Sunday, July 29, 2007
The 11th Circuit issued an opinion affirming the conviction of former Georgia State Senator Charles Walker. The court rejected defense arguments that “(1) during jury selection, the district court erroneously disallowed four of Walker’s peremptory strikes after finding a Batson violation; (2) honest services mail fraud was improperly charged in the indictment and not supported by sufficient evidence; (3) prosecuting Walker for mail fraud violates basic principles of federalism; and (4) various sentencing enhancements were improperly imposed by the district court.”
Batson issues are not usually the focus of a white collar case. But clearly the facts of this case present an interesting twist to picking a jury in white collar, as well as other criminal matters. The trial court found that four of defense counsel's strikes should be reseated. The trial court, however, failed to give defense counsel additional strikes, perhaps in part because potential jurors had been dismissed. The appellate court stated:
"Replacement strikes would have required that the court start anew the next day, at considerable time and expense. Although the better practice in certain circumstances is to begin afresh with a new venire, we cannot say that the district court abused its discretion here."
The 11th Circuit notes that the lower courts are split on whether one is entitled to additional strikes following a Batson challenge that is upheld. But whether this will be enough to get a Supreme Court glance is unknown. The 11th Circuit was troubled by the record on the strikes, but provided deference to the trial court in its judging of the facts surrounding these peremptory challenges.
This was also a case in which prosecutors had brought a mail fraud count under section 1346, the intangible right to honest services.