jurors—all after

the private voir dire with R.G. Pet.App.15a ¶ 26, 16a

¶ 28.

The trial court seated R.G. on the jury. The trial

lasted five days, and the jury returned a unanimous

guilty verdict against Deveraux on all counts.

Pet.App.26a.

Following the jury’s verdict, Deveraux moved for a

new trial, arguing that the trial court committed a

structural error, violating his Sixth Amendment

right to an impartial jury, when it rejected his forcause challenge and seated R.G. Pet.App.42a-43a.

The trial court first examined R.G.’s colloquies

with Deveraux’s counsel, the State’s counsel, and the

court, to determine if they revealed any improper bias. Pet.App.29a-35a. But it determined that R.G.’s

statements showed “more about [his] distaste for

sexually motivated offenses tha[n] a true inability to

fairly weigh the evidence.” Pet.App.35a. The trial

court also rejected Deveraux’s arguments that the

State’s counsel improperly rehabilitated R.G. and

that R.G.’s statements failed to show his ability to be

impartial. See Pet.App.35a-40a. The trial court thus

concluded that Deveraux’s for-cause challenge to R.G.

was properly denied. Pet.App.40a.

The court then analyzed the rest of Deveraux’s

structural error claim, under the Montana Supreme

Court’s test in State v. Good, 43 P.3d 948 (Mont.

2002). See Pet.App.40a. That test finds structural

error if: “(1) a district court abuses its discretion by

denying a challenge for cause to a prospective juror;

(2) the defendant uses one of his or her peremptory

challenges to remove the disputed juror; and (3) the

defendant exhausts all of his or her peremptory challenges.” Good, 43 P.3d at 960. Having already found

that the trial court didn’t abuse its discretion by

denying Deveraux’s for-cause challenge to R.G., the

court explained that Deveraux’s failure to use a peremptory challenge to remove R.G. was an alternative

basis for denying his motion. Pet.App.40a-43a.

Deveraux appealed to the Montana Supreme

Court, arguing in relevant part that the trial court

erred by denying his motion to exclude R.G. for

cause. Pet.8-9. Relying on Montana law, Deveraux

argued that the trial court’s denial of his for-cause

challenge was an abuse of discretion, and he further

claimed that seating a biased juror was a structural

error that required reversal, id., even though he

didn’t use one of his remaining peremptory challenges to remove R.G.

Recognizing that both the federal and Montana

constitutions safeguard the right to an impartial jury, the Montana Supreme Court grounded its review

of Deveraux’s challenge to the trial court’s for-cause

ruling in state law. See Pet.App.14a ¶ 24 (explaining

that a defendant may “challenge a prospective juror

for cause if the juror manifests” indication of bias

“that would prevent the juror from acting with entire

impartiality” (citing State v. Johnson, 437 P.3d 147,

150 (Mont. 2019))); see also Mont. Code Ann. § 46-16115(j). And because Deveraux framed the issue as a

structural error requiring automatic reversal, the

Court reviewed Good’s three-factor structural error

test: (1) erroneous denial of for-cause challenge to a

prospective juror; (2) defendant uses a peremptory

challenge to remove disputed juror; and (3) defendant

exhausts all peremptory challenges. Pet.App.14a

¶ 25 (quoting Good, 43 P.3d at 960).

Deveraux didn’t use a peremptory challenge

against R.G., so the Montana Supreme Court held

that he failed to satisfy part two of the Good analysis.

Pet.App.14a ¶ 26, 16a ¶ 28. Deveraux argued that

two of the Court’s earlier decisions allowed it to consider his structural error claim despite his failure to

use a peremptory challenge on R.G., but the Court

was not persuaded. See Pet.App.15a-16a ¶¶ 26-27.

It found that Deveraux failed to explain why, when

he had peremptory challenges available to remove

R.G., he “was compelled to use his peremptory challenges on other less desirable individuals.”

Pet.App.16a ¶ 28. And Deveraux only explained the

need to remove four of the six individuals he removed, so he didn’t show that he was unable to use

one on R.G. Id. The Court thus denied Deveraux’s

structural error claim. Id.

REASONS FOR DENYING THE PETITION

I. Deveraux’s petition is a poor vehicle for determining whether seating a biased juror is

structural error requiring reversal.

Deveraux argues that his case provides this Court

the chance to hold what it has, to date, only implied:

“[When] a trial court erroneously denies a defendant’s for cause challenge, and a biased juror is consequently seated, the error ‘require[s] reversal.’” Pet.10

(quoting Skilling v. United States, 561 U.S. 358, 39596 (2010)). And he further argues that his case provides an “ideal opportunity” to constitutionalize this

Court’s dicta in Martinez-Salazar, see Pet.27—that

is, that the Sixth Amendment safeguards a defendant’s “choice” either “to stand on his objection to the

erroneous denial of the challenge for cause or to use a

peremptory challenge to effect an instantaneous cure

of the error,” see 528 U.S. at 316.

Even assuming that Deveraux’s proposed rules

are securely grounded in the Sixth Amendment’s text

and history, his case presents a poor vehicle to resolve the question presented for at least two reasons.

First, the record provides no basis for finding that

the trial court erroneously denied Deveraux’s forcause challenge and seated a biased juror, especially

given the broad deference afforded to trial court

judge’s during the jury selection process. See, e.g.,

Skilling, 561 U.S. at 386. Without that critical

piece—the presence of a biased juror on the jury, or a

credible basis for believing the trial court’s ruling

was erroneous—this Court’s review is unnecessary.

Second, this Court’s existing cases broadly support states’ right to require defendants to use peremptory challenges to preserve an impartial-jury

challenge. See, e.g., Ross, 487 U.S. at 89-90. Even if

Montana’s structural error rule, as Deveraux argues,

raises constitutional concerns in specific applications,

Deveraux’s case doesn’t raise those concerns. He

doesn’t argue, for instance, that he exhausted his

peremptory challenges and was unable to use one to

excuse a biased juror who was ultimately seated on

his jury. Instead, when his for-cause challenge was

denied, he opted not to use an available peremptory

challenge on the disputed juror.

Montana’s courts fairly considered Deveraux’s

impartial jury claim and rendered a decision under

Montana law that did no violence to his rights under

the Sixth Amendment to the United States Constitution. This Court should deny the petition.

A. There is no basis in the record for finding

that the trial court seated a biased juror.

Trial courts safeguard criminal defendants’ right

to an impartial jury “by ensuring that jurors have ‘no

bias or prejudice that would prevent them from returning a verdict according to the law and evidence.’”

Tsarnaev, 142 S. Ct. at 1034 (quoting Connors v.

United States, 158 U.S. 408, 413 (1895)).

Jury selection falls squarely “‘within the province

of the trial judge.’” Skilling, 561 U.S. at 386 (quoting

Ristaino v. Ross, 424 U.S. 589, 594-95 (1976)). That’s

because, unlike “the cold transcript received by the

appellate court,” “in-the-moment voir dire affords the

trial court a more intimate and immediate basis for

assessing” a “prospective juror’s inflection, sincerity,

demeanor, candor, body language, and apprehension

of duty.” Id. A trial court’s discretion extends to the

nature and breadth of the questions it poses to prospective jurors. Tsarnaev, 142 S. Ct. at 1034; see also

Skilling, 561 U.S. at 386 (“No hard-and-fast formula

dictates the necessary depth or breadth of voir dire.”).

A criminal defendant’s Sixth Amendment right to

an impartial jury is not violated unless a “member of

the jury as finally composed was removable for

cause.” Rivera, 556 U.S. at 158. A prospective juror

who shows indications of actual bias is removable for

cause only if the prospective juror is unable to convince the trial court judge that he “can lay aside his

impression or opinion and render a verdict based on

the evidence presented in court.” See Irvin v. Dowd,

366 U.S. 717, 723 (1961). Prospective jurors challenged on the basis of implied bias—such as when

existing relationships or prior conduct suggests juror

partiality—are removable for cause only if the challenger shows the existence of actual bias. Smith v.

Phillips, 455 U.S. 209, 215-16 (1982) (“[T]he remedy

for allegations of juror partiality is a hearing in

which the defendant has the opportunity to prove actual bias.”). Actual bias, then, is the touchstone for

Sixth Amendment impartial jury violations. 1

1 Justice O’Connor argued in a separate opinion that “some extreme situations”—such an when a juror is an employee of the

prosecuting agency, a close relative of witness or defendant, or a

witness or participant in the criminal transaction—may war-

Appellate courts may disturb a trial court’s finding of juror impartiality only for “manifest error.”

Skilling, 561 U.S. at 396 (quoting Mu’Min v. Virginia, 500 U.S. 415, 428 (1991)); Pet.App.12a ¶ 19 (reviewing denial of for-cause to challenge to remove

prospective juror for an abuse of discretion). And in

Montana, a trial court’s denial of a for-cause challenge is only an abuse of discretion if “a prospective

juror’s statements during voir dire raise serious

doubts about the juror’s ability to be fair and impartial or actual bias is discovered.” Pet.App.12a ¶ 19.

Nothing in the record suggests that the trial

judge’s denial of Deveraux’s for-cause challenge to

R.G. was “manifest error.” During voir dire, R.G. indicated, in response to a question of all prospective

jurors, that he had prior experience with sexual assault. Pet.App.53-55a. When Deveraux’s counsel

asked all the prospective jurors who had such experience whether they preferred further examination in

open court or in chambers, R.G. (and others) said

they preferred to continue in chambers. Pet.App.5355a. Once in chambers, R.G. said that his significant

other had personal experience with similar sexual

assault, and he said that he “may have a problem in

this area, out of sympathy.” When Deveraux’s counsel asked R.G. if he thought Deveraux would want

him on the jury, he candidly answered: “I don’t think

rant a “conclusive presumption of implied bias.” Phillips,

455 U.S. at 222-23 (O’Connor, J., concurring). Even if a prospective juror’s implied bias requires a court in some cases to

disqualify that juror, as some federal circuits have held, see

United States v. Mitchell, 690 F.3d 137, 144 (3d Cir. 2012) (collecting cases), no claim of implied bias is raised here.

so … I think to be fair to [Deveraux], I should not be

chosen.” Pet.App.57a.

To rehabilitate R.G., both the State and the trial

judge followed up to determine if he could set aside

his feelings about Deveraux’s alleged conduct and

impartially consider the evidence. In response to the

State’s questions, R.G. did just that, saying “I can

judge fairly. It’s just an uncomfortable thing,” and “I

can be [fair and impartial] …. I’m just like everybody

else, I suppose.

I just don’t like it at all.”

Pet.App.59a. The trial judge also followed up with

R.G. to see if he could set aside his personal feelings

and render a verdict based solely on the evidence:

Court: … I do not mean to imply that the answer is yes. Okay? I’m asking you that because both parties deserve that answer.

… I’m just asking you, given the facts that you

dealt with through your friend, whether that is

of a magnitude that you do not believe that

you can be fair and impartial and base a verdict solely on the evidence here, or whether

you think you can put that aside and go ahead

and judge this case based on the information

and evidence just provided in that courtroom?

R.G.: I can judge this case by the evidence

provided in the courtroom.

Pet.App.60a.

Nothing in the cold transcript suggests that the

trial court’s ruling was a “manifest error.” Skilling,

561 U.S. at 396 (quoting Mu’Min, 500 U.S. at 428).

That ruling warrants deference in light of the trial

court’s ability to observe R.G.’s “inflection, sincerity,

demeanor, candor, body language, and apprehension

of duty.” Id. at 386. Nor do R.G.’s concerns with

Deveraux’s alleged conduct necessarily undermine

his impartiality, as long as the court was satisfied

that he could lay aside his personal opinions and

render an impartial verdict. Id. at 398-99 (explaining that “[j]urors … need not enter the box with empty heads in order to determine the facts impartially”).

If prospective jurors are categorically biased simply

because they have serious misgivings about a defendant’s alleged criminal conduct, then “few trials

would be constitutionally acceptable.”

Phillips,

455 U.S. at 217. R.G. satisfied the trial court that he

could “lay aside his impression or opinion and render

a verdict based on the evidence in the record,” Irvin,

366 U.S. at 723, and no cause exists in the record to

disturb that finding.

Deveraux argues that the Montana Supreme

Court sidestepped this issue, ruling only on the exhaustion prong of Montana’s structural error test,

because it necessarily disagreed with the trial court’s

for-cause finding. Pet.24a-25a. But the Montana

Supreme Court’s silence on whether the trial court’s

for-cause ruling was erroneous was just that, silence.

Deveraux failed to use a peremptory challenge, so it

had no need, under Montana law, to address the trial

court’s for-cause ruling. Pet.App.13a-15a. To reach

the question presented here—whether the presence

of a biased juror is a structural error requiring reversal—the issue of R.G.’s bias must be resolved first.

Given this Court’s oft-repeated admonition that it is

“a court of review, not of first view,” Manuel v. Joliet,

580 U.S. 357, 372 (2017) (quotation omitted), the

Montana Supreme Court’s silence on this issue cuts

in favor of denying the petition. But even if this

Court’s hands aren’t so tied, the record adequately

supports the trial court’s finding that R.G. was impartial. Either way, Deveraux’s case is a poor vehicle

and his petition should be denied.

B. State laws requiring defendants to exhaust peremptory challenges to preserve

claims of juror bias are constitutional.

1. Nothing in this Court’s Sixth Amendment jurisprudence forbids states from requiring defendants

to preserve a claim that a trial court erroneously denied a for-cause challenge to a juror by using an

available peremptory challenge to remove that juror.

Start with Ross v. Oklahoma. This Court found

“nothing arbitrary or irrational” about Oklahoma’s

statutory requirement that an erroneous for-cause

denial “is grounds for reversal only if the defendant

exhausts all peremptory challenges” and a biased juror is seated. 487 U.S. at 89-90. Ross explained that

“the concept of a peremptory challenge as a totally

freewheeling right unconstrained by any procedural

requirement [was] difficult to imagine.” Id. at 90.

A few years later, in Mu’Min v. Virginia, this

Court considered its authority to supervise voir dire

in federal and state criminal trials. See 500 U.S. at

422. It explained that for cases “tried in state

courts,” the Court’s “authority is limited to enforcing

the commands of the United States Constitution.”

Id. Absent concerns of racial prejudice, for which the

Fourteenth Amendment may require further inquiry,

state trial courts retain substantial latitude in deciding how to conduct voir dire. Id. at 424.

Next, in United States v. Martinez-Salazar, this

Court considered whether Federal Rule of Criminal

Procedure 24(b) imposed a similar exhaustion requirement as the Oklahoma statute in Ross.

528 U.S. at 314-15. But this Court declined to read a

similar requirement into Rule 24(b) because nothing

in the rule or in the cases applying it required a similar exhaustion requirement under federal law. See

id. Indeed, the only permissible “control over a federal criminal defendant’s choice of whom to challenge

peremptorily” that the Court found was the Equal

Protection Clause’s prohibition on peremptorily removing potential jurors “solely on the basis of the juror’s gender, ethnic origin, or race.” Id. at 315 (citing

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994),

Hernandez v. New York, 500 U.S. 352 (1991), and

Batson v. Kentucky, 476 U.S. 79 (1986)).

And, finally, in Rivera v. Illinois, this Court explained that “[j]ust as state law controls the existence

and exercise of peremptory challenges, so state law

determines the consequences of an erroneous denial

of such a challenge.” 556 U.S. at 152. Because a

state’s provision of peremptory challenges is a “benefit beyond the minimum requirements of fair jury selection,” id. at 157-58 (cleaned up), the state “retain[s] discretion to design and implement their own

systems,” id. at 158.

2. Fairly read, this Court’s cases permit states,

consonant with the Sixth Amendment, to require a

defendant to exhaust his peremptory challenges to

preserve a claim that his for-cause challenge was er-

roneously denied. But even if these cases are read

more narrowly to permit states to require exhaustion

only when a defendant has available peremptory

challenges, Deveraux’s case is still a poor vehicle for

review.

When Deveraux’s for-cause challenge to R.G. was

denied, he still had his full allotment of peremptory

challenges at his disposal, but he opted not to use one

on R.G. Pet.App.15a ¶ 26, 16a ¶ 28. At a minimum,

Deveraux retained two peremptory challenges that

he could have used to remove R.G., but he used them

instead to remove two other jurors, neither of whom

had been challenged for cause. Pet.App.16a ¶ 28.

Because this Court’s cases provide that the Sixth

Amendment impartial jury right is not offended by

exhaustion requirements similar to that in Ross,

Deveraux’s case would be a far better vehicle if he

had exhausted all six peremptory challenges on other

for-cause denials and had none left to use on R.G. In

that hypothetical case, Deveraux may have been unable to cure the trial court’s error, and thus left with

a biased juror. But this is not that case.

3. Deveraux’s proposed rule would, of course, cast

much of this aside. If a trial court erroneously denies

a for-cause challenge and seats a biased juror, it

commits structural error and an appellate court must

reverse. Pet.10 (quoting Skilling, 561 U.S. at 39596). And if a defendant, like Deveraux, stands on his

objection rather than curing a trial court’s error, the

result is the same: the appellate court must reverse.

Pet.27 (quoting Martinez-Salazar, 528 U.S. at 316).

Without question, seating a biased juror can work

a grave injustice, but jury selection decisions “are

fast paced, made on the spot and under pressure,”

and “often between shades of gray.” Id. States and

the federal government provide peremptory challenges, not because of any constitutional requirement,

but to secure to defendants an impartial jury. See id.

at 311. And to date, this Court has found “nothing

arbitrary or irrational” with state laws that qualify

the grant of peremptory challenges with “the requirement that the defendant must use those challenges to cure erroneous refusals by the trial court to

excuse jurors for cause.” Ross, 487 U.S. at 90.

Little imagination is needed to see the potential

for abuse with Deveraux’s proposed rule. Justice

Scalia, writing separately in Martinez-Salazar, expressed concern with allowing a defendant to “object[] on appeal to the seating of a juror he was entirely able to prevent.” See 528 U.S. at 318 (Scalia,

J., concurring). He explained that it wouldn’t be

“easy to overturn a conviction where, to take an extreme example, a defendant had plenty of peremptories left but chose instead to allow to be placed upon the jury a person to whom he had registered an

objection for cause, and whose presence he believed

would nullify any conviction.” Id. at 318-19; see People v. Abu-Nantambu-El, 454 P.3d 1044, 1054 ¶ 51

(Colo. 2019) (Samour, J., dissenting) (finding the majority’s lack of concern over “gamesmanship” as “little

more than whistling past the graveyard”).

But even if Deveraux’s proposed rule has merit,

his case presents a poor vehicle to test it. As discussed already, his claim that the trial court errone-

ously denied his motion to exclude R.G. rests on a

broken reed. And given the potential for abuse outlined above, the better course is to wait for a vehicle

without the deficiencies present here.

II. Deveraux’s report of a split among state supreme courts and lower federal courts is

greatly exaggerated.

1. When supervising the voir dire requirements of

cases tried in state courts, this Court’s “authority is

limited to enforcing the commands of the United

States Constitution.”

Mu’Min, 500 U.S. at 422.

States may withhold peremptory challenges “altogether without impairing the constitutional guarantee of an impartial jury.” Georgia v. McCollum,

505 U.S. 42, 57 (1992). They may also provide more

protection in their criminal justice systems than the

federal constitution demands. California v. Ramos,

463 U.S. 992, 1013-14 (1983). So, even though this

Court has never held that seating a biased juror over

the erroneous denial of a for-cause challenge is structural error, see Pet.10, states may no doubt create

such rules as a matter of state law.

Many of the state cases Deveraux relies on (at

18a-20a) to allegedly highlight one side of the “already-troubling split” ground their structural error

rule, at least in part, in state law. State v. Carrera,

517 P.3d 440, 461-62 (Utah Ct. App. 2022); Ries v.

State, 920 N.W.2d 620, 636 (Minn. 2018); Commonwealth v. Hampton, 928 N.E.2d 917, 927 (Mass.

2010); Johnson v. United States, 701 A.2d 1085,

1089-90 (D.C. Ct. App. 1997); see also State v. Gesch,

482 N.W.2d 99, 100 (Wis. 1992) (grounding structural

error rule in federal and state constitution). But

states do not need this Court’s blessing to authorize

this practice because it’s “elementary” that they may

provide more protection than what the federal constitution requires. Ramos, 463 U.S. 992, 1013-14.

This Court’s cases also suggest that states may

require defendants to use peremptory challenges to

preserve an impartial-jury claim. Ross, 487 U.S. at

89 (“[States may require] a defendant who disagrees

with the trial court’s ruling on a for-cause challenge

must, in order to preserve the claim that the ruling

deprived him of a fair trial, exercise a peremptory

challenge to remove the juror.”); see also Ries,

920 N.W.2d at 635 (“To be sure, if we wanted to create such a forfeiture rule, we could have done so in

the text of … Minn. R. Crim. P. 26.02.”). Both Montana’s and Texas’s structural error rules deploy some

version of a Ross-like forfeiture rule. Pet.15a-18a.

The so-called “deepen[ing] split” that Deveraux

identifies, see Pet.21, is whether a state’s forfeiture

rule violates the Sixth Amendment if it results in the

seating of a biased juror. That some states, like perhaps Colorado or Wisconsin, provide greater protection than the federal constitution demands, while

others provide only what it requires, is a healthy

outworking of our federalism. So, the purportedly

deepening split Deveraux identifies, it turns out, is

little more than a fissure. And here, Deveraux’s forcause challenge to R.G. was not erroneous, see supra

Sect. I.A., so the split he identifies does nothing to

help his case.

2. Deveraux argues that confusion over whether

seating biased jurors is structural error plagues federal jurists as well. Pet.21. But much of that confu-

sion rests instead on the doorstep of either this

Court’s decision in Weaver v. Massachusetts, 137 S.

Ct. 1899 (2017) or in the context of petitions for federal habeas relief under 28 U.S.C. § 2254.

Weaver involved the question whether a defendant must demonstrate prejudice when “a structural

error is neither preserved nor raised on direct review

but is raised later via a claim alleging ineffective assistance of counsel.” 137 S. Ct. at 1907. Departing

from its existing trial-error or structural-error approach, Weaver identified three broad rationales for

determining when errors are structural. Id. at 1908;

see also Arizona v. Fulminante, 499 U.S. 279, 309-10

(1991) (classifying errors as “trial errors” or “structural defects”). And it explained that “[a]n error can

count as structural even if the error does not lead to

fundamental unfairness in every case.”

Weaver,

137 S. Ct. at 1208 (emphasis added). Not only that,

but Weaver also explained that even though the Sixth

Amendment public trial right at issue there “is structural, it is subject to exceptions”—so at least that

structural error does not always entitle a defendant

to a new trial. See id. at 1910-11. Finally, the Court

suggested that its decision may rest on the difference

of a structural error “preserved and then raised on

direct review” and the same error “raised as an ineffective assistance of counsel claim.” See id. at 1912.

Many of the federal cases Deveraux cites trace

their confusion, directly or indirectly, to this Court’s

decision in Weaver. See, e.g., Canfield v. Lumpkin,

998 F.3d 242, 249 n.25 (5th Cir. 2021) (explaining

that Weaver left open “the question regarding whether, when a structural error is first identified through

an ineffective-assistance-of-counsel claim instead of

on direct appeal,” a petitioner must show prejudice);

Austin v. Davis, 876 F.3d 757, 804 n.33 (5th Cir.

2017) (Owen, J., concurring) (“The Supreme Court’s

listing of ‘structural errors’ that require automatic

reversal do not include jury bias, either when it is

raised in a direct appeal or in habeas proceedings.”

(citing Weaver, 137 S. Ct. at 1907-09, 1911)). Not only that, but many of these cases involve ineffectiveassistance-of-counsel claims on collateral review,

which raise different issues under Weaver and involve the heightened procedural requirements of federal habeas review. See, e.g., Canfield, 998 F.3d at

246 (explaining that 28 U.S.C. § 2254(d) raises the

already high bar for ineffective assistance of counsel

claims on federal habeas review); Thomas v. Lumpkin, 995 F.3d 432, 444-46 (5th Cir. 2021) (reviewing

an ineffective-assistance-of-counsel claim under

“AEDPA deference”). Even though these cases touch

on the scope of structural errors, they do so in a procedural posture that is worlds apart from this case,

which limits the opportunities for apples-to-apples

comparisons.

Even the federal cases that arise in a similar procedural posture as Deveraux’s case provide limited

guidance. See Mu’Min, 500 U.S. at 424 (recognizing

that federal courts “enjoy more latitude in setting

standards for voir dire in federal courts” than they do

when “interpreting the provisions of the Fourteenth

Amendment with respect to voir dire in state

courts”). To be sure, Deveraux is right that both

United States v. Mitchell, 690 F.3d 137, 147-48 (3d

Cir. 2012), and United States v. Nelson, 277 F.3d 164,

204 (2d Cir. 2002)—direct appeals involving pre-

served impartial-jury claims—require automatic reversal when a biased juror sits on a jury, see Pet.22a,

but it’s really beside the point. These cases have

nothing to say about the question presented here—

whether state forfeiture rules are consonant with the

Sixth Amendment.

3. Deveraux argues that “[i]n the absence of clear

guidance from this Court,” state courts have taken

irreconcilable positions on whether the erroneous denial of a for-cause challenge is structure error, and

federal courts languish in confusion. Pet.14a-24a.

But the reality on the ground is not so dire.

State courts have long retained discretion to impose forfeiture rules, like those in Ross, or to require

reversal any time a for-cause challenge is erroneously

denied, preserved or not. These differences are not,

of themselves, troubling; they are the byproduct of

healthy federalism. Not only that, but many of the

cases Deveraux relies on ground their more protective rules in state law, which only reinforces that the

so-called “split” he identifies raises no urgent issue

for this Court’s review. And the concerns with seating biased jurors are not present here, because the

juror he challenged, R.G., wasn’t biased.

Much of the “confusion” among federal jurists that

Deveraux points to concerns downstream consequences of this Court’s decision in Weaver or in ineffective-assistance-of-counsel claims on direct or collateral review. But that confusion has little salience

here, where the Court is asked to review whether a

state forfeiture rule complies with the Sixth Amendment. And because this Court’s supervisory authority over state laws defining the parameters of the jury

selection process is more limited, many of the federal

cases Deveraux relies on have little purchase here.

CONCLUSION

For the reasons set forth above, this Court should

deny the petition.

Respectfully submitted,