Update: On May 27,2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

“Doesn’t a structural error have to be a constitutional error? Don’t we know from the U.S. Supreme Court that that this is not a constitutional error?”

Justice DeWine, to the Assistant County Public Defender

“Where did the government carry its burden to show that there was no prejudice?”

Justice Fischer, to the Assistant County Prosecutor

On February 11, 2020, the Supreme Court of Ohio heard oral argument in State of Ohio v. Seante Jones, 2019-0187. The issue stated in this certified conflict case is, where the state is permitted to exercise more than its allotted number of peremptory challenges in a criminal prosecution, whether that circumstance constitutes structural error requiring automatic reversal of a conviction, or whether the defendant-appellant is required to demonstrate that prejudice has resulted from the error. The court accepted the case on conflict certification.

Case Background

Seante Jones was charged with petty theft under R.C. 2913.02(A)(1). During the empaneling of the jury, both the State and Jones used or waived all their allotted peremptory challenges. After Jones and the State accepted the jury, but before the panel was sworn in, the State claimed that it had not been given the opportunity to use its last peremptory challenge. The trial court agreed and erroneously permitted the State to use an additional peremptory challenge to excuse one of the jurors. The court did not then allow Jones to respond in turn with his own peremptory challenge.

The jury found Jones not guilty of theft, but guilty of complicity. Jones was sentenced to 180 days in jail with all but three days suspended, a $200 fine, courts costs, and six months of community service.

The Appeal

In a unanimous decision, the First District affirmed the judgment entered on the jury’s verdict. In so holding, the court of appeals recognized that the trial court erred in granting the State an additional peremptory challenge. The court ruled that the error was not a structural error because the error did not involve a constitutional right. Therefore, the court held that Jones must show that actual prejudice resulted from the trial court’s error before his conviction could be reversed. Because Jones could not demonstrate such prejudice, the First District upheld Jones’conviction.

The First District certified a conflict between its decision and the Tenth District’s opinion in State v. Holloway, 129 Ohio App.3d 790  (10th Dist. 1998).

Certified Conflict Question

Where the state is permitted to exercise more than its allotted number of peremptory challenges in a criminal prosecution, does that circumstance constitute structural error requiring automatic reversal of a conviction, or is the defendant-appellant required to demonstrate that prejudice has resulted from the error?

Certified Conflict Case

State v. Holloway, 129 Ohio App.3d 790, (10th Dist. 1998) (“[A]s a matter of law, [a] defendant [is] not required to make a showing of actual prejudice where the state is granted an ‘extra’ peremptory challenge.”)

Read the oral argument preview here.

Key Precedent

*Crim.R. 24 (All parties must receive the same number of peremptory challenges.)

Crim.R. 52(A) (“Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.”)

State v. Bohannon, 64 Ohio App. 431 (1st Dist. 1940) (When a trial court errs by extending additional peremptory challenges to the State, such an error requires reversal only if the defendant shows that prejudice resulted from that error.)

*Ross v. Oklahoma, 487 U.S. 81 (1988) (Because peremptory challenges are not of constitutional dimension, the loss of a peremptory challenge does not abridge the constitutional right to an impartial jury.)

*State v. Greer, 39 Ohio St.3d 236 (1988) (There is no federal or state constitutional requirement that peremptory challenges be provided in a trial. The right to peremptory challenges is controlled by Crim.R. 24.)

State v. Reynolds, 80 Ohio St.3d 670 (1998) (Peremptory challenges allow a defendant and the State to freely dismiss potential jurors for any reason—except for illegitimate reasons such as race or gender.)

State v. Jackson, 92 Ohio St.3d 436 (2001) (A trial court’s error in allowing alternate jurors to remain during jury deliberation, which violated former Crim.R. 24(F), did not warrant automatic reversal.)

*State v. Murphy, 91 Ohio St.3d 516 (2001) (A defendant has a right to an impartial jury, and a “juror’s erroneous excusal does not compromise the jury’s impartiality.”)

State v. Fischer, 2003-Ohio-2761 (Before a reviewing court may correct a trial court’s error, the reviewing court must first determine whether an error occurred. Next, the reviewing court must analyze the trial court record to determine whether the error was prejudicial and affected the outcome of the trial. Structural errors mandate automatic reversal.)

State v. Perry, 2004-Ohio-297 (When determining whether an alleged error is structural, the threshold inquiry is whether the error involves a deprivation of a constitutional right. During a harmless-error inquiry, the state has the burden of proving that the error did not affect the substantial rights of the defendant.)

*Rivera v. Illinois, 556 U.S. 148 (2009) (An error is structural when the error necessarily renders the trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.)

United States v. Davila, 569 U.S. 597 (2013) (The “very limited class of errors” that have been deemed structural include denial of counsel of choice, denial of self-representation, denial of a public trial, failure to convey to a jury that guilt must be proved beyond a reasonable doubt and a biased trial judge.)

State v. Clinton, 2017-Ohio-9423 (A structural error is a constitutional defect that affects the framework within which the trial proceeds, rather than simply being an error in the trial process itself.)

*These rules and cases were relied on by counsel during argument

At Oral Argument

Arguing Counsel

David Hoffmann, Assistant Hamilton County Public Defender, for Appellant Seante Jones

Alex Scott Havlin, Assistant Hamilton County Prosecutor, for Appellee State of Ohio

Jones’ Argument

This Court should hold that when the state is permitted to exercise more than its allotted number of peremptory challenges in a criminal prosecution, the error constitutes structural error requiring automatic reversal. The constitutional right to an unbiased jury and the right to due process are implicated in that situation because the state is given an unfair advantage in shaping the jury and the prejudice from that advantage cannot be measured. The nature of the violation is in the imbalance of peremptory challenges and that imbalance tilted the case in favor of the state.

While this court has held in State v Greer there is no constitutional right to peremptory challenges, in Ohio, as in every state, there is a criminal rule that provides for the allotment of peremptory challenges. Each party is to get the same number of them. So, the implementation of the right under the rule has been affected and therefore it affects the right to a jury. While the right has been provided through the rule, the rule is to implement the right to a jury trial under the Sixth Amendment and the Ohio Constitution.

There are many ways to create or have an imbalance in peremptory challenges. This case involves a direct, not an indirect imbalance. The state was directly afforded an additional peremptory challenge. This wasn’t some indirect claim where the state got an extra peremptory because the state made a challenge for cause that should have been denied but was granted. The context of the error in this case did not call for giving an additional peremptory challenge to the defense because the mistake was made under the misapprehension that the state was owed one. The trial court thought it was making things even, but it wasn’t.

Structural error cannot be measured because the measuring stick has been taken away. You can’t measure whether something doesn’t add up to what it needs to be. Peremptory challenges are the only way to detect and eliminate juror bias. So, they must be preserved.

The error in this case was permitting the state to exercise an additional peremptory challenge. It was structural error and it rendered the trial an unreliable vehicle for determining the defendant’s guilt or innocence.  Giving the state an additional peremptory challenge gave the state an unfair advantage in shaping the jury and jeopardized Mr. Jones’ chance of receiving a fully impartial jury. It was that unfair advantage that implicated Mr. Jones’ constitutional right to an impartial jury and to due process.

This reconstitution of the jury happened at an unpredictable moment without any notice of the change. Nothing could have been done in response to it.  Trial counsel repeatedly objected to this, before, during, and after the change was made. The error simply cannot be subjected to the traditional harmless error analysis because prejudice cannot be determined, and it would be unfair to the person who objected to it to prove that it was prejudicial.  This court should answer the certified question in the affirmative.

State’s Argument

The state asks the court to find that the error below was not structural and is therefore subject to harmless error review. This court has said that a threshold issue for determining whether an error is structural is whether that error is of constitutional dimension.  Mr. Jones cannot demonstrate constitutional error in this case and that should end the inquiry on structural error. 

Even conceding that it is the state’s burden here to show there was no prejudice to the defendant in this situation, there was, in fact, none. Any error in regard to the extra juror in question was harmless. It was simply an error of arithmetic. This juror who was ultimately seated, was passed for cause by Mr. Jones, and became the alternate juror. Mr. Jones had the right to use a peremptory challenge for this juror as an alternate juror but did not. The momentum in the case law recently is away from assuming prejudice in this situation. Rivera is a good example.

For the record, the state opposed the conflict certification below. The appeals court in Holloway did not include a structural error analysis, although the results in that case and this one are in conflict. The Holloway court reached the same result that’s compelled by structural error, but the state cannot say why that wasn’t included in its analysis. Assuming that there is still a conflict here, it is the state’s position that Mr. Jones cannot show there is constitutional error in this case, and the violation of a criminal rule is not sufficient for per se reversal. Both Ross and Rivera say there is no Sixth Amendment right implicated in this situation, and the Ohio Constitution doesn’t help here either. And because this jury was ultimately impartial, there’s also no due process right implicated.

Peremptory challenges are only one means to the end of an impartial jury. Because the jury that tried and convicted Mr. Jones was impartial, that ends the inquiry. Even if there should be some constitutional question this is still not structural error because as this court held in Murphy, a jury’s erroneous excusal does not compromise the jury’s impartiality.

What Was on Their Minds

Burden of Proof

Let’s assume, arguendo, harmless error here, stated Justice Fischer. Where did the government carry its burden to show that there was no prejudice? Both the trial court and the appellate court put the burden on the defendant to show prejudice, didn’t they, and both were wrong, weren’t they? (the prosecutor conceded this was wrong)

Structural Error

Doesn’t a structural error have to be a constitutional error, asked Justice DeWine? Don’t we know from the U.S. Supreme Court that this is not a constitutional error? There is no right to peremptory challenges, is there? Doesn’t that right come from the criminal rule, not from the Constitution?

When talking about structural error like a biased trial judge or something like that, where is the equivalent here, asked Justice Donnelly?

Is it the state’s position that the dismissal of a juror can never be structural error, asked Chief Justice O’Connor? What if there is a systemic elimination of African Americans from a jury? Is the state simply saying this situation was just a mistake, there was no underlying prejudice or racial motivation, someone just goofed? As long as it can be shown that the mistake had no underpinnings of a constitutional violation?

Prejudice

Where’s the prejudice with this particular juror, asked Justice Donnelly?

If the court finds this is not structural error, can the defendant show prejudice, asked Justice French? (he admitted he could not; Justice French thanked him for his direct answer)

Precedent

To adopt the appellant’s position, wouldn’t the court have to overturn Greer, asked Justice DeWine? And if we are proceeding on federal constitutional grounds, wouldn’t we have to say the U.S. Supreme Court got Rivera wrong?

Didn’t this court say in State v. Murphy, “ a juror’s erroneous excusal does not compromise the jury’s impartiality” asked Justice Fischer?” How does the excusal of this one juror impinge upon the impartiality listed in the state constitution?

The Certified Conflict

Does Holloway say there was structural error in that case, asked Justice Stewart? Is structural error mentioned in that decision? Is there a true conflict here between the 1^st and the 10^th Districts?

Aren’t the questions about requiring the defendants to demonstrate prejudice incorrect, asked Justice Fischer?

The Particulars of the Extra Peremptory Challenge

Wasn’t the person knocked off by the extra peremptory erroneously excused, asked Justice Fischer? Didn’t the alleged inconsistency occur during picking of alternate jurors? Then that person became an alternate juror? Did that alternate juror make it into the jury room?

Did the defendant receive all the peremptory challenges that he was entitled to, asked Chief Justice O’Connor? (yes) Did the defendant request an additional peremptory challenge when the state exercised its extra one? Wasn’t this juror accepted as an alternate? So he or she was satisfactory to both sides? So, he or she is an alternate juror and then the state says it has another peremptory and intends to bump one of the jurors from the first set jury? Then that person presumably acceptable to both sides was seated, right? So, an individual initially acceptable to both sides was exchanged with someone else acceptable to both?

Hadn’t the defense passed for cause on the particular juror who made it on, asked Justice Donnelly?

How it Looks From The Bleachers

 To Professor Emerita Marianna Bettman

I think Jones is going to lose this case in a number of possible ways.

The Court is definitely not going to find structural error here, finding no Constitutional violation. Nor do I think the Court will agree with Jones’ counsel that a Constitutional violation arose from a violation of Crim. R. 24 in this case.  Or maybe the Court will decide there really isn’t a conflict at all, since apparently Holloway doesn’t discuss structural error.

The entire issue of who has the burden of proof in a harmless error analysis was embarrassing all around. First of all, Jones’ lawyer should have picked that up. But it is probably more embarrassing that the First District (Justice Fischer’s old stomping ground, and mine, many years ago) got it wrong in the certified question, as Fischer pointed out. And the trial court shouldn’t have made the mistake in the first place.

Despite all of this, it seems this was, in the Chief’s words, just a goof that didn’t prejudice anyone (regardless of who has the burden of proof), especially since the extra juror had been okayed by both sides at one point. Whether the case gets sent back for the state to prove the lack of prejudice in a harmless error analysis, or the high court decides this from the existing record without a remand is uncertain, but either way I don’t think Jones will ultimately prevail.   

To Student Contributor Maria Ruwe

The Court liked the State’s argument better than Jones’. During Jones’ argument, several of the Justices questioned the prejudice (if any) that resulted from the error. Finally, Justice French pointedly asked whether Jones could show any prejudice. Jones’ counsel admitted that he could not, and this concession seemed to decide the issue for the Justices—they asked no more questions, and it seemed that Jones’ counsel was just trying to get through the rest of his arguments so that he could make his way back to his seat. In contrast, the Court seemed willing to accept the State’s argument—except for the portion about which party carries the burden of proof. The Court was clear that the burden should be on the government—not the defendant—to show that no prejudice occurred. Therefore, I believe that the Court will remand this case to determine whether the government can carry this burden.