558 F.2d 535 (9th Cir. 1977), 76-3276, United States v. Turner

Docket Nº:76-3276.
Citation:558 F.2d 535
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Brian E. TURNER, Defendant-Appellant.
Case Date:July 27, 1977
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 535

558 F.2d 535 (9th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,


Brian E. TURNER, Defendant-Appellant.

No. 76-3276.

United States Court of Appeals, Ninth Circuit

July 27, 1977

Page 536

Howard W. Gillingham, North Hollywood, Cal., argued for defendant-appellant.

William D. Keller, U. S. Atty., Ronald L. Gallant, Asst. U. S. Atty., argued, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court, Central District of California.

Before HUFSTEDLER, GOODWIN and ANDERSON, Circuit Judges.

HUFSTEDLER, Circuit Judge:

The issue on appeal is whether the district court impermissibly restricted this criminal defendant's exercise of peremptory challenges by treating defense counsel's acceptance of a jury panel as then constituted as a waiver of a peremptory challenge. The effect of the district court's restriction in this case was to deprive the defendant, Turner, of all of his peremptory challenges.

Turner was convicted for a series of offenses growing out of a serious assault on a fellow federal prisoner. He contends that the district court committed reversible error when it refused to permit him to exercise a peremptory challenge of a new juror, who took the place of a juror excused by a codefendant, on the ground that each time that he had accepted a panel constituted the exercise of a peremptory challenge, thereby exhausting his challenges before he actually challenged any juror.

Turner was tried with two codefendants, Bennett and Johnson. The trio agreed, through their counsel, that the ten peremptory challenges to which they were entitled

Page 537

under Fed.Rules Crim.Proc. rule 24(b) would be allocated to three apiece with the final challenge to be exercised jointly. During voir dire, the Government excused one juror; Bennett and Johnson each excused two jurors. Turner thrice accepted the jury panel as then constituted. When Johnson executed his second challenge, however, juror Praiser was called to take the place of the excused juror. Turner tried to exercise a peremptory challenge to excuse Praiser. Turner had not earlier challenged any juror. The district court refused to permit Turner to challenge Praiser on the ground that he had used all of his peremptories by thrice accepting the jury panel as then constituted.

The absence of any uniform national or, in this case, even local rules of court spelling out the procedure for exercising peremptory challenges in criminal cases has been justifiably condemned. The end product is a procedural muddle that traps the unwary district judge as well as the unwary litigant to the profit of no one. (E. g., United States v. Sams (5th Cir. 1972) 470 F.2d 751; United States v. Rowe (9th Cir. 1970) 435 F.2d 1298; New England Enterprises, Inc. v. United States (1st Cir. 1968) 400 F.2d 58. See also 2 Wright, Fed.Prac. & Proc. § 387.) 1

The transcript in this case is an illustration of the confusion generated by the...

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