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State v. Gomez10/13/2005
need to state anymore for the record. It's just a situation that is untenable.
THE COURT: Well, it's a complex situation and I read it similar to the situation we had yesterday. I probably would deny a challenge for cause if she continued to say she could be fair. She's a credible person. She's not, I don't think she's trying to get out of this jury, but I agree with the State that if the grace of the jury is left out of it, it would be bordering on ineffective representation not to challenge her because of that. So I'll excuse her, it's not a - it's clear to me there is a valid and mutual reason. Bring her back in Pat.
You don't even have to come way back up here, I'll just tell you I've discussed it with the lawyers and I've decided I'll excuse you from this jury. Doesn't mean you're not qualified to be a juror here, you are or you wouldn't have got to this room, but as you probably know we have to turn fifty jurors into about fourteen and so we do it one at a time like this and we've just decided to excuse you from this jury. So check back in - probably tomorrow morning down at the jury office.
(Emphasis added.)
The Trial Judge As Advocate
The majority asserts that the actions of the trial court "improperly invaded the province of the parties." The majority then concludes that this action constituted a structural error that is not subject to harmless error analysis. To fully understand my concerns and discomfort with the majority's analysis, certain fundamental precepts and principles that underlie Batson must be revisited.
A. Elimination of Discrimination
Batson and its progeny were decided for a very specific purpose--to eliminate improper discrimination from the jury selection process. In Powers v. Ohio, 499 U.S. 400 (1991), the United States Supreme Court stated that:
Active discrimination * * * during [the jury selection] process condones violations of the United States Constitution within the very institution entrusted with its enforcement, and so invites cynicism respecting the jury's neutrality and its obligation to adhere to the law. The cynicism may be aggravated if race is implicated in the trial * * * as with an alleged racial motivation of the defendant or a victim.
Id. at 412. The Court went on to observe that " he overt wrong [of excluding a juror based on race] * * * casts doubt over the obligation of the parties, the jury, and indeed the court, to adhere to the law throughout the trial of the cause." Id. (Emphasis added.)
The Supreme Court has applied this fundamental principle of eliminating discrimination not only to the state, but also to criminal defendants, Georgia v. McCollum, 505 U.S. 42 (1992); civil litigants, Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991); and discrimination based on gender, J.E.B. v. Alabama, 511 U.S. 127 (1994).
B. Whose Rights Are Protected?
The Supreme Court has held that the Equal Protection Clause as implicated by Batson safeguards not only the rights of the criminally accused, but the right of individual jurors not to be excluded from jury service based on race and the right of society as a whole to rely on the integrity of the judicial system. The Court said in Powers that:
In Batson, we spoke of the harm caused when a defendant is tried by a tribunal from which members of his own race have been excluded. But we did not limit our discussion in Batson to that one aspect of the harm caused by the violation. Batson "was designed 'to serve multiple ends,'" only one of which was to protect individual defendants from discrimination in the selection of jurors. Allen v. Hardy, 478 U.
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