Release No. 09-04, Supreme Court to Hear Illinois Jury Discrimination Case

An Illinois trial judge’s decision to prevent a defense attorney from removing a juror because of her race and sex will be the subject of oral argument before the United States Supreme Court on Monday. The case of Rivera v. Illinois involves the conviction and 85-year prison sentence of Michael Rivera for the 1998 murder of a sixteen-year-old boy in Chicago.

The Illinois Supreme Court held that the trial judge did not have a sufficient basis to require the defense lawyer to explain his peremptory challenge of an African-American woman from the jury, even though the lawyer stated later that he did challenge her because she is a woman. However, the state high court went on to hold, “The evidence of defendant’s guilt is overwhelming, and the error in denying defendant’s peremptory challenge is thus harmless beyond a reasonable doubt.”

The defendant appealed the harmless-error holding to the United States Supreme Court, arguing that denial of a peremptory challenge can never be harmless. The Illinois Attorney General argues that there has been no denial of any federal right for the United States Supreme Court to review, because the right to peremptory challenges is granted solely by state law. The Attorney General also argues that the state high court was correct that any error was harmless, and, in addition, that the trial judge did not err at all. The California-based Criminal Justice Legal Foundation has filed a friend-of-the-court brief on this point, arguing that the judge properly determined that the defense challenge was clearly gender discrimination and possibly racial bias.

“While the judge’s initial suspicion was that the defense wanted to remove the juror because she is the same race as the victim, the defense attorney later admitted that he challenged her because she is a woman,” said CJLF’s Legal Director Kent Scheidegger. “That admission was all that was required to deny the challenge,” he added.

According to the testimony at trial, Rivera was a member of the “Insane Deuces” street gang and held the rank of “chief enforcer.” In the early morning hours of January 10, 1998, he was riding in a van with several other gang members when he saw Marcus Lee walking near a housing complex known as the Lathrop Homes. Rivera mistakenly believed that the boy was a “Stone,” a member of a rival gang. Rivera left the van accompanied by two fellow gang members and fired several shots from a revolver at Lee. One bullet struck him in the back of his head and killed him. After the shooting, Rivera and his cohorts returned to the van yelling gang slogans including “Stone killer.” Later, displaying the revolver to other gang members, Rivera bragged that he was a “Stone killer.”

Prior to trial, Rivera’s defense attorney used peremptory challenges to remove two women, one of them African American, the same race as the victim. Later the defense attempted to remove another African American woman, explaining to the judge that he was concerned that her occupation as a clerical supervisor at an orthopedic clinic brought her into contact with crime victims on a daily basis. The judge found this explanation inadequate and seated her. After questioning the woman again, the defense attorney renewed his challenge, this time telling the judge that he felt that there were too many women on the jury. The judge again denied the request, finding no basis for removing her.

On appeal Rivera did not challenge the sufficiency of the evidence supporting his conviction but claimed that the judge’s decision to seat the challenged juror violated his constitutional rights. The state court of appeal rejected the claim and upheld his conviction. The Illinois Supreme Court later remanded the case for a limited hearing to allow the trial judge to explain his decision to seat the challenged juror. At that hearing the judge pointed out that it was clear that the defense had attempted to remove the juror because of her gender and possibly her race.

In its final review last year, the state supreme court determined that the judge had erred in seating the woman because his initial inquiry was a concern that the defense challenge was due to her race, even though the judge correctly found that the defense challenge was gender discrimination. The court then ruled that the error was harmless and upheld Rivera’s conviction.

When the United States Supreme Court agreed to consider Rivera’s challenge to that ruling, the Illinois Attorney General asked the Criminal Justice Legal Foundation to join the case.

In a scholarly amicus curiae (friend of the court) brief, CJLF argues that there was no error, harmless or otherwise, in the trial judge’s seating of the juror. The CJLF brief points out that “a trial judge’s finding of discrimination after full inquiry removed the need to go back and look at why discrimination was suspected.” The Foundation is encouraging the Supreme Court to overturn the Illinois court’s finding of error and uphold Rivera’s murder conviction.