596 So.2d 45 (Ala. 1992), 1910336, Ex parte Murphy

Docket Nº:1910336.
Citation:596 So.2d 45
Opinion Judge:PER CURIAM.
Party Name:Ex parte Anthony P. MURPHY. (Re Anthony Paul Murphy v. State).
Attorney: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.
Case Date:March 20, 1992
Court:Supreme Court of Alabama

Page 45

596 So.2d 45 (Ala. 1992)

Ex parte Anthony P. MURPHY.

(Re Anthony Paul Murphy

v.

State).

1910336.

Supreme Court of Alabama.

March 20, 1992

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.

PER CURIAM.

WRIT DENIED.

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

MADDOX, ADAMS and INGRAM, JJ., dissent.

MADDOX, Justice (dissenting).

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:

"The appellant initially argues that the trial court erred in denying his Batson motion based on his allegation that males were improperly excluded from the jury. This issue has come before this court on more than one occasion. The law currently states that Batson does not extend to gender-based strikes. Fisher v. State, 587 So.2d 1027 (Ala.Crim.App.1991), writ denied, 587 So.2d 1039 (Ala.1991); Daniels v. State, 581 So.2d 536 (Ala.Crim.App.1990), writ denied, 581 So.2d 541 (Ala.1991); Dysart v. State, 581 So.2d 541 (Ala.Crim.App.1990), cert. denied, 581 So.2d 545 (Ala.1991); Stariks v. State, 572 So.2d 1301 (Ala.Crim.App.1990)."

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

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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:

"... Sky Chefs asserts that its Fifth Amendment rights were violated by the plaintiff's use of peremptory challenges to strike three males from the jury venire, leaving an all-woman jury, relying on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We review this issue of law de novo, United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). We pay it particular attention since this court has recently extended the Batson equal protection right to gender-based peremptory challenges in criminal cases. United States v. De Gross, 913 F.2d 1417, 1423 (9th Cir.1990).

"....

"Petitioner, a corporation, cannot claim to be a member of the constitutionally protected class allegedly excluded from the jury, i.e., males. We need not reach the question of whether or not males are a constitutionally cognizable 'suspect class' since defendant is not even a member of that class. Although the Court has yet to rule on 'whether a defendant's race affects his standing to invoke Batson,' Holland [v. Illinois], [493 U.S. 474, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990) ] [110 S.Ct.] at 814 (Marshall, J., dissenting), we are aware of no authority that in an individual case a corporation (or even a male defendant) is entitled, under the equal protection clause, to a jury of any particular gender. Cf. Apodaca v. Oregon, 406 U.S. 404, 413, 92 S.Ct. 1628, 1634, 32 L.Ed.2d 184 (1972).

"Even if Batson...

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