United States District Court, Central District of Illinois, Springfield Division
July 7, 1987
EARVIL WATSON, PETITIONER,
ALETHEA CAMP, WARDEN GRAHAM CORRECTIONAL CENTER, RESPONDENT.
The opinion of the court was delivered by: Mills, District Judge:
Here on habeas corpus: State trial judge denied Petitioner a
peremptory challenge against an alternate juror.
Unfortunately, we must grant the writ.
Watson brings this action for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, challenging the constitutionality of his
Illinois state court conviction for residential burglary and the
resulting 15-year sentence.*fn1 Specifically, Petitioner maintains
he was denied the Sixth Amendment's guarantee to an impartial
jury when the trial judge refused to allow him a
legislatively-mandated peremptory challenge against an alternate
juror who subsequently served as a member of the regular panel.
Although the Illinois courts deemed the mistake harmless,
Watson asserts the miscue creates reversible error per se.
Agreeing with the state tribunals, the warden concedes the
error, but nonetheless argues that the overwhelming evidence of
Watson's guilt — coupled with the absence of any proven prejudice
to the Defendant — makes denial of a peremptory challenge
insignificant. Respondent asserts that Petitioner received a
fundamentally fair trial and is consequently not entitled to the
We agree in spades that the evidence of guilt was overwhelming,
but with the
warden's conclusion that the error was harmless, this Court
cannot agree. Before proceeding with a discussion of the problem,
however, a brief recitation of the facts is warranted.
On the evening of February 24, 1984, Robert Roese and his wife
were returning to their trailer near Topeka, Illinois, when they
heard noises coming from inside the home. Before entering, they
decided to acquire the assistance of Gordon Bauer, Mrs. Roese's
father. Upon their return to the residence, the group discovered
several guns missing. Shortly thereafter, the men observed the
Defendant attempting to flee from a hedge row. When Watson pulled
a pistol, Bauer disarmed the suspect and knocked him to the
ground. The police subsequently found items of jewelry on and
around the Defendant. Watson was charged with residential
burglary and theft of property over $300 in violation of
Ill.Rev.Stat. ch. 38, ¶¶ 16-1, 19-3 (1983).
Petitioner's trial commenced June 8, 1984, in the Circuit Court
of Illinois, Mason County. After the regular jury was selected
and sworn, defense counsel requested a peremptory challenge for
the selection of an alternate juror, consistent with Illinois
law. Without reason, the court denied the motion and selected the
alternate juror. The State then commenced its case-in-chief.
Following the testimony of the first witness, defense counsel
learned that one of the regular jurors was a commissioned deputy
sheriff. The court offered defense counsel use of the previously
denied peremptory challenge to remove the deputy:
THE COURT: I note by 115-4, subsection (g),
[Ill.Rev.Stat. ch. 38, ¶¶ 115-4(g) (1983)], after the
jury is empaneled and sworn that the Court may direct
the selection of two alternate jurors who shall take
the same oath as regular jurors. Each party shall
have one peremptory for each alternate. So it appears
I may have erred in denying you one extra peremptory
yesterday at the time you did request the same. That
being the case and for the additional reason, that
although he may not have served [as a deputy, the
officer] was authorized to serve, I will accept your
additional peremptory if you wish to dispose of him
in that manner.
The State's Attorney, however, noted that the extra peremptory
challenge would apply only to an alternate juror. The court
agreed. Defense counsel then moved to dismiss the officer for
cause. More importantly, he sought a mistrial since his client
had not been allowed to challenge the alternate as required by
THE COURT: Your time for using [peremptory
challenges] is probably over anyway. I am going to
allow you to dismiss [the deputy] and let the
alternate serve in his place. I don't think it is
mandatory that I do so, but in view of the desire to
avoid any possible error, I will do so.
DEFENSE COUNSEL: Okay, and then for the record, I
want to move for a mistrial, because I was not
allowed an additional peremptory challenge.
THE COURT: Denied. Due to matters that have only now
been brought to the Court's attention and on motion
made by counsel for the defense, the Court will
excuse [the juror] from further services and ask that
an alternate take his place.
On June 20, 1984, the jury convicted Defendant of residential
burglary. The trial judge sentenced Watson to 15 years. The
Illinois Appellate Court affirmed the conviction. In addressing
the denial of the peremptory challenge, the court stated:
Here, there is no showing that an alternate juror was
prejudiced. Ordinarily, a deprivation of a peremptory
challenge constitutes reversible error, but where
proof of guilt is so overwhelming that no other
verdict could reasonably have been reached, error is
not waived. This is such a case. We have described
the strength of the evidence. The alternate juror
became part of the regular jury only through a
concession by the court to permit the defense to have
discharged from the regular jury, a juror whose
prejudice was not shown.
People v. Watson, 135 Ill.App.3d 1169, 100 Ill.Dec. 214,
496 N.E.2d 1279 (4th Dist. 1985).
The Illinois Supreme Court denied Defendant's leave to appeal
on December 4, 1985. Having exhausted his state remedies,
Petitioner now seeks relief from this federal tribunal.
The sole issue before this Court is whether the Illinois trial
judge's error in restricting the Petitioner's exercise of a
peremptory challenge against the alternate juror rises to a
constitutional plane without a showing of prejudice.
A peremptory challenge is the right to strike a potential juror
without assigning a reason for the action. Black's Law Dictionary
1023 (5th ed. 1979). It is exercised without reason, without
inquiry, and without the Court's control. Lewis v. United States,
146 U.S. 370, 378, 13 S.Ct. 136, 139, 36 L.Ed. 1011 (1892). In
Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13
L.Ed.2d 759 (1965), overruled in part, Batson v. Kentucky, ___
U.S. ___, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (overruled that
portion of Swain which addressed the evidentiary burden placed on
a defendant who claims denial of equal protection by a state's
discriminatory use of peremptory challenges), the Supreme Court
stated the underlying purpose of peremptory challenges:
The function of a peremptory challenge is not only to
eliminate extremes of impartiality on both sides, but
also to assure the parties that the jurors before
whom they try the case will decide the case on the
basis of the evidence and not otherwise.
Still, the right to a peremptory challenge is not derived
directly from a constitutional provision; nothing in the United
States Constitution requires a state to grant a peremptory
challenge. Stilson v. United States, 250 U.S. 583
, 586, 40 S.Ct.
28, 29-30, 63 L.Ed. 1154 (1919). Neither their number nor the
manner of their exercise is provided for in the document. See
United States v. Ricks, 776 F.2d 455
(1985), aff'd on rehearing,
802 F.2d 731
(4th Cir.), cert. denied, ___ U.S. ___, 107 S.Ct.
650, 93 L.Ed.2d 705 (1986); United States v. Rucker,
557 F.2d 1046
(4th Cir. 1977); United States v. Turner, 558 F.2d 535
Cir. 1977). Rather, statute generally governs a litigant's right
to peremptory challenges. In Illinois, a defendant's right to a
peremptory challenge of an alternate juror is governed by
Ill.Rev.Stat. ch. 38, ¶ 115-4(g) (1985):
After a jury is empaneled and sworn, the Court may
direct the selection of two alternate jurors who
shall take the same oath as the regular jurors. Each
party shall have one peremptory challenge for each
additional alternate juror. If before the final
submission of a cause a member of the jury dies or is
discharged, he shall be replaced by an alternate
juror in the order of selection.
Nevertheless, a connection does exist between state law which
provides a right to peremptory challenges and the Federal
Constitution. That connection is the right to a trial by an
impartial jury as guaranteed by the Sixth Amendment. This
relationship has led the Supreme Court to indicate (implicitly at
least) that the denial of such right as defined by statute must
ordinarily constitute reversible error. Lewis, 146 U.S. at 376,
13 S.Ct. at 138, 36 L.Ed. at 1014. "For it is, as Blackstone
says, an arbitrary and capricious right; and it must be exercised
with full freedom, or it fails its purpose." Id. at 378, 13 S.Ct.
at 138, 39 L.Ed. at 1014. Likewise, Justice Harlan has expressed:
"Any system of impaneling a jury that prevents or embarrasses the
full, unrestricted exercise by the accused of his right to
peremptory challenge must be condemned." St. Clair v. United
States, 154 U.S. 134
, 148, 14 S.Ct. 1002, 1008, 38 L.Ed. 934
(1984). See also Pointer v. U.S., 151 U.S. 396
, 14 S.Ct. 410, 38
L.Ed. 208 (1894).
In the landmark case of Swain v. Alabama, 380 U.S. 202, 85
S.Ct. 824, 13 L.Ed.2d 759 (1965), the United States Supreme Court
addressed the question of a remedy where rights to a peremptory
challenge were abridged. In Swain, the defendant
was indicted for and subsequently convicted of rape. During the
proceedings, he moved to quash the indictment and overturn his
trial based on the discriminatory selection of jurors. In
upholding the conviction, the Supreme Court noted that the extent
of the peremptory's use demonstrates its fundamental role in our
system of trial by an impartial jury.
Because of this role, and the difficulty of proving a change in
outcome absent the error, Swain teaches that the question of
demonstrable prejudice simply cannot enter into the inquiry. Were
the rule otherwise, a court's refusal to allow any peremptory
challenge could arguably be left unremedied, if the evidence
against the accused was strong enough. In our view, the logical
extension of Swain compels the conclusion that reversal is always
required. See, e.g., United States v. Daly, 716 F.2d 1499, 1507
(9th Cir. 1983), cert. dismissed, 465 U.S. 1075, 104 S.Ct. 1456,
79 L.Ed.2d 773 (1984); United States v. Brooklier, 685 F.2d 1208,
1223 (9th Cir. 1982), cert. denied, 459 U.S. 1206, 103 S.Ct.
1194, 75 L.Ed.2d 439 (1983); United States v. Nell,
526 F.2d 1223, 1230 (5th Cir. 1976).
This same principle has been reiterated most recently in United
States v. Ricks, 802 F.2d 731 (4th Cir.), cert. denied, ___ U.S.
___, 107 S.Ct. 650, 93 L.Ed.2d 705 (1986). In that case, eight
defendants were convicted by a jury of a variety of narcotic
offenses. The Fourth Circuit Court of Appeals, sitting en banc,
found that a denial of their federal statutory rights under
Fed.R.Crim.P. 24(b) to peremptory challenges in the selection of
a jury was sufficient to require reversal and a new trial. The
Court reasoned that a right to a peremptory strike is of such
significance that its impairment constitutes per se reversible
error and that any restriction of the statutory provision would
violate a defendant's Sixth Amendment right to a trial by an
impartial jury. Thus, the Court concluded that a showing of
prejudice is unnecessary. See also Rucker, 557 F.2d at 1046
(refusal to excuse a juror for cause was reversible error despite
defendant's use of peremptory challenge, where result was
reduction in number of strikes available.)
Similarly, in United States v. Turner, 558 F.2d 535 (9th Cir.
1977), the impairment of the unrestricted exercise of a
peremptory challenge arose in a dispute as to whether the
defendant had actually waived his entitlement. The trial court
held that he had relinquished his right, but the Court of Appeals
disagreed, holding that such challenge had not been waived. The
Court held that defendant was improperly denied a peremptory
challenge. It reversed the conviction without requiring the
defendant to prove bias. See also, Nell, 526 F.2d at 1223
(defendant forced to expend two peremptory challenges on persons
excusable for cause entitled to new trial); United States v.
Boyd, 446 F.2d 1267 (5th Cir. 1971) (reduction of peremptory
challenges to which defendant is entitled results in automatic
reversal); United States v. Alsup, 566 F.2d 68 (9th Cir. 1977)
(restricting the exercise of peremptory challenges is presumed
Aside from federal law, at least one Illinois court has also
recognized that a denial of peremptory challenges is reversible
regardless of proven prejudice. In People v. Nathaniel, 59
Ill.Dec. 323, 103 Ill.App.3d 610, 431 N.E.2d 1080 (1981), the
right to a peremptory challenge as provided for under Illinois
law was contested. The Court noted that generally, where a party
has been deprived of the right to exercise all of the entitled
challenges when impaneling a jury, reversible error has been
With this review in mind, the Court concludes the following.
The statutory right to a peremptory challenge is an essential
part of a trial by impartial jury. That right cannot be limited
or curtailed in any way or it loses its effectiveness. Moreover,
a showing of prejudice cannot be required; federal case law
dictates such rationale. Consequently, the Court has no choice
but to hold that the Illinois trial judge's refusal to grant
Petitioner a peremptory challenge for an alternate juror who
subsequently served as a member of the jury was an error of
constitutional proportion. A fortiori, the Illinois
Appellate Court erred in ruling that a denial of a peremptory
challenge is harmless where overwhelming evidence exists and the
defendant has made no showing of prejudice. This reasoning is
simply not consistent with federal case law.
In the case at bar, the trial court admittedly refused to grant
Watson his right to a peremptory challenge of an alternate juror,
despite defense counsel's specific request for the same. Although
the appellate court reasoned that the error was harmless because
of the overwhelming evidence of the defendant's guilt, this Court
holds that denial of a legislatively-mandated peremptory
challenge impairs the Sixth Amendment and is indeed reversible
error regardless of a showing of prejudice. Prejudice is
Ergo, Watson's petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 is GRANTED.
Execution of the writ, however, is STAYED on the condition that
the State of Illinois grant Petitioner a new trial on the charges
resulting in his conviction within a reasonable time not to
exceed ninety days, and diligently and without delay prosecute
the charges to a final conclusion.
Watson is not entitled to an unconditional release; any request
to be released on bail pending the outcome of a new trial should
be addressed to the discretion of the state courts.
IT IS SO ORDERED.