Booker v. Jabe, 83-1136

• Decision Date: 29 October 1985
• Docket Number: No. 83-1136,83-1136
• Citation: 775 F.2d 762
• Parties: Larry BOOKER, Petitioner-Appellant, v. John JABE, Warden, Kinross Correctional Facility, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 762

775 F.2d 762

54 USLW 2259

Larry BOOKER, Petitioner-Appellant, v. John JABE, Warden, Kinross Correctional Facility, Respondent-Appellee.

No. 83-1136.

United States Court of Appeals Sixth Circuit.

Argued Sept. 20, 1984.

Decided Oct. 29, 1985.

Chari Grove, Detroit, Mich., for petitioner-appellant.

Frank J. Kelley, Atty. Gen. of Michigan, Eric J. Eggan, Edgar L. Church, Jr., Asst. Atty. Gen., Corrections Division, argued, Lansing, Mich., for respondent-appellee.

Before MERRITT and JONES, Circuit Judges, and BELL, ^* District Judge.

NATHANIEL R. JONES, Circuit Judge.

This appeal from denial of a petition for a writ of habeas corpus concerns the systematic use of peremptory challenges, in a single criminal prosecution, to excuse members of a jury venire from service on a state petit jury solely on the basis of their race. The decisive legal issues are whether the selection of the jury by the prosecutor and defense counsel violated either the Fourteenth Amendment's guarantee of equal protection or the Sixth Amendment's guarantee that criminal charges will be tried before an impartial jury. We conclude that Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), forecloses Booker's Fourteenth Amendment claim. We also conclude that a criminal petit jury that is the product of the systematic use of peremptory challenges, by either the prosecution or defense counsel, to excuse prospective jurors solely on the basis of their race is not an impartial jury within the meaning of the Sixth Amendment. Such abuse distorts the jury's decision-making, undermines the jury's integrity, and denies both the defendant and the public the impartial jury that the Constitution requires. Therefore, on the basis of the state trial court's findings that the prosecution and defense counsel systematically excused prospective jurors on the basis of race, we reverse the district court's denial of habeas relief and remand Booker's petition for issuance of the writ unless the State of Michigan promptly retries him.

I.

Larry Booker appeals from the district court's denial of his petition for a writ of habeas corpus, which he filed pursuant to 28 U.S.C. Sec. 2254. Booker and his co-defendant are two black adult men who were accused of the armed robbery of a shoe store located in Lincoln Park, Michigan, outside Detroit. The robbers initially held two white, female clerks at gunpoint and then left them bound in the back of the store. At trial, in the Circuit Court of Wayne County, one clerk testified that Booker's co-defendant ripped off her clothes below the waist, touched her genitals, and offered a sexual act. The defendants presented alibis and claimed that they were mistakenly identified as the robbers. On May 1, 1975, a jury composed exclusively of white citizens convicted both defendants of armed robbery. At the same trial, Booker's co-defendant was charged with intent to commit rape and convicted of assault and battery. Booker was sentenced to a prison term of fifteen to twenty-five years.

After properly exhausting his appeals in the Michigan courts without receiving redress see Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), Booker sought habeas relief in the District Court for the Western District of Michigan. The district court addressed the merits of Booker's claim that the jury selection process was so infected with racism that the resulting trial violated the Sixth and Fourteenth Amendments. The district court adopted the following findings and recommendations of the United States Magistrate and denied both Booker's Fourteenth Amendment claim and his Sixth Amendment claim.

It is an inescapable conclusion from a study of the arguments made by the parties that each side was excusing jurors primarily on the basis of their race. The spectacle of attorneys on both sides of a case dismissing jurors simply on the basis of their color is a deplorable one which tarnishes the image of our system of justice. Ultimately, it appears that such trial strategy is nevertheless permissible under some circumstances. Since I so read the Supreme Court's decision in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), I respectfully recommend that habeas relief on this ground be denied for the reasons discussed below.

The magistrate accurately described the jury selection in this case. The white jury was the result of an open battle of peremptory challenges in which the prosecutor claimed he was responding to racist exclusions by the defense counsel, who in turn denied using peremptory challenges solely on the basis of race. The state trial court judge noted that the jury venire began with "substantially more white jurors than there were black." Tr. at 379. The record reveals that the prosecutor exercised twenty-six of his allotted thirty peremptory challenges. The prosecutor used his peremptory challenges to excuse twenty-two black potential jurors, in several instances without addressing any questions to the excused juror. The two defendants used all forty of their combined peremptory challenges and excused thirty-seven white prospective jurors.

When the resulting jury had been selected, the defendants moved for a mistrial in order to select another panel. During the discussion of this motion, defense counsel charged the prosecutor with excluding black jurors solely on the basis of race.

[T]he only time the Prosecutor indicated his satisfaction with the jury except for very early in the proceeding was when there were no black people on the jury.

I would suggest to the Court that this methodical exclusion of black people from the jury, even though albeit peremptory challenges, is prosecutorial misconduct at its most blatant.

Tr. at 374. The prosecutor did not deny this charge:

Early in the game, they could have passed the jury and had five or six black people, if they will remember, and quit being distorted about this.

They will remember, I said, I was satisfied with the jury as it now sits when we had five or six black people in that panel. I challenge them to say otherwise.

Tr. at 385.

Defense counsel expressly argued that the reasons the prosecutor methodically excused black prospective jurors, in a case involving two black male defendants and two white female victims, was exclusively because of those prospective jurors' race:

And then, the blacks that were down here were systematically excluded from the jury.

Now, we don't have to speculate. Mr. Easton [the prosecutor] has twice now called to the Court's attention that there were certain murmurs in the court. Perhaps, certain hissing kind of sound through lips from certain of the jurors. And we don't have to speculate on why. Because everyone in this courtroom was shocked by the systematic and unabashed way he went about excluding every black that sat on that jury.

....

If there was any doubt, I heard Mr. Easton say to Mr. Ackerman, we can get a conviction in this case if we don't get a black jury.

Now, I'll ask him to deny that. If he wants to deny it. I heard him say it.

And that furnishes, clears up any doubt in this matter as to what the specific intention here was.

The specific intention is to get a white jury to try two black men where there are two girls, two white girls who are the complaining witnesses.

Tr. at 375-76.

In his response, the prosecutor did not deny the statement attributed to him by defense counsel. He did not deny systematically excusing black prospective jurors solely on the basis of race. Instead, the prosecutor attempted to justify his practice.

I'm a friend of blacks, yellows, everything, but I have a duty, too.

And I have had four consecutive hung juries three years ago.

I'm a trial lawyer.

This is my hundred fifty-sixth jury trial in this building in the last four and a half years.

I have had hung juries because of the systematic eliminating of middle-aged white people.

I didn't start it. They started it.

....

They polarized the jury to the point the ones that did come up here, I sit here and look at nine black people and I look at five white people.

How can, since they've done that, since they took off all the middle-aged white men and ladies in some cases, could I get a fair trial?

I think the victims have a right in this country too.

I'm not asking the jury to be partial. I don't think these ladies and gentlemen will be partial because of race. I'm not partial.

And I gladly would explain to Mr. White, the last black I took off, I would like to explain to him why I took him off. I would say, Mr. White, I didn't want to put you in an embarrassing position.

I don't think Counsel realizes, I'm looking at the standpoint from this gentleman and the other gentlemen, finding himself in a room with maybe ten white people and maybe in their own conscience they might believe, I don't believe these two black men did it, and they may say to him you're saying that because you're black.

I could see it coming. I told Officer Ackerman, at the rate they're going, it's not too long that I'm going to have more challenges than they.

Tr. at 382, 384-85. Defense counsel closed by denying that they had ever attempted to empanel an all black jury.

After this remarkable exchange, the trial court noted that both the prosecutor and defense counsel had used their peremptory challenges for the purpose of excusing potential jurors because of their race. Tr. at 389. The trial court then denied the motion for a mistrial. The trial judge determined that no precedent authorized him to control the use of peremptory challenges by either the prosecutor or defense counsel.

II.

Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), forecloses Booker's claim that the prosecutor's use of peremptory challenges violated the Fourteenth Amendment. Swain was a black man who was convicted in an Alabama court, by a jury composed of white citizens, of the rape of a white woman. Swain was sentenced...