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Deceased Criminal Defendant Entitled to Conviction Reversal Based on Jury Selection Error

On May 29, 2014, the Nevada Supreme Court held that, should an appellant in a criminal conviction die while his appeal is pending, the appeal may continue “upon proper substitution of a personal representative . . . when justice so requires.”

The appeal in Brass v. Nevada stemmed from the jury selection process leading to the conviction of brothers and co-defendants Ronnie and Jermaine Brass. Ronnie Brass, the deceased appellant, was convicted of conspiracy to commit kidnapping, first-degree kidnapping, conspiracy to commit murder, and murder with the use of a deadly weapon.

Defense counsel argued during voir dire that the State improperly used a preemptory challenge to exclude a prospective juror based on race, and that the district court improperly dismissed the prospective juror. The court subsequently determined, following hearing, that the State had race-neutral reasons for its preemptory challenge. The defendants filed separate appeals, and the Nevada Supreme Court reversed Jermaine’s conviction and remanded the matter to the district court for a new trial.

Ronnie raised the same issues on appeal, but died in prison while the appeal was pending. The court appointed a representative to substitute in as a party to the appeal. Ronnie’s representative filed a motion to abate the judgment of conviction due to Ronnie’s death. The Nevada Supreme Court denied the motion, and adopted the position that a personal representative may continue a deceased defendant’s appeal when justice requires. The court reasoned that “a challenge to the regularity of Nevada’s criminal process presents a live controversy regardless of the appellant’s status because . . . society has an interest in the constitutionality of the criminal process.”

The court then determined that Ronnie suffered the same harm, and is entitled to the same relief, as his brother and co-defendant, Jermaine. The court ultimately reversed the judgment of conviction, finding that the district court’s mishandling of the jury selection issue “was intrinsically harmful to the trial’s framework.” The court held that it is a structural error to dismiss a challenged juror prior to holding a Batson hearing, because the court creates the impression that it predetermined the result of the challenge before hearing it.