U.S. v. Childress

• Decision Date: 09 January 1984
• Docket Number: No. 82-1261,82-1261
• Citation: 715 F.2d 1313
• Parties: UNITED STATES of America, Appellee, v. C.L. CHILDRESS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1313

715 F.2d 1313

UNITED STATES of America, Appellee, v. C.L. CHILDRESS, Appellant.

No. 82-1261.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 13, 1983.

Decided Sept. 2, 1983.

Certiorari Denied Jan. 9, 1984.

See 104 S.Ct. 744.

Paul J. Schroeder, Jr., Spoehrer & Lemkemeier, St. Louis, Mo., for appellant.

Thomas E. Dittmeier, U.S. Atty., Robert T. Haar, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before LAY, Chief Judge, HEANEY, BRIGHT, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON, and FAGG, Circuit Judges, en banc.

McMILLIAN, Circuit Judge.

An all-white jury convicted C.L. Childress on three counts of firearms violations, 18 U.S.C. § 1202(a)(1) (App.), in the District Court ¹ for the Eastern District of Missouri. A panel of this court affirmed his conviction, 721 F.2d 1148. Subsequently, this court on its own motion ordered the appeal reargued en banc on the issue of the government's use of peremptory challenges to remove all or almost all the black prospective jurors from the jury panel. We specifically directed the parties to address a recent Illinois appellate decision, People v. Payne, 106 Ill.App.3d 1034, 436 N.E.2d 1046, 62 Ill.Dec. 744 (1982), appeal docketed, No. 56709 (Ill. ---, 1983).

For the reasons discussed below, we affirm the judgment of the district court.

I.

The fundamental obstacle to any successful attack upon the government's use of peremptory challenges to remove all or almost all the black prospective jurors from the jury panel is, of course, Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) (Swain ). In Swain the petitioner, a black man convicted of rape in the Circuit Court of Talladega County, Alabama, challenged the selection of the grand jury and petit jury on the ground of racial discrimination in violation of the equal protection clause of the fourteenth amendment. The petitioner's evidence was stark. Black males over 21 constituted 26% of all males in Talladega County over 21, but only 10 to 15% of the grand and petit prospective jurors selected since 1953 were black. In only one case was the percentage of black prospective jurors as high as 23%. Although blacks had served on 80% of the grand juries selected during the same period of time, the number of black grand jurors ranged from one to three. In the petitioner's case, four or five blacks were on the grand jury panel of about 33 and two actually served on the grand jury which indicted him. Although an average of six to seven black prospective jurors were selected for petit jury panels in criminal cases, no black had served on a petit jury since 1950. Moreover, there was evidence that, within the memory of persons then living, no black had ever served on any petit jury in any criminal or civil case tried in Talladega County. In the petitioner's case there were eight black prospective jurors on the petit jury panel, but two were exempt and the prosecution removed six by peremptory challenge. Thus an all-white jury convicted the petitioner.

As noted by the Supreme Court, Swain did not involve the exclusion of blacks from grand or petit jury panels. Id. at 206, 85 S.Ct. at 828; e.g., Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880). Nor did Swain involve the token inclusion of blacks on grand or petit jury panels. See Cassell v. Texas, 339 U.S. 282, 292-94, 70 S.Ct. 629, 634-35, 94 L.Ed. 839 (1950) (Frankfurter, J., concurring in the judgment) (panels with only one black juror). Swain involved the underrepresentation of black prospective jurors on the grand and petit jury panels. The Court noted that

a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which petit jurors are drawn. Neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group.

380 U.S. at 208, 85 S.Ct. at 829 (citations omitted). The petitioner showed that the grand and petit jury panels were 10-15% black in a county where the eligible pool of jurors was 26% black. The Court held that this showing of black underrepresentation by 10% ² did not establish a prima facie case of purposeful discrimination based on race alone. Id. at 208-09, 85 S.Ct. at 829-30.

The petitioner in Swain also argued that the government purposefully used its peremptory challenges to remove black prospective jurors from the petit jury panel in violation of the equal protection clause. The majority reviewed the history, function and nature ³ of the peremptory challenge and concluded that the exercise of the peremptory challenge by the prosecutor in any particular case was not subject to judicial review. Id. at 221, 223, 85 S.Ct. at 836, 837. The Court held that

[t]he presumption in any particular case must be that the prosecutor is using the State's challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes.

Id. at 222, 85 S.Ct. at 837. Thus, evidence that the government used its peremptory challenges to remove all the black prospective jurors from the jury panel in a single case will not support a claim of racial discrimination under the equal protection clause. The dissent agreed with the single case approach. Id. at 245, 85 S.Ct. at 849; see, e.g., United States v. Greene, 626 F.2d 75, 76 (8th Cir.) (per curiam), cert. denied, 449 U.S. 876, 101 S.Ct. 220, 66 L.Ed.2d 98 (1980); Easter v. Estelle, 609 F.2d 756, 759 (5th Cir.1980).

The petitioner in Swain also argued that prosecutors in Talladega County had consistently and systematically exercised their peremptory challenges to remove all black prospective jurors from serving on petit juries. The majority stated that evidence that "the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes [by peremptory challenge from the jury panel] ... with the result that no Negroes ever serve on petit juries," 380 U.S. at 223, 85 S.Ct. at 837, would show that "the purpose of the peremptory challenge [is] being perverted" and thus rebut the presumption that the prosecutor was using the peremptory challenge to obtain a fair and impartial jury. Id. at 224, 85 S.Ct. at 838. The Swain majority found, however, no prima facie case of systematic exclusion because the record failed to show "when, how often, and under what circumstances the prosecutor alone has been responsible for striking those Negroes who have appeared on the petit jury panels in Talladega County." Id. The majority also rejected any attempt to show systematic exclusion by combining the method of selecting prospective jurors and the use of peremptory strikes. Id. at 228 n. 32, 85 S.Ct. at 840 n. 32.

On a theoretical level the dissent argued that the majority unconstitutionally granted a preference to the state's free exercise of the peremptory challenge, a nonconstitutional right generally "recognized primarily as a device to protect defendants," id. at 242, 85 S.Ct. at 847 (Goldberg, J., dissenting) (emphasis in original), over the defendant's constitutionally guaranteed right to equal protection. Id. at 242-44, 85 S.Ct. at 847-48. The dissent also argued that the petitioner's evidence clearly established a prima facie case of discrimination. Id. at 232, 85 S.Ct. at 842. The dissent criticized the majority's requirement that the petitioner show the state alone caused systematic exclusion, particularly when the state is responsible for the selection of disproportionately white panels of prospective jurors, id. at 235-37, 85 S.Ct. at 843-45; the majority's distinction between exclusion from the jury panel and exclusion from the jury itself, id. at 239-40, 85 S.Ct. at 846-47; and the majority's refusal to consider the fact that "the total exclusion of Negroes from juries in Talladega County results from the interlocking of an inadequate venire selection system, for which the State concededly is responsible, and the use of peremptory challenges." Id. at 241, 85 S.Ct. at 847.

II.

The very heavy burden of proof set forth in Swain has been extensively criticized by commentators. See, e.g., Brown, McGuire & Winters, The Peremptory Challenge as a Manipulative Device in Criminal Trials: Traditional Use or Abuse, 14 New Eng.L.Rev. 192, 196-202 (1978) (hereinafter Brown Article); Kuhn, Jury Discrimination: The Next Phase, 41 S.Cal.L.Rev. 235, 302 (1968); Winick, Prosecutorial Peremptory Challenge Practices in Capital Cases: An Empirical Study and A Constitutional Analysis, 81 Mich.L.Rev. 1, 10-11 (1982) (using Swain to attack exclusion of "death qualified" jurors); The Supreme Court, 1964 Term, 79 Harv.L.Rev. 56, 135-39 (1965); Comment, The Prosecutor's Exercise of the Peremptory Challenge to Exclude Nonwhite Jurors: A Valued Common Law Privilege in Conflict with the Equal Protection Clause, 46 U.Cin.L.Rev. 554, 559-60 (1977); Comment, Swain v. Alabama: A Constitutional Blueprint for the Perpetuation of the All-White Jury, 52 Va.L.Rev. 1157, 1160-63 (1966); Note, Limiting the Peremptory Challenge: Representation of Groups on Petit Juries, 86 Yale L.J. 1715, 1723 & n. 36 (1977). Although case law repeatedly describes the defendant's burden of proof as "not insurmountable," e.g., United States v. Pollard, 483 F.2d 929, 930 (8th Cir.1973), cert. denied, 414 U.S. 1137, 94 S.Ct. 882, 38 L.Ed.2d 762 (1974); United States v. Pearson, 448 F.2d 1207, 1217-18 (5th Cir.1971), defendants in state and federal courts have been overwhelmingly unable to establish a prima facie case of systematic exclusion. Our...