United States v. McDaniels, Crim. No. 72-330.

• Decision Date: 22 May 1974
• Docket Number: Crim. No. 72-330.
• Citation: 379 F. Supp. 1243
• Parties: UNITED STATES of America v. Carolyn S. McDANIELS et al.
• Court: U.S. District Court — Eastern District of Louisiana

379 F. Supp. 1243

UNITED STATES of America v. Carolyn S. McDANIELS et al.

Crim. No. 72-330.

United States District Court, E. D. Louisiana.

May 22, 1974.

James D. Carriere, Cornelius J. Heusel, Asst. U. S. Attys., for plaintiff.

Richard Sobol, Washington, D. C., Ann Pardee Buxton, David J. Dennis, New Orleans, La., Jack Greenberg, Charles S. Ralston, New York City, Richard T. Seymour, Washington, D. C., for defendants.

ALVIN B. RUBIN, District Judge:

The defendant, Mrs. Carolyn S. McDaniels, was convicted of three counts of mail fraud and one count of welfare fraud by a jury composed of 11 persons of the white race and 1 person of the black race. In choosing the jury, the government used all 6 of its peremptory challenges to excuse persons of the black race. Mrs. McDaniels now seeks a new trial, arguing that the government's action violated her constitutional right to due process of law under the Fifth Amendment and her right to trial by an impartial jury. The court finds that her constitutional rights were not abridged but grants the motion under the provisions of Rule 33, Federal Rules of Criminal Procedure, because the interest of justice requires a new trial.

I

Counsel for Mrs. McDaniels developed the evidentiary basis for this motion by a painstaking analysis of the court records for the last two years. With the aid of the Clerk's office and the U. S. Marshal's office, counsel first identified each case involving a black defendant that has proceeded to trial before a jury in this district since January 1, 1972. From the venire list in the record of each case, counsel took the names of jurors who served and who were challenged. Counsel and court personnel then sifted through several thousand jury questionnaires and, in some cases, checked parish voter's lists to determine the racial identity of each serving and challenged juror. There were 53 such trials, but in four it was not possible to obtain a complete breakdown of the government's challenges by race without considerable additional effort. In two of these four, however, some data on the racial composition of the jury was available. No data were collected with respect to cases involving white defendants, and no information was compiled concerning peremptory challenges by the defense or excuses for cause by the court.

Government Exhibit 1, a summary of this information that both parties agree is accurate, shows that 68.9% of the challenges actually used by the government in the cases studied were directed to black persons.¹ Additional challenges were available and not used; the government used 46% of its available challenges against black persons. Out of the 53 cases, there were 5 where the United States challenged no black persons and black persons actually served on juries.

It requires no great statistical sophistication to conclude that these data show that the government exercised its peremptory challenges in criminal cases with black defendants against blacks three times more frequently than one would expect if members of the panel were stricken at random. But, notwithstanding this, the juries actually hearing cases remained relatively representative. 657 jurors actually served; Government Exhibit 1 shows that at least 22.8% of them were black.² The voting age population of this judicial district, based on 1970 census statistics, is 26.4% black, and blacks make up approximately 21.4% of the district's registered voters, the group from which the jury rolls are randomly drawn. It may be that the panels actually reporting for jury duty, or the panels called for duty, were over-representative of black persons, but the data submitted do not adequately explain this phenomenon.³

In four of the 53 cases, where the notes of the presiding judge indicated the racial identity of the entire panel, information was available concerning the race of persons who remained available on the jury panel after each side had completed its challenges. The comprehensive examination of the use of challenges possible in these cases shows:

(1) In the first case, the government, using only three of its six challenges, excused one white and two black persons. Four black persons actually served on the jury.

(2) In the second, the government used only four of its six challenges. Four black persons served on the jury.

(3) In the third, the government used no peremptory challenges, and two black persons sat on the jury.

(4) In the fourth, the government excused four white and two black persons, leaving one black person on the jury.

Had the U. S. Attorney's office been pursuing a uniform policy of excusing black jurors in all cases involving a black defendant, it could have come closer to accomplishing its purpose in these four cases by excusing black instead of white jurors, or by using its remaining challenges against black veniremen. In three of the four cases it could have obtained an all white jury; in the second case mentioned, it could have reduced the number of black jurors from four to two. In fact, in 31 of the 53 cases studied, the government failed to use all its available challenges, although some blacks remained on the jury and could have been challenged.

The United States Attorney in this district has a staff of nineteen lawyers. Of necessity, he must devote the major part of his time to administrative and supervisory responsibilities, and he is able to participate in relatively few of the actual trials. He did not personally participate in or, of course, exercise the challenges in any of the 53 cases studied. There is no hint in the evidence that he has sanctioned or encouraged any racially discriminatory policies either in the conduct of his office or in the trial of cases.

Twelve of the Assistant United States Attorneys are personally actively engaged in the trial of criminal cases; the identity of these individuals has changed in some instances during the two year period as a result of normal turnover in personnel. There is no evidence that the United States Attorney's Office adopted any sort of policy to direct them in exercising challenges. Nor does the evidence suggest that the government cunningly avoided challenging the last possible black juror to avoid an appearance of prejudice, since in this District the parties challenge by striking names from a list without making their respective challenges known to the jury. Hence jurors have no way to know which side is excusing each juror and thus to surmise its motives.

The study of peremptory challenges presented in evidence reflects only one characteristic of the challenged persons: race. A lawyer might, and likely would, take into account other matters, such as occupation, place of residence, and answers to voir dire questions with respect to other matters. But the mathematical theory of probability demonstrates that the chance is small that so high a proportion of government challenges would have been directed to black persons if challenges were based solely on factors unrelated to race.⁴ In this particular case, the probability that six government challenges not race related would have been exercised as they were is so small as to be negligible.⁵ "In the problem of racial discrimination, statistics often tell much, and Courts listen." Alabama v. United States, 5 Cir. 1962, 304 F.2d 583, 586.

II

The data does not support the charge that the pattern followed violated the Fifth Amendment, as its requirements have been interpreted by the United States Supreme Court and the Fifth Circuit Court of Appeals.

In Swain v. Alabama, 1965, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, the Supreme Court set out the constitutional standard: "A State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause." The Fifth Amendment requires the same result in a federal trial. United States v. Pearson, 5 Cir. 1971, 448 F.2d 1207, Footnote 15 at 1214.

In Swain, the Court held that a prosecutor's challenges in a particular case, even if exercised to keep blacks off the jury, does not precipitate a constitutional claim:

"The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court's control. * * * "It is no less frequently exercised on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty. For the question a prosecutor or defense counsel must decide is not whether a juror of a particular race or nationality is in fact partial, but whether one from a different group is less likely to be."

* * * * * *

"With these considerations in mind, we cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor's challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. The challenge, pro tanto, would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterwards. The prosecutor's judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity. And a great many uses of the challenge would be banned." 85 S.Ct. at 836-837.

The Court in Swain did suggest, however, that a case for relief would be made if the defense could show that the prosecutor "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 . . . with the result that no Negroes ever serve on petit juries....