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McCray v. Abrams

December 4, 1984

MICHAEL MCCRAY, PETITIONER-APPELLEE ,
v.
ROBERT ABRAMS, RESPONDENT-APPELLANT



Appeal from a judgment of the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, see 576 F. Supp. 1244 (1983), conditionally granting petition for habeas corpus based on prosecutor's exclusion of blacks and Hispanics from jury. Affirmed in part, vacated in part, and remanded. Judge Meskill dissents in a separate opinion.

Author: Kearse

Before LUMBARD, MESKILL and KEARSE , Circuit Judges

KEARSE, Circuit Judge:

Respondent New York State Attorney General Robert Abrams (the "State") appeals from a judgment of the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, granting the petition of Michael McCray, a black defendant convicted in New York State Supreme Court of robbery, for a writ of habeas corpus on the ground that the prosecution's use of peremptory challenges to excuse all black and Hispanic venirepersons from the jury that convicted McCray violated the impartial jury trial and equal protection provisions, respectively, of the Sixth and Fourteenth Amendments to the Constitution. McCray v. Abrams, 576 F. Supp. 1244 (E.D.N.Y. 1983). The district court ordered the State to release McCray unless it afforded him a new trial within 60 days.*fn1 The court stayed its judgment pending this appeal.

On appeal, the State agrees that a discriminatory use of peremptory challenges would violate a defendant's fundamental rights. It contends, however, that the district court (1) erred in ruling that McCray made out a prima facie case that the prosecution so used its peremptory challenges in his case, and (2) if a prima facie case was established, erred in not holding an evidentiary hearing giving the State an opportunity to rebut the inference that it had exercised its peremptory challenges for a constitutionally forbidden purpose.

We hold that the district court properly concluded that McCray established a prima facie case that the State's use of peremptory challenges violated his Sixth Amendment right to trial by an impartial jury, and we affirm that portion of the court's ruling. We are persuaded, however, that the court should have held a hearing to give the State an opportuntiy [opportunity] to rebut the prima facie case, and we therefore vacate the judgment and remand for further proceedings.

BACKGROUND

On November 15, 1978, Philip Roberts, a white art student, was assaulted and robbed at gunpoint in downtown Brooklyn by three black youths. Roberts returned to his college dormitory and notified his resident adviser and the police. The police did not respond immediately, but on December 1 and 5, they took Roberts on a tour of the area. The first expedition did not produce an identification, but during the second, Roberts identified McCray, who was standing on a street corner near his home, as one of the robbers.

McCray was arrested and charged with robbery in the first and second degrees. The arrest was McCray's first.

A. The State Court Proceedings

McCray's first trial was before a jury composed of nine whites and three blacks. The trial ended in a hung jury, with nine jurors voting to convict and three voting to acquit. It appears that either two or three of the jurors who voted to acquit were black (see Part I.C. infra).

McCray was retried, with the same Assistant District Attorney ("ADA") as prosecutor. Under N.Y. Crim. Proc. Law § 270.25(2)(b) (McKinney 1982), each side was entitled to fifteen peremptory challenges. After the exercise of eleven or twelve challenges by the State, McCray moved for a mistrial on the ground that the prosecutor appeared to be systematically using the State's peremptory challenges to exclude blacks and Hispanics from the jury. In support of this contention, McCray pointed out that "there have been seven black people and one Hispanic ven[ire] man up to this point. [The prosecutor] has challenged each and every one of them. Of her eleven challenges, she has used eight to challenge blacks and Hispanics." (Transcript of hearing dated April 24, 1980, at 5.) McCray requested a hearing at which the prosecutor would be asked to testify as to why she excluded the venirepersons she did. Following argument by McCray's counsel, the court denied the request for a hearing and the motion for a mistrial. The record does not reflect that the prosecutor made any statement with regard to her use of challenges.

In a later opinion explicating its denial of the motion, People v. McCray, 104 Misc. 2d 782, 429 N.Y.S.2d 158 (Sup. Ct. Kings County 1980), the court stated that the prosecutor had denied excusing jurors on the ground of race. Id. at 783, 429 N.Y.S.2d at 159. The court stated that it had denied the motion for a mistrial because of the presumption that peremptory challenges are properly exercised and the administrative burden that would be entailed in reviewing their exercise. The court further reasoned that excusing a juror of the same race as the defendant on the ground of perceived group affinity is "a time honored basis for the exercise of peremptory challenges." Id. at 784, 429 N.Y.S.2d at 159.

The case against McCray proceeded to trial before an all-white jury (see Part I.D. infra). The only evidence against him was the identification made by Roberts. The jury found McCray guilty, as charged, of first and second degree robbery. McCray was sentenced to concurrent prison terms of 2 to 6 years on the first degree robbery charge and 1 1/2 TO 4 1/2 years on the second degree robbery charge.

Prior to sentencing, McCray moved for a new trial, again attacking the State's use of its peremptory challenges. The court denied the motion. McCray pursued his contention on appeal without success. The Appellate Division affirmed without opinion, 84 A.D.2d 769, 444 N.Y.S.2d 972 (2d Dep't 1981). The New York Court of Appeals affirmed in a 4-3 decision, 57 N.Y.2d 542, 457 N.Y.S.2d 441, 443 N.E.2d 915 (1982). The Court of Appeals majority, relying on Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965), concluded that neither federal nor state constitutional rights were implicated in the prosecutor's striking of all minority venirepersons, stating that "the benefits of requiring the prosecutor to justify the exercise of certain peremptory challenges are simply outweighed by the damage to a system of jury selection which best serves to guarantee a fair and impartial jury." 57 N.Y.2d at 549, 457 N.Y.S.2d at 445. The three dissenters viewed Swain as not controlling in light of the Sixth Amendment's guarantee of an impartial jury from which no large, identifiable segment of the community has been systematically excluded. Id. at 552-53, 457 N.Y.S.2d at 447 (Meyer, J., dissenting); id. at 556-57, 457 N.Y.S.2d at 449 (Fuchsberg, J., dissenting).

B. The Denial of Certiorari

McCray then sought a writ of certiorari from the United States Supreme Court. The Court denied the petition, 461 U.S. 961, 103 S. Ct. 2438, 77 L. Ed. 2d 1322 (1983), but five Justices indicated their view that a discriminatory exercise of prosecutorial peremptories should not be considered beyond judicial scrutiny. Justice Marshall, joined by Justice Brennan, dissented from the denial of certiorari, on the ground that " Swain was decided before this Court held that the Sixth Amendment applies to the states through the Fourteenth Amendment . . . and . . . should be reconsidered in light of Sixth Amendment principles established by our recent cases." Id. at 2441 (opinion of Marshall, J., dissenting). Three Justices, in an opinion by Justice Stevens, joined by Justices Blackmun and Powell, stated that they did not disagree with Justice Marshall's assessment of the importance of the issue. Rather, they voted to deny certiorari on the ground that "further consideration of the substantive and procedural ramifications of the problem by other courts will enable us to deal with the issue more wisely at a later date." Id. at 2438 (opinion of Stevens. J.).

McCray moved in the New York Court of Appeals for reargument in light of the opinions accompanying the Supreme Court's denial of certiorari. The motion was denied without opinion, 60 N.Y.2d 587, 467 N.Y.S.2d 1031 (1983).

C. The Present Habeas Petition

Having exhausted his state remedies, McCray filed the present petition for habeas corpus in the district court pursuant to 28 U.S.C. § 2254 (1976), alleging that "the prosecution's use of peremptory challenges to exclude all minority members (7 blacks, 1 hispanic) drawn for the jury panel on the basis of race violates the Sixth Amendment right to trial by an impartial jury and the Equal Protection Clause of the Fourteenth Amendment." (Petition for Writ of Habeas Corpus, filed October 3, 1983, P11.) In support of the petition, the attorney who had represented McCray at his second trial submitted an affidavit stating, inter alia, that it was his recollection that the three jurors who had voted to acquit McCray at his first trial had been the three black jurors; that during jury selection at the second trial, conducted by the same ADA who conducted the first trial, he "noticed that [the prosecutor] was pre-emptorily [ sic ] challenging every single black and hispanic potential juror"; that the prosecutor peremptorily challenged seven blacks and one hispanic, at least three of whom had not stated that they knew anyone who had committed a crime or knew anyone accused or suspected of committing a crime; and that one of the blacks peremptorily challenged stated that he had either a relative or a close friend who was a victim of a crime and who had been shot during the course of a robbery.

In opposition to the petition, the State agreed that the Constitution should be construed to prohibit the prosecutor from using peremptory challenges to exclude potential jurors solely on the basis of race, and urged the court to prohibit such use by defendant as well. The State argued that in the present case McCray had not made a prima facie showing that the prosecutor used peremptory challenges to exclude jurors solely on the basis of race. It asserted that the prosecutor had not used peremptory challenges to exclude every minority member drawn for the jury panel, it being the recollection of both trial counsel that one black juror had been selected to serve as an alternate. It stated that defense counsel had conceded that at least some of the minority jurors challenged by the prosecutor had made statements during the voir dire that would lead the prosecutor to seek to excuse them. The State conceded that the prosecutor had exercised seven peremptory challenges against blacks and one against a Hispanic, and stated that she had used either three or four against white venirepersons. Relying on the trial court's opinion, 104 Misc. 2d at 783, 429 N.Y.S.2d at 159, the state asserted that when the prosecutor's use of peremptory challenges was questioned during the jury selection process, the prosecutor had denied excusing jurors on the basis of race. The State did not, prior to the district court's announcement of its decision on McCray's petition, submit an affidavit from the ADA who had conducted McCray's trials.

On December 19, 1983, in an opinion reported at 576 F. Supp. 1244, Judge Nickerson ruled in favor of McCray. The court ruled that judicial scrutiny of discriminatory prosecutorial peremptory challenges was required by the Sixth Amendment. Id. at 1248. Further, relying on the opinion accompanying the Supreme Court's denial of McCray's petition for certiorari, the court concluded that Swain v. Alabama is no longer good law, and that "the equal protection clause should be construed to prohibit a prosecutor's exercise of peremptory challenges to exclude blacks solely on the basis of race in any case." Id. at 1249.

According considerable weight to state court developments in California and Massachusetts, see Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 62 L. Ed. 2d 110, 100 S. Ct. 170 (1979); People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890 (1978), Judge Nickerson set out the procedure to be followed when the defense alleges that the prosecution is abusing its peremptory challenges. If the prosecution's peremptories have been used in such a way as to establish a prima facie case of racial discrimination, the presumption of proper use of the peremptory gives way and the burden shifts to the prosecution to justify its challenges on nonracial grounds. Citing Wheeler, the court held that a prima facie case of improper challenges may be established when the venirepersons excluded are members of a "'cognizable group' discrimination against which is prohibited," and the probable reason for their exclusion is their membership in the group rather than any predisposition regarding the specific case at bar. 576 F. Supp. at 1249. Once this showing is made, the prosecution may rebut the prima facie case by demonstrating that its peremptory challenges were motivated by perceived case-specific biases, rather than by group association. Its explanations need not rise to a level that would warrant a challenge for cause. Concluding that the trial court had erred by failing to inquire into the bases for the prosecution's use of peremptory challenges against black and Hispanic venirepersons, the district court ruled that a new trial was constitutionally required.

After the district court rendered its decision, the State moved to "amend the judgment and to expand the record," contending that the court had overlooked vital criteria for determining whether McCray had established a prima facie case, and that the State was entitled to a hearing on the merits of McCray's contention. In support of this motion, the State submitted an affidavit from the former ADA who had conducted McCray's trials, describing her use of peremptory challenges and the proceedings on McCray's motion for a mistrial during the jury selection process. The affidavit stated that the prosecutor had not discriminated on the basis of race in selecting jurors for the trials of McCray; that she had challenged a number of jurors as a result of their or their family's negative experiences with the criminal justice system because she believed those jurors were biased against the prosecution; that she had unsuccessfully sought to have those jurors excused for cause before excusing them peremptorily; and that the first alternate juror was black and that she did not excuse him although she still had peremptory challenges available. The prosecutor stated that the trial judge had convened a hearing on McCray's motion for a mistrial; that the court asked her whether she had discriminated on the basis of race in selecting the jury and that she had answered in the negative; that she asked for permission to explain, relying on notes she had kept, the reasons for her peremptory challenges; and that the judge refused her permission to explain, stating that he was satisfied that she had not discriminated on the basis of race in making her challenges. The prosecutor stated that after McCray's first trial, she had interviewed those jurors at some length and that to the best of her recollection, of the three jurors who voted for acquittal two were black and one was white, and that, according to the jurors interviewed the white juror who voted for acquittal was the "motivating force" behind the remaining two votes for acquittal.

Judge Nickerson treated the State's motion to amend judgment and expand the record as a motion for reargument of the petition and denied it without comment. This appeal followed.

D. The Issues on This Appeal

On this appeal, the State makes a relatively narrow challenge to the district court's decision. Its position is that the court correctly held that the Sixth and Fourteenth Amendments bar the use of peremptory challenges to strike potential jurors on the basis of race. Further it states that the recollections of both trial counsel agree that the jury that convicted McCray consisted of twelve white jurors. The State argues only that McCray failed to establish a prima facie case of the State's racially discriminatory use of its peremptories, and that even if he did make the necessary prima facie showing, the court should not have granted the writ without holding a hearing to allow the State to present rebutting evidence.

Notwithstanding the State's doctrinal concessions, we must begin with a review of the court's ruling that the Sixth and Fourteenth Amendments bar the prosecutor's discriminatory use of peremptory challenges, for the constitutional doctrine informs the analysis of both whether a prima facie case has been established and what proceedings should follow the establishment of such a case. Our review persuades us that the court correctly ruled that the Sixth Amendment prohibits the prosecution's use of challenges to discriminate on the basis of race and that McCray presented sufficient evidence to establish a prima facie case of such use. We agree with the State, however, that the State should have been accorded an opportunity to rebut that showing.

II. EQUAL PROTECTION AND Swain v. Alabama

We begin with a review of Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, which is the only United States Supreme Court decision thus far to address directly the constitutional validity of the use of peremptory jury challenges to discriminate on the basis of race. Although much criticized, Swain has led most courts to reject all constitutional challenges to the prosecutor's alleged discriminatory use of peremptories.

A. Swain v. Alabama

Swain was a black defendant convicted by an all-white jury of the rape of a white woman. In his case, the trial jury venire had included eight blacks, two of whom were exempt; the prosecution used its peremptory challenges to remove the other six. Swain also showed that in the county in which he was tried, there had not since 1950 "been a Negro on a petit jury in either a civil or criminal case . . . and that in criminal cases prosecutors ha[d] consistently and systematically exercised their strikes to prevent any and all Negroes on petit jury venires from serving on the petit jury itself." 380 U.S. at 223; see also id. at 231-32 (Goldberg, J. dissenting: "Petitioner established by competent evidence . . . that no Negro within the memory of persons now living has ever served on any petit jury in any civil or criminal case tried in Talladega County, Alabama."). Invoking a long line of cases beginning with Strauder v. West Virginia, 100 U.S. 303, 25 L. Ed. 664 (1880), that had held that "a State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause," Swain v. Alabama, 380 U.S. at 203-04 (citing Ex parte Virginia, 100 U.S. 339, 25 L. Ed. 676 (1880); Gibson v. Mississippi, 162 U.S. 565, 40 L. Ed. 1075, 16 S. Ct. 904 (1896)), Swain contended, inter alia, that the prosecution's use of its peremptory challenges constituted invidious discrimination in the selection of jurors, in violation of his rights under the Equal Protection Clause. The Supreme Court disagreed.

In Part II of its opinion, the Court discussed at some length the history and purposes of the peremptory challenge. Tracing such challenges back past The Ordinance for Inquests, 33 Edw. 1, Stat. 4 (1305), the Court noted the persistent use of peremptories in American trials and the prevailing view that they are a necessary part of a trial by jury, for they allow the challenge of a person thought to be less than fair and impartial but for whom cause to strike cannot be shown, and permit the removal of a person who may have been offended by a probing voir dire. The Court stated that "the essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court's control," 380 U.S. at 220, and that "'it is, as Blackstone says, an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose,'" id. at 219 (quoting Lewis v. United States, 146 U.S. 370, 378, 36 L. Ed. 1011, 13 S. Ct. 136 (1892)).

Given the nature and the history of the peremptory challenge, the Court found merit in the proposition that the system, "in and of itself, provides justification for striking any group of otherwise qualified jurors in any given case, whether they be Negroes, Catholics, accountants or those with blue eyes." 380 U.S. at 212. The Court concluded that "we cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws." Id. at 221.

In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it.

Id. at 222 (emphasis added).

The Court went on to say, in Part III of its opinion, that a defendant could require judicial inquiry into the prosecutor's use of peremptory challenges if he could show that

the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries. . . . If the State has not seen fit to leave a single Negro on any jury in a criminal case, the presumption protecting the prosecutor may well be overcome. Such proof might support a reasonable inference that Negroes are excluded from juries for reasons wholly unrelated to the outcome of the particular case on trial and that the peremptory system is being used to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population. These ends the peremptory challenge is not designed to facilitate or justify.

Id. at 223-24. The Court found, however, that Swain had not met this standard of proof.

B. Mission Impossible

Not surprisingly, almost no other defendants in the nearly two decades since the Swain decision have met this standard of proof either. For example, in United States v. Carter 528 F.2d 844 (8th Cir. 1975), cert. denied, 425 U.S. 961, 48 L. Ed. 2d 206, 96 S. Ct. 1745 (1976), the defendant showed that "during the year 1974 in the 15 cited cases involving black defendants a total of 70 Negroes were potentially available as trial jurors and 57 of those were stricken by the government through the use of its peremptory challenges." Id. at 848. At Carter's first trial two of four blacks were peremptorily challenged by the government; at his second trial, all five blacks were so challenged. His equal protection argument was rejected. In United States v. Danzey, 476 F. Supp. 1065 (E.D.N.Y. 1979), aff'd mem., 620 F.2d 286 (2d Cir.), cert. denied, 449 U.S. 878, 66 L. Ed. 2d 101, 101 S. Ct. 225 (1980), four blacks were peremptorily challenged by government, and one black was seated on the jury only after the prosecutor had exhausted his challenges. The prosecutor explained to the trial judge: "I make it a practice to attempt to exclude as best I can all jurors so that to [ sic ] exclude jurors of the same ethnic background as the defendant" Id. at 1066. Danzey's equal protection argument was rejected.*fn2 Not until State v. Brown, 371 So. 2d 751 (La. 1979), and State v. Washington, 375 So. 2d 1162 (La. 1979), involving a prosecutor who admitted the practice of striking blacks and whose use of peremptory challenges had been repeatedly appealed by black defendants, did any court find the Swain burden satisfied.

As Justice Marshall noted in his dissent to the denial of McCray's petition for certiorari, "in the nearly two decades since it was decided, Swain has been the subject of almost universal and often scathing criticism." McCray v. New York, 461 U.S. 961, 103 S. Ct. 2438, 2440, 77 L. Ed. 2d 1322 (opinion of Marshall, J. dissenting; footnote, citing numerous writings, omitted). See, e.g., Comment, Swain v. Alabama: A Constitutional Blueprint for the Perpetuation of the All-White Jury, 52 Va. L. Rev. 1157 (1966); Note, Limiting the Peremptory Challenge: Representation of Groups on Petit Juries, 86 Yale L.J. 1715, 1723 & n.36 (1977); Winick, Prosecutorial Peremptory Challenge Practice in Capital Cases: An Empirical Study and a Constitutional Analysis, 81 Mich. L. Rev. 1, 10-11 (1982). Many of these commentaries have been critical, in our view rightly, of the nearly impossible task set for the defendant in Part III of the Swain opinion, i.e., to show that in all cases in all circumstances, whoever the victim, whoever the defendant, blacks were excluded from juries without cause.

We disagree as well with some of the fundamental premises found in Part II of Swain. For example, the Court's statement that there was no violation of equal protection because blacks and whites "are alike subject to being challenged without cause," 380 U.S. at 221, ignores practice. In most communities a majority of those eligible for jury duty are white; and as a practical matter, the prosecution does not peremptorily excuse whites simply because they are whites. Thus, although the implication in Part III of Swain, is that "the Negro [should have] the same right and opportunity to participate in the administration of justice enjoyed by the white population," id. at 224, we think the assumption of Part II that that right is not violated simply because both blacks and whites are "subject to" being peremptorily excluded is fanciful.

More importantly, Swain's basic premise furthers the erosion of that right. The Swain Court found it permissible for a prosecutor to eliminate all blacks in any given case simply because they are blacks, because the "presumption . . . must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury. . . ." Id. at 222. The implication of this presumption, however, is that in any given case before the court, whites can be fair and impartial, whereas blacks, simply because they are blacks, cannot. The application of this premise as Swain suggests to "any given" case - as for example, where a black defendant is accused of a homicidal attack on a white person, e.g., Ristaino v. Ross, 424 U.S. 589, 47 L. Ed. 2d 258, 96 S. Ct. 1017 (1976), or where there may be less of a racial undercurrent, as where a black defendant is accused of receiving stolen property, e.g., People v. Thompson, 79 A.D.2d 87, 435 N.Y.S.2d 739 (2d Dep't 1981), appeal withdrawn, 55 N.Y.2d 879 (1982), or even where a white defendant is charged with an offense against a white victim, e.g., Peters v. Kiff, 407 U.S. 493, 33 L. Ed. 2d 83, 92 S. Ct. 2163 (1972) - results in the conclusion that in each case only white jurors will be sufficiently fair and impartial to adjudicate the controversy. Yet, it is fallacious to assume that all persons sharing an attribute of skin color, or of gender or ethnic origin, etc., will ipso facto be partial to others sharing that attribute. Thus, in jury selection contexts other than those involving peremptory challenges, the Court has rejected the notion that a particular racial or ethnic group will make determinations solely on the basis of their group affiliation. In Ristaino v. Ross, for example, the Court ruled that "the mere fact that the victim of the crimes alleged was a white man and the defendants were Negroes" did not give the defendant a constitutional right even to cause a voir dire question relating specifically to racial prejudice to be asked in addition to the usual questions as to general bias.*fn3 424 U.S. at 597. And in Castaneda v. Partida, 430 U.S. 482, 499, 51 L. Ed. 2d 498, 97 S. Ct. 1272 (1977), the Court rejected any presumption that a given ethnic group will not discriminate against members of their own group.

According to Swain, however, there is no type of case in which blacks qua blacks may not be summarily eliminated on the presumption that the prosecutor is merely seeking a "fair and impartial jury." The premise of Swain and the rarity of wholesale challenges to white venirepersons thus serve only to limit artificially the opportunity of blacks for participation in our system of justice, and to perpetuate an invidious proposition of racial inferiority that has been outlawed in virtually every area of public affairs - in employment, in education, in housing, in property rights. How unfortunate that the invidious proposition has been allowed to flourish in the administration of justice.

C. State Court Developments

In light of the near impossibility experienced by defendants in attempting to meet the requirements set by Swain, a small number of state courts have fashioned standards based on their state constitutions to guarantee to the defendant a trial before a jury that has not had cognizable groups eliminated by the discriminatory acts of the prosecutor. In most instances, the state court was influenced by the fact that at the time Swain was decided, the Supreme Court had not yet ruled that the guarantee of the Sixth Amendment of trial by an impartial jury was binding on the states through incorporation into the Due Process Clause of the Fourteenth Amendment.

The first such case was People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748, 148 Cal. Rptr. 890 (1978). In Wheeler, the prosecutor had peremptorily challenged every black person called from the venire, without any effort to challenge them for cause and with little or no questioning that could have disclosed any biases. The California Supreme Court ruled that the use of peremptory challenges to remove prospective black jurors on the sole ground of "group association" violated the defendant's right to a jury drawn from a representative cross section of the community, as guaranteed by Article I, Section 16 of the California Constitution ("Trial by jury is an inviolate right and shall be secured to all. . . ."). The court stated that while the constitutional provision did not grant the defendant a right to a jury that mirrored the demographic composition of the population, it did entitle him to "a petit jury that is as near an approximation of the ideal cross-section of the community as the process of a random draw permits." 583 P.2d at 762.

The Wheeler court stated that the defendant could establish a prima facie case by showing that the persons excluded were members of a cognizable group within the meaning of the representative cross-section rule, and that there was a strong likelihood that these prospective jurors were challenged not as a result of any specific bias but only because of their group association. Upon such a showing by the defendant, the burden shifts to the prosecution to justify its use of the peremptory challenge on specific bias grounds reasonably relevant to the case at hand. The prosecution's reasons need not rise to the level needed to sustain a challenge for cause. Id. at 764-65.

Wheeler was followed shortly by Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 62 L. Ed. 2d 110, 100 S. Ct. 170 (1979), in which the prosecution had peremptorily challenged twelve of the thirteen black jurors drawn from the panel. Following the lead of the California Supreme Court in Wheeler, the Massachusetts Supreme Judicial Court ruled that Article 12 of the Declaration of Rights of the Massachusetts Constitution, which guarantees the right to trial by jury of one's peers, protected the defendant against the prosecution's use of its challenges on racially discriminatory grounds.

In State v. Crespin, 94 N.M. 486, 612 P.2d 716 (Ct. App. 1980), the Court of Appeals of New Mexico rejected a claim by a defendant that his constitutional rights had been violated when the prosecution used a peremptory challenge to excuse the one black member of the venire, holding that the defendant had not made out a prima facie case of discrimination. The court went on to state, however, that "improper, systematic exclusion by use of peremptory challenges can be shown . . . under the Wheeler-Soares rationale and supported by Article II, Section 14 of the New Mexico Constitution, where the absolute number of challenges in the one case raises the inference of systematic acts by the prosecutor." 612 P.2d at 718.

In New York, two courts ruled that the New York Constitution forbade the prosecutor's discriminatory use of his peremptory challenges. In People v. Kagan, 101 Misc. 2d 274, 420 N.Y.S.2d 987 (Sup. Ct. N.Y. County 1979), in which the defendants were Jewish, the trial court ruled that the prosecutor was forbidden to use his peremptories to challenge Jews simply because they were Jews. The court found, however, that the defendants had not established a prima facie case of such use. In People v. Thompson, 79 A.D.2d 87, 435 N.Y.S.2d 739, in which the defendant was black, the Appellate Division, after "extensive and thoughtful analysis," People v. McCray, 57 N.Y.2d at 552 n.1, 457 N.Y.S.2d at 446 n.1 (Meyer, J., dissenting), ruled that the prosecution's use of all of its peremptory challenges to excuse all black venirepersons violated the New York Constitution. The appellate court quashed the results of the jury selection procedures and ordered a new trial.*fn4 Both Kagan and Thompson appear ...


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