Ex parte Murphy
Citation | 596 So.2d 45 |
Parties | Ex parte Anthony P. MURPHY. (Re Anthony Paul Murphy v. State). 1910336. |
Decision Date | 20 March 1992 |
Court | Supreme Court of Alabama |
Petition for writ of certiorari to the Court of Criminal Appeals (CR 90-648). Appeal from Circuit Court, Montgomery County, Nos. CC-87-1412 and CC-87-1413, Eugene W. Reese, Judge.
William R. Blanchard of Blanchard, Calloway, Campbell & Jackson, P.C., Montgomery, for petitioner.
James H. Evans, Atty. Gen., and Andy S. Poole, Asst. Atty. Gen., for respondent.
WRIT DENIED.
This petition for writ of certiorari presents one issue: whether the Court of Criminal Appeals erred in holding that the principle of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), does not apply to the use of gender-based peremptory strikes. Because I believe that the Batson principle does extend to gender-based strikes, I would issue the writ and review the holding of the Court of Criminal Appeals to determine whether the State used its peremptory challenges in this case to exclude men from the trial jury solely because they were men. 1 I must respectfully dissent from the majority's decision to deny the writ of certiorari.
In dealing with the petitioner's gender-based argument, the Court of Criminal Appeals stated:
Murphy v. State, 596 So.2d 42 (Ala.Crim.App.1991).
Based upon my reading of Batson and the cases of the United States Supreme Court extending Batson, 2 I conclude that Batson does apply to gender-based strikes. It appears to me, based on the various holdings of the United States Supreme Court, that when the issue of gender-based strikes is squarely presented to it, that Court will hold that the State, in a criminal case, cannot use its peremptory challenges to exclude either men or women, as a cognizable group, from jury service solely because of their sex.
One of the latest cases discussing the question of gender-based strikes is Dias v. Sky Chefs, Inc., 919 F.2d 1370 (9th Cir.1990). There, a female plaintiff, suing her former employer, had used her peremptory challenges to remove three males from the jury, the effect of which was to give her an all-female jury. The United States Court of Appeals for the Ninth Circuit held, in part, as follows:
The United States Supreme Court granted certiorari review in Dias, vacated the Court of Appeals' decision, and remanded the case for reconsideration in light of Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), had already settled the question whether a defendant had to be a member of the excluded class. Sky Chefs, Inc. v. Dias, 501 U.S. 1201, 111 S.Ct. 2791, 115 L.Ed.2d 965 (1991).
On remand, the Ninth Circuit, in Dias, found another reason not to reach the issue. It held that the defendant/employer had failed to timely raise the issue of the plaintiff/employee's use of peremptory challenges to remove venirepersons because they were men. Dias v. Sky Chefs, Inc., 948 F.2d 532, 534 (9th Cir.1991). On March 9, 1992, the Supreme Court denied the defendant/employer's petition for the writ of certiorari. Sky Chefs, Inc. v. Dias, 503 U.S. 920, 112 S.Ct. 1294, 117 L.Ed.2d 517 (1992). 3
Although I realize that most jurisdictions refuse to hold that the Batson principle is applicable to gender-based strikes, 4 and although I realize that there is apparent disagreement among the United States Courts of Appeals on the question, 5 I, nevertheless, believe that my dissenting views in Ex parte Dysart, 581 So.2d 545 (Ala.1991), are sound, and that when the issue is squarely presented to the United States Supreme Court that Court will expand the Batson principle to apply to gender-based strikes in instances where men or women, as a cognizable group, are excluded from jury service solely because of their sex.
Dias was a civil case, involving a corporate defendant. This is a criminal case involving an individual defendant. While I realize that the United States Supreme Court has refused to review the Dias decision after remand, it seems to me, in view of what the Supreme Court said when it remanded Dias, and what the Court said in other cases involving the application of Batson, that the Batson principle is applicable to this case. I believe that the Batson principle will ultimately be applied to a case such as this, because it would seem to me that a person's gender is completely...
To continue reading
Request your trial-
Dobyne v. State
...remanded on other grounds, 659 So.2d 122 (Ala.1992); Williams, supra; Murphy v. State, 596 So.2d 42 (Ala.Cr.App.1991), writ denied, 596 So.2d 45 (Ala.), cert. denied, 506 U.S. 827, 113 S.Ct. 86, 121 L.Ed.2d 49 (1992); Adams v. State, 587 So.2d 1265 Recently, the United States Supreme Court ......
-
J.E.B v. Alabama ex rel T.B.
...Murphy v. State, 596 So.2d 42 (Ala.Crim.App.1991), cert. denied, --- U.S. ----, 113 S.Ct. 86, 121 L.Ed.2d 49 (1992), and Ex parte Murphy, 596 So.2d 45 (Ala.1992). The Supreme Court of Alabama denied certiorari, No. 1911717 (Ala. Oct. 23, We granted certiorari, --- U.S. ----, 113 S.Ct. 2330,......
-
Taylor v. State
...122 (Ala.1992); Williams [v. State, 601 So.2d 1062 (Ala.Cr.App.1991) ]; Murphy v. State, 596 So.2d 42 (Ala.Cr.App.1991), writ denied, 596 So.2d 45 (Ala.), cert. denied, 506 U.S. 827, 113 S.Ct. 86, 121 L.Ed.2d 49 (1992); Adams v. State, 587 So.2d 1265 (Ala.Cr.App.1991). "Recently, the United......
-
Ex parte Bruner
...State, 627 So.2d 1013 (Ala.1992); Williams v. State, 607 So.2d 321 (Ala.Cr.App.1992) (Montiel, J., dissenting); Ex parte Murphy, 596 So.2d 45 (Ala.1992) (Maddox, J., dissenting); Mims v. State, 591 So.2d 120 (Ala.Cr.App.1991); and Stariks v. State, 572 So.2d 1301 (Ala.Cr.App.1990).14 In Pur......
-
State v. Lowe: the Supreme Court of Nebraska Correctly Determines Gender Discrimination During Jury Selection Constitutes an Equal Protection Violation Not Subject to Harmless Error Review
...J.E.B., 511 U.S. at 129. 124. J.E.B., 606 So.2d at 156. 125. Id. at 156-57. 126. Id. at 157. 127. Id. 128. Id. (citing Ex parte Murphy, 596 So.2d 45 (Ala. 1992)). 129. J.E.B., 511 U.S. at 127, 130. 130. Id. at 130-31, 146. 131. Id. at 128. 132. Id. at 145. 133. Id. at 130-31. 134. Id. at 13......