John G. Roberts, Jr.: We will hear argument next in Case 07-9995, Rivera v. Illinois. Mr. Leven.
James K. Leven: Mr. Chief Justice, and may it please the Court: The Petitioner lawfully exercised a peremptory challenge on juror Delores Gomez. As a result of the erroneous denial of that challenge, Ms. Gomez wrongfully sat on the jury and lacked authority to render a judgment. Petitioner's conviction should be reversed automatically for three separate and independent reasons. First, the trial before an unlawful adjudicator is structural error. Two, the wrongful seating of a juror is structural error, because the effect of the error is impossible to determine--
Ruth Bader Ginsburg: Are you putting -- are you equating this with a biased judge? The -- the category of structural error has been kept very narrow by this Court. And it seems to me that a juror who is perfectly qualified, who is conceded -- it is conceded could not have been dismissed for cause, is quite a different matter than a judge who -- who has taken a bribe or who has a monetary stake in the case. It -- it seems quite a stretch to apply those decisions to -- to the case of a juror who was qualified, and it was just a judge who was overexuberant in denying a peremptory challenge.
James K. Leven: --Well, our unlawful adjudicator claim is not dependent on a finding or showing of bias. A -- a juror who is illegally on the jury, who does not have the authority to serve, would render the jury improperly constituted. Therefore, there would be structural error for a jury illegally constituted to render a judgment irrespective of bias.
David H. Souter: Okay. But your whole argument that the -- that the juror was illegally sitting and the jury was illegally constituted is a -- in effect a statement of the effect of State law. And the State supreme court doesn't think that's the effect under State law. So it seems to me that the -- the whole premise of your argument that there is something inherently unlawful about the seating of that juror is simply in -- in effect denied by the State supreme court. And we take our law from them.
James K. Leven: Well, Your Honor, there are State law and Federal law components to this issue. Petitioner had a lawful right to excuse juror Gomez under Illinois Supreme Court Rule 434.
Ruth Bader Ginsburg: But no -- no constitutional right, no constitutional right to the peremptory challenge.
James K. Leven: Well, there is a constitutional right to due process involved that--
David H. Souter: But you -- you in effect are saying that any violation of State law with respect, let's say, to criminal trial procedure becomes, if not remedied, a due process violation under Federal law. That's -- that's your -- your unstated premise, isn't it?
James K. Leven: --No, Your Honor. The -- our argument is very narrow in scope: That if a -- a juror that is illegally constituted renders a verdict of guilty, then that jury is an unlawful adjudicator. The unlawful adjudicator claim is what triggers the right to due process.
Stephen G. Breyer: There could be a thousand reasons why under State law a particular jury is improperly constituted. So you are saying whenever the State under whatever State laws it has says that the judge made a mistake about who to put on the jury, that that violates the Federal Constitution.
Anthony M. Kennedy: Just as an example, to follow up on Justice Breyer's question -- and then can you answer his question -- many States have rules that you have to be a resident of the county to serve on that jury. And suppose a juror thinks he or she is a resident and gets the county line wrong or doesn't know what the residency requirement. Under your rule -- what is your term, an "unlawful adjudicator". And then we have a -- we have a -- a Federal constitutional standard that requires structural error for any State -- for any violation of any State -- State rule. That is Justice Breyer's question.
James K. Leven: Well, with respect to jury qualifications such as age and citizenship, there is a very delicate screening process that goes into effect. So the problem of an unlawful adjudicator with respect to, say, age would be a very, very rare phenomenon and would rarely occur, because jurors who are too young to serve, perhaps under 18 years old, would never make their way to the jury pool in the first place. So it would really be a very rare situation--
Anthony M. Kennedy: Well, you are -- you are avoiding the question by saying, oh, don't worry, there are not going to be many violations of this sort, and then you pick out age. But Justice Breyer began -- the preface to his question was -- was that there are -- are manifold requirements varying from State to State.
James K. Leven: --Well, I think--
Anthony M. Kennedy: What you are giving us is a sweeping proposition, A, for the constitutional principles that you are setting forth; B, for the supervision and intrusion it would cause Federal courts on the State system.
James K. Leven: --Well, if we take the juror's qualifications that were discussed in the State's brief, it would appear that all the qualifications that are discussed there would -- as I said, it would be a very rare situation, indeed, for a--
Stephen G. Breyer: Well, why? One qualification is a jury -- a juror can't be prejudiced. All right. I think it's a very common thing for prosecutors and defense lawyers to get into arguments about whether a particular juror is or is not prejudiced. Okay. So sometimes the judge excuses them, maybe five million times a year; and probably in a certain percentage, maybe 5,000 or 500 or 50,000, the judge is wrong. So the State appellate court says he's wrong. So the jury wasn't made up properly. Now you are saying in every one of those cases that violates the Federal Constitution. I have never heard of this before. It may be there is some precedent for it. I don't know. That's why I am asking.
James K. Leven: --Well, Gomez v. United States set forth the principle equating the right to an adjudicator with lawful authority to preside at every critical stage of the proceeding--
Stephen G. Breyer: So that means that held -- we have held in that case -- I had better look at it -- that in any instance where excusing a juror violates State law that that is a violation of the Federal Constitution? Which is the case that says that?
James K. Leven: --Well, that -- that case did not involve jurors, Your Honor, but it did involve a magistrate who lacked the authority to preside over voir dire. And the court held under a general principle of law equating the right of -- the lawful-authority right to the right to an impartial jury and used the phrase "a basic fair trial right", meaning that the right to a lawful adjudicator is a basic fair trial right. And also in addition--
Ruth Bader Ginsburg: But you are not -- you're not suggesting, because you conceded there was no basis for a for-cause challenge, you are not -- you are not saying that Gomez was unqualified or that she was biased. If she was biased, you had a basis for that; she could be excused for cause.
James K. Leven: --Well, there is a reasonable possibility of bias with respect to Gomez because of her extensive contacts with gunshot victims at Cook County Hospital--
Ruth Bader Ginsburg: But she was an administrator. She wasn't a nurse. She didn't deal with people who had gunshot wounds.
James K. Leven: --Well, the Illinois Supreme Court held that defense counsel's strike of Gomez was a valid reason to have her removed from the jury. She could have, even though she said -- even though she was not challengeable for cause, the peremptory challenge is there for a purpose, and that is--
Antonin Scalia: You don't need a good reason for a peremptory challenge.
James K. Leven: --The peremptory -- if I understand.
Antonin Scalia: That's the whole fun of a peremptory challenge: You don't need a good reason.
James K. Leven: Well, the purpose of the peremptory challenge is to help to create a fair and impartial jury.
Antonin Scalia: Exactly. And for some reason, I just think this person is not going to vote for me. I don't know why. I just don't think so. I don't want this person sitting on the jury. That's all the reason you need.
James K. Leven: That's right. Under Swain v. Alabama, a peremptory challenge can be exercised without having to state a reason.
Anthony M. Kennedy: Well, but our footnote in our later case authored by Justice Scalia indicates considerable doubt as to the viability and to the -- to the correctness of that formulation in Swain.
James K. Leven: Well, with--
Anthony M. Kennedy: Salazar, I think, is the--
James K. Leven: --Yes, Martinez-Salazar in its footnote 4 determined that the automatic reversal rule in Swain was subject to reconsideration due to the advent of harmless error analysis. But I was citing Swain for a different purpose. I was citing Swain that -- for the purpose that a peremptory challenge can be exercised without having to state a reason, and that's a fundamental--
Anthony M. Kennedy: --No. No. I thought you were citing Swain -- and I think you are going to have to establish -- that peremptory -- in this case, to win your case, that there is a constitutional basis, a constitutional right to exercise a peremptory challenge, at least -- then you can have a subset of that, when the State gives it to you. But I think Swain no longer stands for that proposition.
James K. Leven: --I wasn't citing it for that proposition, Your Honor. We have the case of Evitts v. Lucey, for example, where the Court was analyzing the right to an appeal. And the Court found that the right to an appeal was not of constitutional origin, but once the State had created a right to an appeal it had the obligation to administer that right consistently with fundamental fairness and due process. So here we have a peremptory right that the State of Illinois wasn't obligated to create. But once it adopted that peremptory right, it was in effect adopting the long venerable tradition of peremptory challenges that has existed in this country since the founding.
Ruth Bader Ginsburg: But the -- well, first, how many peremptories does Illinois law allow?
James K. Leven: For non-capital cases, it's seven, Your Honor.
Ruth Bader Ginsburg: Well, suppose a State allowed only three peremptory challenges. There would be nothing in the least unconstitutional about that, right?
James K. Leven: Well, under Ross v. Oklahoma, the State has the authority to regulate peremptory challenges.
Ruth Bader Ginsburg: This was number four, was it?
James K. Leven: I'm sorry?
Ruth Bader Ginsburg: The challenge to Gomez was the number four peremptory?
James K. Leven: Yes, Your Honor.
Ruth Bader Ginsburg: And so if the State had only three which it could do, there would be -- would be no basis for removing Gomez from the array. That is, the -- the defense would have already exercised three peremptory challenges; she's number four, too bad. That would be the end of it, right? She would sit on the jury.
James K. Leven: Well, as to our unlawful adjudicator claim that would be correct, because if the defense did not have a peremptory challenge to exercise in order to strike Gomez if the peremptories had run out--
Ruth Bader Ginsburg: But there's just something unseemly about saying because the State is generous in its peremptories, you have a grand constitutional argument to make, even though there is no constitutional right to any peremptory challenge?
James K. Leven: --Well, the State is obligated, consistent with due process, to provide that which it promised. And the problem--
David H. Souter: That goes back to the point which you rejected when I suggested -- I suggested earlier that you were in effect arguing that every violation of a State statute in this criminal context amounted to a due process violation. And you say, no, that's not what I am arguing. It seems to me that that is exactly what you just said to Justice Ginsburg.
James K. Leven: --Well, what makes the peremptory challenge unique is its venerable tradition since the time--
David H. Souter: Well, we were talking about peremptory challenges before and we are talking about peremptory challenges now. Have you changed your position from -- from the position you stated in answer to my question?
James K. Leven: --Well, if I understand correctly, Your Honor, the case involves peremptory challenges.
David H. Souter: Look, the question that I thought I was asking and I thought you were answering was this: Do you claim that every violation of State law in the -- we'll say in the selection of jurors -- is -- is automatically, if not remedied by the State, a Federal due process violation? And you said, if I recall correctly, no. It seemed to me that in answering Justice Ginsburg's question just now you were saying yes. You said the State has to act consistently with due process.
James K. Leven: Yes.
David H. Souter: So -- so, do you stand by the answer you gave me or is it in fact now your position that every violation of State law that goes unremedied becomes a Federal due process violation?
James K. Leven: No, I'm not saying that every violation of State law, if unremedied--
David H. Souter: All right. Then why does this one become a due process violation if it's unremedied.
James K. Leven: --Because this one involves a State violation that resulted in an unlawful adjudicator. Let's take--
David H. Souter: No, but that -- that then goes back to an earlier question. It's an unlawful adjudicator if State law says so. Federal law says you don't even have to have peremptory challenges, you don't even have to have a process for winnowing out the Gomez jurors. So, in effect, if you are saying that there is something unlawful about the seating of the juror, you are making a statement of State law, and the State Supreme Court disagrees with you, which seems to me to foreclose your argument.
James K. Leven: --Well, the State disagreed with our position as to the Federal automatic reversal law. The court applied, and we would argue misapplied--
David H. Souter: No, but the court -- the Supreme Court of Illinois did not find anything unlawful about the juror sitting. They said, yeah, the perempt should have been -- the peremptory challenge should have been respected. But they did not say, and it seems to me they clearly rejected the notion, that there was something unlawful about the jury and unlawful about that juror's participating in reaching a verdict; isn't that correct?
James K. Leven: --I would read the Illinois Supreme Court opinion -- specifically what they did state is that the trial court was incorrect in denying the peremptory challenge, therefore that juror should not have sat on the jury, that juror was wrongfully on the jury.
David H. Souter: No, no. The -- the peremptory challenge should have been respected. But the Illinois Supreme Court did not say, as I understand it, that by allowing the juror to sit the juror was acting in an unlawful capacity or that there was something unlawful under State law about the jury's action and the jury's verdict. Am I not correct about that?
James K. Leven: Well, the Illinois Supreme Court made one statement, that the peremptory was wrongfully denied. Now, as far as elaborating on its reasoning--
David H. Souter: Well, if they thought that tainted everything that happened afterwards, it seems to me they would have said, therefore, the verdict is no good.
James K. Leven: --No, because the court misapplied this Court's precedent in Neder and Martinez-Salazar. That's the basis for the court affirming the conviction. It had nothing to do with the issue of whether or not--
David H. Souter: Yes, but it had everything to do, it seems to me, with the issue of State law. Regardless of whether they applied or misapplied a precedent of ours respect -- with respect to Federal constitutional law, it seems to me that the Illinois Supreme Court has to have meant it was okay so far as the validity of the verdict is concerned for this person to participate.
James K. Leven: --The Illinois Supreme Court found that the verdict was valid because they thought that the error was subject to harmless error review, in relying on Neder and Martinez-Salazar.
David H. Souter: So ultimately, there was -- there was no error under State law that needed to be corrected?
James K. Leven: Well, there is an error in terms of the adjudicator, Ms. Gomez, being seated on the jury and under Rule 434 Petitioner had the right to a juror that -- that was not subject to a peremptory challenge. Gomez was wrongfully seated on that jury.
David H. Souter: But so far as the ultimate jury verdict was concerned, the Illinois Supreme Court, I understand it to have said, was there is no error that needs to be corrected under State law.
James K. Leven: I don't read the opinion that way. I read--
David H. Souter: Then why didn't they correct it?
James K. Leven: --Because they thought that the error was subject to harmless error review under Federal law. And we would argue the two positions.
David H. Souter: You mean -- in other words, you read the -- the -- the Illinois Supreme Court as to say, this is a violation of our statutes and constitution, a violation that would -- would entitle this person to have the -- the verdict set aside and a new trial, but because the Federal practice, applying Federal constitutional law, is to engage in harmless error analysis, we won't correct our State law error as a matter of State law, and -- and we will in fact apply a harmless error analysis that otherwise wouldn't apply because it's Federal, and on that ground we will let the verdict stand. Is that the way you read the Illinois Supreme Court?
James K. Leven: No. The court declined to determine whether a constitutional right had been violated, but the court applied this Court's precedent under Martinez-Salazar and Neder, the Federal harmless error automatically reversal law that this Court has, and used that to find that the error was subject to harmless error review. The court did not--
Anthony M. Kennedy: But -- but how -- how could it do that if there were not some underlying Federal constitutional right? I say "how could it do that". It's obvious that they did it. What -- what would be the principled basis for that analysis? What would be the analytic framework that would lead it to look to the Federal decisions? This is a State issue.
James K. Leven: --Well, the court did not specify why it did so, but it did rely on Neder and Martinez-Salazar. And therefore--
Anthony M. Kennedy: But we are asking you what the analytic justification for that course of reasoning is if that is indeed its course of reasoning.
James K. Leven: --Well, it's hard for me to speculate on the thinking of the Illinois Supreme Court. But--
Anthony M. Kennedy: Well, but you have to give us a sustainable analytic framework if -- if we are going to reverse their decision.
James K. Leven: --Well, we argued at the Illinois Supreme Court level that due process was violated; but the Illinois Supreme Court declined to consider whether a constitutional right had been violated and moved accordingly to the question of whether or not automatic reversal would apply or whether the error would be subject to harmless error review. But the Illinois Supreme Court did not say anything about whether a constitutional right had been violated except it declined to consider that issue, even though it was argued at that level by -- by Petitioner. Not only do we have a constitutional basis for this Court to have access to its automatic reversal law; the fact that the court did rely on -- the Illinois Supreme Court relied on Neder and Martinez-Salazar gives this Court authority to reach the issue of whether or not to apply automatic reversal law under -- under its authority to correct--
John Paul Stevens: Of course, the Illinois Supreme Court was assuming a Federal violation when it decided what the reversal rule would be. But your Federal violation determines -- is bottomed on the notion that there was an unlawful adjudicator on the jury. Would that reasoning apply, in regard to one of the earlier questions, if you have a Cook County jury and they had a juror from Du Page County and the law says no, you have got to have a local juror, and it turns out that they had wrongly seated such a juror? Would that be an unlawful adjudicator.
James K. Leven: --Yes, it would appear so if it -- if a State law stated that a juror qualification requirement is that the juror who presides in Cook County must be a resident of the county.
Antonin Scalia: Well, if you -- I'm sorry.
John Paul Stevens: I just have one more thought. And if it is such an unlawful adjudicator, it would definitely be Federal constitutional error?
James K. Leven: Yes, because it would implicate the due process clause.
John G. Roberts, Jr.: But would it have to be -- would it have to be structural error? I -- I don't know why you don't argue that it's structural error when the error is a wrongful denial of a peremptory challenge, because it is impossible for you to establish the harmfulness of error because, as Justice Scalia pointed out, a peremptory challenge is just a hunch on your part; you don't need any more. But if it's something like he was in Du Page County rather than Cook County, maybe that's something where it's fair to put the burden of showing harmfulness on the defendant.
James K. Leven: Well, Your Honor, the -- the State under Chapman would be required to prove harmlessness, and I think it would be impossible to determine whether this -- this error would be harmful--
John G. Roberts, Jr.: Well, maybe that's true. My point is that may be true with respect to a peremptory challenge, but it doesn't seem to me to be terribly difficult to say, well, he lives in Du Page County and not Cook County, so what's the big deal?
James K. Leven: --Well, under harmless error review, the appellate court envisions the actual jury that rendered the verdict, whether or not the error would have rendered the verdict different had it been -- had it not occurred. And in this case we have a -- we can't analyze it from the perspective of whether this jury would have rendered the same verdict absent the error, because this jury that rendered the verdict is illegally composed, it's illegitimate. So what the Illinois Supreme Court did in analyzing harmless error review is it substituted its judgment for -- for the reviewing court, it substituted its judgment for the -- for the jury. The--
Ruth Bader Ginsburg: But we had an actual jury. It's not as though you had no jury verdict and then the court would say -- the court would say, we think that this defendant was as guilty as they come; but you had a jury with jurors who met all the State law qualifications, already made the determination of guilt. So that's a little different from the case where, say, a judge would attempt the equivalent of a directed verdict.
James K. Leven: --Well, in this case I don't think we can look at it from the perspective that the Court normally looks at it from when it reviews -- adopts harmless error review. In the normal situation the Court looks at whether or not the error contributed to the verdict and whether or not the actual jury that rendered the verdict would have rendered the same verdict absent the error. But we don't have -- we can't do it from the perspective of the actual jury in this case, because the actual jury here is illegal.
Samuel A. Alito, Jr.: Do you think the Constitution prohibits the State from going further than Batson to protect against the use of peremptory challenges for discriminatory purposes? Specifically, is there any reason why a State could not provide that whenever -- that a trial judge always has the authority, when the judge has any suspicion of discrimination, to ask for an explanation from counsel as to the reason, without having to establish -- without there having to be a prima facie case?
James K. Leven: Well, that's our position, Your Honor, because what the trial judge did in this case is asked for a reason without having established any prima facie case.
David H. Souter: Yes, well, that's what Batson says has to be done in order to justify the strike. When -- but is there any reason why a State couldn't go further to guard against discrimination in the use of peremptories?
James K. Leven: I apologize, Your Honor; I'm not sure I understand about going further than. Under Batson there is a three-step process, and the State must establish a prima facie case of discrimination before the judge is entitled to ask for any kind of explanation. And here there wasn't any kind of gender discrimination of any kind, according to the Illinois Supreme Court. Therefore, the -- the judge in this case was not authorized to even ask for an explanation. But the explanation given by defense counsel is pretty good.
John Paul Stevens: Yes, but Justice Alito's question is could the State say as a matter of State law whenever the trial judge has a hunch that there might have been discriminatory purpose involved, may he refuse to allow the preemptory challenge?
James K. Leven: Well, we argue that the judge doesn't have sua sponte authority to--
John Paul Stevens: No, but I -- if the State explicitly gave the trial judge that authority, would that be constitutional?
James K. Leven: --Well, the -- the State has the authority to have some regulation of preemptory challenge rights.
Antonin Scalia: It has the authority to abolish peremptory challenge rights entirely, right?
James K. Leven: Yes.
Antonin Scalia: So this is not a hard question.
James K. Leven: Yes, the State can abolish peremptory challenges if it wishes.
Antonin Scalia: And, therefore, it could take the much lesser step of allowing the trial judge, if he has any suspicion that a peremptory-challenge right is being used in violation of Batson, to disallow it. What is wrong with that?
James K. Leven: In this case, though, we do have peremptory challenges created by the State. And, Your Honor, I request that I -- to reserve the remaining time for my rebuttal.
John G. Roberts, Jr.: Thank you, counsel. Mr. Scodro.
Michael A. Scodro: Mr. Chief Justice, and may it please the Court: There is no due process violation here and that takes care of this case at the threshold.
Antonin Scalia: Well, does it really? Suppose I agree with you that there is -- there is no Federal constitutional violation. But I also think that in assessing the consequence of a State law violation the Illinois court here was looking to Federal law and was trying to apply the Federal law of harmless error. If that's the situation, would we not have the obligation to determine, or would we have the obligation to determine, whether it was properly applying the Federal law of harmless error? Even though it didn't have to, it chose to use the Federal law of harmless error to -- to apply to this State violation.
Michael A. Scodro: Justice Scalia, the briefs before the Illinois Supreme Court raise two independent grounds for automatic reversal by Petitioner. One was a pure State law automatic reversal rule. The other was a due process violation that would then trigger Federal automatic reversal requirements. What the Illinois Supreme Court did explicitly is say, even if there were a due process violation here, we believe as a matter of Federal law that would not trigger automatic reversal. What's certainly implied, because several of the questions today have suggested, what is implied is that if the court had believed that as a matter of Illinois law there were an automatic reversal rule required, that this was an unlawful juror to the extended so profound that it voided the judgment and required a new trial, under those circumstances the court would never have had to reach that assumption, much less go into any of the analysis it did. So here the court was faced with both claims, rejected both, but to reach the Federal claim they must first show a due process violation. And that's what they failed to do here.
John G. Roberts, Jr.: So your answer to Justice Scalia's question is what?
Michael A. Scodro: The answer, Your Honor, is that if the court had said, we are going to lockstep our Federal -- or, rather, our State harmless error analysis with the Federal question, Federal analysis, and whatever they say goes, then I would agree that under those circumstances this Court could review that and say, you got that wrong.
Anthony M. Kennedy: What -- what case would you cite for that proposition? And you can't say Michigan v. Long.
Michael A. Scodro: I can't say Michigan v. Long. Excellent question, Your Honor. I mean, I think that -- let me -- let me--
Stephen G. Breyer: Why did they get it wrong?
Michael A. Scodro: --I'm sorry, Your Honor?
Stephen G. Breyer: Why do you say they got it wrong?
Michael A. Scodro: Oh, I don't think they did. I was suggesting--
Stephen G. Breyer: Does that mean even if it were Federal? I don't know. I'm asking. Again, I don't know.
Michael A. Scodro: --We think they analyzed it absolutely correctly, as a matter of fact, Your Honor.
Anthony M. Kennedy: Isn't this Johnson v. Standard Oil and that -- that sort of thing?
Michael A. Scodro: Right. I should say if the court -- if the -- if the Illinois court wanted to back away from Federal law at any point, they could certainly do so. And so even if this Court were to say, you got it wrong federally, they could of course at that point say, no, we -- as a matter of State law, we are going to apply a Brack standard or a Chapman standard.
Stephen G. Breyer: Is that clear as a matter -- I don't know. Again, I'm asking. Is it clear as a matter of Federal law that we have lots of Federal trials, and in a Federal trial where a district judge makes an error in excusing a juror -- he shouldn't have excused the juror, there are many, many reasons for doing it, so the jury is not properly as the defense lawyer had the right to have it -- that that requires automatically a new trial? Is that clear as a matter of Federal law or not? And I--
Michael A. Scodro: That is not--
Stephen G. Breyer: --I don't know the answer.
Michael A. Scodro: --It is not clear, Your Honor. In response to an earlier question, they cited Gomez. And they -- and there is a line of cases including Gomez that are cited in their brief. Those are Federal supervisory authority cases in which the Court has said, not as a matter of due process, interpreting the Federal statute, in that case the Magistrate's Act, to conclude that--
Stephen G. Breyer: I am not talking about magistrates, and I'm not talking about due process.
Michael A. Scodro: --Correct.
Stephen G. Breyer: I am asking the question, just what I asked. Now, you heard what I asked. It's about jurors.
Michael A. Scodro: Right.
Stephen G. Breyer: All right. What is the answer?
Michael A. Scodro: It is not -- that is not a due process violation.
Stephen G. Breyer: I know. I'm not asking that question. I am asking, when a lawyer -- when a -- when a judge makes a mistake and excuses a juror whom he shouldn't have excused because he thought the juror was prejudiced, say, and he wasn't, the appeals court says, you are wrong about excusing him, does under Federal law the defendant become entitled to a new trial? Not under the Constitution; under whatever you want.
Michael A. Scodro: I don't believe--
Stephen G. Breyer: Yes or no?
Michael A. Scodro: --I don't believe so, Your Honor.
Stephen G. Breyer: You think the answer is no, okay.
John Paul Stevens: Going back to Justice Scalia's question, do you think we would have jurisdiction of this certiorari petition if we were convinced there was no Federal constitutional error; they were merely trying to decide whether the State court applied the correct constitutional standard in correcting what it thought was a Federal constitutional error?
Michael A. Scodro: I don't, Your Honor. I think the Federal question, if there is one presented, is whether or not there is a threshold due process violation.
John Paul Stevens: And if there is none there, we don't have jurisdiction to answer and give an advisory opinion on how the Illinois Supreme Court should run its shop.
Michael A. Scodro: That is correct, Your Honor.
Antonin Scalia: So the Illinois Supreme Court can happily go along blaming everything on us, so when it stands for reelection it can say, well, we are just applying Federal law. Right?
Michael A. Scodro: Your Honor, I think in this case what the Illinois Supreme Court did is they concluded--
Antonin Scalia: No, but that's the consequence of your answer to that question. It seems to me there is much to be said for the disposition that where a State court, even in resolving a State law question, uses a Federal principle, adverts specifically to Federal law, cites Federal cases, it would cover you.
Michael A. Scodro: --Your Honor, let me be clear. What they did here is they assumed the Federal constitutional violation because they recognized that there was no State entitlement to a new trial under these circumstances. So they then said, well--
John Paul Stevens: You -- they did make that assumption, but you think the assumption is wrong. And if we think the assumption is wrong, you would agree with Justice Scalia that we can go ahead and say, well, you are running for reelection, so we are going to correct your errors on Federal law.
Michael A. Scodro: --Obviously, Your Honor, I think that if the Court were to conclude there is no due process violation, it would be an artificial exercise to then embark on an analysis of a proper harmless errors. This Court has said time and again that there is a close link between the alleged due process or Sixth Amendment violation and the manner in which the due process -- the harmless error analysis is conducted. In Gonzalez-Lopez that was the gist of much of the debate between the majority of the--
Antonin Scalia: I would certainly agree that if the only reason the Illinois Supreme Court used the Federal harmless error rule was because it was assuming a Federal constitutional violation, once we reject that assumption, the whole thing drops out. But is that entirely clear from the opinion?
Michael A. Scodro: --I--
Antonin Scalia: Is it clear that the Illinois Supreme Court wouldn't have used the same test under simply Illinois law?
Michael A. Scodro: --Well, two points, Your Honor. First, in context with the briefs, which independently sought both State and Federal remand, and page 171 of the joint appendix, where the court makes clear that we are simply not going to resolve the question of whether there is a Federal due process violation, I think in context it does become clear what the court has done here is it has certainly concluded there is not a State right. So it's proceeded to say, well, what if there is a Federal due process entitlement? If that is the case, let's proceed and decide, well, it's harmless anyway. We don't need to then reverse this conviction. Now, I will say that if the Court harbors concerns -- if the Court were to conclude there is no due process violation here, but harbors concerns that the Illinois Supreme Court feels itself duty-bound to follow this Court's jurisprudence on the question of harmlessness, that at that point the Court could simply make the due process ruling and remand and allow the Illinois Supreme Court to make clear what I think is already clear, but make crystal clear, that they would apply a -- a harmless error standard to this sort -- this sort of deprivation.
Antonin Scalia: The problem is the -- the only reason the Illinois Supreme Court found that there was no error of constitutional dimension, meaning Federal constitutional dimension, the only reason it -- it found that is because it found that the error was harmless beyond a reasonable doubt.
Michael A. Scodro: Your Honor, I think that what they have done is they've just put the statement--
Antonin Scalia: It is the cart before the horse.
Michael A. Scodro: --They have run the analysis, and what they have done, Your Honor, is said, look, any error here of constitutional dimension would be harmless. Therefore, we inform the reader on page 171, we simply haven't reached the question. Please don't read the foregoing analysis to suggest that we have made a prior conclusion that there is indeed a due process violation here. Indeed, the court suggests there probably isn't by early on in the opinion pointing out that this Court has long held since -- since Stilson in 1919, has long held that there is no due process entitlement to a peremptory challenge. So I think in context it is quite clear that what the court has done is it said, there is nothing in here for you under Illinois law; under Federal law, even if there were a due process violation, it is simply not -- it is simply harmless error.
Ruth Bader Ginsburg: Then -- then you would have no objection to a remand that says, Illinois Supreme Court, you can't blame it on Federal law. It's up to you as a matter of State law. And now answer the question that you didn't answer; that is, what is the consequence under State law of an erroneous denial of a peremptory? You would have no objection to such a remand?
Michael A. Scodro: Your Honor, we would have no objection to that procedure, but I would caution that it seems unnecessary in light of the fact that the parties so clearly sought relief under both State and Federal law and the fact that the supreme court -- the Illinois Supreme Court concludes it doesn't need to reach, the way it analyzes the -- the constitutional question. I think that -- and the underlying assumption that judges understand, I think it's fair to assume that the Illinois justices understood that they could go further as a matter of State law than Federal, but not -- they couldn't provide fewer protections.
Anthony M. Kennedy: For the reasons that have been discussed, it may be that we won't get to the merits of the Petitioner's argument. But assuming we do, the Petitioner talks about the -- I don't have -- the "unlawfully constituted jury". Is -- is -- what is the distinction between the hypothetical case of the juror who isn't a resident of the county and the State says you have to be a resident of the county, what is the distinction between that and, say, a non-Article III judge sitting on a court of appeals panel? Why is one structural and the other not?
Michael A. Scodro: Well--
Anthony M. Kennedy: And this would -- this would be a little different than the juror who might be biased or might not be biased, because this goes to a hard qualification. It's just a hypothetical in the case, but it's a -- it's a linchpin to the Petitioner's argument.
Michael A. Scodro: --I should begin by saying that the Gomez and Wingo and Nguyen decisions and others they cite in that line for the non-Article III judge proposition are themselves not due process decisions, but are conclusions as a matter of State -- of Federal law, rather, the idea being that Congress simply hadn't delegated the authority properly in those cases. They are not due process cases. But if one were to assume that those would also be due process violations, to have a non-Article III judge sit, I would distinguish those cases at that point hypothetically by saying there is a profound, profound difference between someone who lacks any and all mantle of State authority, on the one hand, and a juror who is properly sworn and who satisfies all the statutory requirements for sitting as a matter of Illinois law. And I should note, in the reply brief there's a point at which they contend--
Anthony M. Kennedy: Well -- but the hypothetical is it doesn't -- the juror doesn't satisfy the requirement because he or she is from the wrong county.
Michael A. Scodro: --Again, Your Honor, the fundamental -- the lodestar analysis here in the due process -- in Butte v. Illinois, the Court said they've not defined it with precision, but it has always been fundamental fairness, a community sense of fair play and decency. It seems to me that, as you move into a judge with absolutely no mantle of State authority or -- and -- whatsoever, versus a juror who is properly sworn, properly instructed, but who nevertheless sits from a different neighboring jurisdiction -- and I should note that in Cook County there are three jury jurisdictions, so the errors could be legion just within Cook County in terms of being from the wrong part of the county. It seems to me that that sort of error simply doesn't come anywhere close to the fundamental fairness--
John G. Roberts, Jr.: Well -- but how do you -- there is no way to tell. I mean, presumably the State has a reason for restricting the jury pool to the neighborhood. I mean, and that type of limitation does go back to Blackstone, the vicinage of the -- of the crime. So -- and there's no way to tell. There's no way to tell whether the juror from Du Page County is going to have a different view or a different perspective or affected it in a -- or that it affected the verdict in a particular case.
Michael A. Scodro: --This is true, Your Honor, but in those contexts, the very State law that has created those divisions, for whatever reason they have seen fit to do so, is the proper authority to conclude whether or not the error is so profound by having that person sit that it ought not be a violation of due process -- that it ought not be -- that it oughtn't be a void judgment. Indeed, that's how these Federal cases, Gomez and the others--
Stephen G. Breyer: Did -- that's exactly what I can't figure out. I'm trying -- forget due process. All right? Keep that out of your mind. We have approximately 50 State jurisdictions, the District of Columbia, a bunch of Federal jurisdictions. In those jurisdictions, to your knowledge -- you may not know this, you may not have looked it up -- but what happens in the situation where a juror -- where a juror should have been excused? I guess there's a new trial. The juror should have been excused, but wasn't. I guess there's a new trial normally; is that right?
Michael A. Scodro: --If the juror is biased, yes, but not if the juror is unbiased.
Stephen G. Breyer: If the juror is biased, yes. Okay. Now, suppose it's the defendant who wanted the juror and he was -- he was wrongly excused. All right, so that's what the appeals court holds. What's the rule? Again, do they go back and look and see if it's biased? If the juror -- if the defendant didn't get the juror he wanted, somebody else took his place, so they look to see if that person was biased, and if not, say: Too bad, defendant; you may have been right, but you lost the jury that you want, no remedy? What happens?
Michael A. Scodro: It's my understanding -- I don't believe -- I don't have cases to cite on this. But I don't believe there would be a remedy because this Court has said time and again that the preemptory right and those surrounding it do not create a right to any particular juror.
Stephen G. Breyer: So, at least in the case of where he failed to get a peremptory, whether it's Federal or whether it's State, the Federal law and most State law is: You lost your right to a peremptory, one of them. You should have had it, but you are out of luck, if -- if the juror who replaced, the replacement, the juror who was there, you know, who otherwise wouldn't have been, is a fair juror.
Michael A. Scodro: Your Honor, I thought you were asking what happens if a particular juror the defendant wanted did not sit, and under those circumstances I would say that because this Court has held--
Stephen G. Breyer: Well, what about the last situation?
Michael A. Scodro: --If your question -- that indicates really the split in this case, Your Honor, and the indirect split that was -- all of which was laid out in the cert petition. There is -- there is disagreement, though we would note that much of the disagreement -- some of it -- is pre-Martinez-Salazar and footnote 4 with its remarks about Swain. Some of it is Federal, and therefore you don't have the same concern about a threshold due process violation. I will say, to answer your original question, though, as well about jurors who should not have sat, but are not deemed biased, Illinois certainly has a history of cases to that effect, and the court -- the Illinois court has handled them as a matter of Illinois law. In the case in 1886, an alien sat and the court concluded there was no timely objection. That was part of its analysis, but it certainly was not a "nullity", in the court's words, under those circumstances.
Anthony M. Kennedy: What was that case?
Michael A. Scodro: This is not cited in the briefs, so I'm only citing it in response to a question. It's a case called Chase from the Illinois Supreme Court--
Anthony M. Kennedy: Oh, an Illinois case.
Michael A. Scodro: --in 1886.
Anthony M. Kennedy: And it's a case in which an alien sat on the jury, and there was, I believe, as part of the court's analysis a failure to make contemporaneous objection. But they said it was not a "nullity", to use the court's words, to seat this improper juror and, again, made as a determination of Illinois law, just as the question here as to what remedy should be in effect is purely a question of Illinois law. Again, they have simply failed to establish a due process violation. This Court has said time and again that there is no due process entitlement to peremptory challenges. Much of what we accept as given these days depends, hinges, upon that presumption, including the Batson line, as the concurrence in Miller-El pointed out in 2005, numerous restrictions on peremptories that have been upheld since the 19th century, which are laid out in the government's brief. And indeed, the remarkable variety amongst States, some of which has been touched upon today, where States, State by State, provide very different numbers of peremptory challenges and they provide very different limits thereon as well.
Samuel A. Alito, Jr.: If the judge who sat on a State trial was not authorized under State law to hear that particular matter, would that be a due process violation?
Michael A. Scodro: --I think the answer to that is no, Your Honor. And indeed, as we point out in our brief, Cook County has several substantive divisions, so that, for example, a criminal law division judge is not authorized to sit on a family law matter, for example. And yet Illinois law has made clear that if there's an error, if you go to the wrong court -- and that is unlikely to happen in the scenario I put forth, but it could easily happen between law and chancery for example, and does indeed happen. If that were be the case, the -- any error in going to the wrong court and having the wrong court resolve your issue does not void the judgment as a matter of law. And I certainly don't think that would implicate due process concerns as well. If the Court has no further questions, we would ask that you affirm the judgment below.
John G. Roberts, Jr.: Thank you, counsel. Mr. Roberts.
Matthew D. Roberts: Mr. Chief Justice, and may it please the Court: Federal law does not require automatic reversal of Petitioner's conviction because the denial of a peremptory challenge at most violated only his State law rights. And even if his Federal constitutional rights had been violated, harmless error review would apply. The Constitution does not give criminal defendants the right to peremptory challenges. Therefore, a -- the right of a State defendant like Petitioner to exercise peremptory challenges derives entirely from State law, and when the erroneous denial of a peremptory challenge deprives him only of State law right, and when the State law rights alone have been violated, State law, not Federal law, dictates whether harmless error review applies. The violation of a State law right doesn't rise to a due process -- Federal due process violation unless it deprives the defendant of a fair trial. And this Court has repeatedly held that States can withhold peremptory challenges entirely without impairing the right to an impartial jury or a fair trial. It therefore follows that the erroneous denial of a single peremptory challenge does not render a trial fundamentally unfair.
Samuel A. Alito, Jr.: What if it's not a single challenge? What if, let's say, each side has six, and the trial judge just arbitrarily refuses to allow a defendant to exercise any peremptory challenge, but the jury -- the jury that's ultimately selected, there is no reason to think it's not a fair jury?
Matthew D. Roberts: We'd still think that that would not be a Federal constitutional violation and, even if it were some kind of a Federal violation, that it would be subject to review for harmlessness. If -- the trial court could violate due process, if its actions so skewed the balance of power over the selection of the jury in favor of the government that it resulted in a fundamentally unfair trial, but even the denial of multiple peremptory challenges wouldn't rise to that level, and certainly the denial of a single one--
John Paul Stevens: But supposing -- supposing Illinois had a statute that said the prosecution gets ten peremptories and the defendants get one. Would that raise a Federal question?
Matthew D. Roberts: --The question there would be whether that so skews -- the test that I said before. I think the question would be does that so skew the balance--
John Paul Stevens: Isn't the answer pretty clear that that would be unfair?
Matthew D. Roberts: --I don't -- I don't think that the answer is clear at all. The State might rationally conclude that, because the government has to prove its case beyond a reasonable doubt, because it has to convince the jurors unanimously to rule in its favor, and because it has no right to appeal an unfavorable determination by the jury, that the prosecution should be entitled to more peremptory challenges. Of course, this case doesn't--
Anthony M. Kennedy: I will use that as an examination question, but let's hope that it doesn't come up.
Matthew D. Roberts: --It's unlikely to, but--
Ruth Bader Ginsburg: But what about the--
John Paul Stevens: The reason it's unlikely is it's so clearly unconstitutional.
Matthew D. Roberts: --Well, we don't think that it's unconstitutional at all, Your Honor, but it is contrary to what the common practice and the way things have been approached in both Federal and State courts.
Ruth Bader Ginsburg: --Mr. Roberts, if you do get to harmless error, how do you deal with the question that was raised by the Chief Justice? That is, there is no way in the world that you can tell whether this was harmless or not? You have to imagine another juror being on the panel, that juror could have swung the case, could have had no influence. There's just no way of knowing what would have happened.
Matthew D. Roberts: Well, I think that rests on the mistaken premise that harmless error analysis turns on the predilections of the particular decisionmaker or on speculation about what one juror, what one particular juror would have done differently than another. In fact, harmless error -- the harmless error inquiry looks at the hypothetical objective rational juror. And so, that's what you look at and the difference between--
John G. Roberts, Jr.: No, but maybe -- maybe you have an -- you know, the irrational juror, you know, the holdout is not going to convict for any reason.
Matthew D. Roberts: --But -- but that is not an appropriate part of -- of harmless error analysis, just like the fact that the jury might engage in nullification isn't an appropriate part of the harmless error analysis. If -- and Strickland is the best case to, I think, to explain how that is irrelevant to the inquiry, even though it's part of the constitutional there -- analysis there. The Court very clearly explains that you don't look at the particular decisionmaker, you don't speculate about nullification, about arbitrary action and the like; it's sort of transferable over. That's just not an appropriate part of harmless error analysis.
John G. Roberts, Jr.: Well, I mean, you get -- well, even assuming your -- your premise, isn't it pretty difficult to know what a rational juror would have done?
Matthew D. Roberts: Well, we think that the correct inquiry in this circumstance, given the nature of the right, is to ask whether the error resulted in the seating of a juror that was not impartial. And then you look at the record in the case, the voir dire record, and you make that determination, and the government bears the -- bears the burden of proof. So we don't think that that would be difficult to do, Your Honor.
John Paul Stevens: But that is almost the same, at least in some States, as getting a new trial anyway. If we find out after the fact that the juror was biased, then in some States that's -- that's a reason for a new trial in the discretion of the trial court, anyway.
Matthew D. Roberts: That -- that -- that could be, but--
John Paul Stevens: The point is you are not giving much substance to the rule.
Matthew D. Roberts: --Well, I think we are respecting its fundamental -- its fundamental purpose, Your Honor, which is to assist to help achieve the goal of selecting an impartial juror.
Stephen G. Breyer: What is the law there? That's what I have been trying to get at. I mean, my initial instinct would be that if a defendant doesn't get the jury that the law entitles him to, that's an error. And you'd normally think it was harmful, because you can't say, in honesty, that it was harmless; it's the jury that was supposed to decide. I expect it would work out that way. I have never looked into it. How has it worked out?
Matthew D. Roberts: Generally for errors like the error you described before, where the judge erroneously -- mistakenly excuses a juror in the belief that the juror is disqualified for cause, where the judge mistakenly substitutes a qualified alternate for one of the jurors, or the judge places one alternate on the jury instead of another, the courts have generally looked at that for harmlessness and not required automatic reversal. Indeed, even in the case of jurors that don't satisfy--
Stephen G. Breyer: But -- all right. So in other words, they have often said you don't get a new trial?
Matthew D. Roberts: --Yes.
Stephen G. Breyer: Okay.
Matthew D. Roberts: Yes. And even in the case of jurors that don't meet the statutory requirements, the Federal courts of appeals have held that unless a biased juror sits a new trial is not required.
Anthony M. Kennedy: But don't some of those courts, rather than focusing on the qualifications of the particular juror, look to the -- how close the case was?
Matthew D. Roberts: The harmless error analysis, there are sort of a lot of different scenarios of types of violations, and the standard that they use is not clear in all of them. In the ones that -- the cases that I found that involve the seating of jurors that don't meet the Federal statutory requirements, usually they involve felons that didn't reveal that they were felons, the courts have looked to the biased juror standard. Some courts have done that. Others have looked to whether it affects the verdict. They haven't been exactly clear how you -- how you determine that, but--
John G. Roberts, Jr.: Well, that's because there is no way to tell.
Matthew D. Roberts: --Well, I -- I think that -- that even if you had a standard that said to look to whether there was an effect on the verdict, you could tell precisely the way the Illinois Supreme Court applied Neder here. If no rational jury could have acquitted, then you know the substitution of one rational, impartial juror for another didn't have an effect on the outcome. And that doesn't violate the Sixth Amendment to do that, Your Honor, because the underlying right -- the underlying error doesn't violate the Sixth Amendment.
John G. Roberts, Jr.: But a jury is a fundamental protection of individual liberty, and in your analysis you are having a judge decide what the jury would do.
Matthew D. Roberts: No, Your Honor. As Justice Ginsburg pointed out before, the Petitioner here got a determination of guilt beyond a reasonable doubt on every element of the offense from a fair and impartial jury that was properly instructed. So we are not having a judge substitute that at all.
John G. Roberts, Jr.: The judge is making the determination that a juror that should have been seated would act like the juror who was seated instead.
Matthew D. Roberts: That is true. But the Sixth Amendment doesn't give the defendant the right to any particular jury. It doesn't give the defendant the right to a jury that has been selected in compliance with every jot and tittle of State law. And therefore if the underlying error, as the underlying error here where you get a denial of a peremptory, where a juror is seated that, even though that violated State law assumably here, that -- that that doesn't amount to a Sixth Amendment violation. And if the -- if the defendant got his Sixth Amendment rights at trial, then the way you conduct harmless error review can't violate his Sixth Amendment rights. He already got them. And so it can be done and it doesn't violate the Sixth Amendment.
Anthony M. Kennedy: There are any number of alternatives that we can adopt in ruling for your position. If we were to rule for your position, what do you think is the most straightforward rationale?
Matthew D. Roberts: Well, I -- we would obviously like to have sort of alternative rulings that do both, but I think the most logical way to approach the case is to decide whether there was a violation of the Constitution here and, because there wasn't one, to say that State law governs the harmless error analysis.
John G. Roberts, Jr.: Thank you, counsel. Mr. Leven, you have two minutes remaining.
James K. Leven: Your Honor, the Hicks v. Oklahoma case is a very important case as far as the due process right to a lawful adjudicator, because there we had an unlawful sentencer. So, I would ask that the Court consider that. That's a State case involving an unlawful adjudicator. So we do have a due process violation under that case. As to the Sixth Amendment issue, the Illinois Supreme Court did act inconsistently with the Sixth Amendment as far as its manner of conducting harmless error review, because harmless error analysis is impossible to conduct in this situation, because in order to do that, we would have to examine what the particular jury would have done had it not been for the error; and the particular jury in this case must be out, because there the particular jury, the panel as a whole, is illegally constituted, and the -- and it's impossible to conduct your harmless error analysis.
Samuel A. Alito, Jr.: Why is that any harder than harmless error analysis that is conducted all the time? For example, evidence is erroneously excluded from the trial and you ask, was that a harmless error? But you have to -- there has to be speculation about how this jury would have received the additional evidence. What -- what's the difference?
James K. Leven: Because in that situation, we are looking at what the particular jury, how a particular jury in that case would have resolved the matter had the erroneously admitted evidence not been admitted.
Samuel A. Alito, Jr.: But the court has no -- has no inside information about the dynamics of that particular jury. It's just -- it's deciding what a rational jury would do, what a -- what a standard jury would do.
James K. Leven: Whether that particular jury would have reached the same verdict, which we can't do in this case.
Samuel A. Alito, Jr.: No. But how does the Court know anything particular about the jury when it conducts that harmless error analysis? It doesn't.
James K. Leven: But it could look at the record as a whole and determine whether or not the -- the particular jury that rendered the verdict would have done the same thing had the erroneously admitted evidence not -- not been -- not been introduced. And in this case, we have a very different situation. We have an illegal adjudicator and we can't determine whether that adjudicator would have resolved the case differently had it not been for the error, because it's impossible to assess because of the -- the particular adjudicator that resolved this case, in the present case, was illegally composed.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.