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Appeals court weighs whether mistaken peremptory count prejudiced defendant in Travers case
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Summary
Elijah Travers' attorney argued the trial judge's mistake in peremptory-challenge allotment impaired defense strategy; the Commonwealth said reversal requires showing a specific juror seated whom defendant would have struck or timely objection. Judges probed prejudice and waiver issues; matter submitted.
Attorney Ethan Stiles argued the jury-selection process in Commonwealth v. Elijah Travers was prejudiced when the trial court gave an incorrect number of peremptory challenges, constraining the defense's strategic choices. Stiles told the panel that Travers "was eventually able to articulate the jurors he would have struck and why," and argued that Berardi did not foreclose relief because his client identified who would have been removed with the correct number of challenges.
The judges pressed Stiles on preservation and proof of prejudice: the bench noted the appellate record lacks an affidavit from trial counsel saying he would have used additional challenges to remove particular jurors, a step many precedents treat as necessary to show prejudice. Stiles responded that the nature of peremptory strategy—choosing among batches of jurors during multi-day selection—means a defendant and counsel deprived of knowledge about allotments can be hampered in real time.
Karen Palumbo, arguing for the Commonwealth, urged that reversal requires the defendant to show a juror improperly seated whom he specifically would have stricken or that a timely trial objection was made; she emphasized waiver where impartiality challenges were not pursued at trial. The panel questioned both sides but did not issue an immediate ruling; they submitted the matter for decision.
