587 So.2d 1039 (Ala. 1991), 1901499, Ex parte Fisher

Docket Nº:1901499.
Citation:587 So.2d 1039
Opinion Judge:PER CURIAM.
Party Name:Ex parte Manson FISHER, Jr. (Re Manson Fisher, Jr. v. State).
Attorney:David Schoen, Montgomery, for appellant. James H. Evans, Atty. Gen., and Robin Blevins, Asst Atty. Gen., for appellee.
Case Date:September 13, 1991
Court:Supreme Court of Alabama

Page 1039

587 So.2d 1039 (Ala. 1991)

Ex parte Manson FISHER, Jr.

(Re Manson Fisher, Jr.

v.

State).

1901499.

Supreme Court of Alabama.

September 13, 1991

Petition for writ of Certiorari to the Court of Criminal Appeals (1 Div. 948). Appeal from the Circuit Court, Washington County, No. CC-88-027P, J. Richmond Pearson, Judge.

David Schoen, Montgomery, for appellant.

James H. Evans, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for appellee.

Prior report: Ala.Cr.App., 587 So.2d 1027.

PER CURIAM.

WRIT DENIED.

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

MADDOX and ADAMS, JJ., dissent.

MADDOX, Justice (dissenting).

The petitioner raises several issues that he claims are meritorious, including a claim that the prosecutor used his peremptory strikes to exclude women from his jury. I think that this claim has merit, and I would grant his petition for the writ of certiorari to address that claim.

According to the opinion of the Court of Criminal Appeals, the petitioner's counsel objected to the prosecutor's striking of women from the jury, whereupon the prosecutor responded by stating that women were not a "racially cognizable group defined under Batson," and that, even if Batson applies, the defendant was not a female

Page 1040

and, therefore, would lack standing to raise the issue.

The Court of Criminal Appeals agreed with the State's argument and held that "the standards of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), do not extend to 'gender based' peremptory strikes." 587 So.2d at 1030.

In Ex parte Bankhead, 585 So.2d 112 (Ala.1991), this Court, although holding on original deliverance that a white defendant lacked standing to challenge the prosecutor's striking of black prospective jurors, on rehearing followed Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), in which the Supreme Court of the United States held that a white defendant had standing to challenge the striking of black veniremen from his jury as a violation of the Equal Protection Clause. In Bankhead, this Court noted that the United States Supreme Court has held "that a defendant in a criminal case can raise a third-party equal protection claim on behalf of jurors excluded by the prosecution because of their race," and further said that "[b]ased on Powers, we must now hold that Bankhead, a white, has standing under the Equal Protection Clause to...

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