McCray v. Abrams, 1272
| Decision Date | 04 March 1985 |
| Docket Number | D,No. 1272,1272 |
| Citation | 756 F.2d 277 |
| Parties | Michael McCRAY, Plaintiff-Appellee, v. Robert ABRAMS, Defendant-Appellant. ocket 84-2026. |
| Court | U.S. Court of Appeals — Second Circuit |
Prior reports: D.C.N.Y., 576 F.Supp. 1244, C.A. 2, 750 F.2d 1113.
A request for an in banc vote having been made by one of the active judges, and a poll of the judges in regular active service having been taken, a majority of the Court has voted not to reconsider the decision in banc.
The holding in this case is that the Constitution prevents the State of New York from systematically using its peremptory challenges against Black and Hispanic members of the jury venire in the absence of some plausible reason, not based on race or national origin, for doing so. The case is remanded for determination of whether such reason exists. The decision is important, both because of what it holds and because of the issues it raises for the future concerning the permissible use of peremptory challenges. Among these are whether the prosecution is similarly limited with respect to group-based challenges against persons identified other than by race or national origin, whether the remedy of striking the venire is mandatory or only an option available to the defendant, and whether similar limitations on the exercise of peremptory challenges apply to a defendant. Language in the opinion of the panel majority touches on some of these issues.
In some circumstances, in banc reconsideration of a case of this magnitude would be warranted. Doing so would afford the full Court an opportunity to determine whether to endorse the holding, whether the constitutional principle underlying such a holding is the fair trial guarantee of the Sixth Amendment or the equal protection guarantee of the Fourteenth Amendment, and whether any authoritative guidance should now be given the trial courts concerning the unresolved issues raised by the panel ruling. However, the appropriateness of in banc reconsideration is undermined by the lack of adversity between the litigants on the central issue in the case: The prosecutor agrees with the defendant that the State may not systematically use peremptory challenges against Blacks and Hispanics in the absence of reasons unrelated to race or national origin. The only dispute presented by the prosecutor is whether such reasons exist in this case, a matter the panel has returned to the District Court for determination.
In light of the prosecutor's litigating stance, this is not the case in which to determine the issues implicated by the panel's holding. Those issues can be expected to arise in future litigation, to be properly framed by adverse litigants, and to be carefully considered and resolved by future panels, and, if appropriate, by the full Court.
One of the most grievous assaults on the perception and substance of criminal justice is the trial of a Black defendant by an all-White jury from which eligible Blacks have been excluded by action of the state because they are Black. The panel's holding imposes a constitutional bar upon state efforts to obtain such a pernicious result. In banc reconsideration of that holding, uncontested by the litigants, is not warranted.
The panel opinion is in my view a paradigm case for in banc consideration. It can hardly be denied that the issues raised are of "exceptional importance" within the meaning of Fed.R.App.P. 35(a). The decision, rendered by a sharply divided panel, is without federal precedent and alters the very nature of peremptory challenges by compelling scrutiny of the motive underlying the exercise of such challenges. Because it is a constitutional decision, it affects the manner in which juries are selected in every criminal case in the state or federal courts within this circuit.
The effects are likely to be dramatic. For example, many federal courts presently permit only a limited voir dire of prospective jurors thus leaving prosecutors with little to go on in exercising peremptory challenges other than the membership of such a juror in a "cognizable group." Such membership, however,...
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