U.S. v. Campbell, 84-2029
| Decision Date | 26 June 1985 |
| Docket Number | No. 84-2029,84-2029 |
| Citation | 766 F.2d 26 |
| Parties | UNITED STATES of America, Appellee, v. Alvin R. CAMPBELL, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Susan L. Crockin, Boston, Mass., for defendant, appellant.
Sidney M. Glazer, Dept. of Justice, Washington, D.C., with whom Stephen S. Trott, Asst. Atty. Gen., Dept. of Justice, and Patrick M. Walsh, Sp. Atty., Dept. of Justice, Boston, Mass., were on brief for appellee.
Before CAMPBELL, Chief Judge, RUBIN * and BREYER, Circuit Judges.
Defendant Campbell, charged with federal firearms offenses and having received a new trial, United States v. Campbell, 732 F.2d 1017 (1st Cir.1984), appeals his subsequent convictions. His basic claim is that the prosecutor's use of peremptory challenges to exclude the only two black members of the jury panel deprived him of a fair trial guaranteed by the Sixth and Fourteenth Amendments to the federal Constitution.
The record shows that the jury panel consisted of twenty-eight persons of whom two were black. The prosecutor, exercising his six peremptory challenges, challenged both black members, Bruce Dixon and Jeffrey Kennedy. Appellant's counsel objected, raising the issue of racial discrimination; the prosecutor denied racial prejudice, stating that there were "other people ... we'd rather have on the jury, that's all;" but the court, stating that it took "this motion seriously," offered appellant a mistrial, which appellant refused to accept.
Subsequently, the government withdrew its objection to Mr. Dixon, one of the black panel members; but appellant continued to insist that the government accept panelist Kennedy as well. The court then embarked upon a hearing. It offered appellant's counsel an opportunity to call its attention to any relevant facts, to question the prosecutor, and to present additional evidence. The court itself asked the prosecutor why he had peremptorily challenged the black panelists. The prosecutor initially said he had done so because of their youth. He agreed that he had not objected to two other young people on the panel, but he pointed out that he had only six peremptory challenges available. Toward the end of the hearing, the prosecutor was asked to focus on his reason for objecting to panelist Kennedy but not to other younger members of the panel. The prosecutor then said that his selection of panelist Kennedy rested on Mr. Kennedy's "demeanor" when being questioned about his mother having been the victim of a crime, on a "lot of intangible factors" going into an "analysis of the remaining people who were on the jury panel," and on the "vibrations or the feeling I got when we were all together and he was addressing the Court...." The court then made a "factfinding" that "the Government's purpose in challenging both of the black jurors was not racially motivated," and "the Government's action in initially seeking to challenge both blacks was not on racial grounds." The court consequently refused to require Mr. Kennedy's selection for the jury.
As appellant concedes, under presently existing Supreme Court precedent, he cannot prevail on this appeal, for he has not shown "the prosecutor's systematic use of peremptory challenges" against blacks "over a period of time." Swain v. Alabama, 380 U.S. 202, 227, 85 S.Ct. 824, 839, 13 L.Ed.2d 759 (1965) (emphasis added). Under Swain, such a showing is a necessary prerequisite to any constitutionally-based challenge of the prosecutor's use of peremptory challenges as racially motivated. But, appellant notes that lower federal courts have recently issued rulings that run contrary to Swain, see McCray v. Abrams, 750 F.2d 1113 (2d Cir.1984), cert. pending, No. 84-1426; United States v. Leslie, 759 F.2d 366 (5th Cir.1985), rehearing en banc pending; and, the Supreme Court has granted certiorari in Batson v. Kentucky, --- U.S. ----, 105 S.Ct. 2111, 85 L.Ed.2d 476 (1985), presumably in order to reexamine its holding in Swain.
These facts, however, do not help appellant for two reasons. First, the district court, in this case, investigated the 'racial' allegation in as much detail and with as much sensitivity as any revision of Swain 's restrictive rule is likely to require. The court, after applying the procedures we have just described, judged the evidence in light of a standard that recognized the importance of avoiding racial discrimination. The court stated, for example:
Accepting your arguments that, given the way this came...
To continue reading
Request your trial
-
U.S. v. Leslie
...Appeals specifically approved this use of the supervisory power. Id. at 592-93. 7 Also relevant is the recent case of United States v. Campbell, 766 F.2d 26 (1st Cir.1985). This case involved an objection by the defendant to the federal prosecutor's use of a peremptory challenge to strike a......
-
People v. Dotson, s. 81-1080
...in the case at bar would preclude us from concluding that Dotson is entitled to the relief he requests. Cf. United States v. Campbell (1st Cir.1985), 766 F.2d 26, 27-28. For the reasons stated, the judgments of the trial court are AFFIRMED. LINN, P.J., concurs. JOHNSON, J., specially concur......
-
Simpson v. Com. of Mass.
...hearings could be held allowing the state prosecutor to offer evidence justifying the challenges on other grounds. In United States v. Campbell, 766 F.2d 26 (1st Cir.1985), our Court of Appeals found that the district judge had followed a procedure for testing the prosecution's use of perem......
-
Davis v. State
...Circuit Court of Appeals provided some additional guidelines which may assist the trial judge in making his decision. United States v. Campbell, 766 F.2d 26 (1st Cir.1985). Although Campbell pre-dates Batson, it is not inconsistent with the latter decision. That court stated as "In order to......