McCray v. Abrams

Decision Date04 December 1984
Docket NumberD,No. 1272,1272
Citation750 F.2d 1113
PartiesMichael McCRAY, Petitioner-Appellee, v. Robert ABRAMS, Respondent-Appellant. ocket 84-2026.
CourtU.S. Court of Appeals — Second Circuit

Steven R. Shapiro, New York Civil Liberties Union, New York City, for petitioner-appellee.

Barbara D. Underwood, Asst. Dist. Atty., Brooklyn, N.Y. (Elizabeth Holtzman, Dist. Atty., Kings County, Allan P. Root, Nikki Kowalski, Asst. Dist. Attys., Brooklyn, N.Y., on the brief), for respondent-appellant.

Before LUMBARD, MESKILL, and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Respondent New York State Attorney General Robert Abrams (the "State") appeals from a judgment of the United States District Court for the Eastern District of New York, Eugene H. Nickerson, Judge, granting the petition of Michael McCray, a black defendant convicted in New York State Supreme Court of robbery, for a writ of habeas corpus on the ground that the prosecution's use of peremptory challenges to excuse all black and Hispanic venirepersons from the jury that convicted McCray violated the impartial jury trial and equal protection provisions, respectively, of the Sixth and Fourteenth Amendments to the Constitution. McCray v. Abrams, 576 F.Supp. 1244 (E.D.N.Y.1983). The district court ordered the State to release McCray unless it afforded him a new trial within 60 days. 1 The court stayed its judgment pending this appeal.

On appeal, the State agrees that a discriminatory use of peremptory challenges would violate a defendant's fundamental rights. It contends, however, that the district court (1) erred in ruling that McCray made out a prima facie case that the prosecution so used its peremptory challenges in his case, and (2) if a prima facie case was established, erred in not holding an evidentiary hearing giving the State an opportunity to rebut the inference that it had exercised its peremptory challenges for a constitutionally forbidden purpose.

We hold that the district court properly concluded that McCray established a prima facie case that the State's use of peremptory challenges violated his Sixth Amendment right to trial by an impartial jury, and we affirm that portion of the court's ruling. We are persuaded, however, that the court should have held a hearing to give the State an opportunity to rebut the prima facie case, and we therefore vacate the judgment and remand for further proceedings.


On November 15, 1978, Philip Roberts, a white art student, was assaulted and robbed at gunpoint in downtown Brooklyn by three black youths. Roberts returned to his college dormitory and notified his resident adviser and the police. The police did not respond immediately, but on December 1 and 5, they took Roberts on a tour of the area. The first expedition did not produce an identification, but during the second, Roberts identified McCray, who was standing on a street corner near his home, as one of the robbers.

McCray was arrested and charged with robbery in the first and second degrees. The arrest was McCray's first.

A. The State Court Proceedings

McCray's first trial was before a jury composed of nine whites and three blacks. The trial ended in a hung jury, with nine jurors voting to convict and three voting to acquit. It appears that either two or three of the jurors who voted to acquit were black (see Part I.C. infra ).

McCray was retried, with the same Assistant District Attorney ("ADA") as prosecutor. Under N.Y.Crim.Proc.Law Sec. 270.25(2)(b) (McKinney 1982), each side was entitled to fifteen peremptory challenges. After the exercise of eleven or twelve challenges by the State, McCray moved for a mistrial on the ground that the prosecutor appeared to be systematically using the State's peremptory challenges to exclude blacks and Hispanics from the jury. In support of this contention, McCray pointed out that "[t]here have been seven black people and one Hispanic ven[ire]man up to this point. [The prosecutor] has challenged each and every one of them. Of her eleven challenges, she has used eight to challenge blacks and Hispanics." (Transcript of hearing dated April 24, 1980, at 5.) McCray requested a hearing at which the prosecutor would be asked to testify as to why she excluded the venirepersons she did. Following argument by McCray's counsel, the court denied the request for a hearing and the motion for a mistrial. The record does not reflect that the prosecutor made any statement with regard to her use of challenges.

In a later opinion explicating its denial of the motion, People v. McCray, 104 Misc.2d 782, 429 N.Y.S.2d 158 (Sup.Ct. Kings County 1980), the court stated that the prosecutor had denied excusing jurors on the ground of race. Id. at 783, 429 N.Y.S.2d at 159. The court stated that it had denied the motion for a mistrial because of the presumption that peremptory challenges are properly exercised and the administrative burden that would be entailed in reviewing their exercise. The court further reasoned that excusing a juror of the same race as the defendant on the ground of perceived group affinity is "a time honored basis for the exercise of peremptory challenges." Id. at 784, 429 N.Y.S.2d at 159.

The case against McCray proceeded to trial before an all-white jury (see Part I.D. infra ). The only evidence against him was the identification made by Roberts. The jury found McCray guilty, as charged, of first and second degree robbery. McCray was sentenced to concurrent prison terms of 2 to 6 years on the first degree robbery charge and 1 1/2 to 4 1/2 years on the second degree robbery charge.

Prior to sentencing, McCray moved for a new trial, again attacking the State's use of its peremptory challenges. The court denied the motion. McCray pursued his contention on appeal without success. The Appellate Division affirmed without opinion, 84 A.D.2d 769, 444 N.Y.S.2d 972 (2d Dep't 1981). The New York Court of Appeals affirmed in a 4-3 decision, 57 N.Y.2d 542, 457 N.Y.S.2d 441, 443 N.E.2d 915 (1982). The Court of Appeals majority, relying on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), concluded that neither federal nor state constitutional rights were implicated in the prosecutor's striking of all minority venirepersons, stating that "[t]he benefits of requiring the prosecutor to justify the exercise of certain peremptory challenges are simply outweighed by the damage to a system of jury selection which best serves to guarantee a fair and impartial jury." 57 N.Y.2d at 549, 457 N.Y.S.2d at 445, 443 N.E.2d at 919. The three dissenters viewed Swain as not controlling in light of the Sixth Amendment's guarantee of an impartial jury from which no large, identifiable segment of the community has been systematically excluded. Id. at 552-53, 457 N.Y.S.2d at 447, 443 N.E.2d at 921 (Meyer, J., dissenting); id. at 556-57, 457 N.Y.S.2d at 449, 443 N.E.2d at 923 (Fuchsberg, J., dissenting).

B. The Denial of Certiorari

McCray then sought a writ of certiorari from the United States Supreme Court. The Court denied the petition, 461 U.S. 961, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983), but five Justices indicated their view that a discriminatory exercise of prosecutorial peremptories should not be considered beyond judicial scrutiny. Justice Marshall, joined by Justice Brennan, dissented from the denial of certiorari, on the ground that "Swain was decided before this Court held that the Sixth Amendment applies to the states through the Fourteenth Amendment ... and .... should be reconsidered in light of Sixth Amendment principles established by our recent cases." Id. at 2441 (opinion of Marshall, J., dissenting). Three Justices, in an opinion by Justice Stevens, joined by Justices Blackmun and Powell, stated that they did not disagree with Justice Marshall's assessment of the importance of the issue. Rather, they voted to deny certiorari on the ground that "further consideration of the substantive and procedural ramifications of the problem by other courts will enable us to deal with the issue more wisely at a later date." Id. at 2438 (opinion of Stevens, J.).

McCray moved in the New York Court of Appeals for reargument in light of the opinions accompanying the Supreme Court's denial of certiorari. The motion was denied without opinion, 60 N.Y.2d 587, 467 N.Y.S.2d 1031, 454 N.E.2d 127 (1983).

C. The Present Habeas Petition

Having exhausted his state remedies, McCray filed the present petition for habeas corpus in the district court pursuant to 28 U.S.C. Sec. 2254 (1976), alleging that "[t]he prosecution's use of peremptory challenges to exclude all minority members (7 blacks, 1 hispanic) drawn for the jury panel on the basis of race violates the Sixth Amendment right to trial by an impartial jury and the Equal Protection Clause of the Fourteenth Amendment." (Petition for Writ of Habeas Corpus, filed October 3, 1983, p 11.) In support of the petition, the attorney who had represented McCray at his second trial submitted an affidavit stating, inter alia, that it was his recollection that the three jurors who had voted to acquit McCray at his first trial had been the three black jurors; that during jury selection at the second trial, conducted by the same ADA who conducted the first trial, he "noticed that [the prosecutor] was pre-emptorily [sic ] challenging every single black and hispanic potential juror"; that the prosecutor peremptorily challenged seven blacks and one Hispanic, at least three of whom had not stated that they knew anyone who had committed a crime or knew anyone accused or suspected of committing a crime; and that one of the blacks peremptorily challenged stated that he had either a relative or a close friend who was a victim of a crime and who had been shot during the course of a robbery.

In opposition to the petition, the State agreed that the Constitution should be construed to prohibit the prosecutor from using peremptory challenges...

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