Ross v. Oklahoma
Decided on June 22, 1988; 487 US 81


A. Issues Discussed: Due process, impartial jury

B. Legal Question Presented:

Does an error by the Court causing the defense to use a peremptory challenge in removing a juror violate the defendant's 6th Amendment right to an impartial jury and the 14th Amendment right of due process?


A. Background:

"In the course of robbing a motel in Elk City, Oklahoma, petitioner killed a police officer. Petitioner was charged with first-degree murder, a capital offense. By statute, Oklahoma provides nine peremptory challenges to both parties in capital trials.

The jury selection began with the drawing of 12 names from the 150-person venire. Each of the 12 was examined individually by the court and counsel. Prospective jurors not excused for cause after the voir dire were provisionally seated. If a prospective juror was excused for cause, a replacement juror was called and examined. After 12 jurors had been provisionally seated, the parties exercised their peremptory challenges alternately beginning with the prosecution. When a juror was struck, a replacement juror was immediately selected and examined in the manner described above. Once a replacement was provisionally seated, the trial court called for the exercise of a challenge by the party whose turn it was. This procedure was repeated until each side had exercised or waived its nine peremptory challenges.

Darrell Huling's name was drawn to replace the juror excused by the defense with its fifth peremptory challenge. During voir dire, Huling initially indicated that he could vote to recommend a life sentence if the circumstances were appropriate. On further examination by defense counsel, Huling declared that if the jury found petitioner guilty, he would vote to impose death automatically. Defense counsel moved to have Huling removed for cause, arguing that Huling would not be able to follow the law at the penalty phase. The trial court denied the motion and Huling was provisionally seated. The defense then exercised its sixth peremptory challenge to remove Huling. The defense ultimately used all nine of its challenges. The prosecution used only five, waiving the remaining four.

None of the 12 jurors who actually sat and decided petitioner's fate was challenged for cause by defense counsel. Petitioner is black; the victim was white. At the close of jury selection, the defense 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 trial court overruled the objection, and the trial commenced.

After two days of evidence, the parties gave closing arguments, the trial court instructed the jury, and deliberations began. The jury found petitioner guilty of first-degree murder. Following the presentation of evidence and arguments at a separate sentencing proceeding, the same jury found five aggravating circumstances and sentenced petitioner to death.

We granted certiorari to consider the Sixth and Fourteenth Amendment implications of the trial court's failure to remove Huling for cause and petitioner's subsequent use of a peremptory challenge to strike Huling."

On certiorari the US Supreme Court affirmed the judgment of the Oklahoma Court of Criminal Appeals.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Gary Peterson argued the cause for petitioner. With him on the briefs was Thomas G. Smith, Jr.

Brief of amici curiae urging reversal were filed for the American Civil Liberties Union by Moses Silverman, John A. Powell, Steven R. Shapiro, and Mandy Welch.

Robert A. Nance, Assistant Attorney General of Oklahoma, argued the cause for respondent. With him on the brief was Robert H. Henry, Attorney General.

"It is well settled that the Sixth and Fourteenth Amendments guarantee a defendant on trial for his life the right to an impartial jury. Had Huling sat on the jury that ultimately sentenced petitioner to death, and had petitioner properly preserved his right to challenge the trial court's failure to remove Huling for cause, the sentence would have to be overturned. But Huling did not sit. Petitioner exercised a peremptory challenge to remove him, and Huling was thereby removed from the jury as effectively as if the trial court had excused him for cause.

Any claim that the jury was not impartial, therefore, must focus not on Huling, but on the jurors who ultimately sat. None of those 12 jurors, however, was challenged for cause by petitioner, and he has never suggested that any of the 12 was not impartial. '[T]he Constitution presupposes that a jury selected from a fair cross section of the community is impartial, regardless of the mix of individual viewpoints actually represented on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case.' Although at the close of jury selection petitioner did assert that the jury was not fair and impartial, this claim was based on the absence of blacks from the jury panel. Petitioner neither presses that claim before this Court nor suggests that the absence of blacks was in any way related to the failure to remove Huling for cause. We conclude that petitioner has failed to establish that the jury was not impartial...

Petitioner relies heavily upon the Gray Court's statement that 'the relevant inquiry is `whether the composition of the jury panel as a whole could possibly have been affected by the trial court's error.'' Petitioner points out that had he not used his sixth peremptory challenge to remove Huling, he could have removed another juror, including one who ultimately sat on the jury. Petitioner asserts, moreover, that had he used his sixth peremptory challenge differently, the prosecution may have exercised its remaining peremptory challenges differently in response, and consequently, the composition of the jury panel might have changed significantly.

Although we agree that the failure to remove Huling may have resulted in a jury panel different from that which would otherwise have decided the case, we do not accept the argument that this possibility mandates reversal. We decline to extend the rule of Gray beyond its context: the erroneous 'Witherspoon exclusion' of a qualified juror in a capital case. We think the broad language used by the Gray Court is too sweeping to be applied literally, and is best understood in the context of the facts there involved. One of the principal concerns animating the decision in Gray was the inability to know to a certainty whether the prosecution could and would have used a peremptory challenge to remove the erroneously excused juror. In the instant case, there is no need to speculate whether Huling would have been removed absent the erroneous ruling by the trial court; Huling was in fact removed and did not sit.

Petitioner was undoubtedly required to exercise a peremptory challenge to cure the trial court's error. But we reject the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury. We have long recognized that peremptory challenges are not of constitutional dimension. They are a means to achieve the end of an impartial jury. So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated. We conclude that no violation of petitioner's right to an impartial jury occurred...

Petitioner relies on Logan and Hicks to support his claim of a denial of due process. The Logan Court held that because of the arbitrary application of a limitations period, Logan had been deprived of a state-provided cause of action in violation of due process. In Hicks, the Court overturned on due process grounds the sentence imposed on Hicks because the sentence had not been determined by the jury as required by Oklahoma law. Here, however, the requirement that the defendant use peremptory challenges to cure trial court errors is established by Oklahoma law, and petitioner received all that was due under Oklahoma law.

Although the trial court erred in failing to dismiss prospective juror Huling for cause, the error did not deprive petitioner of an impartial jury or of any interest provided by the State. '[T]he Constitution entitles a criminal defendant to a fair trial, not a perfect one.'"

The US Supreme Court affirmed the judgment of the Oklahoma Court of Criminal Appeals.

Justice Vote: 4 Pro vs. 5 Con

  • Marshall, T. Pro (Wrote dissenting opinion)
  • Brennan, W. Pro (Joined dissenting opinion)
  • Blackmun, H. Pro (Joined dissenting opinion)
  • Stevens, J.P. Pro (Joined dissenting opinion)
  • Rehnquist, W. Con (Wrote majority opinion)
  • White, B. Con (Joined majority opinion)
  • O'Connor, S.D. Con (Joined majority opinion)
  • Scalia, A. Con (Joined majority opinion)
  • Kennedy, A. Con (Joined majority opinion)

The ACLU, as amicus curiae, urged reversal of the Oklahoma Court of Criminal Appeals judgment; the Supreme Court affirmed in a 5-4 vote, giving the ACLU an apparent loss.