Criminal Law – Peremptory strikes, Shane: Richard Gabbard v. Commonwealth of Kentucky (SC10/29/2009)

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

Gabbard argued his murder conviction must be reversed under Shane since he was forced to use two peremptory strikes to remove two jurors who should have been struck for cause.

The Supreme Court held that the trial court should have struck one of the jurors for cause after admitting she had already formed an 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’s statements that she could set aside her personal views and base her decision solely on the evidence. The Court noted that under Montgomery, pervasive bias or prejudice cannot be rehabilitated by using “magic questions.” On the strike sheet, Gabbard’s defense counsel identified the jurors he would have struck if he had not been required to use his peremptory challenges on the jurors that he believed should have been struck for cause. One of the jurors identified in this manner actually sat on the jury– thus the exception to Shane did not apply and the conviction was reversed. Further, the Court formally adopted this practice as a requirement, holding that henceforth “in order to complain on appeal that he was denied a peremptory challenge by a trial judge’s erroneous failure to grant a for-cause strike, the defendant must identify on his strike sheet any additional jurors he would have struck.”

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