Arbitrary rationality.

• Author: Magliocca, Gerard N.
• Position: Reversal based on peremptory challenge errors

United States v. Annigoni, 96 F.3d 1132 (9th Cir. 1996) (en banc).

I

Since the Supreme Court's landmark decision in Batson v. Kentucky(1) limited the exercise of peremptory challenges on the basis of race, courts and commentators have struggled to reconcile what Blackstone called an "arbitrary and capricious" right(2) with the demands of the Equal Protection Clause.(3) That tension was most recently evident in United States v. Annigoni,(4) which upheld the traditional remedy of automatic reversal for convictions obtained following the erroneous denial of a peremptory despite the significant limitations that Batson and its progeny have placed upon the traditional right to challenge jurors without cause.(5) While this ironclad rule regarding peremptory remedies seems at odds with the introduction of scrutiny to the exercise of the peremptory right, this Case Note will argue that Annigoni can best be understood as part of a broader convergence between the jurisprudence of peremptory challenges and selective prosecutions.(6) This convergence raises the question of whether courts are approaching peremptory rights with an eye toward protecting the Sixth Amendment right of criminal defendants to be tried by an impartial jury.(7)

II

Annigoni arose out of a conviction for bank fraud, in which the defendant's peremptory challenge against an Asian-American juror was denied by the District Court as racially motivated.(8) On appeal, the panel determined that this denial had been erroneous because the prospective juror's experience with litigation over a limited partnership investment constituted ample justification to rebut a Batson challenge.(9) Nevertheless, the conviction was sustained on the ground that the denial constituted harmless error because there was no evidence that it had affected the eventual verdict.(10) An en banc panel of the Ninth Circuit reversed, holding that the application of harmless error analysis was incorrect and that only automatic reversal could remedy the erroneous denial of a peremptory.(11)

The en banc majority relied in large part on Chief Justice Rehnquist's opinion in Arizona v. Fulminante,(12) which distinguished between "trial errors" that can be assessed qualitatively by reviewing courts for harmlessness and "structural errors" that compromise the trial mechanism itself and require automatic reversal.(13) After an expansive paean to the peremptory challenge, the majority explained that, "[t]o subject the denial of a peremptory challenge to harmless-error analysis would require appellate courts to do the impossible: to reconstruct what went on in jury deliberations through nothing more than post-trial hearings and sheer speculation."(14) Nevertheless, the court reserved judgment on the question of whether such a denial constitutes structural error, relying instead upon the importance traditionally accorded by the peremptory right to justify the continued application of the rule of automatic reversal.(15)

As the dissenters point out, however, the presumption that all errors resistant to appellate analysis are harmful is untenable.(16) Structural error has been understood to serve as a proxy for those defects that are conclusively harmful, and the inability of the majority to place peremptories within that category suggests that prejudice might not always follow from their denial.(17) This is a particularly important question because the harm of allowing discriminatory peremptories is clear after Batson, yet Annigoni equates the remedy for that wrong of constitutional dimension with the remedy for a violation of what has heretofore been considered a mere statutory right of uncertain significance.(18) Such asymmetry is not only unkempt as a matter of doctrine, but creates a disincentive for district courts to enforce Batson vigorously.

The dissenters also call into question the vitality of the tradition invoked by the majority to support automatic reversal. Although virtually unlimited in scope before Batson, within the last decade peremptories have been constrained by the Equal Protection Clause, and, as the dissenters in Annigoni emphasize, "[b]ecause the peremptory challenge has changed, our review of the trial court's scrutiny of its exercise must change, too."(19) Nevertheless, their response--applying harmless error review to an error that can never be adjudged harmful--rings hollow in light of the Supreme Court's continuing support of the challenge as critical to a fair...