‘Use it or Lose it’ on Peremptory Challenges Loses

row of handcuffed menA suspected member of a violent San Fernando Valley street gang may have been cheated out of the right to challenge prospective jurors, but that didn’t entitle him to a new trial.

The 9th U.S. Circuit Court of Appeals pointed out that “one of the most valuable weapons in the arsenal of a trial attorney is the peremptory challenge” – used by both sides to excuse prospective jurors for almost any reason.

In the case of Horacio Yepiz, convicted of racketeering and violence in aid of racketeering, the “use it or lose it” policy of Los Angeles federal Judge John F. Walter deprived Yepiz of the full use of his 10 peremptory challenges.

As a result, Yepiz could not challenge a woman who had a law degree and had interned with the district attorney’s office.  She became a juror and Yepiz was convicted and sentenced to life in prison.

Under federal criminal procedure rules, the defense is entitled to 10 peremptory challenges and the defense gets six.  Under Walter’s courtroom policy, the defense must waive a challenge each time it accepts a jury panel as it is then constituted.

The appeals court said it was error for the judge to equate Yepiz acceptance of a jury panel counted as use of a peremptory challenge.

Yepiz used eight challenges and accepted two jury panels as then constituted.  But as the prosecutor also exercises challenges the panel continues to change.  That deprived Yepiz of the right to exercise two of his challenges.

But that doesn’t mean the process was so unfair it required reversal of his conviction, Judge Johnnie Rawlinson wrote.

Lack of evidence the seated jurors were biased allowed the appeals court to conclude that the trial was “not seriously affected.”

Yepiz was a member of the Vineland Boys Gang, which controlled drug distribution in the Sun Valley area of Los Angeles, according to the court.

He was accused of conspiring to distribute at least five kilos of cocaine in 2005 and participate in the murder of Eugenio Cruz in 2003.

He was charged with contacting a member of the Mexican Mafia in California’s maximum security Pelican Bay State Prison to seek permission to kill Cruz and take over the Vineland gang.  He allegedly shot Cruz in the head, according to the court.

Joining Rawlinson in upholding Yepiz’ conviction were Judges William Fletcher and Richard Mills, a visiting judge from central Illinois.

Case:  U.S. v. Yepiz, No. 09-50574

 

 

 

 

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