Case o' The Week: Reyes of Hope (then Harmless Error) - Voir Dire, Rule 43, and the Defendant's Presence

Hon. Judge Jay Bybee

  Not structural error to exclude a defendant from voir dire of a juror. 2014 WL 4358454, *11 & n.4.

  Start with that footnote spoiler, and the rest of the decision is a tad anticlimactic. United States v. Reyes, 2014 WL 4358454 (9th Cir. Sept. 4, 2014), decision available here.

Players: Decision by Judge Bybee, joined by Judges Bea and Christen. Hard-fought appeal by CD Cal AFPD Matthew Larsen.

Facts: Reyes was tried for bank robbery. Id. at *1. During voir dire, the court conferred with counsel at side bar and asked for strikes for cause. Defense counsel asked that Reyes himself be permitted to participate in these side bar discussions: that request was denied. Id. There were eighteen side bar meetings; over defense objection, defendant Reyes was not permitted to participate in any. Id. Defense counsel did consult with Reyes four times – but had to go to the defendant at counsel table (Reyes was not permitted to come to the bench). Id. At all but one of these sidebar sessions, substantive conversations about the jurors took place. Id. In one of these sidebar sessions, “Juror H” was questioned about her self-reported bias against bank robbers. Id. Reyes did not hear that exchange. Id. That juror served on the jury that ultimately convicted Reyes. Id.

Issue(s): [“Reyes] contends that the district court violated his right to be present at trial by excluding him from certain side bar exchanges during jury selection.” Id. at *1.

Held: “We conclude that the district court violated Rule 43 when it questioned Juror H outside of Reyes’s earshot, but the district court did not violate Rule 43 by refusing Reyes’s request to be present during the other seventeen side bar exchanges.” Id. at *4. “We agree with [other courts that have held] that, under Rule 43, the defendant has a right to be personally present during voir dire of prospective juror. The district court erred by questioning Juror H to determine whether she was ‘qualified and suitable to serve on a jury’ when Reyes had a standing objection to his exclusion from the side bar conferences. The court could have complied with Rule 43 either by permitted Reyes to join his attorney at the bench while the court conversed with Juror H or by questioning her in open court.” Id. at *5. (But . . . “[w]e conclude the side bar voir dire of Juror H was harmless because the evidence of Reyes’s guilt was overwhelming.” Id. at *7).

Of Note: The good news is that it is now clear in the Ninth Circuit that a defendant has a statutory right to be present when jurors are questioned. The bad news is that the Court holds, for the first time squarely in the Ninth, that “meetings between counsel and the court at which the participants discuss whether should be excused for cause, exercise preemptory challenges, or decide whether to proceed in the absence of prospective jurors are all examples of a ‘conference or hearing on a question of law’ from which the defendant may be excluded at the district court’s discretion.” Id. at *5.

How to Use: Judge Bybee emphasizes several aspects of this case that salvaged the conviction from a Rule 43 attack. There were no limits placed on Reyes’ ability to let his attorneys know who he thought should excused for cause, or how he wanted to exercise his preemptory challenges. Id. at *6. Reyes’ counsel had a chance to confer with their client before making decisions about the jurors. Id. Finally, the judge identified in open court each juror who had been excused – so Reyes would know if his attorney mistakenly excused the wrong juror. Id. Absent those protections, the exclusion of a defendant from a sidebar on jury selection could rise to a Rule 43 violations – note well those aspects of Reyes.

                                               

For Further Reading: “Prisons are for people we are afraid of, but we have been filling them with many folks we are just mad at.” 

  Turns out, you and (Former) Speaker Newt Gingrich think alike on the overuse of incarceration. For a thoughtful op-ed by the former Speaker, see What California Can Learn from Red States on Crime and Punishment, available here.

Image of the Honorable Judge Jay Bybee from http://www.nationallawjournal.com/image/nlj/300_pics/bybee_jay.jpg

Steven Kalar, Federal Public Defender N.D. Cal Website at www.ndcalfpd.org

Case o' The Week: Bad Math, Good Opinion -- Hernandez-Estrada and Jury Selection Challenges

  “I suspect a statistician would laugh at our current methodology,” mused the Chief on the Ninth’s use of “absolute disparity” in its jury selection jurisprudence.

  They’ll laugh no longer – the Ninth has stepped up and stepped away from bad math.

United States v. Hernandez-Estrada, 2014 WL 1687855 (9th Cir. Apr. 30, 2014) (en banc), decision available here.

Players: Decision by Judge Thomas, concurrence by Judges M. Smith, Silverman and Bea. Righteous fight by San Diego AFD Michele McKenzie.

Facts: Hernandez-Estrada was charged with illegal reentry. Id. at *1. He moved to dismiss the indictment, alleging that the SD Cal district court had violated the Jury Selection Act, the Fifth Amendment, and the Sixth Amendment for its failure to supplement its juror source list. Id. A three-judge panel affirmed, over a withering concurrence by the Chief. Id. (see blog on three-judge decision here).

  Hernandez sought en banc review, challenging the Ninth’s use of the absolute disparity test in jury selection challenges. Id. at *3. (“The absolute disparity test . . . examines the difference between the percentage of the distinctive group in the community and the percentage of that group in the jury pool.”) Id. at *4.

Issue(s): “Hernandez challenges our use of the absolute disparity test, arguing that the method unfairly favors large groups, makes it impossible for small groups to successfully assert a constitutional or Jury Selection Act violation, and has been criticized or rejected by other courts.” Id. at *3.

Held: “After surveying the case law and alternative methods of analysis, and bearing in mind our own past criticism of our exclusive reliance on the absolute disparity test, we conclude that it is appropriate to abandon the absolute disparity approach. Accordingly, we overrule the requirement, as set forth in Rodriguez–Lara and its predecessor cases, that the absolute disparity test be the exclusive analytical measure employed in fair cross-section challenges. However, we do not prescribe an alternative exclusive analysis to be applied in every case . . . We . . . decline to confine district courts to a particular analytical method. As our discussion has illustrated, the appropriate test or tests to employ will largely depend on the particular circumstances of each case. Instead, we hold that courts may use one or more of a variety of statistical methods to respond to the evidence presented.” Id. at *8. “In sum, the defendant must establish a prima facie case that the jury pool does not reflect a fair cross-section of the community. We overrule our prior precedent which required courts to analyze challenges exclusively by the use of the absolute disparity test. Rather, in determining whether the defendant has satisfied the burden of establishing a prima facie case, courts must consider the evidence proffered by the defendant, including expert testimony, and employ the most appropriate method, or methods, applicable to the specific challenge in the context of the particular jury pool at issue.” Id. at *9.

Of Note: This is a huge defense win, but not a win for Hernandez. Why? Judge Thomas concludes that there was not systemic exclusion of a group arising from the system by which juries are selected. Id. at *9. It is a disappointing outcome, because the Ninth concedes the district employed procedures that violate the Jury Selection Act. Id.  

How to Use: Hernandez-Estrada opens up the statistical approaches to challenge jury selection under the Jury Selection Act and the Sixth Amendment. Id. at *9. It also expands the new approach to Fifth Amendment challenges. Id. at *10. In districts where jury selection challenges have faltered on the old “absolute disparity” test (ND Cal?), it may be time to call the stat experts and mount a new round of attacks.

                                               

For Further Reading: In an admirable show of leadership, D.J. Paul Friedman has got the clemency ball rolling. See article here, opinion available here. (“The sentence this Court was required to impose on Mr. McDade was unjust at the time and is ‘out of line’ with and disproportionate to those that would be imposed under similar facts today. While the Court is powerless to reduce the sentence it was required by then-existing law to impose, the President is not. The Court urges Mr. McDade’s appointed counsel to pursue executive clemency on Mr. McDade’s behalf so that justice may be done in this case.”)

“Bad Math” logo from http://www.badmath.com/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Use it Or Lose It (Then Win It) - Yepiz, Jury Selection, and Rule 24

“Use or lose it:” a wonderful strategy to focus decision-making, and a pithy little proclamation for motivational posters.

Not a great rule, though, when peremptory challenges are at stake. United States v. Yepiz, 2012 WL 2510341 (9th Cir. July 2, 2012), decision available here.

Players: Decision by Judge Rawlinson, joined by Judge W. Fletcher and DJ Mills. Creative challenge by former SD Cal AFPD Ben Coleman.

Facts: Yepiz went to trial. Id. at *2. As directed by Fed. R. Crim. Procedure 24, the government had six peremptory jury challenges and the defense had ten. Id. The district court, however, used a “use or lose it” approach: “acceptance of a jury panel as constituted at any point during the voir dire proceedings would be counted as the use of a peremptory challenge.” Id. The defense didn’t object to this approach. During jury selection, the defense used eight challenges, and didn’t object to the next two proposed panels. Id. The result under “use it or lose it” was that the defense effectively lost its last two peremptory challenges. Id. After the government used its last strike, a juror was called into the prospective pool. This juror had a law degree, had interned in a D.A.’s office, and worked in her husband’s legal practice. Id. at *3. Though it had only used eight strikes, the defense could not exercise its remaining two challenges because of the “use it or lose it” policy, and because it had accepted previous panels. Id. The final juror was seated, Yepiz was convicted. Id.

Issue(s): “We consider whether the district court plainly erred by employing its ‘use it or lose it’ voir dire policy practice and determining that Yepiz’s acceptance of two jury panels as then constituted resulted in a waiver of two peremptory challenges. According to Yepiz, this involuntary waiver of his peremptory challenges forced him to accept a biased replacement juror.” Id. at *5.

Held: “In this case, as in [United States v. Turner, 558 F.2d 535, 538 (9th Cir. 1977)], the defense was entitled to ten peremptory challenges, no more, no less. Yet, the district court’s “use it or lose it” practice deprived the defendant of the full complement of challenges to which he was entitled under Fed. R. Crim. P. 24. As in Turner, equating acceptance of the jury panel at any point in the voir dire process with waiver of a peremptory challenge “unduly restricts” the defendant’s use of the peremptory challenges to which he is otherwise entitled. Turner, 558 F.2d at 538; see also Pointer v. United States, 151 U.S. 396, 408 (1894) (declaring that “[a]ny system for the impaneling of a jury that prevents or embarrasses the full, unrestricted exercise by the accused of [peremptory challenges] must be condemned.”) (emphasis added).” Id. at *6.

Of Note: Judge Rawlinson provides a good explanation of Rule 24, and helpfully clarifies some muddled law on restraints on the defense’s use of peremptory challenges. Id. at *5-*6. Unfortunately, Yepiz also explains that this error does not create per se reversal: absent objection, this is reviewed for plain error. Id. at *6 (discussing UnitedStates v. Lindsey, 634 F.3d 541, 550 (9th Cir. 2011)). Here, Yepiz couldn’t surmount plain error because he didn’t show the bias of the final juror: the conviction was sustained Id. at *6.   

How to Use: At least one ND Cal District Judge has a “use or lose it” policy for jury selection – a policy that seems to be plain error under Yepiz. See id. at *6 (“The error . . . in this case was obvious because it was contrary to the plain language of Rule 24.”) If you’ve got a pending appeal from that NorCal court, a plain error challenge may await. For future cases, add Yepiz to your trial binder and object to any restraints on defense peremptory challenges. Judge Rawlinson’s language in Yepiz is straightforward and welcome – there’s little room in Rule 24 for creative jury selection policies when defense strikes are at issue.

                                               

For Further Reading: “Plain” or “structural” error? Back in the good ‘ole days, an error that affected the structural fairness of a trial earned the defense an automatic reversal on appeal. That enlightened approach is under attack. For an interesting (albeit discouraging) discussion on structural error in the jury-selection context, see Lindsey, 634 at 546 – 48, and Judge Pregerson’s concurrence at 556.

Image of “Use it or Lose It” from Image of, "Use it or Lose It" from http://livestrongandsore.com/2012/05/02/exercise-is-the-key-use-it-or-lose-it/

Steven Kalar, Senior Litigator ND Cal FPD. Website at www.ndcalfpd.org

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