United States v. Robinson

• Decision Date: 15 October 1976
• Docket Number: Crim. No. N-76-63.
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Margaret Lee ROBINSON and Patricia Savarese.

421 F. Supp. 467

UNITED STATES of America v. Margaret Lee ROBINSON and Patricia Savarese.

Crim. No. N-76-63.

United States District Court, D. Connecticut.

October 15, 1976.

Michael Hartmere, Asst. U. S. Atty., New Haven, Conn., for plaintiff.

Andrew B. Bowman, Federal Public Defender, John R. Williams, New Haven, Conn., for defendants.

MEMORANDUM OF DECISION ON DEFENDANTS' OBJECTION TO GOVERNMENT'S PEREMPTORY CHALLENGES

NEWMAN, District Judge.

This case poses the troublesome issue of what limits, if any, should be imposed on a federal prosecutor's use of peremptory jury challenges when such challenges are used frequently to exclude Blacks from serving on criminal juries. The issue arises in the midst of jury selection in a case involving two defendants, one of whom is Black. The jury selection system generally used in this District is the so-called struck jury system: after challenges have been allowed for cause, the Clerk draws from the jury wheel a number of names equal to the jury of twelve plus the number of peremptory challenges allotted to the prosecution and the defendants. Sometimes, as occurred in this case, by agreement of counsel, the number drawn equals the jury of twelve, plus alternates (five in this case),¹ plus the peremptory challenges allotted to the prosecution and the defendants both with respect to the jury of twelve and the alternates. At that point each side exercises, usually on an alternating basis, its peremptory challenges.² Counsel notify the clerk which veniremen they wish to challenge, and the array is not informed as to how challenges have been exercised. Names not challenged are then replaced in the jury wheel, and a final drawing of names occurs, the first twelve drawn becoming the jury, and, if all challenges have been exercised, the remainder becoming the alternates in the order drawn.

In this case, following challenges for cause, the Clerk was instructed to draw 37 names, the Government having 7 peremptory challenges and the defendants having 13 to be exercised jointly. After all peremptory challenges had been exercised, the defendants objected to the Government's use of its peremptory challenges on the grounds that the prosecutor had struck all four of the Negroes eligible for the final selection. At that point the Court halted the jury selection process and instructed the Clerk to maintain a record of the 17 names available for final jury selection plus the four Negroes challenged by the prosecutor. Inquiry was made of the prosecutor as to whether he wished to put on the record any non-racial reason that had prompted his challenge of the four Negroes. He declined to respond. The matter was then continued to permit the defendants time to present a statistical analysis in support of their claim that the United States Attorney's office in this District has been excessively using peremptory challenges to strike Blacks from criminal juries, especially in cases where defendants are Black.

Subsequently, the defendants were granted permission to analyze jury selection records in the Clerk's office, and submitted data concerning the selection of juries empaneled in all criminal cases in this District during the past two years. The data show that 82 Negroes have been included in the final group eligible for jury selection, and that the prosecutors have exercised their peremptory challenges to strike 57 of these, or an exclusion rate of 69.5%. In cases involving White defendants 49 Negroes were in the final group, and the prosecutors challenged 29, for an exclusion rate of 59.2%. In cases involving Black or Hispanic defendants, 33 Negroes were in the final group, and the prosecutors challenged 28, for an exclusion rate of 84.8%. Of the 72 trials analyzed,³ Blacks were seated as jurors in only 13 instances, or 18.1%, and in 10 of these, only one Black juror was seated.

It appears that no federal case has rejected a federal prosecutor's use of peremptory challenges against Black veniremen. But see United States v. McDaniels, 379 F.Supp. 1243 (E.D.La.1974). However, ever since the Supreme Court discussed the problem in the context of state prosecutions in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the warnings for federal prosecutors have become increasingly clearer. See United States v. Nelson, 529 F.2d 40 (8th Cir. 1976); United States v. Carter, 528 F.2d 844 (8th Cir. 1975); United States v. Pollard, 483 F.2d 929 (8th Cir. 1973); United States v. Carlton, 456 F.2d 207 (5th Cir. 1972); United States v. Pearson, 448 F.2d 1207 (5th Cir. 1971). In Swain, the Court recognized the normally unquestioned right of prosecutors to exercise peremptory challenges for any reason — including a racially based preference not to have Negroes serve on a particular jury. However, the Court cautioned that extreme cases of consistent challenge of Black jurors would raise serious Fourteenth Amendment issues. The Eighth and Fifth Circuit cases cited above have emphasized that federal trial courts have supervisory power over the conduct of criminal trials to ensure that prosecutors' challenges are exercised in a fair and constitutional manner. See United States v. Nelson, supra; United States v. Pearson, supra.

The nature of the claim asserted has not always been clear. Frequently the claim is asserted on behalf of the Black defendant who complains of a racially discriminatory exclusion of Blacks from the jury in his case. Yet if a peremptory challenge can be exercised for any reason (or no reason), it is hard to see why a defendant can complain if all eligible Blacks are struck from his array. Swain and the Court of Appeals' cases suggest that a pattern of exclusion would indicate that challenges are being exercised "for reasons wholly unrelated to the outcome of the particular case on trial." Swain v. Alabama, supra, 380 U.S. at 224, 85 S.Ct. at 838. Yet if a prosecutor thinks, whether soundly or otherwise, that Negroes may be, for any reason, more sympathetic to defendants than Whites, his consistent striking of Blacks simply indicates that he acts on this assumption regularly. If that is his assumption, his striking of Blacks in the 100th case is as related to his view of the outcome of the particular case as it was in the first case.

But Swain intimates that interests are at stake beyond those of the defendant on trial. Consistent striking of Blacks, said the Supreme Court, would indicate that "the peremptory system is being used to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population." Ibid. No Black has the right to sit on any particular jury. But Blacks do have the right to participate equally with Whites in the process of conducting jury trials.⁴Peters v. Kiff, 407 U.S. 493, 499, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972); Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664 (1880). See 28 U.S.C. § 1862.

At what point a pattern of using peremptory challenges to exclude Blacks denies them a fair opportunity to participate in the jury process is not subject to any automatic determination. A federal prosecutor, functioning in a district like Connecticut, where peremptories are exercised against the eligible veniremen after challenges for cause, normally has six challenges against an eligible group of 28 (12 jurors, 10 defense challenges, and 6 government challenges). See Fed.R.Crim.P. 24(b). Thus, if his challenges were exercised without regard to race, he could be expected to strike on the average 21.4% of any one race. Since Swain indicates the prosecutor can, up to some point, use challenges on the basis of race, obviously a higher benchmark must be used in determining when racial challenges have become excessive.

In Carter, on appeal from a judgment of conviction, the Eighth Circuit found an 81% exclusion rate in trials of Black defendants not excessive; however, the Court of Appeals noted that data had been presented from only 15 trials, that in 8 (53.3%) of these, Blacks were members of the jury, and that no data were presented for cases involving non-Black defendants. Moreover, the Eighth Circuit subsequently indicated that a continuation of the rate of exclusion shown in Carter could well warrant exercise of the District Court's supervisory power. United States v. Nelson, supra. In the pending case, the Black exclusion rate in trials of Black and Hispanic defendants is 84.8%, data have been presented for 32 trials of minority defendants, in only 4 (12.5%) of these trials were Blacks members of the jury, and the defendants have presented data for White defendants, which show that the exclusion rate of Black veniremen by peremptory challenge is higher in trials of minority defendants than in trials of White defendants.

Since the issue turns primarily on the claims of Blacks to equal participation in the jury process, assessment of the statistics presented in this case must be made against the background of data concerning the percentage of Blacks summoned for jury duty pursuant to this District's plan for jury selection. This District uses voter registration lists without any supplementary source as the reservoir from which names are randomly selected for jury service. As has previously been established, the use of voter registration lists as the exclusive source of veniremen has produced a lower percentage of Black veniremen than the percent of adult Blacks in the population. See United States v. Jenkins, 496 F.2d 57 (2d Cir. 1974), discussing percentages prevailing in the New Haven jury division. While the comparison of 3.3% Black veniremen to 5.5% adult Blacks in the three counties comprising the New Haven jury division was held not to violate Constitutional or statutory standards for jury selection, ibid., the underrepresentation of Blacks in the jury wheels of this District mandates that this Court not be reluctant to place some limits on the extent to which government...