581 So.2d 545 (Ala. 1991), 1900763, Ex parte Dysart

Docket Nº:1900763.
Citation:581 So.2d 545
Opinion Judge:HOUSTON, Justice.
Party Name:Ex parte Samuel L. DYSART. (Re Samuel L. Dysart v. State of Alabama).
Attorney:David A. Simon, Bay Minette, for appellant. James H. Evans, Atty. Gen., for appellee.
Case Date:May 10, 1991
Court:Supreme Court of Alabama

Page 545

581 So.2d 545 (Ala. 1991)

Ex parte Samuel L. DYSART.

(Re Samuel L. Dysart

v.

State of Alabama).

1900763.

Supreme Court of Alabama.

May 10, 1991

Petition for writ of Certiorari to the Court of Criminal Appeals (CR 89-814). Appeal from the Circuit Court, Baldwin County, No. CC-89-362, James H. Reid, Judge.

David A. Simon, Bay Minette, for appellant.

James H. Evans, Atty. Gen., for appellee.

Prior report: Ala.Cr.App., 581 So.2d 541.

Page 546

HOUSTON, Justice.

WRIT DENIED.

HORNSBY, C.J., and ALMON, SHORES, STEAGALL, KENNEDY and INGRAM, JJ., concur.

MADDOX and ADAMS, JJ., dissent.

MADDOX, Justice (dissenting).

The Court of Criminal Appeals, with one Judge dissenting, has held that the rule of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), does not apply to a prosecutor's use of peremptory strikes to exclude women from jury service.

The Court of Criminal Appeals cites in support of its conclusion the case of United States v. Hamilton, 850 F.2d 1038 (4th Cir.1988) (Murnaghan, J., dissenting); cert. dismissed sub nom. Washington v. United States, 489 U.S. 1094, 109 S.Ct. 1564, 103 L.Ed.2d 931 (1989), and several state cases. Those cases do hold that gender-based peremptory challenges do not offend any provision of the United States Constitution, but I think the better reasoned view on the constitutional issue of purposeful gender discrimination is contained in United States v. DeGross, 913 F.2d 1417 (9th Cir.1990), in which the Ninth Circuit Court of Appeals, although recognizing that the Fourth Circuit, in Hamilton, had reached a different conclusion, squarely held that the Fifth Amendment's equal protection principles prohibited gender-based peremptory challenges. 1

The reasoning of DeGross is so cogent that I quote from that case extensively:

"In Batson, the Supreme Court held that the equal protection clause of the fourteenth amendment prohibits a prosecutor from exercising peremptory challenges on the basis of a venireperson's race. 476 U.S. at 89, 106 S.Ct. at 1719. We now address the question whether the principles established in Batson compel us to prohibit the exercise of peremptory challenges on the basis of the venireperson's gender. At the outset, however, we must note that the constitution treats gender classifications differently than racial classifications. While the constitution will not allow racial classifications unless they are suitably tailored to serve a compelling state interest, the constitution tolerates gender classifications that are substantially related to the achievement of important governmental objectives. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440-41, 105 S.Ct. 3249, 3254-55, 87 L.Ed.2d 313 (1985) (discussing the different levels of constitutional scrutiny to which different classifications are subjected). Peremptory challenges are a necessary means for achieving the important governmental objective of impaneling a fair and impartial jury. See Swain v. Alabama, 380 U.S. 202, 211-12, 85 S.Ct. 824, 831-32, 13 L.Ed.2d 759 (1965); Batson, 476 U.S. at 123, 106 S.Ct. at 1737 (Burger, C.J., dissenting). A party is not always able to justify his sudden and immediate impression that a particular venireperson will be partial. See id.; Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011 (1892).

"But challenges explained by a venireperson's gender are not based on a party's sudden impression of a particular venireperson's ability to be impartial. Rather, like racial challenges, they are based either on the false assumption that members of a certain group are unqualified to serve as jurors, Batson, 476 U.S. at 86, 106 S.Ct. at 1717 (citing Norris v. Alabama, 294 U.S. 587, 599, 55 S.Ct. 579, 584, 79...

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