In a criminal trial, each side is given a number of strikes during jury selection. Sutherland claims that one prospective juror should've been struck by the court for cause at his request, based on what he believed were biased statements. Kanawha Circuit Judge Jim Stucky didn't agree, and Sutherland's attorney had to use one of his strikes to remove the juror.
Last month, the high court issued an opinion finding Stucky was right not to strike the juror for cause. The court also reversed a 1995 decision, which automatically granted a defendant a new trial when he was required to use a strike to remove a juror who should have been struck by the court for cause.
Benjamin wrote that he believed the juror should have been struck based on his statements.
Benjamin's opinion states that while he doesn't believe Sutherland should be granted a new trial and that the 1995 decision needs updated, justices were wrong to change the law under the circumstances because the law has no effect on Sutherland's case.
When justices found the juror shouldn't have been struck for cause, that should have ended the discussion, according to Benjamin.
In their decision, justices wrote the 1995 decision was an "extreme remedy," and ruled defendants now must show prejudice to be granted a new trial.
Benjamin believes, however, that would be hard to do.
"I am concerned about the effect the Court's new syllabus point will have on the defendant's statutory right to peremptory strikes. Requiring a showing of prejudice may place some defendants between 'a rock and a hard place': continuing to allow a biased juror to sit on the jury in hopes of success on appeal or using a peremptory strike to correct a court's error," he wrote.
Reach Kate White at kate.wh...@wvgazette.com or 304-348-1723.