Does it matter how a jury is selected in a criminal case? Can the method used in seating a jury cause reversible error? According to the Kansas Court of Appeals, the answer is yes. A recent case discussed these issues and how they would be applied. The case was State v. Crabb, decided in February of this year (KS Court of Appeals No. 110,673).
In the Crabb case, defendant Christopher Crabb appealed his conviction of one count of interference with law enforcement. Crabb claims the district court committed reversible error by using the so-called “hot-box” method of jury selection over Crabb’s objection instead of using the statutory method of jury selection set forth in K.S.A. 22-3411a. He also argued that the district court erred in instructing the jury and that he was denied a fair trial based on prosecutorial misconduct and cumulative error.
Crabb had been charged with “running” from a law enforcement officer. Crabb was arrested and taken into custody after allegedly running from law enforcement for an alleged parole violation. On August 23, 2012, the State charged Crabb with one count of interference with law enforcement, a nonperson felony. The case proceeded to a jury trial in April 2013. The trial resulted in a deadlocked jury, so the district court declared a mistrial. A second trial was conducted in 2013. And this is where the problems began.
At the second trial, the trial judge announced that the court would be using the “hot box” method of jury selection. What was this? The judge elaborated:
“I decided that this morning we are going to have jury selection by what has commonly been referred to as hot box. That means we are going to call 12 people into the jury box who will be examined by the Court and by counsel. All other people will remain in the gallery and be able to listen to court proceedings. At the time that 12 people have been passed for cause, then each party will have the opportunity to exercise a peremptory challenge and the State will go first, if you wish to exercise one or you may pass. Then the defendant will have the opportunity to exercise a peremptory challenge or may pass, until such time as both parties have either passed, leaving 12 people in the jury box, or each party has exercised six peremptory challenges, then we will have our jury.”
Defense counsel objected to this method, and asked what was its statutory basis. The Court replied that it was permitted. The trial proceeded and Crabb was convicted of felony interference with law enforcement. He appealed, claiming that the method of jury selection prejudiced him. He argued that the jury selection procedure used by the district court violated K.S.A. 22-3411a, which provides that the court shall cause enough jurors to be called, examined, and passed for cause before any peremptory challenges are required.
Crabb cited State v. Mitchell, 234 Kan. 185, 192-96, 672 P.2d 1 (1983), to support his argument that the district court erred by failing to use the jury selection procedure set forth in K.S.A. 22-3411a. In Mitchell, the district court used a jury selection method identical to the hot-box method used by the district court at Crabb’s trial.
The Court found that the “hot-box” method was inferior, for two reasons. First, as the Mitchell court noted, the hot-box method requires counsel to exercise their peremptory challenges piecemeal rather than in comparison to the entire panel. How, the Court asked, can a party properly exercise a peremptory challenge to strike a juror when the next juror seated by the court may be even worse, from that party’s perspective, than the juror who was initially challenged?
Second, under the hot-box jury selection method, after the parties have exercised all peremptory challenges and the final juror is seated in the jury box, that final juror may only be removed for cause. There is no remaining peremptory challenge for the final juror seated by the court. Thus, unless a party is successful in striking the final juror for cause, the final juror will remain on the jury.
Finally, the Court noted that the State could not prove that the error that Crabb suffered from the trial court was harmless. The burden was on the State to prove that there had not been an error. And this they could not do. The Appellate Court noted that the “jury box” method was used in some federal courts, but this did not mean that it was authorized in the State of Kansas:
[T]he “jury-box” method, is permitted in some federal courts. See, e.g., United States v. Severino, 800 F.2d 42, 47 (2d Cir. 1986). The Second Circuit Court of Appeals has found that federal trial courts have broad discretion in determining how peremptory challenges will be exercised and that the hot-box method is not an abuse of that discretion so long as the defendant is not prevented from using all of his or her peremptory challenges. See United States v. Thompson, 76 F.3d 442, 451-52 (2d Cir. 1996). But the fact that some federal courts permit the use of the hot-box jury selection method does not mean that Kansas courts are free to ignore the mandate of K.S.A. 22-3411a for selecting juries in felony trials. Likewise, the fact that some federal courts allow the hot-box method of jury selection does not mean that a Kansas court’s failure to comply with K.S.A. 22-3411a is always harmless error.
Just because the jury box method was used in federal courts did not make it acceptable in Kansas. In short, the Appellate Court ruled that there was one method—and one method only—for jury selection in felony trials in the State of Kansas. And this was the method laid out in K.S.A. 22-3411a. Because this method had not been used, reversible error had occurred and Crabb was entitled to a new trial. This decision upholds the far-reaching jury selection rights that defendants have in felony criminal cases in Kansas.
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