In Brass v. Nevada, the Nevada Supreme Court in a three-judge panel opinion overturned the First Degree Murder conviction of Jermaine Brass who along with his brother had been convicted of killing his sister's boyfriend. The reversal was due to the faulty jury selection process that occurred during the joint murder trial of Jermaine and his brother.
During voir dire, counsel for the defendant objected to the prosecution using a peremptory challenge to remove juror No. 173 who was a Black female. This was the second African American juror challenged by the prosecution. Defense counsel argued that juror No. 173 was qualified to sit and that the prosecution was exercising its peremptory challenges in violation of Batson v. Kentucky, which prohibits using a peremptory challenge to strike a juror because of his or her race. Once defense counsel raised this issue, the trial court took a 15 minute break. During that break, the trial court permanently dismissed a number of jurors to include juror No. 173.
Upon returning from the break, the judge held a Batson hearing and determined that the state had offered sufficient race-neutral reasons for challenging juror No. 173. As some may recall, a Batson hearing involves a three-step process. First, the opponent of the peremptory challenge must set forth a prima facie case of racial discrimination. Second, the proponent of the strike must offer race-neutral reasons for exercising the challenge. Third, the judge must then decide if the opponent of the strike has proven purposeful discrimination.
In overruling the trial court's actions, the Nevada Supreme Court determined that "[d]ismissing this prospective juror prior to holding the Batson hearing had the same effect as a racially discriminatory peremptory challenge because even if the defendants were able to prove purposeful discrimination, they would be left with limited recourse." The Court then went on to say that failing to hold a Batson hearing is a structural error requiring reversal of defendant's conviction.
As an aside, Associate Justice Gibbons noted in a concurrence that the reason offered by the prosecutor for challenging juror No. 173 (she held democratic views) was inappropriate. According to Justice Gibbons, "[p]olitical affiliation is not a proper component as a basis for asserting a challenge to a juror."