Rivera v. Illinois - Amicus (Merits)

No. 07-9995

 

In the Supreme Court of the United States

MICHAEL RIVERA, PETITIONER

v.

STATE OF ILLINOIS

ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF ILLINOIS

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

EDWIN S. KNEEDLER
Acting Solicitor General
Counsel of Record
RITA M. GLAVIN
Acting Assistant Attorney
General
MICHAEL R. DREEBEN
Deputy Solicitor General
MATTHEW D. ROBERTS
Assistant to the Solicitor
General
DEBORAH WATSON
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the erroneous denial of a peremptory chal lenge authorized by state law violates a criminal defen dant's right to due process and requires reversal of his conviction without any showing that the error affected the outcome of his trial.

In the Supreme Court of the United States

No. 07-9995

MICHAEL RIVERA, PETITIONER

v.

STATE OF ILLINOIS

ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF ILLINOIS

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case presents the question whether the errone ous denial of a peremptory challenge authorized by state law violates a criminal defendant's right to due process and requires reversal of his conviction without any showing that the error affected the outcome of his trial. The United States has an interest in that issue because its resolution will affect the treatment of similar issues in federal prosecutions.

STATEMENT

Following a jury trial in Illinois state court, peti tioner was convicted of first-degree murder and sen tenced to 85 years of imprisonment. J.A. 144. On ap peal, he challenged the trial court's disallowance under Batson v. Kentucky, 476 U.S. 79 (1986), of one of his peremptory challenges. The Appellate Court of Illinois rejected that claim and affirmed his conviction. J.A. 63- 93. The Supreme Court of Illinois remanded for the trial court to supplement the record. J.A. 94-133. After the remand, the Supreme Court of Illinois held that the trial court had erroneously denied petitioner's peremp tory challenge but that the error was harmless beyond a reasonable doubt. Accordingly, the court affirmed peti tioner's conviction. J.A. 144-176.

1. Petitioner, who is Hispanic, was charged with murdering an African-American man by shooting him in the back of his head in the mistaken belief that he was a rival gang member. J.A. 64, 150. During jury selection, each party was allowed seven peremptory challenges, as provided by Illinois Supreme Court Rule 434(d). Before consideration of juror Deloris Gomez, whose seating on the jury is at issue in this case, petitioner had exercised three peremptory challenges, two against women, one of whom was African-American. J.A. 148, 155. Voir dire of Gomez revealed that she was a business office supervi sor at an outpatient orthopedic clinic associated with a hospital that treats many gunshot victims. Gomez stated that she had some contact with patients at the clinic but that her interaction with those patients would not affect her impartiality. J.A. 29-33. Petitioner's counsel then sought to exercise a peremptory challenge against Gomez. J.A. 33.

The judge called counsel to chambers, where he ex pressed concern that petitioner's strike discriminated against Gomez, "an African-American female." J.A. 34. Petitioner's counsel stated that he was "pulled in two different ways" because he knew Gomez "ha[d] some kind of Hispanic connection given her name" but he was concerned that she saw victims of violent crime on a daily basis. Ibid. The judge disallowed the challenge, explaining that Gomez was the second African-American female that petitioner had struck and that counsel's proffered non-discriminatory explanation was not con vincing. J.A. 35-36.

Defense counsel then requested and received permis sion to question Gomez further, out of the presence of the other jurors. J.A. 36. Gomez reiterated that she worked in a separate building from the hospital emer gency room and was certain that her limited contact with gunshot victims would not prevent her from view ing the evidence fairly and following jury instructions and the law. J.A. 37-38. After Gomez left the room, peti tioner's counsel renewed his peremptory challenge. He noted that "the jury [was] predominantly women" and that he was "trying to also get some impact from possi bly other men in the case." J.A. 39. The trial judge re affirmed his decision to seat Gomez, stating that he found no "cause" to dismiss her and that he would "over ride" the peremptory challenge. J.A. 40. After exercis ing one more peremptory challenge, J.A. 100, petitioner proceeded to trial, and the jury found him guilty of mur der. J.A. 144.

2. The Appellate Court of Illinois affirmed peti tioner's conviction, with one justice dissenting. J.A. 63- 93. The court rejected petitioner's contentions that the trial court lacked authority to raise a Batson issue sua sponte and erred by requiring petitioner's counsel to justify his challenge in the absence of a prima facie case of discrimination. J.A. 67-78. The appellate court fur ther held that the trial court did not clearly err in find ing petitioner's challenge discriminatory, because his counsel's purported concern about Gomez's contact with gunshot victims was undercut by the fact that she worked in a business office in an entirely separate build ing from the emergency room, and because petitioner's counsel "admitted that he was striking Gomez because she was a woman." J.A. 79.

3. The Supreme Court of Illinois remanded for fur ther proceedings. J.A. 94-133. It held that a trial court may raise a Batson issue sua sponte only if a prima facie case of discrimination exists. J.A. 118-123. Finding the record insufficient to determine whether a prima facie case existed when the trial court asked petitioner to jus tify his challenge, the supreme court remanded for the trial judge "to articulate the bases for his Batson rul ings." J.A. 132.

4. On remand, the trial judge stated that he had con cluded that petitioner's challenge was motivated by gen der discrimination. J.A. 136. The judge explained that, before challenging Gomez, petitioner's counsel had chal lenged two other women. The judge noted that, al though counsel sought to justify his strike based on Go mez's exposure to victims of violence, Gomez was em ployed as a supervisor in a building separate from the hospital, and she had testified that she could be fair and impartial. J.A. 135. Finally, the judge observed that counsel admitted that he had sought to exclude Gomez to "balance" the jury with more men. J.A. 136.

5. After the remand, the Supreme Court of Illinois held that the trial court had erroneously denied peti tioner's peremptory challenge because no prima facie case of discrimination existed when the court demanded a justification from counsel. J.A. 147-158. The supreme court concluded, however, that the error did not require reversal of petitioner's conviction. J.A. 158-176. Based on its own precedent and precedent from this Court, the state supreme court held that the error was not struc tural, but was subject to harmless-error review. J.A. 158-166. The court observed that "the Constitution does not confer a right to peremptory challenges," J.A. 160 (quoting Batson, 476 U.S. at 91); rather, they are just one means to help ensure the selection of an impartial jury, J.A. 159. The court acknowledged that "trial be fore a biased tribunal would deprive a defendant of a substantial right and constitute structural error." J.A. 163-164. But the court explained that "there is no evi dence that [petitioner] was tried before a biased jury, or even one biased juror," especially since he "does not suggest that Gomez was subject to excusal for cause." J.A. 164. The court also rejected petitioner's contention that the error could not be assessed for harm. Relying on Neder v. United States, 527 U.S. 1 (1999), and two of its own cases, the court held that it was possible to de termine that seating Gomez did not prejudice petitioner. J.A. 164-166. The court reasoned that "the evidence" against petitioner was "so overwhelming that no rational jury-or juror-would have acquitted [petitioner] of the offense." J.A. 166. Consequently, the court concluded, "Gomez's presence on the jury cannot be said to have prejudiced him." Ibid. Because the erroneous denial of petitioner's peremptory challenge was "harmless beyond a reasonable doubt," the court found it unnecessary to decide whether the error was "of constitutional dimen sion." J.A. 171.

SUMMARY OF ARGUMENT

A. The right of state criminal defendants to exercise peremptory challenges is created by state law, not the Constitution. States may withhold peremptory chal lenges "altogether without impairing the constitutional guarantee of an impartial jury and a fair trial." Georgia v. McCollum, 505 U.S. 42, 57 (1992). The erroneous de nial of a state defendant's peremptory challenge thus deprives him of only a state-law right. And whether harmless-error review applies is likewise a question of state law. This Court therefore should not disturb the state supreme court's holding that reversal of peti tioner's conviction is not required because the denial of his peremptory challenge was harmless error.

B. The purportedly erroneous denial of petitioner's peremptory challenge did not violate the Due Process Clause. Deprivation of a state-law right constitutes a due process violation only if it "results in prejudice so great as to deny" the defendant the "right to a fair trial." United States v. Lane, 474 U.S. 438, 446 n.8 (1986). The erroneous denial of a peremptory challenge does not do so. This Court has repeatedly held that, if no biased juror actually sits, the loss of a peremptory challenge does not impair the right to an impartial jury. United States v. Martinez-Salazar, 528 U.S. 304, 313 (2000); Ross v. Oklahoma, 487 U.S. 81, 88 (1988).

Petitioner contends that any proceeding before a tri bunal that includes an unlawful participant violates due process. That rule would inappropriately constitution alize the numerous and often conflicting jury-qualifica tion rules of the different States, even though many of those rules are unrelated to ensuring an impartial jury. In any event, the juror whom petitioner attempted to strike was not an "unlawful" juror: she satisfied the sta tutory requirements for jury service under Illinois law, and petitioner has never contended that she was exclud able for cause.

The purportedly erroneous denial of petitioner's pe remptory challenge also did not deny him procedural due process. State rules of criminal procedure do not create protected liberty interests. And petitioner re ceived ample opportunity to be heard, both before and after the denial of his challenge.

C. Even if the erroneous denial of a peremptory challenge violated due process, the error would not re quire automatic reversal. Only a handful of fundamental errors require automatic reversal. Those structural er rors deprive the defendant of "basic protections" re quired in every trial, Rose v. Clark, 478 U.S. 570, 577 (1986), and generally "infect the entire trial process," Brecht v. Abrahamson, 507 U.S. 619, 630 (1993). The er roneous denial of a peremptory challenge, in contrast, deprives the defendant of only a statutory privilege that States may withhold entirely without violating the Con stitution. And the error has no effect on the trial record, the legal arguments presented, or the legal standards to be applied by the judge and jury.

An automatic-reversal rule would require unnecessary retrials, could diminish trial courts' vigilance in policing against unconstitutionally discriminatory strikes, and could cause federal and state legislators to reduce or eliminate peremptory challenges. Reversal should not be required when the denial of a defendant's peremptory challenge did not result in the seating of a biased juror. And reversal should certainly not be re quired where, as here, the evidence was so overwhelm ing that any rational juror would have found the defen dant guilty.

D. Automatic reversal is not required whenever an error affects the composition of the jury. That rule would require costly retrials for numerous technical er rors that did not prejudice the defendant, such as a ju ror's failure to satisfy state age or residency require ments and a judge's mistaken replacement of a juror with a fully qualified alternate. The automatic-reversal cases cited by petitioner involve unlawful discrimination in jury selection, biased adjudicators, and judges who lacked any statutory authority under federal law to pre side over the proceedings-situations very different from the good-faith, erroneous denial of a peremptory challenge.

Automatic reversal is not required whenever it is difficult to assess the effect of an error. This Court has applied harmless-error review to numerous errors whose affects are difficult to assess. The inability to assess harm renders an error structural only if the error denies the defendant a basic protection and infects the entire trial process. The erroneous denial of a peremp tory challenge does not have those effects. Moreover, courts can determine that the denial of a peremptory challenge did not affect the outcome of the trial, particu larly in cases like this one, where the evidence was so overwhelming that no rational jury could have reached a different result.

ARGUMENT

THE ERRONEOUS DENIAL OF A STATE CRIMINAL DEFEN DANT'S PEREMPTORY CHALLENGE DOES NOT INFRINGE HIS CONSTITUTIONAL RIGHTS, AND FEDERAL LAW DOES NOT MANDATE AUTOMATIC REVERSAL OF HIS CONVIC TION

The purportedly erroneous denial of petitioner's pe remptory challenge violated his rights under Illinois law but did not infringe his rights under the United States Constitution. The appropriate remedy for that state-law violation is a question of Illinois law for the state courts to resolve.

Petitioner attempts to avoid that conclusion by trans forming the impairment of his state-created right into a due process violation and by asserting that federal law requires automatic reversal whether or not his constitu tional rights were violated. But nothing in the Constitu tion requires a State to grant peremptory challenges. See Stilson v. United States, 250 U.S. 583, 586 (1919). And the violation of a state-created right to peremptory challenges, like the violation of most state-law rights, does not violate the Due Process Clause. See Engle v. Isaac, 456 U.S. 107, 121 n.21 (1982). Accordingly, the States are free to develop their own harmless-error tests for violations of that state-created right. See Coo per v. California, 386 U.S. 58, 62 (1967). This Court should therefore affirm the judgment of the state su preme court holding that any erroneous denial of a pe remptory challenge in this case was harmless.

A. Because The Erroneous Denial Of A Peremptory Chal lenge Deprives A State Defendant Of Only A State-Law Right, The Applicability Of Harmless-Error Review Is A Question Of State Law For The State Courts

This Court has "long recognized" that peremptory challenges "are not of federal constitutional dimension." United States v. Martinez-Salazar, 528 U.S. 304, 311 (2000). Although they "are valuable tools in jury trials," peremptory challenges "are not constitutionally pro tected fundamental rights; rather they are but one state-created means to the constitutional end of an im partial jury and a fair trial." J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 137 n.7 (1994) (citation omitted); see, e.g., Stilson, 250 U.S. at 586 ("There is nothing in the Constitution of the United States which requires the Congress to grant peremptory challenges to defendants in criminal cases."). Indeed, "[t]his Court repeatedly has stated that the right to a peremptory challenge may be withheld altogether without impairing the constitu tional guarantee of an impartial jury and a fair trial." Georgia v. McCollum, 505 U.S. 42, 57 (1992).

"Because peremptory challenges are a creature of statute and are not required by the Constitution," the right of a state criminal defendant, such as petitioner, to exercise peremptory challenges derives entirely from state law. Ross v. Oklahoma, 487 U.S. 81, 89 (1988). The erroneous denial of a peremptory challenge thus deprives him of only a state-law right.

This Court made clear long ago "that a 'mere error of state law' is not a denial of due process" that violates the federal Constitution. Engle, 456 U.S. at 121 n.21 (quoting Gryger v. Burke, 334 U.S. 728, 731 (1948)). "If the contrary were true, then 'every erroneous decision by a state court on state law would come [to this Court] as a federal constitutional question.'" Ibid. (quoting Gryger, 334 U.S. at 731) (brackets in original). The Court has repeatedly reaffirmed that principle in nu merous cases holding that "federal habeas corpus relief does not lie for errors of state law." Estelle v. McGuire, 502 U.S. 62, 67 (1991) (citation omitted); e.g., Pulley v. Harris, 465 U.S. 37, 41 (1984); Rose v. Hodges, 423 U.S. 19, 21-22 (1975) (per curiam).

When the deprivation of a defendant's rights under state law does not infringe a specific constitutional guar antee, the error violates the Constitution only if it "re sults in prejudice so great as to deny" the defendant the "right to a fair trial," United States v. Lane, 474 U.S. 438, 446 n.8 (1986), or "so infuse[s] the trial with unfair ness as to deny due process of law," Estelle, 502 U.S. at 75 (citation omitted). The erroneous denial of a single peremptory challenge does not meet that test unless it results in the seating of a juror who is actually biased.

This Court made that plain in Ross, when it held that a state court's erroneous denial of a for-cause challenge did not violate the defendant's rights to an impartial jury and due process, even though the defendant used one of his peremptory challenges (as required by state law) to remove the juror. 487 U.S. at 87-88, 90-91. Be cause none of the jurors who actually sat was excludable for cause, the Court "reject[ed] the notion that the loss of [the] peremptory challenge constitute[d] a violation of the constitutional right to an impartial jury." Id. at 88. That was true, the Court stressed, even though the er ror "may have resulted in a jury panel different from that which would otherwise have decided the case." Id. at 87.

In Martinez-Salazar, the Court extended the holding of Ross to a federal defendant who had voluntarily used a peremptory challenge to cure the erroneous denial of a for-cause challenge. 528 U.S. at 307. In doing so, the Court reiterated its earlier conclusion that, if the jury that sits is not biased, the loss of a peremptory challenge does not violate the Constitution. Id. at 313.

That conclusion follows from this Court's repeated statements that States control the number of peremp tory challenges and may withhold them entirely without violating a defendant's rights to an impartial jury and a fair trial. See, e.g., Frazier v. United States, 335 U.S. 497, 505 n.11 (1949). If a State can deny peremptory challenges altogether without violating the Constitution, the erroneous denial of single challenge cannot itself render a trial fundamentally unfair.

That conclusion also follows from the Court's deci sions upholding "numerous incursions upon the right to challenge peremptorily." Ross, 487 U.S. at 90 (citation omitted). For example, a defendant may be required to share his peremptory challenges with his co-defendants, even though that requirement reduces the number he may exercise, Stilson, supra; forces him to use his chal lenges in a way other than he wishes, see Ross, supra; or deprives him of a juror he desires, United States v. Mar chant, 25 U.S. (12 Wheat.) 480, 482 (1827). A defendant may be required to exercise his peremptory challenges simultaneously with the government even if that causes him to waste a challenge on a juror whom the govern ment also challenges. Pointer v. United States, 151 U.S. 396, 412 (1894). The Court has also approved a practice under which each potential juror, in turn, must be chal lenged either for cause or peremptorily and, if not ex cused, sworn before another juror is considered, even though that process limits the defendant's ability to allo cate his peremptory challenges among potential jurors. St. Clair v. United States, 154 U.S. 134, 147-148 (1894).

The Court has also held that the Constitution prohib its defendants from exercising peremptory challenges based on race, ethnicity, or gender. J.E.B., supra; McCollum, supra; Hernandez v. New York, 500 U.S. 352 (1991). The purportedly erroneous denial of petitioner's peremptory challenge resulted from the trial court's effort to comply with that constitutional mandate. J.A. 136-137 (finding gender discrimination).1 Good- faith errors are an unavoidable consequence of the con stitutional prohibition on unlawful discrimination, and they do not render the trial fundamentally unfair.

Because the denial of a state criminal defendant's peremptory challenge deprives him only of state-law rights, whether that error requires automatic reversal, or is instead reviewed for harmlessness, is a question of state law. Chapman v. California, 386 U.S. 18, 20- 21 (1967). And, when "state standards alone have been violated, the State is free, without review by [this Court], to apply its own harmless-error rule to such er rors of state law." Cooper, 386 U.S. at 62. The trial court's rejection of petitioner's peremptory challenge violated only his state-law rights, so the applicability of harmless-error review was a state-law question for reso lution by the state courts.2 The Supreme Court of Illi- nois held that reversal of petitioner's conviction was not required, whether or not the denial of his peremptory challenge also violated the Constitution, because the error was harmless beyond a reasonable doubt. J.A. 171. The state court thus implicitly held that state law does not require automatic reversal for the erroneous denial of the challenge. This Court should not revisit that state-law ruling.

B. Petitioner's Arguments That The Erroneous Denial Of His Peremptory Challenge Violated Due Process Are Unpersuasive

Petitioner advances three theories to support his claim that the erroneous denial of his peremptory chal lenge violated the Due Process Clause. None withstands analysis.

1. Due process is not violated merely because an error in jury selection affected the jury's composition

Petitioner first contends that any proceeding before a tribunal that includes someone who lacks "lawful au thority" to participate violates due process and that Gomez was an "unlawful" juror because petitioner had exercised a peremptory challenge against her. Br. 19- 20. Petitioner is wrong on both counts.

This Court has never held that a proceeding before a tribunal that includes an unauthorized member neces sarily violates due process. None of the three cases that petitioner cites to support that contention rests on con stitutional grounds. Two involved judges who partici pated in appeals of cases in which they had participated at the trial level. The Court held that their participation in the appeals violated a federal statute. William Cramp & Sons Ship & Engine Bldg. Co. v. International Curtiss Marine Turbine Co., 228 U.S. 645, 649-652 (1913); American Constr. Co. v. Jacksonville, Tampa & Key W. Ry., 148 U.S. 372, 387-388 (1893). The third case, Gomez v. United States, 490 U.S. 858 (1989), held that the Federal Magistrates Act, 28 U.S.C. 631 et seq., does not authorize a magistrate judge to preside over voir dire in a felony trial without the parties' consent.

The cases involving unlawfully constituted judicial tribunals that petitioner cites elsewhere in his brief also all rest on statutory grounds. Br. 14 (citing Nguyen v. United States, 539 U.S. 69 (2003) (non-Article III judge sat on appeal in a criminal case in contravention of stat utory requirements); Wingo v. Wedding, 418 U.S. 461 (1974) (magistrate lacked authority under Federal Mag istrates Act to conduct evidentiary hearing in habeas corpus proceeding); United States v. American-Foreign S.S. Corp., 363 U.S. 685 (1960) (retired appellate judge ineligible by statute to participate in en banc proceed ings); Ayrshire Collieries Corp. v. United States, 331 U.S. 132 (1947) (suit to enjoin enforcement of Interstate Commerce Commission order heard by only two judges, in violation of statutory requirement that three judges hear such cases); Moran v. Dillingham, 174 U.S. 153 (1899) (judge prohibited by statute from sitting on ap pellate panel because he handled case at trial level).

These cases establish that, when a judge or judicial tribunal in a federal proceeding lacks authority under federal law to preside, the resulting judgment is "un lawful, and perhaps absolutely void," as matter of fed eral law. American Constr. Co., 148 U.S. at 387. But the cases do not address due process, much less estab lish that due process is violated whenever a tribunal in a state proceeding includes a member who lacks author ity to participate under state law.

In any event, Gomez did not lack "lawful authority" to serve on petitioner's jury. Petitioner has never sug gested that Gomez failed to meet the statutory require ments for juror service under Illinois law or that she was excludable for cause, and the trial judge found that she was qualified to sit. Petitioner cites no Illinois law to support his claim that his strike "voided" Gomez as a juror even though the trial court rejected his challenge. Br. 19. Nor does he identify any Illinois law suggesting that her participation deprived the jury as a whole of its authority to decide his case.

Petitioner's argument thus reduces to a contention that any error in the jury-selection process violates due process if the error affects the composition of the jury. That contention, however, cannot be reconciled with the holding in Ross that the erroneous denial of the defen dant's for-cause challenge did not result in a constitu tional violation even though it "may have resulted in a jury panel different from that which would otherwise have decided the case." 487 U.S. at 87.

Petitioner's proposed rule would inappropriately constitutionalize state jury-selection rules. States im pose numerous requirements on eligibility for jury ser vice, many of which are not related to ensuring an im partial jury. See, e.g., Mo. Ann. Stat. § 494.425(1) (West Supp. 2008) (juror must be at least 21 years old); Ala. Code § 12-16-60(a)(1) (2005) (juror must have resided within county for more than 12 months); W. Va. Code § 52-1-8(b)(4) (2008) (juror may not have been reim bursed for serving on a jury within the past two years). Petitioner's proposal would turn violations of all of those state rules into due process matters.

Under petitioner's rule, due process would impose different requirements for jury composition in different parts of the country. Compare 705 Ill. Comp. Stat. 305/2 (West 2007) (juror must be at least 18 years old) with Ala. Code § 12-16-60(a)(1) (2008) (juror must be more than 19 years old) and Mo. Ann. Stat. § 494.425 (West Supp. 2008) (juror must be at least 21 years old); com pare also 705 Ill. Comp. Stat. 305/2 (West 2007) (juror must reside in county but no minimum length of resi dency required) with Wyo. Stat. Ann. § 1-11-101(a)(i) (2007) (juror must have resided in county for 90 days) and Ala. Code § 12-16-60(a)(1) (2005) (juror must have resided in county for more than 12 months). That result cannot be squared with this Court's repeated statements that the requirements of due process "do not depend upon or vary with local legislation." Bute v. Illinois, 333 U.S. 640, 648 (1948) (quoting Hebert v. Louisiana, 272 U.S. 312, 317 (1926)); cf. Virginia v. Moore, 128 S. Ct. 1598, 1607 (2008) (state restrictions on arrest do not cause Fourth Amendment protections "to vary from place to place and time to time" (internal quotation marks and citation omitted)).

The constitutionalization of state jury-selection re quirements would also unsettle the traditional allocation of authority between the States and the federal govern ment. This Court has repeatedly held that the States lack authority to expand or contract federal constitu tional protections. See, e.g., Oregon v. Hass, 420 U.S. 714, 719 (1975); Lego v. Twomey, 404 U.S. 477, 489 (1972). But that is precisely what constitutionalizing state limitations on jury service would permit States to do. Constitutionalizing state requirements for jury ser vice would also conflict with the principle that States are generally free to determine the remedies for violations of their own laws. See Moore, 128 S. Ct. at 1606; p. 13, supra. Turning violations of state jury-selection rules into due process violations would infringe on that free dom by federalizing harmless-error analysis for viola tions of the state rules.

2. Seating a juror whom the defendant has peremptorily challenged does not create an unacceptable risk of bias

Petitioner also contends (Br. 26-37) that mistakenly seating a juror against whom the defendant has exer cised a lawful peremptory challenge creates an unac ceptable risk of bias and thus violates due process. That contention is incorrect.

Accepting petitioner's contention would circumvent the principle that peremptory challenges "may be with held altogether without impairing the constitutional guarantee of an impartial jury and a fair trial." McCol lum, 505 U.S. at 57. Based on that principle, the Court, in both Ross and Martinez-Salazar, "reject[ed] the no tion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury." Ross, 487 U.S. at 88; see Martinez-Salazar, 528 U.S. at 313.

The erroneous seating of a juror whom the defendant has peremptorily challenged differs from the situations in Ross and Martinez-Salazar in only two respects, nei ther of which supports petitioner's argument. First, unlike the situations in Ross and Martinez-Salazar, the erroneous seating of a struck juror violates state law. But a violation of state law does not establish an imper missible risk of unfairness, as demonstrated by this Court's cases refusing to equate state-law violations with violations of due process. Second, in the struck juror situation, unlike in Ross and Martinez-Salazar, the defendant has identified a particular juror whom he wants excluded. But that fact also does not establish a significant risk of bias. The peremptory is an "arbitrary and capricious species of challenge," 4 William Black stone, Commentaries *346, which a defendant "may ex ercise * * * without reason or for no reason," Pointer, 151 U.S. at 408. A defendant may prefer that a particu lar juror not serve (or may think another juror better) without any justifiable basis for inferring bias.

Petitioner argues that seating Gomez posed a partic ular danger of bias because the trial court had "required defense counsel to indicate, in front of Ms. Gomez her self, that he had sufficient concerns about her fairness as a juror to exclude her entirely." Br. 28. That argu ment is also incorrect.

All defense counsel was required to do in front of Gomez was to ask that she be excused. Counsel ex plained the reasons for his challenge out of her presence and that of the other jurors. If petitioner believed that announcing challenges to prospective jurors in open court threatened the jury's impartiality, he could have objected to that practice at trial. He did not, and the Court should not consider his belated objection now.

In any event, petitioner's argument lacks merit. He asserts (Br. 35-36) that challenging Gomez in her pres ence created such a danger of biasing her against him that seating her violated due process and requires auto matic reversal of his conviction. If that were correct, then a trial court would be required to excuse any juror whom counsel challenged in open court, regardless of the nature or the validity of the challenge. The mere exercise of the challenge would itself create an imper missible risk of future bias. Thus, even when a defen dant's peremptory challenge actually violated Batson v. Kentucky, 476 U.S. 79 (1986), the court would have to excuse the challenged juror. In fact, even excusing the juror would not prevent reversal because, according to petitioner (Br. 35), witnessing the challenge would have biased the other jurors. Accepting petitioner's argu ment would therefore require reversal whenever de fense counsel has challenged a juror in open court. That cannot be the law.

3. The erroneous denial of petitioner's peremptory chal lenge did not violate procedural due process

Relying on cases like Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), petitioner also argues (Br. 37- 39) that the denial of his peremptory challenge violated due process by depriving him of a protected liberty in terest without appropriate procedural safeguards. That argument is mistaken.

a. State law may sometimes create a liberty interest protected by the Due Process Clause. Wilkinson v. Austin, 545 U.S. 209, 221 (2005). But state rules of criminal procedure do not ordinarily create protected liberty interests. A criminal defendant has a constitu tionally protected liberty interest that the criminal pros ecution, as a whole, seeks to overcome by convicting him of a crime. The specific procedural mechanisms that States provide to determine guilt or innocence do not give rise to additional, separate liberty interests. If they did, then little would remain of the rule that violations of state-created trial rights provide no basis for federal habeas corpus relief. See p. 10, supra. Thus, petitioner is incorrect (Br. 37) in grounding his asserted liberty interest in expectations created by Illinois peremptory challenge law.

b. When a criminal defendant complains that the violation of a state-created procedural right deprived him of due process, the appropriate inquiry is not the analysis used in civil cases like Logan. In Medina v. California, 505 U.S. 437 (1992), this Court explained that the procedural due process analysis that applies in the civil context "does not provide the appropriate framework for assessing" challenges involving "state procedural rules which * * * are part of the criminal process." Id. at 443. The Court noted that "[t]he Bill of Rights speaks in explicit terms to many aspects of crimi nal procedure, and the expansion of those constitutional guarantees under the open-ended rubric of the Due Pro cess Clause invites undue interference with both consid ered legislative judgments and the careful balance that the Constitution strikes between liberty and order." Ibid.

Instead, when a defendant claims that a violation of a state criminal procedural rule violates due process, the inquiry is the one traditionally used in the criminal context-whether the violation results in prejudice so great as to deny the defendant his right to a fair trial. Estelle, 502 U.S. at 75; Lane, 474 U.S. at 446 n.8. As described above, the denial of a state-created right to a peremptory challenge does not result in that kind of unfairness. See pp. 10-13, supra.

c. Even assuming that the Logan analysis applies to the denial of petitioner's peremptory challenge, the question is whether petitioner had a meaningful oppor tunity to be heard. Logan, 455 U.S. at 433. Here, pe titioner received more than adequate procedural protec tions. He had a full opportunity to be heard before the trial court denied the challenge. As contemplated by Batson, the court questioned petitioner's counsel about the reasons for the challenge. The court gave counsel ample opportunity to justify the strike, requesting an initial explanation and allowing counsel to make further comment after the court announced its tentative deci sion. The court even permitted counsel to question Gomez further in an effort to support his proffered race- neutral justification. Petitioner also received extensive post-deprivation process. He appealed the denial of the peremptory challenge to the Appellate Court of Illinois and then to the Supreme Court of Illinois, both of which gave careful attention to his claim.

d. The criminal cases that petitioner cites (Br. 37- 38) do not support his procedural due process claim. Hicks v. Oklahoma, 447 U.S. 343 (1980), held that the imposition of a sentence by a jury that was not informed of its discretion to impose a lesser punishment deprived the defendant of due process. That error deprived the defendant of any substantive determination of the ap propriate punishment for his crime, and the error preju diced him because of the "substantial" possibility that a properly instructed jury would have imposed a lower sentence. Id. at 346-347. Here, in contrast, the denial of petitioner's peremptory challenge did not deprive him of sentencing discretion or any other substantive determi nation accorded by law. A fair and impartial jury was correctly instructed on its legal options. And, unlike in Hicks, where the defendant was prejudiced by the error, in this case, the state supreme court determined that the error did not affect the outcome of petitioner's trial.

Douglas v. California, 372 U.S. 353 (1963), and Evitts v. Lucey, 469 U.S. 387 (1985), likewise do not as sist petitioner. Douglas held that the "equality de manded by the Fourteenth Amendment" guarantees an indigent criminal defendant the right to counsel when the State affords defendants an appeal of right. 372 U.S. at 358. Because "the promise of Douglas that a criminal defendant has a right to counsel on appeal * * * would be a futile gesture unless it comprehended the right to the effective assistance of counsel," Evitts held that due process guarantees the right to effective assistance. 469 U.S. at 397. Douglas and Evitts thus turned in significant part on the constitutional right to equal protection, which is not implicated here.

C. Even If The Erroneous Denial Of A Peremptory Chal lenge Violated Due Process, The Error Would Be Sub ject To Harmless-Error Review

Since Chapman, it has been clear that "most consti tutional errors can be harmless." Neder v. United States, 527 U.S. 1, 8 (1999) (citation omitted). "[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis." Rose v. Clark, 478 U.S. 570, 579 (1986). Harmless-error analysis applies, for exam ple, to improper comments on the defendant's failure to testify (Chapman, supra), admission of a coerced con fession (Arizona v. Fulminante, 499 U.S. 279 (1991)), and the failure to submit an element of the offense to the jury (Neder, supra).

The Court has found only a handful of "fundamental" errors that require reversal regardless of their effect on the outcome of the trial. Neder, 527 U.S. at 7. It has described those errors as "structural," Fulminante, 499 U.S. at 309, explaining that they deprive the defendant of "basic protections," Clark, 478 U.S. at 577, and gener ally "infect the entire trial process," Brecht v. Abraham son, 507 U.S. 619, 630 (1993). See Neder, 527 U.S. at 9 (structural errors "necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for deter mining guilt or innocence"). Structural errors include denial of counsel of choice (United States v. Gonzalez- Lopez, 548 U.S. 140 (2006)); giving a deficient reason able-doubt instruction (Sullivan v. Louisiana, 508 U.S. 275 (1993)); racial discrimination in selecting the grand jury (Vasquez v. Hillery, 474 U.S. 254 (1986)); denial of a public trial (Waller v. Georgia, 467 U.S. 39 (1984)); de nial of self-representation at trial (McKaskle v. Wiggins, 465 U.S. 168 (1984)); complete denial of counsel (Gideon v. Wainwright, 372 U.S. 335 (1963)); adjudication by a biased judge (Tumey v. Ohio, 273 U.S. 510 (1927)); and seating an actually biased juror (Martinez-Salazar, 528 U.S. at 316).

The erroneous denial of a single peremptory chal lenge differs significantly from those structural errors. It does not infringe a "basic protection[]" required in every criminal trial, Clark, 478 U.S. at 577, because the Constitution leaves the decision whether to provide pe remptory challenges entirely within the State's control. See Stilson, 250 U.S. at 586. It also does not render the trial fundamentally unfair or unreliable, because, when no biased juror sits, loss of a peremptory challenge does not deprive the defendant of an impartial jury. Ross, 487 U.S. at 88. Nor does the error "infect the entire tri al process." Brecht, 507 U.S. at 630. It has no effect on the trial record, the legal arguments presented, or the way the case is submitted to the jury. The defendant continues to enjoy counsel, an unbiased jury, and all other protections provided by the Constitution and pro cedural rules.

Retrials impose significant costs on society, wit nesses, and victims. And "[p]assage of time, erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible." Engle, 456 U.S. at 127-128. Those costs are an "acceptable and often necessary con sequence" when an error "has deprived a defendant of a fair determination of the issue of guilt or innocence. But the balance of interest tips decidedly the other way when an error has had no effect on the outcome of the trial." United States v. Mechanik, 475 U.S. 66, 72 (1986).

The costs of requiring automatic reversal for errone ous denials of peremptory challenges would be particu larly high. Jury selection is often fast-paced and con ducted under pressure. A trial judge has complex re sponsibilities: to ensure that parties have an adequate basis for making challenges, that claims of error (includ ing allegations of discrimination in the use of peremp tory challenges) are adjudicated promptly and fairly, and that impartial jurors are empaneled. Experience shows that, despite the diligence of trial judges, jury selection may produce a significant number of errors that, in retrospect, impair or deny defendants' peremp tory challenges.

Given that reality, automatic reversal is too high a price to pay to correct an error that, at most, deprives the defendant of the right to exclude a juror whom he believes may be less favorable to him than some other juror. See United States v. Underwood, 130 F.3d 1225, 1230 (7th Cir. 1997) (Easterbrook, J., dissenting from denial of reh'g en banc), cert. denied, 524 U.S. 937 (1998).

An automatic-reversal rule could lead courts to be less vigilant in enforcing Batson challenges for fear that good-faith errors will necessitate costly retrials. And it could lead "federal and state legislators to cut down the number of peremptories-or eliminate them altogether." United States v. Annigoni, 96 F.3d 1132, 1150 (9th Cir. 1995) (en banc) (Kozinski, J., dissenting). This Court should not risk those undesirable results.

Instead, the Court should apply harmless-error anal ysis to erroneous denials of peremptory challenges. The fundamental purpose of peremptory challenges is to assist in the selection of an impartial jury. J.E.B., 511 U.S. at 137 n.8; Frazier, 335 U.S. at 505. The jury that sat in this case was fair and impartial. It unanimously found that petitioner was guilty. It would be pure spec ulation to conclude that the substitution of a different impartial juror for one of those twelve impartial jurors would have changed the jury's verdict. Thus, because the erroneous denial of petitioner's peremptory chal lenge did not result in the seating of a biased juror, the error was harmless. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553-556 (1984) (McDon ough) (Even if a juror's failure to respond correctly to a question on voir dire deprives a party of information that would have led the party to exercise a peremptory challenge, the error does not require reversal unless a correct response "would have provided a valid basis for a challenge for cause.").

A finding of harmlessness is warranted here for an additional reason. As the Supreme Court of Illinois ex plained, the evidence against petitioner was so over whelming that no rational jury could have acquitted him. J.A. 171. Gomez's presence on the jury therefore could not have prejudiced petitioner, because any rational ju ror serving in Gomez's stead would have been required to find him guilty. J.A. 166, 171. Given the overwhelm ing evidence, the substitution of a different juror could only have affected the outcome if that juror had voted to acquit despite the overwhelming evidence of guilt. But a criminal defendant has no right to jury nullification, which this Court has repeatedly described as jurors' "assumption of a power which they had no right to exer cise." Standefer v. United States, 447 U.S. 10, 22 (1980) (citation omitted); see Sparf v. United States, 156 U.S. 51, 102-106 (1895).

C. Petitioner's Arguments For Automatic Reversal Are Unpersuasive

1. Automatic reversal is not required whenever an error affects the composition of the tribunal

Petitioner contends (Br. 13-20) that any error affect ing the composition of the tribunal always requires re versal without inquiry into prejudice. That contention is supported by neither precedent nor policy.

None of the cases cited by petitioner adopts the broad rule he espouses. Most of the jury cases involve the unlawful exclusion of jurors based on race or mem bership in an identifiable group. See Powers v. Ohio, 499 U.S. 400 (1991) (race); Batson, supra (race); Vas quez, supra (race); Peters v. Kiff, 407 U.S. 493 (1972) (race); Thiel v. Southern Pac. Co., 328 U.S. 217 (1946) (daily wage earners). Automatic reversal applies in that context because "discrimination in the selection of jurors harms not only the accused" but also the excluded jurors and the entire community. Batson, 476 U.S. at 87. Un lawful discrimination "casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law" and impugns "the integrity of the judicial pro cess." Powers, 499 U.S. at 411-412 (citation omitted). Similarly, the systematic exclusion of "persons of low economic and social status" suggests that the jury is "the instrument of the economically and socially privi leged" and "undermine[s] and weaken[s] the institution of jury trial." Thiel, 328 U.S. at 223-224. Those consid erations do not apply to an erroneous denial of a per- emptory challenge that does not result in the seating of a biased juror.

Another group of petitioner's cases involves juries or presiding judges who were not impartial. See Gray v. Mississippi, 481 U.S. 648, 667 (1987) (jury "deliberately tipped towards death" by erroneous exclusion of juror who opposed death penalty but could fairly apply law) (citation omitted); Irvin v. Dowd, 366 U.S. 717 (1961) (two-thirds of jury had decided defendant was guilty before trial); In re Murchison, 349 U.S. 133 (1955) (judge presiding over trial had interest in outcome); Tumey, supra (same). Those cases have no bearing here because petitioner has not shown that any of the jurors was biased.

The final group of cases involves judges or judicial tribunals that lacked statutory authority to preside. See pp. 14-16, supra. In a number of such cases, this Court has concluded that, when the presiding judge or judges in a federal proceeding lack statutory authority, the re sulting judgment is unlawful under federal law. The Court has required automatic reversal as an exercise of its supervisory authority over the federal courts. Nguyen, 539 U.S. at 74, 81. The erroneous denial of the peremptory challenge in this case did not result in an adjudicator who lacked statutory authority to preside under either federal or Illinois law. Nor does this Court have supervisory authority over the Illinois courts. Smith v. Phillips, 455 U.S. 209, 221 (1982). Accordingly, the cases cited by petitioner do not support automatic reversal of his conviction.3

Indeed, a rule requiring automatic reversal when ever an error affects the composition of the tribunal would conflict with this Court's decisions. It could not be squared with Ross and McDonough, in which the Court held that errors in the jury-selection process did not require reversal even though they may have affected the composition of the jury. See Ross, 487 U.S. at 87; McDonough, 464 U.S. at 555-556. An automatic-reversal rule also would be inconsistent with Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988), which in volved a violation of 28 U.S.C. 455(a), a statute providing that "[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Although this Court affirmed reversal of the judgment under Federal Rule of Civil Procedure 60(b), the Court made clear that "there is surely room for harmless er ror" when Section 455(a) is violated. Liljeberg, 486 U.S. at 862.

Requiring automatic reversal simply because an er ror affects the composition of the jury would require costly retrials for technical violations of jury-selection rules that did not prejudice the defendant. For example, retrial would be required whenever a juror did not meet state qualification requirements, no matter how unre lated those requirements were to ensuring a fair trial. See pp. 16-17, supra. Retrial also would be required whenever a judge erroneously dismissed a juror in the mistaken belief that he was disqualified for cause; when ever a judge erroneously replaced a regular juror with a fully qualified alternate; or whenever a judge in good faith miscounted the number of peremptory challenges that a defendant had exercised and thereby deprived the defendant of a challenge. The Constitution does not mandate those results.

2. Automatic reversal is not required whenever it is difficult to assess the effect of an error

Petitioner also argues (Br. 20-26) that automatic re versal is required because it is too difficult to determine whether erroneously seating Gomez affected the out come of the trial. That argument is incorrect.

This Court has sometimes considered the difficulty in assessing harm in determining whether an error re quires automatic reversal. See, e.g., Gonzalez-Lopez, supra; Holloway v. Arkansas, 435 U.S. 475 (1978). Dif ficulty in assessing harm does not, however, in itself ren der an error structural. The Court has applied harm less-error review to numerous errors whose effects are difficult to assess. In particular, the Court has frequent ly applied harmless-error review to errors that, like the erroneous denial of a peremptory challenge, do not oc cur during the presentation of the case to the jury. Thus, the Court has found harmless irregularities in grand jury proceedings, Mechanik, supra; improper joinder of defendants in a single trial, Lane, supra; de privation of a defendant's right to be present at all criti cal stages of the proceedings, and denial of counsel during a communication between the trial judge and a juror, Rushen v. Spain, 464 U.S. 114 (1983) (per curiam). See also United States v. Olano, 507 U.S. 725 (1993) (pres ence of alternates in jury room during deliberations did not violate defendant's substantial rights). The Court has also applied harmless-error review to other errors, such as violation of the right against self-incrimination (Fulminante, supra) and erroneous exclusion of evi dence in violation of the Confrontation Clause (Delaware v. Van Arsdall, 475 U.S. 673 (1986)), even though those errors "affect the jury's deliberative process in ways that are, strictly speaking, not readily calculable." Ne der, 527 U.S. at 18.

The inability to assess harm renders an error struc tural only if the error denies the defendant a "basic pro tection[]," Clark, 478 U.S. at 577, and "infect[s] the en tire trial process," Brecht, 507 U.S. at 630. Thus, the denial of counsel of choice in Gonzalez-Lopez infringed a right that the Court described as the "root meaning of the constitutional guarantee" of assistance of counsel. 548 U.S. at 147-148. And the Court stressed that "the deprivation of choice of counsel pervades the entire trial;" it may affect investigation and discovery, plea proceedings, the evidence and argument presented to the jury, and the legal arguments presented to the court. Id. at 150. The same is true of joint representa tion of defendants with conflicting interests, the consti tutional violation in Holloway. 435 U.S. at 489-490.

In contrast, the erroneous denial of a peremptory challenge deprives the defendant of only a "statutory privilege" that the State may withhold entirely without offending the Constitution. Frazier, 335 U.S. at 505 n.11. And, far from infecting the entire trial, the error has no effect on investigation and discovery, plea pro ceedings, the development of the trial record, or the le gal standards to be applied by the judge and jury.

Contrary to petitioner's contention (Br. 22), if it were necessary to look beyond the fact that no biased juror sat, a court could ascertain that the erroneous denial of a peremptory challenge did not affect the trial's out come. In this case, the evidence was so overwhelming that no rational jury could have reached a different re sult. J.A. 166-171; see Neder, 527 U.S. at 17-18.

Petitioner incorrectly contends that Neder's over whelming-evidence analysis cannot be applied when it would require "a wholesale evaluation of the entire re cord to determine whether a reasonable jury could have acquitted [the defendant]." Br. 25. On the contrary, this Court has repeatedly stated that harmless-error analysis "mandates consideration of the entire record prior to reversing a conviction for constitutional errors that may be harmless." United States v. Hasting, 461 U.S. 499, 509 n.7 (1982) (emphasis added); e.g., Brecht, 507 U.S. at 638; Van Arsdall, 475 U.S. at 681. And the Court has relied on overwhelming evidence to find er rors harmless even when they could have affected the jury's determination on multiple (or even all) elements of the offense. See, e.g., Lane, 474 U.S. at 450; Hasting, 461 U.S. at 512; Harrington v. California, 395 U.S. 250, 254 (1969).

Finally, petitioner mistakenly argues (Br. 25-26) that applying harmless-error review here is inconsistent with Sullivan and amounts to a directed verdict. Sullivan involved a defective reasonable-doubt instruction that "vitiate[d] all of the jury's findings." 508 U.S. at 281. As a consequence, the defendant did not receive a jury finding beyond a reasonable doubt on any element of the offense. The Court therefore concluded that "there ha[d] been no jury verdict within the meaning of the Sixth Amendment," and that affirming the conviction based on harmless-error review would amount to a di rected verdict. Id. at 280. In contrast, the error in this case did not vitiate any of the jury's findings. Petitioner received a determination on every element of the offense from a fair and impartial jury that was properly in structed. He cannot credibly contend that he was de nied a jury verdict within the meaning of the Sixth Amendment or that applying harmless-error review would be tantamount to a directed verdict.

CONCLUSION

The judgment of the Supreme Court of Illinois should be affirmed.

Respectfully submitted.

EDWIN S. KNEEDLER
Acting Solicitor General
RITA M. GLAVIN
Acting Assistant Attorney
General
MICHAEL R. DREEBEN
Deputy Solicitor General
MATTHEW D. ROBERTS
Assistant to the Solicitor
General
DEBORAH WATSON
Attorney

JANUARY 2009

1 The Supreme Court of Illinois declined to consider the trial judge's finding of gender discrimination because the state supreme court found that no prima facie case of discrimination existed, and thus petitioner should not have been required to explain his strike. J.A. 145-158. But this Court has stated that, once a party has advanced a race-neutral ex planation for his challenge, and "the trial court has ruled on the ulti mate question of intentional discrimination, the preliminary issue of whether the [party challenging the strike] had a made a prima facie showing becomes moot." Hernandez, 500 U.S. at 359 (plurality opin ion). And, in light of the deferential standard of review that applies to trial court findings of intentional discrimination, id. at 364-365, and pe titioner's admission that his strike against Gomez was based on "the fact that the jury [was] predominantly women" and that he was "trying to also get some impact from possibly other men," J.A. 39, the trial court's disallowance of the strike as based on "gender," J.A. 137, was fully justified.

2 The deprivation of petitioner's state-law right resulted from the trial court's purported misapplication of Batson v. Kentucky, 476 U.S. 79 (1986). But that does not mean that federal law governs the harm less-error analysis of the loss of petitioner's peremptory challenge. Chapman makes clear that federal harmless-error standards govern only when the defendant has been deprived of a federal right, which did not occur here. See 386 U.S. at 21 (explaining that the harmless-error standard was a question of federal law because the defendant "suffered * * * a denial of rights guaranteed against invasion by the Fifth and Fourteenth Amendments" of the federal Constitution, and "[w]hether a conviction for a crime should stand when a State has failed to accord federal constitutionally guaranteed rights is * * * a federal ques tion").

3 Contrary to petitioner's contention, Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987), does not establish that "errors regarding the choice of an individual to prosecute a crime also require automatic reversal." Br. 15. Young involved a judicially appointed pro secutor with a private interest in the case. See 481 U.S. at 813-814 (plurality opinion). Young is therefore similar to decisions requiring automatic reversal in cases involving a biased adjudicator, and, like those decisions, has no relevance here.