CRIMINAL – Jurors (challenges, rehabilitating): Richard Gabbard v. Commonwealth of Kentucky (SC 10/29/2009)

Richard Gabbard v. Commonwealth of Kentucky
2008-SC-000062-MR October 29, 2009
Opinion by Justice Noble. All sitting; all concur.

Gabbard argued hismurder conviction must be reversed under Shane since he was forced touse two peremptory strikes to remove two jurors who should have beenstruck for cause. The Supreme Court held that the trial court should havestruck one of the jurors for cause after admitting she had already formedan opinion that Gabbard was guilty. The Court admitted the issue was a“tough call,” but held that the trial court relied too much on the juror’sstatements that she could set aside her personal views and base herdecision solely on the evidence. The Court noted that under Montgomery,pervasive bias or prejudice cannot be rehabilitated by using “magicquestions.” On the strike sheet, Gabbard’s defense counsel identified thejurors he would have struck if he had not been required to use hisperemptory challenges on the jurors that he believed should have beenstruck for cause. One of the jurors identified in this manner actually sat onthe jury– thus the exception to Shane did not apply and the conviction wasreversed. Further, the Court formally adopted this practice as arequirement, holding that henceforth “in order to complain on appeal thathe was denied a peremptory challenge by a trial judge’s erroneous failureto grant a for-cause strike, the defendant must identify on his strike sheetany additional jurors he would have struck.”

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