Ross v OK Brief of Petitioner

    No. 86-5309

IN THE

g>upremi Court of tfje 3Jmteb States
October Term , 1987

B obby L. Ross,
Petitioner,

v.

Oklahoma,
Respondent.

On Writ Of Certiorari lb  The Court Of 
Criminal Appeals Of Oklahoma

B R IE F OF PETITIONER

Gary Peterson*
9400 North Broadway, Suite 420 
Oklahoma City, Oklahoma 74114 
(405) 478-5344
Thomas G. Smith, Jr.
Metro North Bank Building 
Barry Road and North Oak 
Kansas City, Missouri 64155 
(816) 436-6247
Counsel for Petitioner 
* Counsel of Record

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 (301) 864-6662



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1

QUESTIONS PRESENTED

1(a) When a state trial court overrules a challenge for 
cause to a juror who promises to vote automatically 
for a death sentence, thereby forcing a criminal 
defendant to use one of his limited number of pre- 
emptory challenges to remove the juror, does the 
resulting reduction in the number of available 
peremptory challenges violate the defendant’s 
rights under the Sixth and Fourteenth Amend­
ments?

1(b) If a constitutional error at trial causes an actual 
reduction in the number of peremptory challenges 
available to a criminal defendant during jury selec­
tion, can the error be regarded as harmless?



IV

T\able of Authorities (Continued)
„ Page
State v. Moore, 562 P.2d 629 (Utah 1977)......................  26
State v. Parnell, 77 Wash. 2d 503, 463 P.2d 134 (1969) !. 26
State v. Smith, 491 So.2d 641 (La. 1986)...................... 26
State v. West, 157 W.Va. 209, 200 S.E.2d 859 (1973).... 26
Swain v. Alabama, 380 U.S. 202 (1965)................ 13, 23, 25
Tamer v. Murray, 476 U.S____ , 106 S.Ct. 1683

(1986)................................................................... 14, 24
United States v. Allsup, 566 F.2d 68 (CA9 1977)........... 26
United States v. Jackson, 390 U.S. 570 (1968).......  10, 19, 20
United States v. Martin, 749 F.2d 1514 (CA11 1985).... ’ 26
United States v. Nell, 526 F.2d 1223 (CA5 1976)........... 26
Vasquez v. Hillery, 474 U.S. 254 (1986)........................  23
Walker v. Sauvinet, 92 U.S. 90 (1876)..........................  16
Wardius v. Oregon, 412 U.S. 470 (1973)......................... 16
Wasko v. Frankel, 116 Ariz. 288, 569 P.2d 230 (1977)!.. 26
Witherspoon v. Illinois, 391 U.S. 510 (1968)..............  12, 23
Constitutional Provisions 
United States Constitution

Amendment V............................................................ 19
Amendment VI..................................................... passim
Amendment XIV.................................................  passim

Statutes 
United States Code

28 U.S.C. § 1257(3)..................................................... 1
Oklahoma Statutes (1981)

Title 21
§701.7.................................  2
§701.10..................................   12
§701.11........................................    22
§701.12(2)............................    8
§701.12(4)................................   8
§701.12(5).....................................  ' 8
§701.12(7)................................ 8
§701.12(8)............................    8
§801............................  ................  2

v

Table of Authorities (Continued)
Page

Title 22
§654 ......................................................................  1
§655......................................................................  2,12
§659(2)................................................................... 17

Rules
Oklahoma Supreme Court Code of Professional Respon­

sibility, DR 1-102(A)(4)..........................................  20
Other Authorities
A. Amsterdam, Trial Manual for the Defense of Criminal

Cases § 331 (4th ed. 1984)....................................... 18
J. Van Dyke, Jury Selection Procedures: Our Uncertain

Commitment to Representative Panels (1977)........  14
Zeisel & Diamond, The Effect of Peremptory Challenges 

on Jury and Verdict: An Experiment in a Federal 
District Court, 30 Stan. L. Rev. 491 (1978).............. 21



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CITATION TO OPINION BELOW

The opinion of the Court of Criminal Appeals of 
Oklahoma is reported at 717 P.2d 117 (Okla. Crim. App. 
1986). No opinions were prepared in the trial court.

JURISDICTION

The judgment of the Court of Criminal Appeals of 
Oklahoma was entered on April 4, 1986 (J.A. 33). A peti­
tion for rehearing was denied by the Court of Criminal 
Appeals of Oklahoma on April 28 1986 (J.A. 48). On May 
28, 1986, Justice White extended the time to petition for 
certiorari to Sunday, July 27,1986. The petition for writ of 
certiorari was filed on Monday, July 28, 1986.

The Court’s jurisdiction is invoked under 28 U.S.C.
§ 1257(3).

CONSTITUTIONAL PROVISIONS AND STATUTES 
INVOLVED

The Sixth Amendment of the United States Constitu­
tion provides in pertinent part:

In all criminal prosecutions, the accused shall 
enjoy the right to a speedy and public trial, by an 
impartial jury of the State and district wherein the 
crime shall have been committed . . . .

The Fourteenth Amendment to the United States Consti­
tution provides in pertinent part:

. . . nor shall any State deprive any person of life, 
liberty, or property, without due process of law . . . .

Okla. Stat., Tit. 22, §654 (1981) provides:

A peremptory challenge may be taken by either 
party, and may be oral. It is an objection to a juror for 
which no reason need be given, but upon which the 
court must excuse him.



2

Okla. Stat., Tit. 22, §655 (1981) provides:

In all criminal cases the prosecution and the 
defendant are each entitled to the following peremp­
tory challenges: Provided, that if two or more defend­
ants are tried  jointly they shall join in their 
challenges; provided, that when two or more defend­
ants have inconsistent defenses they shall be granted 
separate challenges for each defendant as here­
inafter set forth.

First. In prosecutions for first degree murder, nine 
jurors each.

Second. In other felonies, five jurors each.

Third. In all nonfelony prosecutions, three jurors 
each.

STATEMENT OF THE CASE

Early on the morning of January 5,1983, a police officer, 
Steven Mahan, was shot and killed after he interrupted 
the robbery of a motel in Elk City, Oklahoma. The Peti­
tioner and two companions were arrested in Clinton, 
Oklahoma, later the same morning; all three were 
charged in the District Court of Beckham County, 
Oklahoma, with murder in the first degree, Okla. Stat., 
Tit. 21, §701.7 (1981), and robbery with a firearm, Okla. 
Stat., Tit. 21, §801 (1981) (R. 1).1 The prosecution there­
after gave notice that it would seek the death penalty 
against the Petitioner (R. 101).

1 Citations to the bound volume of record instruments filed in the 
Court of Criminal Appeals of Oklahoma are prefaced by “R.” followed 
by the page number. Citations to the trial transcript are prefaced by 
“Tr.”, followed by the page number. Citations the. J. I... Append::: 
are prefaced by “J.A.”, followed by the page number.

3

The Petitioner is black, while the decedent in this case 
was white. According to a report filed by the trial judge, 
“[rjace did . . . appear as an issue in the trial,” although 
race “was not raised by the defense” (J.A. 30). The trial 
judge also reported that the homicide was the subject of 
“extensive publicity in the community” (J.A. 31). Citing 
pretrial publicity and the impossibility of obtaining a fair 
and impartial trial, the defense sought a change of venue 
from Beckham County (J.A. 8-9). The trial judge granted 
the motion, noting the “extensive newspaper press 
reports relative to this case” (J.A. 13-14).

The Petitioner’s case was transferred to Roger Mills 
County, a venue which the Petitioner had specifically 
opposed in his venue change motion (J.A. 8). The trial 
would take place in Cheyenne, Oklahoma, a small com­
munity twenty-nine miles from Elk City, where the homi­
cide had occurred.

In first degree murder trials in Oklahoma, each party is 
entitled to nine peremptory challenges during jury selec­
tion. Okla. Stat., Tit. 22, §655 (1981). Before trial, the 
Petitioner moved to increase the number of defense 
peremptory challenges, citing the “large amount of preju­
diced publicity” in the case (J.A. 4). The motion was 
denied (J.A. 11-12). The Petitioner also requested the trial 
court to “life qualify” prospective jurors, in order to 
assure that jurors could consider a life sentence upon a 
finding of guilt (J.A. 6-7). The trial court did not rule on 
this motion, but invited counsel to submit proposed voir 
dire questions for the court’s consideration (J.A. 10-11).

The Petitioner’s trial began in Cheyenne on September 
26, 1983.2 Jury selection commenced with the drawing of

2 Before trial, the Petitioner’s two codefendants entered negotiated 
guilty pleas to charges of murder in the second degree and robbery 
with a firearm (R. 112-15, 129-31). Each was sentenced to concurrent 
forty-year prison terms (R. 108-09, 132-33).



4

twelve names from the 150-person venire that had been 
summoned to the courthouse (Tr. 14). These twelve pro­
spective jurors were sent to a jury room, and then were 
recalled one by one to the courtroom for individual voir 
dire questioning by the trial judge and counsel (Tr. 21). 
The voir dire examination of each prospective juror took 
place in the absence of other members of the venire (Tr. 
16-17).

Each prospective juror was first questioned by the trial 
judge (e.g., Tr. 21-26). The judge asked jurors about their 
ability to recommend a death sentence (e.g., Tr. 24-25), 
but did not inquire about their ability to recommend a life 
sentence. With one exception (Tr. 483), the trial judge did 
not, on his own motion, excuse jurors expressing reserva­
tions about the death penalty.

If a prospective juror was not excused after questioning 
by the trial judge, he or she was next questioned by the 
prosecutor (e.g., Tr. 26-30), who exercised any challenge 
for cause against the juror at the close of his questioning. 
The prosecutor questioned jurors about their ability to 
return a death sentence, and exercised challenges for 
cause against several jurors who expressed reservations 
about the death penalty (Tr. 138, 165, 261, 282, 290, 510). 
With one exception, these challenges for cause were sus­
tained by the trial judge.

If the prospective juror was not excused after the pros­
ecutor’s examination, he or she was next questioned by 
the defense attorney (e.g., Tr. 30-34), who exercised any 
challenge for cause at the conclusion of his examination. If 
a prospective juror was not struck for cause after voir dire 
examination, he or she was sent to the jury room and 
provisionally seated to hear the case (e.g., Tr. 34).

If a prospective juror was struck after voir dire, the 
name of a replacement juror was drawn from the jury

5

wheel (e.g., Tr. 37). The replacement juror was imme­
diately called into the courtroom from the hall, and was 
examined in the same manner described previously (e.g., 
Tr. 37-52). This procedure was repeated until there were 
twelve prospective jurors in the jury room who had been 
examined on voir dire and provisionally seated (Tr. 253).

After twelve jurors were provisionally seated, the par­
ties were required to exercise their nine peremptory chal­
lenges, one at a time, with the prosecutor exercising the 
first challenge (Tr. 253). After a prospective juror was 
excused by a peremptory strike, the name of a replace­
ment juror was drawn from the jury wheel. The replace­
ment juror was called into the courtroom from the hall and 
examined on voir dire as described previously (e.g., Tr. 
253-61). As soon as there were again twelve prospective 
jurors in the jury room who had been qualified against 
challenges for cause, the trial judge called for the exercise 
of another peremptory strike (e.g., Tr. 265). This pro­
cedure was repeated, with the parties alternating in the 
exercise of peremptory challenges, until all peremptory 
challenges had been exhausted or waived.

As voir dire progressed, it became evident that the 
pretrial publicity concerning the homicide had not been 
limited to Beckham County. Of the forty-six Rogers Mills 
County residents who were questioned on voir dire, only 
five said that they had not heard about the case (Tr. 71, 
227, 262, 291, 337). Of the forty-one prospective jurors 
who had heard about the case, twenty said that they had 
read about it in the Elk City newspaper (Tr. 22,35,38,54, 
89, 100-01, 109, 125, 142, 155-56, 166, 183, 197, 212, 214, 
241, 243-44, 255, 267, 278, 284, 287, 302, 317, 330, 332, 
349, 358, 369, 379-80, 393, 411, 426, 440, 459, 477, 485, 
488, 501, 512, 523). Six prospective jurors were excused 
by the trial judge (Tr. 37,108,213,286,330,487), and four



6

more were successfully challenged for cause by the 
defense (Tr. 69, 98, 328, 500), on the ground that they had 
formed fixed opinions or otherwise could not fairly try the 
case.

The court session for the first day of jury selection 
lasted fourteen hours and twenty minutes. An evening 
recess was called so that jurors could eat a meal before the 
local cafes closed, but voir dire resumed at 9:00 p.m. and 
continued into the night (Tr. 328). The last prospective 
juror to be examined that night was Darrell Huling, who 
was called into the courtroom to replace a juror who had 
been excused by the defense’s fifth peremptory challenge 
(Tr. 378).

Both the prosecutor and the defense attorney ques­
tioned Mr. Huling about his ability to impose a life sen­
tence upon conviction. The prosecutor phrased his 
questions in general terms, asking whether Mr. Hulir.g 
would be able to recommend a life sentence “if [he] felt the 
circumstances appropriate”; Mr. Huling said that he could 
do so (J.A. 17). The defense attorney phrased his ques­
tions more specifically, asking about the sentence that Mr. 
Huling would actually impose in the Petitioner’s case:

Q. Just because you found him guilty you wouldn’t 
necessarily give him the death penalty, would 
you?

A. Yes.

Q. Oh, you would? If you found him guilty then in 
your own mind you would give him the death 
penalty?

A. Yes.

Q. You wouldn’t consider anything else?
A. No.

7

(J.A. 18). After concluding his examination of Mr. Huling, 
the defense attorney challenged him for cause on the 
grounds that he could not follow the law handed down in 
the sentencing phase of the case, and would therefore not 
be a fair and impartial juror. The trial judge overruled the 
challenge (J.A. 19).

After Mr. Huling was sent to the jury room to join the 
other prospective jurors who had been provisionally 
seated, the trial judge called on the prosecutor to exercise 
his sixth peremptory challenge, which the prosecutor 
waived. The trial judge then called upon the defense 
attorney to exercise his sixth peremptory challenge, 
which the defense attorney used against Mr. Huling. 
After excusing Mr. Huling, the trial judge adjourned 
court for the night (J.A. 19-20).

Voir dire examination and exercise of peremptory chal­
lenges resumed the next day. After the defense had exer­
cised its ninth and last peremptory challenge, a final 
replacement juror was called into the courtroom, and 
examined on voir dire. Neither side challenged the juror 
for cause, and he was sent to the jury room (J.A. 25). The 
defense attorney then objected “to the composition of the 
twelve people, in that there were no black people called as 
jurymen in this case and the defendant feels he’s denied a 
fair and impartial trial by his peers.” The objection was 
overruled (J.A. 25). After an alternate was selected, the 
twelve jurors and the alternate were sworn to try the case 
(Tr. 538).

During jury selection, the defense used all nine of its 
peremptory challenges (Tr. 265, 301, 348, 356, 378; J.A. 
19; Tr. 425, 439; J.A. 24). The prosecution used five 
peremptory challenges (Tr. 253, 276, 316, 368, 410) and 
waived four (Tr. 356; J.A. 19; Tr. 439; J.A. 24).



8

The jury heard evidence for the next two days. After 
closing arguments were presented, the trial judge dis­
charged the alternate and submitted the case to the orig­
inal twelve jurors (Tr. 990). The jury returned with 
verdicts of guilty on the charges of murder in the first 
degree and robbery with a firearm, and imposed a sen­
tence of ninety-nine years imprisonment on the charge of 
robbery with a firearm (R. 325-26).3 During a separate 
capital sentencing proceeding, the same jurors found five 
statutory aggravating circumstances or,d rbo
Petitioner to death on the first degree murder charge (R. 
356, 358).4 The trial judge entered judgment in accor­
dance with the jury’s verdicts (R. 378-80).

The Petitioner appealed his convictions and sentences 
to the Court of Criminal Appeals of Oklahoma, a three- 
member tribunal which is Oklahoma’s highest court in 
criminal cases. In a 2-0 decision, with one judge not 
participating, the Court of Criminal Appeals affirmed the 
Petitioner’s convictions and sentences. The Oklahoma 
court stated that “[t]he failure of the trial court to remove 
a prospective juror who unequivocally states that he is

3 The opinion of the Court of Criminal Appeals of Oklahoma (J.A. 
33, 47) incorrectly states that the Petitioner received a sentence of 
ninety years imprisonment on the robbery with a firearm charge.

4 The aggravating circumstances found by the jury were that the 
defendant knowingly created a risk of death to more than one person, 
Okla. Stat., Tit. 21, § 701.12(2) (1981), that the murder was especially 
heinous, atrocious or cruel, Okla, Stat., Tit. 21, § 701.12(4)0981), that 
the murder was committed for the purpose of avoiding or preventing a 
lawful arrest or prosecution, Okla, Stat., Tit. 21, §701.12(5) (1981), 
that ere was a probability that the defendant would commit criminal 
acts of violence that would constitute a continuing threat to society, 
Okla. Stat., Tit. 21, §701.12(7) (1981), and that the victim of the 
murder was a peace officer, Okla. Stat., Tit. 21 § 701.12(8) (1981).

9

unwilling to follow the law during the penalty phase by 
considering a life sentence is error” (J.A. 36-37). However, 
the Oklahoma court noted that the prospective juror had 
been removed by a peremptory challenge and concluded 
that “as there is nothing in the record to show that any 
juror who sat on the trial was objectionable, we are unable 
to discover any grounds for reversal” (J.A. 37).

SUMMARY OF ARGUMENT

A.

Mr. Huling, a juror called in the Petitioner’s case, said 
on voir dire that he would give the Petitioner the death 
penalty upon conviction, and would consider no other 
penalty. Because Mr. Huling was not impartial on the 
issue of punishment, the trial judge violated the Sixth and 
Fourteenth Amendments by overruling the Petitioner’s 
challenge for cause against Mr. Huling.

B.

Because it assures the selection of an impartial jury, the 
right of peremptory challenge has been characterized by 
this Court as “one of the most important of the rights 
secured to the accused.” Pointer v. United States, 151 
U.S. 396, 408 (1894). While this right has never explicitly 
been declared a constitutional requirement, it is guaran­
teed to the Petitioner under Oklahoma law; this law cre­
ated a substantial and legitimate expectation that the 
Petitioner would be deprived of his life and liberty only 
after a trial in which the Petitioner’s nine peremptory jury 
challenges could be freely exercised. By reason of the trial 
judge’s erroneous seating of Mr. Huling, the Petitioner 
was deprived of the effective use of one of these chal­
lenges, which he had to use against Mr. Huling. The trial 
judge’s error has arbitrarily deprived the Petitioner of his

I



10

right to peremptory challenge,
process clause of the Fourteenth Amendment. See Hicks 
v. Oklahoma, 447 U.S. 343 (1980).

C.

In order to obtain appellate review of the seating of Mr. 
Huling, Oklahoma law required the Petitioner to exercise 
one of his four remaining peremptory challenges against 
Mr. Huling, and thereafter to exhaust his peremptory 
challenges. Although these steps resulted in removal of 
Mr. Huling from the Petitioner’s jury, they did so only at 
the cost of reducing the number of peremptory strikes 
available for use by the Petitioner on other prospective 
jurors. Because the reduction in his peremptory chal­
lenges has needlessly penalized the Petitioner’s assertion 
of his constitutional right to an impartial jury, this reduc­
tion has violated the Sixth and Fourteenth Amendments. 
See United States v. Jackson, 390 U.S. 570 (1968).

D.

The constitutional error in this case forced the Peti­
tioner to use a peremptory challenge against Mr. Huling. 
If the error had not occured, this strike could have been 
used against another juror, and could thereby have 
changed the membership of the Petitioner’s jury. Because 
the effect of jury membership changes on jury delibera­
tions cannot be ascertained with confidence, an error 
which could have changed the jury’s composition cannot 
be declared harmless beyond a reasonable doubt. If jury 
panel membership “could possibly have been affected” by 
the erroneous impairment of the Petitioner’s peremptory 
challenges, the error was not harmless. Gray v. Mis­
sissippi, ___ U.S____ , ___ , 107 S.Ct. 2045, 2055 (1987).

11

The Oklahoma court denied relief for the unlawful 
impairment of the Petitioner’s peremptory challenges 
because the Petitioner’s trial counsel did not attempt to 
exercise a hypothetical tenth peremptory challenge 
against any member of the actual trial jury. Such a 
requirement is unjustified because such a hypothetical 
challenge, exercised at the conclusion of jury selection, 
would not reveal how jury selection would have proceeded 
if a constitutional error at an earlier stage of selection had 
not occurred. Gray v. Mississippi, supra. Because a 
hypothetical challenge has no probative value, its exercise 
should not be a condition for obtaining relief from an 
unconstitutional impairment of peremptory challenges.

If the constitutional error had not occurred, and an 
additional peremptory challenge had thus been available, 
the conduct of the Petitioner’s trial counsel indicates that 
this additional challenge would have been used: counsel 
unsuccessfully asked for additional peremptory chal­
lenges before trial, exhausted his peremptory challenges 
at trial, and expressed dissatisfaction with the final com­
position of the Petitioner’s jury. Since the use of an addi­
tional challenge could have affected the composition of the 
Petitioner’s jury, the impairment of the Petitioner’s 
peremptory challenges was not harmless. This impair­
ment requires reversal of the Petitioner’s convictions.

ARGUMENT

Mr. Huling, a prospective juror called in the Petitioner’s 
trial, said twice on voir dire that he would give the Peti­
tioner the death penalty upon conviction, and went on to 
say that he would not consider any other penalty for the 
Petitioner (J. A. 18). Because of his views, Mr. Huling was 
not an “impartial” juror as required by the United States 
Constitution. We submit that the seating of Mr. Huling on



12

the Petitioner’s jury violated the Constitution, and that 
his subsequent removal by peremptory challenge did not 
cure this violation.

A. The Seating Of Mr. Huling Violated The Sixth And Four­
teenth Amendments.

The Sixth Amendment, held applicable to the States 
through the Fourteenth Amendment in Duncan v Loui­
siana, 391 U.S. 145 (1968), guarantees a criminal defend­
ant a trial by an “impartial jury.” Principles of due process 
likewise assure a trial by impartial, “indifferent jurors. 
Irvin v. Dowd, 366 U.S. 717, 722 (1961). When trial jurors 
will be required to set a sentence, the jury impartiality 
required by the Constitution must extend to the issue ot 
the sentence to be imposed, which could have been either 
the death penalty or life imprisonment in this case Okla. 
Stat Tit. 21, § 701.10 (1981); see Witherspoon v. Illinois, 
391 U.S. 510, 518 (1968) (capital defendant entitled by 
Sixth and Fourteenth Amendments to impartial punish­
ment jury). A juror such as Mr. Huling, who had decided 
before hearing any evidence to sentence the Petitioner to 
death, was not the “impartial” juror required by the Con­
stitution.

Since Mr. Huling was not an impartial juror, the trial 
judge’s action in seating Mr. Huling on the Petitioners 
jury violated the Sixth and Fourteenth Amendments. The 
Court of Criminal Appeals of Oklahoma was correct in its 
conclusion that “[t]he failure of the trial court to remove a 
prospective juror who unequivocally states that he is 
unwilling to follow the law during the penalty phase by 
considering a life sentence is error” (J.A. 36-37).

B The Arbitrary Reduction Of The Petitioner’s Peremptory 
Challenges Denied Him Due Process Of Law In Violation 
Of The Fourteenth Amendment.

The Petitioner had an unconditional right, guaranteed 
by Okla. Stat., Tit. 22, §655 (1981), to exercise nine

13

peremptory challenges during the selection of his jury. 
Because of the trial judge’s erroneous ruling on the chal­
lenge for cause against Mr. Huling, the Petitioner was 
deprived of the effective use of one of these challenges, 
which had to be used to remedy the trial judge’s error. We 
submit that the resulting reduction of the Petitioner’s 
peremptory challenges operated to deprive the Petitioner 
of his life and liberty without due process of law.

While this Court has never held peremptory jury chal­
lenges to be guaranteed by the Constitution, the right to 
exercise such challenges is nonetheless a valuable one, 
because it permits a criminal defendant to participate in 
the selection of the persons who will decide his fate. The 
right to exercise peremptory challenges, as this Court 
stated in Pointer v. United States, 151 U.S. 396, 408 
(1894), is “one of the most important of the rights secured 
to the accused.”5 The importance of peremptory chal­
lenges has been recognized by the Oklahoma courts as 
well. See, e.g., Bass v. State, 733 P.2d 1340, 1341 (Okla. 
Crim. App. 1987) (“Depriving counsel of information that 
could lead to the intelligent exercise of a peremptory 
challenge is a denial of an appellant’s right to a fair and 
impartial jury”).

The circumstances of this case confirm the value of the 
Petitioner’s peremptory challenges: the Petitioner, who is 
black, was tried in a community that was almost entirely 
white for the extensively publicized murder of a white 
man. The trial judge found that race was an issue during 
the Petitioner’s trial, although the issue was not of the

5 See also Batson v. Kentucky, 476 U.S------- - —-— , «.22,106 S.Ct.
1712 1724 n 22 (1986) (“historic trial practice, which long has served 
the selection of an impartial jury”); S «  v. Alabama, 380 U.S. 202, 
219 (1965) (citing “long and widely held belief that peremptory chal­
lenge is a necessary part of trial by jury”).



14

Petitioner’s making (J. A. 29-31). Such conditions created a 
significant danger of juror prejudice against the Peti­
tioner.6 Since voir dire questioning could not be expected 
to render every prejudiced juror subject to a challenge for 
cause, peremptory challenges were vital to seating an 
impartial jury.7 Because the Petitioners peremptory 
strikes were an essential means of assuring the fail ness of 
his trial, we submit that the arbitrary impairment of 
these challenges was inconsistent with the due process of 
law guaranteed by the Fourteenth Amendment.

This Court has recognized that procedural safeguards 
accorded a criminal defendant, while not required by the 
United States Constitution, may nonetheless be pro­
tected against arbitrary deprivation by the due process 
clause of the Fourteenth Amendment. In Hicks v. 
Oklahoma, 447 U.S. 343 (1980), for example, this Court 
considered Oklahoma’s right to jury sentencing. The

6 See Turner v. Murray, 476 U.S------- --------> 106 S.Ct., 1683,1687
(1986).

7 See J. Van Dyke, Jury Selection Procecdures: Our Uncertain 
Commitment to Representative Panels 146 (1977):

Peremptory challenges may be used when an attorney suspects a 
prospective juror of being biased but cannot prove it to the judge 
according to the guidelines set down for challenges for cause. 
Many judges, when faced with a juror’s statement that he or she 
is not prejudiced against an individual or group involved in the 
case will accept that statement at face value (as perhaps the 
judge must, if he or she is not to make judgments on the jurors 
personal integrity). The attorney may still suspect prejudice but 
be unable to prove it. In such a case, the prospective juror can be 
challenged peremptorily.

Cf. McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 
554 (1984) (“Demonstrated bias in the responses to questions on voir 
dire may result in a juror’s being excused for cause; hints of bias not 
sufficient to warrant challenge for cause may assist parties in exercis­
ing their peremptory challenges”).

15

Hicks defendant had been deprived of his right to a jury 
sentence when a trial judge, because of a legal error, 
instructed the defendant’s jury as to the wrong punish­
ment limits. The state appellate court merely upheld the 
jury’s sentence as within legal limits, without ordering a 
new sentencing trial by a properly instructed jury. This 
Court rejected the contention that jury sentencing was 
“merely a matter of state procedural law.” Instead, the 
Court held that the defendant “has a substantial and 
legitimate expectation that he will be deprived of his 
liberty only to the extent determined by the jury.” 447 
U.S. at 346. The Court concluded that the right to jury 
sentencing was protected by the Fourteenth Amend­
ment, and that it had been arbitrarily deprived by the 
Oklahoma courts, without due process of law.

Just as an Oklahoma criminal defendant has a “substan­
tial and legitimate expectation” that his sentence will be 
set by a jury, as in Hicks, he also has a substantial and 
legitimate expectation of influencing the composition of 
that jury by use of the peremptory challenges granted 
him by Oklahoma statute. In view of the vital role that 
such challenges play in the selection of an impartial jury, 
we submit that these challenges represent an interest in 
life and liberty that is protected by the Fourteenth 
Amendment.

In the Hicks case, the defendant was arbitrarily 
deprived of his right to jury sentencing because of a legal 
error by the trial judge, who misinstructed the defend­
ant’s jury. In this case as well, a legal error by the trial 
judge—the erroneous seating of Mr. Huling was the 
reason for the reduction in the Petitioner’s peremptory 
challenges. In this case, just as in Hicks, the loss of the 
Petitioner’s valuable right by reason of a legal error of a 
trial judge is fundamentally inconsistent with the due



16

process of law required by the Fourteenth Amendment. 
See Walker v. Sauvinet, 92 U.S. 90, 93 (1876) (“Due 
process of law is process due according to the law of the 
land. This process in the States is regulated by the law of 
the State”).

Although the Petitioner was not deprived of a peremp­
tory challenge simultaneously with the erroneous seating 
of Mr. Huling, the loss of this peremptory challenge fol­
lowed inevitably from the Petitioner’s compliance with 
the State-mandated procedure for remedying the seating 
of that juror. Under this procedure, the Petitioner was 
required to sacrifice a peremptory challenge, by using it 
on Mr. Huling, in order to enforce his constitutional right 
to an impartial jury. See McDonald v. State, 54 Okla. 
Crim. 161, 164-165, 15 P.2d 1092, 1094 (1932). Since the 
Petitioner’s right to peremptory challenge was lost by 
operation of an “established state procedure,” this pro­
cedure has deprived the Petitioner of life and liberty 
without due process of law. See Logan v. Zimmerman 
Brush Co., 455 U.S. 422, 435-36 (1982).

One consequence of the reduction of the Petitioner’s 
peremptory challenges was that it left the Petitioner in a 
disadvantaged position with respect to the State: the 
State had nine opportunities to strike jurors peremptorily 
while the Petitioner effectively had only eight such oppor­
tunities. This disadvantage is important, since this Court 
has recognized that the Fourteenth Amendment’s due 
process clause speaks “to the balanr>a of forces between 
the accused and his accuser.” Wardius v. Urey an, U.S.
470, 474 (1973).

In Wardius, this Court held that a state statute which 
required a criminal defendant to give notice of an alibi 
defense to the prosecution violated the due process clause

17

of the Fourteenth Amendment, because it did not require 
the State to provide reciprocal discovery to the defendant. 
The Court noted that it has “been particulary suspicious 
of state trial rules which provide nonreciprocal benefits to 
the State when the lack of reciprocity interferes with the 
defendant’s ability to secure a fair trial.” 412 U.S. at 474, 
n.6. The fact that the State procedure involved here con­
ferred a “nonreciprocal benefit” on the State—a favorable 
imbalance in peremptory challenges—confirms that the 
deprivation of the Petitioner’s peremptory challenge has 
denied him due process of law.

C. By Granting An Impartial Jury Only At The Cost Of 
Impairing Defense Peremptory Strikes, Oklahoma Has 
Unlawfully Penalized The Exercise Of Sixth And Four­
teenth Amendment Rights.

Faced with a juror whose seating violated the Sixth and 
Fourteenth Amendments, the Petitioner’s trial counsel 
followed the procedures prescribed by the Oklahoma 
courts for remedying the constitutional violation. These 
procedures effected the removal of Mr. Huling from the 
Petitioner’s jury, but they also significantly impaired the 
Petitioner’s exercise of his peremptory challenges. 
Because the Petitioner was able to assert and enforce his 
constitutional right to an impartial jury only at the cost of 
restriction of his peremptory strikes, we submit that this 
constitutional right has been unlawfully penalized.

The first step taken by the Petitioner’s counsel to 
remedy the seating of Mr. Huling was to challenge him for 
cause, in accordance with Okla. Stat., Tit. 22, §659(2) 
(1981). When the challenge for cause was overruled, the 
Petitioner was next required: (1) to use one of his four 
remaining peremptory strikes on Mr. Huling; and (2) to 
use the rest of his peremptory strikes before jury selec­
tion was completed. See McDonald v. State, 54 Okla.



18

Crim. 161, 164-65, 15 P.2d 1092, 1094 (1932); Davis v. 
State, 44 Okla. Crim. 141,143, 279 P. 976, 977 (1929). The 
Petitioner’s trial counsel took both of these steps; had he 
not done so, the constitutional objection to Mr. Ruling’s 
seating would have been waived. See Carpitcher v. State, 
586 P.2d 75, 77 (Okla. Crim. App. 1978).8

The Petitioner’s compliance with Oklahoma’s procedure 
for challenging the unconstitutional seating of Mr. Huling 
effectively denied him the use of one of his peremptory 
challenges, which he was required to use against Mr. 
Huling. This challenge could have been used against 
another juror had the trial judge properly removed Mr. 
Huling from the jury.9 The Oklahoma procedure for 
remedying the unconstitutional seating of a juror thus 
worked a significant impairment on the Petitioner’s exer­
cise of his peremptory challenges—an impairment which 
disadvantaged the defense with respect to the prosecu­
tion, which did not suffer a corresponding limitation on its 
nine peremptory strikes.

The impairment of the Petitioner’s peremptory chal­
lenges operated as a penalty on the Petition. ~ azccrticr. 
of his Sixth and Fourteenth Amendment rights to an

8 Such a failure to comply with Oklahoma procedure presumably 
would have foreclosed review of the constitutionality of the seating of 
Mr. Huling by this Court as well. See Parker v. Illinois, 333 U.S. 571, 
574 (1948).

9 The procedure also required the Petitioner to use the last of his 
nine peremptory challenges, even though tactical considerations 
might have dictated that the last peremptory challenge be waived. 
See A. Amsterdam, Trial Manual for the Defense of Criminal Cases 
§ 331 at 1-455 (4th ed. 1984):

If the struck iuror is going to be replaced by an unknown quan­
tity who may be worse, counsel will generally not strike unless s/ 
he is affirmatively dissatisfied. S/he will almost never use his last 
strike, since the replacement for the last struck juror may be a 
horror—and unstrikable.

19

impartial jury. Such a penalty on the exercise of a consti­
tutional privilege “cuts down on the privilege by making 
its assertion costly.” Griffin v. California, 380 U.S. 609, 
614 (1965). We submit that the penalty involved here 
violated the Sixth and Fourteenth Amendments.

This Court considered a similar penalty on the Sixth 
Amendment jury trial right in United States v. Jackson, 
390 U.S. 570 (1968). The defendant in Jackson was 
charged with violating a criminal statute which autho­
rized capital punishment for defendants who asserted the 
Sixth Amendment right to a jury trial, but which pre­
scribed a maximum sentence of life imprisonment for 
defendants who waived that right by pleading guilty. The 
effect of this provision was to penalize, by exposure to a 
possible death penalty, those persons who asserted their 
Sixth Amendment rights. The Court recognized that such 
a scheme could have been motivated by legitimate goals, 
such as to “mitigate the serverity of punishment.” 390 
U.S. 582. However, the Court held that such goals could 
be achieved through alternative schemes which did not 
punish those who demanded their Sixth Amendment 
rights. Because the Jackson statute operated “in a man­
ner that needlessly penalizes the assertion of a constitu­
tional right,” 390 U.S. at 583, the Court ruled its death 
penalty provisions unconstitutional.10

10 See also Brooks v. Tennessee, 406 U.S. 605, 610-11 (1972) (stat­
ute requiring defendant to testify as first defense witness, if at all, 
penalizes exercise of defendant’s Fifth Amendment privilege, 
thereby violating Fifth Amendment); North Carolina v. Pearce, 395 
U.S. 711, 724 (1969) (vindictive imposition of higher sentence on 
retrial, after successful appeal of conviction because of constitutional 
error, penalizes assertion of constitutional right, thereby denying 
due process of law); Griffin v. California, 380 U.S. 609, 614 (1965) 
(prosecutor comment on defendant’s exercise of Fifth Amendment 
privilege held to penalize exercise of privilege, thereby violating 
Fifth Amendment).

?



2 0

The State-mandated impairment of the Petitioner’s 
peremptory challenges has penalized the exercise of one 
of the same constitutional rights at issue in Jackson: the 
right to an impartial jury trial. Moreover, the penalty 
imposed on the Petitioner was as needless as the one in 
Jackson: an appellate court could have reviewed the rul­
ing on the challenge for cause against Mr. Huling even if 
he had not been excused by peremptory challenge.11 
Indeed, the record on which such appellate review would 
have been based—Mr. Ruling’s responses to voir dire 
questioning—would not have been affected by whether a 
peremptory challenge was used on Mr Huling.

It is possible that the Oklahoma procedural rules, 
which required peremptory strikes to be used against a 
juror unsuccessfully challenged for cause and to be 
exhausted thereafter, had goals other than the penaliza­
tion of constitutional rights. For example, requiring 
defense counsel to use one of his limited number of 
peremptory strikes on Mr. Huling may have assured the 
appellate court that counsel was sincere in his challenge 
for cause of that juror. However, there were other means, 
that did not impair peremptory challenges, that could 
have assured that counsel’s challenge was made in good 
faith.12 The impairment of the Petitioner’s peremptory 
challenges needlessly penalized his constitutional right to 
an impartial jury, and thereby violated the Sixth and 
Fourteenth Amendments.

11 See, e g., Leon v. State, 396 So. 2d 203, 205 (Fla. App. 1981) (no 
requirement that juror unsuccessfully challenged for cause be 
excused by peremptory strike).

12 See, e.g., Oklahoma Supreme Court Code of Professional
Responsibility, DR 1-102(A)(4) (“A lawyer shall n o t . . . [e]ngage in 
conduct involving dishonesty, fraud, deceit or misrepresentation”).

2 1

D. The Unconstitutional Impairment Of The Petitioner’s 
Peremptory Challenges Was Not Harmless.

1. Impairment Of Peremptory Challenges Which Could 
Have Affected The Composition Of A Jury Panel 
Cannot Be Harmless.

The constitutional error in jury selection in this case 
prejudiced the Petitioner by forcing him to waste a 
peremptory challenge on Mr. Huling, a juror who should 
have been excused for cause. If the Petitioner had not 
been forced to use a peremptory strike on Mr. Huling, he 
would have had an extra challenge available for use 
against another prospective juror. Such an extra strike, if 
exercised, could have altered the composition of the Peti­
tioner’s jury. We submit that the possibility of such a 
differently composed jury requires a finding that the con­
stitutional error was not harmless.

Chapman v. California, 386 U.S. 18, 24 (1967) holds 
that “before a federal constitutional error can be held 
harmless, the court must be able to declare a belief that it 
was harmless beyond a reasonable doubt.” Such a stan­
dard is difficult to meet when a constitutional error could 
have affected the composition of a jury, since a change in a 
jury’s membership will introduce jurors with different 
personalities and viewpoints into deliberations; these 
new jurors may lead the case to a different outcome.13

Changes in jury panel membership can exert an 
especially strong influence on the outcome of capital sen­
tencing trials in Oklahoma, because Oklahoma law

13 Empirical studies have shown that exercise of peremptory chal­
lenges in criminal trials can alter the outcome of these trials. See 
Zeisel & Diamond, The Effect of Peremptory Challenges on Jury and 
Verdict: An Experiment in a Federal District Court, 30 Stan. L. Rev. 
491 (1978).



2 2

requires the imposition of a life sentence upon jury dis­
agreement as to penalty. Okla. Stat., Tit. 21, §701.11 
(1981). Thus, a change of even one juror on a panel can be 
enough to alter the outcome of an Oklahoma capital sen­
tencing trial from death to life imprisonment, if the new 
juror becomes committed to imposing a life sentence.

Because the effect of a change in jury membership on a 
given jury’s deliberations cannot be ascertained with con­
fidence, it is impossible to establish beyond a reasonable 
doubt that a constitutional error which could have 
affected the composition of that jury was harmless.14 
Under Chapman, an unconstitutional jury selection error 
which could have affected the jury’s composition, such as 
the peremptory challenge impairment here, requires 
reversal of any resulting conviction. Such a conclusion 
finds support in this Court’s decisions addressing other 
composition-affecting errors in jury selection.

In Harrison v. United States, 163 U.S. 140, 141-42 
(1896), a trial court erroneously refused to grant a crimi­
nal defendant the full number of peremptory challenges 
authorized by statute. This Court reversed the resulting 
conviction, without a showing that any of the jurors who 
actually  tried  the case was biased or otherw ise 
unqualified to hear it: the fact that the jury would have 
been differently composed, but for the error, was suffi­

14Cf. Cassell v. Texas, 339 U.S. 282, 301-02 (1950) (Jackson, J., 
dissenting):

It is obvious that discriminatory exclusion of Negroes from a 
trial jury does, or at least may, prejudice a Negro’s right to a fair 
trial, and that a conviction so obtained should not stand. The trial 
jury hears the evidence of both sides and chooses what it will 
believe. In so deciding, it is influenced by imponderables— 
unconscious and conscious prejudices and preferences—and a 
thousand things we cannot detect or isolate in its verdict and 
whose influence we cannot weigh. . . .

23

cient to require reversal. The Harrison case was cited in 
Swain v. Alabama, 380 U.S. 216, 219 (1965) in support of 
the proposition that the “denial or impairment of the right 
[to peremptory challenges] is reversible error without a 
showing of prejudice. . . .”

Swain and Harrison are consistent with this Court’s 
decisions in other criminal cases involving constitutional 
errors injury selection. These decisions have consistently 
overturned convictions if a constitutional error could have 
affected the composition of the jury: no showing that the 
actual jury was biased or otherwise unqualified has been
required. Most recently, in Gray v. Mississippi,-----U.S.
___ ( 107 S.Ct. 2045 (1987), the Court considered the
prejudicial effect of the exclusion of a juror in violation of 
Witherspoon v. Illinois, 391 U.S. 510 (1968). Quoting 
from Moore v. Estelle, 670 F.2d 56, 58 (CA5 1982) (spe­
cially concurring opinion), the Court held that “the rele­
vant inquiry is ‘whether the composition of the jury panel 
as a whole could possibly have been affected by the trial
court’s error’ (emphasis in original).” -----U.S. a t ------ ,
107 S.Ct. at 2055. See also Vasquez v. Hillery, 474 U.S. 
254 (1986) (racial discrimination in grand jury selection 
requires overturning conviction); Batson v. Kentucky, 476
U.S____ , 106 S.Ct. 1712 (1986) (racial discrimination in
petit jury selection requires reversal of conviction). These 
decisions confirm that an unconstitutional abridgment of 
the P etitioner’s perem ptory challenges should be 
regarded as prejudicial, if the error could have affected 
the composition of the Petitioner’s jury.

This Court’s decision in McDonough Power Equip­
ment, Inc. v. Greenwood, 464 U.S. 548 (1983) does not 
dictate any departure from the principles represented by 
Swain and Harrison. McDonough was a federal civil case 
in which a juror had incorrectly responded to a material



24

voir dire question; the incorrect response was discovered 
only after the trial on which that juror sat had been 
completed. A federal appellate court ordered a new trial 
because the incorrect response had “prejudiced [the par­
ties’] right to perem ptory challenge.” This Court 
reversed, holding that a new trial would be justified only if 
“a correct response would have provided a valid basis for a 
challenge for cause.” 464 U.S. at 556.

The im pairm en t of pe rem p to ry  challenges in 
McDonough was the result, not of an action by a trial 
judge or other government official, but “because of a 
juror’s mistaken, though honest, response to a ques­
tion. . . . ” 464 U.S. at 555.15 There was no way that the 
parties or the judge could have known of the incorrect 
response while the jury was being selected. If a new trial 
had been ordered, the juror who answered mistakenly 
would not have participated, so his mistaken response 
could not have been corrected by a retrial. Moreover, 
there was no way of preventing the jurors at retrial from 
making honestly mistaken responses of their own during 
voir dire. In such a situation, a new trial would not have 
assured any more intelligent exercise of peremptory chal­
lenges than was possible at the first trial. Under these 
circumstances, this Court declined to reverse a judgment 
without a showing that the impairment of peremptory 
strikes caused an unqualified person to sit on the jury.

In this case, in contrast to McDonough, the impairment 
of peremptory challenges was the direct result of an

15 Compare Turner v. Murray, 476 U.S. ------ , 106 S.Ct. 1683
(1986), in which a trial judge’s action in conducting a constitutionally 
inadequate voir dire of a capital jury was held to require vacation of 
the death sentence imposed by that jury, without a showing that any 
trial juror was biased or disqualified.

25

unconstitutional action by a state trial judge, and this 
action was promptly brought to the judge’s attention 
when it could have been corrected. Because state trial 
judges are bound to follow constitutional rulings of appel­
late courts, the same constitutional error will not recur if 
a retrial is held. At a retrial, the Petitioner can therefore 
expect to exercise his peremptory challenges freely, a 
right that he was denied during his first trial.

Because the corrective measure of a new trial can actu­
ally restore the rights that were denied the Petitioner, the 
considerations that motivated the McDonough decision 
do not apply to the same extent here. The Court should 
therefore continue to hold, in consonance with Swain and 
Harrison, that an abridgement of a criminal defendant’s 
peremptory challenges requires reversal of the defend­
ant’s conviction, if the abridgement could have affected 
the jury’s composition.

2. The Petitioner Has Shown That The Composition Of 
His Jury Could Have Been Affected By The Impair­
ment Of His Peremptory Challenges.

The Petitioner’s jury could have been differently com­
posed if an extra defense peremptory challenge, made 
available by excusing Mr. Huling for cause, had been used 
on another juror. The record strongly suggests that such 
an extra peremptory strike would indeed have been used: 
the Petitioner’s counsel unsuccessfully asked for addi­
tional peremptory strikes before trial (J.A. 4-5, 11-12), 
used all nine of his peremptory strikes at trial, and 
expressed dissatisfaction with the ju ry  as finally 
empanelled (J.A. 25). We submit that this evidence is 
sufficient to establish that an extra challenge would have 
been used, and that the impairment of the Petitioner’s 
peremptory challenges therefore could have affected the 
composition of his jury.



26

Many courts would hold that the Petitioner’s exhaus­
tion of his peremptory challenges was adequate to show 
that an erroneously deprived challenge would have been 
used, and could thereby have altered the jury’s composi­
tion. 16 The Court of Criminal Appeals of Oklahoma, how­
ever, required the Petitioner to make a further showing 
that a “juror who sat on the trial was objectionable” (J. A. 
37).17 Since the identities of trial jurors were not Anally 
determined until all peremptory strikes had been used,

16 For decisions ordering a new trial when peremptory challenges 
were exhausted after a challenge for cause had been erroneously 
overruled, see United States v. Nell, 526 F.2d 1223,1229 (CA5 1976); 
United States v. Allsup, 566 F.2d 68,71-72 (C A9 1977); United States 
v. Martin, 749 F.2d 1514, 1518 (CA11 1985); People v. Rogers, 690 
P.2d 886, 888 (Colo. App. 1984); Bradham v. State, 243 Ga. 638, 
639-40, 256 S.E.2d 331, 332 (1979); State v. Smith, 491 So.2d 641, 646 
(La. 1986); People v. Culhane, 33 N.Y.2d 90, 97, 305 N.E.2d 469, 473 
(1973); Commonwealth v. Jones, 477 Pa. 164, 383 A.2d 874, 876 
(1978); State v. Moore, 562 P.2d 629, 630-31 (Utah 1977).

For decisions ordering a new trial when a peremptory challenge 
was used on a juror who should have been excluded for cause, in which 
the opinion either indicates that peremptory strikes were not 
exhausted or is silent on this question, see Wasko v. Frankel, 116 
Ariz. 288,569 P.2d 230,232 (1977) (civil case); Harris v. State, 255 Ga. 
464, 465, 339 S.E.2d 712, 713-14 (1986); State v. Land, 478 S.W.2d 
290,292 (Mo. 1972); Breeden v. Commonwealth, 217 Va. 297,300,227 
S.E.2d 734, 736-37 (1976); State v. West. 157 W.Va. 209, 219, 200 
S.E.2d 859, 866 (1973).

See also Hill v. State, A ll So.2d 553, 556 (Fla. 1985) (new trial 
ordered when defendant exhausted peremptory strikes and unsuc­
cessfully sought additional peremptory strikes); State v. Parnell, 11 
Wash.2d 503, 508, 463 P.2d 134 137 (1969) (same).

17 In a decision announced shortly after the opinion in the Peti- 
tioneFs case, the Court of Criminal Appeals of Oklahoma affirmed a 
conviction on facts similar to those here, because there had been no 
showing that an “unacceptable” person sat on the trial jury. Hawkins 
v. State, 717 P.2d 1156, 1158 (Okla. Crim. App. 1986).

27

the Oklahoma court effectively required the Petitioner to 
attempt a tenth peremptory challenge against the trial 
jury as impaneled.

A tenth peremptory challenge by the Petitioner would 
have been futile as a way of changing the jury’s composi­
tion, since the trial judge lacked the authority to confer 
peremptory challenges in excess of the nine granted each 
side by statute. See Prichard v. State, 539 P.2d 392, 
393-94 (Okla. Crim. App. 1975). If such a tenth peremp­
tory challenge were to be exercised on a strictly hypo­
thetical basis, as dictated by the Oklahoma court, it would 
have had little, if any, probative value as to how jury 
selection would have proceeded iin the absence of the 
constitutional error.

A hypothetical peremptory challenge, similar to the 
one required by the Oklahoma appellate court, was con­
sidered by this Court in Gray v. Mississippi,-----U.S.
___ , 107 S.Ct. 2045 (1987). After a juror was erroneously
excused for cause, the prosecutor in Gray stated that he 
would have used one of his peremptory strikes on that 
juror had his challenge for cause been overruled. In decid­
ing that the exclusion was prejudicial, this Court refused 
to accord any weight to the prosecutor’s hypothetical 
challenge; “Even if one is to believe the prosecutor’s state­
ment . . .  we cannot know whether in fact he would have
had this peremptory challenge left to use.” -----U.S. at
___ , 107 S.Ct. at 2055. The Court reasoned that if pros­
ecution challenges of jurors for cause had been granted, 
rather than overruled, during earlier stages of jury selec­
tion, the prosecutor may have used his peremptory chal­
lenges differently in response. Such a different pattern of 
peremptory strikes could have led to a differently com­
posed panel, and could even have led to exhaustion of the 
prosecutor’s peremptory challenges. Because the pros-



28

editor's hypothethical peremptory challenge might never 
have been exercised if preceding stages of jury selection 
had taken place differently, the hypothetical peremptory 
challenge of a juror did not prove whether the error in 
excluding that juror was harmful or harmless. We submit 
that a hypothetical peremptory challenge by defense 
counsel in this case would have been equally valueless.

The constitutional error in this case forced the Peti­
tioner to use his sixth peremptory challenge on Mr. Hul- 
ing. Had the sixth defense peremptory strike been 
exercised differently, the prosecutor may have exercised 
his remaining peremptory strikes differently in response. 
The result could have been a different panel by the time 
that jury selection was completed. A hypothetical tenth 
peremptory challenge, exercised by defense counsel at 
the conclusion of jury selection, would have had little 
meaning: the jury against which such a hypothetical chal­
lenge woud have been exercised may not have had the 
same membership as the jury which would have resulted 
if Mr. Huling had properly been excused for cause. Just as 
in Gray, a hypothetical peremptory challenge in this case 
would not have proven whether an earlier constitutional 
error in jury selection was harmful or harmless.

The hypothetical peremptory challenge required by the 
Oklahoma appellate court cannot show how jury selection 
would have proceeded in the absence of the constitutional 
violation. Since it lacks probative value, the exercise of 
such a hypothetical challenge should not be a Condition for 
relief from the unconstitutional impa:*:nc«.L of the Pet: 
tioner’s peremptory strikes.

By his unsuccessful request for additional peremptory 
challenges before trial, by his exhaustion of peremptory 
challenges at trial, and by the dissatisfaction that he

29

expressed with the trial jury, the Petitioner’s trial counsel 
showed that an extra peremptory strike, if available, 
would have been used. Since the use of such a strike could 
have altered the composition of the Petitioner’s jury, the 
unconstitutional impairment of the Petitioner’s peremp­
tory challenges was not harmless beyond a reasonable 
doubt.

3. The Petitioner’s Convictions And Sentences Must Be 
Reversed.

The jury which heard the Petitioner’s case convicted 
and sentenced him, both for the offense of murder in the 
first degree and for the offense of robbery with a firearm. 
Since the impairment of peremptory challenges could 
have affected the composition of the jury which decided 
guilt and sentence on both of these charges, all of the 
Petitioner’s convictions and sentences violated the Sixth 
and Fourteenth Amendments and must therefore be 
reversed.



30

CONCLUSION

The judgment of the Court of Criminal Appeals of 
Oklahoma should be reversed.

Respectfully submitted,
Gary Pe ter so n*
9400 North Broadway, Suite 420 
Oklahoma City, Oklahoma 73114 
(405) 478-5344
Thomas G. Smith , J r .
Metro North Bank Building 
Barry Road and North Oak 
Kansas City, Missouri 64155 
(816) 436-6247 
Counsel for Petitioner 
* Counsel of Record

♦