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Dear SCOTUS, please reverse my opinion

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The Chief Justice of California didn't exactly say that today, but she came pretty close.

People v. Riccardi, S056842, is a capital case in which a juror was excused for cause, ultimately found improper under the Witherspoon-Witt rule.  Is this reversible per se?  The unanimous opinion of the Court by Chief Justice Cantil-Sakauye reluctantly concludes that this result is required by the U.S. Supreme Court's splintered opinion in Gray v. Mississippi, 481 U.S. 648 (1987).

But then the Chief Justice writes a separate petition for certiorari concurring opinion.  It's not terribly unusual in Cal. Supreme for the author of the opinion of the court to write a separate concurrence joined by less than a majority of the court, but this one is joined by a (bare) majority.  She notes Gray's lack of a majority opinion, limiting language in a subsequent case, and dubious policy basis in cases where the defendant ultimately receives a fair trial with an impartial jury.
If the ultimate goal animating the high court's case law in this area is to strictly prohibit any occurrences of Witherspoon-Witt error, regardless of whether the error may have affected the ultimate composition of the jury, then removing N.K. due to an erroneous Witherspoon-Witt determination would be sufficient to justify an automatic reversal. On the other hand, if a single Witherspoon-Witt error during jury selection is tolerable -- and especially if it is questionable whether the dismissal affected the ultimate composition of the jury -- Prospective Juror N.K.'s erroneous removal would not appear to have affected the fairness of defendant's trial. Defendant voiced no objection to the composition of the final jury below and makes no argument on appeal that a biased juror sat in judgment of his case.

But without a firm identification of the guiding principles that should govern our scrutiny of an erroneous dismissal of a prospective juror for cause, we are compelled to follow that precedent that is most analogous to the circumstances presented here at the possible expense of sacrificing the finality of our state's judgments.

Justice Liu writes a solo concurrence saying Gray is just fine.

Paul Elias of AP has this story.  He notes that Scott Peterson has a similar claim and that Riccardi was captured after being identified on America's Most Wanted.

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