The majority opinion (written by Justice Chin) has a point. Justice Liu's concurrence (joined by Justice Kennard) has a point as well. One that -- as Justice Liu mentions -- is not necessary inconsistent with the former. (Though, to be honest, I think that Justice Liu may be expressing a hope rather than giving a neutral evaluation of the majority's holding. Lots of what the majority says is somewhat inconsistent with Justice Liu's proposed caveat.)
The California Supreme Court holds that it's not reversible error to fail to discharge jurors for cause as long as the defense is able to strike those jurors with peremptory challenges. Even when, as here, the defense then runs out of them. You can see the majority's point. Defendant was able to remove those jurors anyway. No blood, no foul.
But Justice Liu has a point as well. To put it somewhat differently than he does: What's the incentive for the trial judge to get cause challenges right if it's never reversible error? The challenges here are a good example: it's crystal clear that the jurors should have been struck. The trial judge nonetheless was more than happy to seat 'em. So defendant was forced to waste precious challenges. Given the California Supreme Court's holding, there's absolutely no reason for trial judges to pay serious attention to even legitimate challenges for cause. What's the defense going to do if the challenge is denied? Get a writ granted in the middle of jury selection? Good luck with that. Since it's not reversible error, the trial judge can just say "Denied" to even the most obviously meritorious challenges. No problem. No reversal. No remedy.
Justice Liu's concurrence says that maybe reversal should be allowed when the trial judge "repeatedly" makes errors, since that creates an illegitimate balance between the challenges granted to the defense versus the prosecution. I agree with him as a policy point. Though I'm not sure why that's not in fact precisely the case here. Since the trial judge did it twice, with two different jurors, so it seems to me that qualifies as "repeatedly". Justice Liu doesn't explain why doing something twice doesn't count, or what "repeatedly" means if it doesn't mean "more than once".
Even beyond Justice Liu's (very good) point, the California Supreme Court's holding seems to me to create an untenable doctrinal inconsistency. The Court has expressly held that it's reversible error to fail to give a defendant his specified number of peremptory challenges. So, for example, if the statute says he's entitled to 10, but you only give him 8, that's reversible error.
But if that's the rule, then I don't see why the same result doesn't apply here. That's basically exactly what transpired. Defendant was entitled to 10. But the trial judge's errors meant he only got to use 8 because he had to waste 2. I don't see why it makes a whit of difference whether the trial judge's error is his inability to properly count to 10 or his inability to dismiss 2 jurors for cause. The practical effect is exactly the same. Exactly. The defendant is forced to leave two jurors on it was entitled to bounce.
How you get to 8 doesn't matter. At least in any way that makes sense.
What's the only way it matters? I've got a pretty good sense. The reality is that trial judges are much more likely to be able to count to 10 than they are able to properly adjudicate challenges for cause. So why reverse the former but not the latter? Nothing to do with doctrine or effect. It's simply that we're willing to do so because there aren't many examples of the former but we're worried there might be way too many instances of the latter.
That's not a normative explanation for the distinction. But I think it's pretty descriptively accurate.
So trial judges: If you're sleepy, feel free to take a nap during voir dire. Put a big thumb on the scale towards denying challenges for cause. No downside if you get it wrong.
Just remember how to count. That we care about.
