461 U.S. 961 (1983), 82-1381, Mccray v. New York
|Docket Nº:||No. 82-1381|
|Citation:||461 U.S. 961, 103 S.Ct. 2438, 77 L.Ed.2d 1322|
|Party Name:||Michael McCRAY v. NEW YORK|
|Case Date:||May 31, 1983|
|Court:||United States Supreme Court|
On petition for writ of certiorari to the Court of Appeals of New york.
Joseph MILLER v. ILLINOIS. No. 82-5840.
On petition for writ of certiorari to the Appellate Court of Illinois, First District.
Joe Lewis PERRY v. LOUISIANA. No. 82-5910.
On petition for writ of certiorari to the Supreme Court of Louisiana.
The petitions for writs of certiorari are denied.
Opinion of Justice STEVENS, with whom Justice BLACKMUN and Justice POWELL join, respecting the denial of the petitions for writs of certiorari.
My vote to deny certiorari in these cases does not reflect disagreement with Justice MARSHALL'S appraisal of the importance of the underlying issue--whether the Constitution prohibits the use of peremptory challenges to exclude members of a particular group from the jury, based on the prosecutor's
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assumption that they will be biased in favor of other members of the same group. I believe 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. There is presently no conflict of decision within the federal system. During the past five years, [103 S.Ct. 2439] two state supreme courts have held that a criminal defendant's rights under state constitutional provisions are violated in some circumstances by the prosecutor's use of peremptory challenges to exclude members of particular racial, ethnic, religious, or other groups from the jury. People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978); Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499 (1979), cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). [*] That premise, understandably, has given rise to litigation addressing both procedural and substantive problems associated with judicial review of peremptory challenges, which had traditionally been final and unreviewable. See, e.g., People v. Allen, 23 Cal.3d 286, 292, 152 Cal.Rptr. 454, 590 P.2d 30 (1979); People v. Fuller, 136 Cal.App.3d
403, 186 Cal.Rptr. 283 (1982); People v. Rousseau, 129 Cal.App.3d 526, 536, 179 Cal.Rptr. 892 (1982); Commonwealth v. Walker, 379 Mass. 297, 397 N.E.2d 1105 (Mass.1979); Commonwealth v. Kelly, 10 Mass.App. 847, 406 N.E.2d 1327 (Mass.App.1980); Commonwealth v. Brown, 11 Mass.App. 288, 416 N.E.2d 218 (Mass.App.1981). In my judgment it is a sound exercise of discretion for the Court to allow the various States to serve as laboratories in which the issue receives further study before it is addressed by this Court.
Justice MARSHALL, with whom Justice BRENNAN joins, dissenting from the denial of certiorari.
These cases present a significant and recurring question of constitutional law: whether the State's use of peremptory challenges to exclude all potential Negro jurors because of their race violates a criminal defendant's right to an impartial jury drawn from a fair cross-section of the community.
In No. 82-1381, after a first trial had resulted in a hung jury, an all-white jury convicted a Negro of first and second degree robbery of a white victim. The prosecutor exercised his peremptory challenges to exclude all seven Negroes and one Hispanic who had been drawn as prospective trial jurors. Asserting that the prosecutor's actions violated the Constitution, petitioner moved for a mistrial, or alternatively, for a hearing to examine the prosecutor's motives in exercising the challenges. These motions were denied. The New York Court of Appeals subsequently affirmed the conviction by a vote of four to three. Both the trial court and the Court of Appeals relied heavily on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), in rejecting petitioner's constitutional argument.
[103 S.Ct. 2440] In No. 82-5840 and in No. 82-5910, an all-white jury convicted a Negro defendant of murdering a white victim. In No. 82-5840, the prosecutor employed his peremptory challenges to exclude all 14 potential Negro jurors. In No. 82-5910, following the removal of three Negroes for cause,
the prosecutor used his peremptory challenges to exclude every remaining Negro venireman. In both cases, counsel for petitioners unsuccessfully objected to the State's use of peremptory challenges to exclude all Negroes from the jury. The state appellate courts concluded that petitioners had merely shown that Negroes were excluded from the juries in their cases, not that the state had systematically excluded Negroes over a period of time. And in each case, respondents rely heavily upon Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), to defend the judgments below.
In Swain, a closely divided Court held that the prosecutor's use of peremptory challenges to strike Negroes from the jury panel in one particular case did not deny the defendant the equal protection of the laws. The majority reasoned that "[t]he 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." Id., at 222, 85 S.Ct., at 837. The majority conceded that circumstances might arise where "the purposes of the peremptory challenge are being perverted." Id., at 224, 85 S.Ct., at 838. But the majority stated that an equal protection claim would assume "added significance" only where "the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or victim may be, is responsible for the removal of Negroes ...." Id., at 223, 85 S.Ct., at 837.
In the nearly two decades since it was decided, Swain has been the subject of almost universal and often scathing criticism. 1 Since every defendant is entitled to equal protection
of the laws and should therefore be free from the invidious discrimination of state officials, it is difficult to understand why several must suffer discrimination because of the prosecutor's use of peremptory challenges before any defendant can object. 2 Moreover, Swain is inconsistent with the rule established in other jury selection cases that a prima [103 S.Ct. 2441] facie violation is established by showing that an all-white jury was selected and that the selection process incorporated a mechanism susceptible to discriminatory application, irrespective of when in the selection process that opportunity arose. 3 Finally, the standard of proof for discrimination in Swain imposes a nearly insurmountable burden on defendants. 4 For
these reasons, some leading State courts have declined to follow Swain in interpreting State constitutional provisions. See State v. Crespin, 94 N.M. 486, 612 P.2d 716 (1980); Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499 (1978), cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979); People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). Cf. People v. Payne, 106 Ill.App.3d 1034, 62 Ill.Dec. 744, 436 N.E.2d 1046 (1982).
I would grant certiorari to reexamine the standard set forth in Swain. In contrast to the defendant in Swain, petitioners have not relied upon the Equal Protection Clause in their challenge to the exclusion of potential Negro jurors. They rely instead on their Sixth Amendment right to be tried
by an impartial jury drawn from a fair cross-section of the community. Swain was decided before this Court held that the Sixth Amendment applies to the states through the Fourteenth Amendment, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and well before this Court identified the contours of that right in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). It should be reconsidered in light of Sixth Amendment principles established by our recent cases.
In Taylor v. Louisiana, this Court explained that "[t]he purpose of a jury is to guard against the exercise of arbitrary power--to make available the commonsense judgment of the community." Id., at 530, 95 S.Ct., at 697. We noted that the effect of excluding "any large and identifiable segment of the community ... is to remove from the jury room qualities of human nature and varieties of human experience, [103 S.Ct. 2442] the range of which is unknown and perhaps unknowable." Id., at 532, n. 12, 95 S.Ct., at 698, n. 12, quoting Peters v. Kiff, 407 U.S. 493, 503, 92 S.Ct. 2163, 2168, 33 L.Ed.2d 83 (1972) (opinion of MARSHALL, J.). Accordingly, we accepted the "fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment," 419 U.S., at 530, 95 S.Ct., at 697, and we specifically stated that "the exclusion of Negroes from jury service because of their race 'contravenes the very idea of a jury--"a body truly representative of the community"....' " Id., at 528, 95 S.Ct., at 696 (quoting Carter v. Jury Commission, 396 U.S. 320, 330, 90 S.Ct. 518, 523, 24 L.Ed.2d 549 (1970)).
[103 S.Ct. 2443] The right to a jury drawn from a fair cross-section of the community is rendered meaningless if the State is permitted to utilize several peremptory challenges to exclude all Negroes from the jury. This Court has consistently struck down methods of jury selection that produce racially biased jury venires. 5 The very purpose of refusing to tolerate racial
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