- The Washington Times - Wednesday, April 1, 2009

A convicted street-gang killer failed to get his 85-year-sentence dismissed by the Supreme Court on Tuesday after it unanimously held that objecting to the seating of one juror is not enough to throw out an entire trial.

The lawyer for Michael Rivera was blocked by a Cook County Circuit Court judge in Illinois from striking from the jury Deloris Gomez, a black woman with a Hispanic-sounding name.

Ms. Gomez was later appointed jury foreman, and Rivera was convicted of first-degree murder in the shooting of Marcus Lee, a 16-year-old black teenager mistakenly thought to belong to a rival gang, and a distant cousin to talk-show star Oprah Winfrey.

Rivera, who was 26 at the time of his arrest in January 1998, was convicted of being the drive-by shooter for the Insane Deuces gang.

Rivera’s lawyer initially said he was concerned that Ms. Gomez, a business-office supervisor at Cook County Hospital’s outpatient orthopedic clinic, should not be seated on the jury because she saw victims of violent crimes on a daily basis.

“She met the requirements for jury service, and Rivera does not contend that she was in fact biased against him,” Justice Ruth Bader Ginsburg wrote in the court’s unanimous decision.

“The Supreme Court of Illinois held that the peremptory challenge should have been allowed, but further held that the error was harmless, and therefore did not warrant reversal of Rivera’s conviction,” the court said. “The right to exercise peremptory challenges in state court is determined by state law. This court has ‘long recognized’ that ‘peremptory challenges are not of federal constitutional dimension.’ ”

“Rather than dismissing Gomez, the trial judge called counsel to chambers, where he expressed concern that the defense was discriminating against Gomez,” the court said.

Rivera’s lawyer told the judge that he was “pulled in two different ways” because Ms. Gomez had “some kind of Hispanic connection, given her name.”

“At that point, the judge interjected that Gomez ‘appears to be an African American’ - the second ‘African American female’ the defense had struck,” the court said.

After reviewing the trial record, the Supreme Court concluded that Ms. Gomez’s presence on the jury did not prejudice Rivera because “any rational trier of fact would have found [Rivera] guilty of murder on the evidence adduced at trial.”

In other action Tuesday:

•The court refused to overturn a $79.5 million punitive-damages award against the Philip Morris tobacco company, the third time it has ruled on the case. The widow of a smoker, Mayola Williams, sued the company after her husband Jesse’s death in 1997 and was awarded $821,485 in actual damages in addition to the massive punitive award.

• The court ruled that the state of Hawaii has the authority to sell more than 1 million acres of public land to private developers, without resolving claims that the land is owned by native Hawaiians.

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