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PROSECUTOR’S UNEXERCISED PEREMPTORY CHALLENGE IS OF NO CONSEQUENCE ON APPEAL WHERE WITHERSPOON QUALIFIED JUROR IS WRONGLY EXCLUDED

The United States Supreme Court refused to consider that a prosecutor had one unexercised peremptory challenge when a juror, who opposed the death penalty but nonetheless could impose it, was improperly excluded. Finding that a harmless error analysis was not appropriate because of the practical application of same to the jury selection process. To say at a point later in time that one can surmise how a prosecutor would exercise a peremptory challenge “would …insulate jury-selection error from meaningful appellate review. “.

Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987) (stating 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);

Davis v. Georgia, 429 US 122, 975 S.Ct. 399, 50 L.Ed.2d 339

(1976) (holding exclusion of just one juror who only had a general sentiment against the death penalty invalidates the death sentence).

But see          Ross v. Oklahoma, 487 US 81, 108 S.Ct. 2273 (1988)

(limiting Gray v. Mississippi, 481 US 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987) to its facts). The court’s failure to deal correctly with a valid challenge for cause and, thus, the defendant’s use of a peremptory challenge to rectify the same does not violate the Sixth Amendment’s guarantees as long as the resultant jury is impartial;

Brown v. Estelle, 591 F.2d 1207 (5th Cir. 1979) (holding error in sentencing before jury in Texas may require reversal of conviction).

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