Weathersby v. Morris

• Decision Date: 24 June 1983
• Docket Number: No. 82-4070,82-4070
• Parties: Eddie Lee WEATHERSBY, Petitioner-Appellant, v. Paul L. MORRIS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1493

708 F.2d 1493

Eddie Lee WEATHERSBY, Petitioner-Appellant, v. Paul L. MORRIS, Respondent-Appellee.

No. 82-4070.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 1983.

Decided June 24, 1983.

Kristofer Jorstad, San Francisco, Cal., for respondent-appellee.

Baron L. Miller, San Francisco, Cal., for petitioner-appellant.

Appeal from the United States District Court for the Northern District of California.

Before BROWNING, DUNIWAY and ALARCON, Circuit Judges.

ALARCON, Circuit Judge:

Eddie Lee Weathersby, a California state prisoner, appeals the dismissal of his petition for a writ of habeas corpus. The primary question before us is whether the prosecutor's use of peremptory challenges to exclude black persons from the petit jury for trial related considerations violated Weathersby's rights under the fourteenth and sixth amendments. We hold that the use of peremptory challenges by the prosecutor based on permissible trial related considerations did not violate Weathersby's constitutional rights. Accordingly, we affirm the district court's judgment.

Weathersby, who is black, was one of several codefendants convicted in California state court of the murder of an inmate at the Santa Rita Rehabilitation Facility. During the jury selection 134 prospective jurors were called. Nineteen were black. The trial court excused three of the black jurors for cause. The remaining sixteen were dismissed through peremptory challenges exercised by the prosecutor. Subsequently a black man was chosen to serve as an alternate juror but he did not participate in deliberations.

During the jury voir dire counsel for Weathersby repeatedly objected to the prosecutor's exclusion of black persons from the petit jury. During trial, the prosecutor volunteered his reasons for exercising his peremptory challenges against the sixteen black persons. The prosecutor stated:

Your Honor, I just want to point out this is about the fourth or fifth time that they have made a motion for mistrial on grounds of systematic exclusion of the jury and they have indicated that some 16 Blacks have been excused by the prosecution in this case. I want to point out for the record that one, possibly two of them were represented by [a defense attorney's] law firm.... Another black potential juror indicated she knew the defendant Ray Tucker's wife. Other ones I felt gave evasive answers to pretty basic questions out there, and whether it can be perceived by others, as His Honor knows, having been a great trial attorney in the past, it takes a gut reaction as to somebody you feel is giving evasive or untruthful answers to the questions posed.

Due to those circumstances in this case, and the nature of the Black Guerrilla Family, I feel also that some black jurors would be subject to some intimidation by the group which His Honor has indicated by a pre-trial ruling that the prosecution may bring up via opening statement and evidence to be introduced at trial ... Due to all those considerations, the fact that some jurors might be subject to intimidation by the BGF, and that the BGF has parolees on the streets of Alameda County right now, and the fact that some of them are represented by [a defense attorney's] law firm and some knew defendant Ray Tucker's wife, I fail to see how they can make the allegation that I am systematically excluding blacks from this particular panel.

Weathersby appealed his conviction on the ground that the prosecutor had intentionally excluded blacks from the petit jury in violation of the sixth and fourteenth amendments and California law. The California Court of Appeal affirmed the conviction. The State Supreme Court denied Weathersby's petition for hearing and the United States Supreme Court denied a writ of certiorari.

Weathersby then sought relief through a petition for writ of habeas corpus under 28 U.S.C. Sec. 2254. In his petition, Weathersby renewed his claims that the prosecutor's use of peremptory challenges to eliminate all black persons from his petit jury violated his equal protection and sixth amendment rights. The district court concluded that the prosecutor's exercise of his peremptory challenges did not contravene Weathersby's equal protection rights under the fourteenth amendment and that his sixth amendment rights were not violated because he was not entitled to a jury of any particular composition under the sixth amendment.

Initially, we address the narrow issue whether the prosecutor's use of peremptory challenges to excuse all black persons from the petit jury, for trial related considerations, violated Weathersby's equal protection rights. ¹

In Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the petitioner alleged that his equal protection rights had been violated by the prosecutor's elimination of black persons from his jury panel through the exercise of peremptory challenges. The prosecutor in Swain did not volunteer reasons for exercising the peremptory challenges.

In evaluating petitioner's fourteenth amendment claim in this context, the Supreme Court reviewed the nature and function of the peremptory challenge system and commented:

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. State v. Thompson, 68 Ariz. 386, 206 P.2d 1037 (1949); Lewis v. United States, 146 U.S. 370, 378 [13 S.Ct. 136, 139, 36 L.Ed. 1011]. While challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable. Hayes v. Missouri, 120 U.S. 68, 70 [7 S.Ct. 350, 351, 30 L.Ed. 578]. It is often exercised upon the "sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another," Lewis, supra [146 U.S.] at 376 , upon a juror's "habits and associations," Hayes v. Missouri, supra [120 U.S.] at 70 , or upon the feeling that "the bare questioning [a juror's] indifference may sometimes provoke a resentment," Lewis, supra [146 U.S.] at 376 . 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 ... (Footnote omitted).

Id. at 220, 85 S.Ct. at 836.

In light of these considerations the Supreme Court found that it was permissible to insulate from inquiry the exclusion of black persons from a particular jury on the assumption that the prosecutor is acting on acceptable trial related considerations. Thus, the Supreme Court held that the petitioner's equal protection rights had not been infringed by the prosecutor's exclusion of blacks from the petit jury through peremptory challenges. Id. at 221, 85 S.Ct. at 836. In so holding, the Supreme Court added:

In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, we cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case. The 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.

The Supreme Court acknowledged however that this presumption protecting the prosecutor may be overcome. Id. at 223-24, 85 S.Ct. at 837-38. Where, as in Swain, the prosecutor does not volunteer his or her reason for exercising peremptory challenges, the heavy burden borne by a defendant to establish a prima facie case of constitutionally impermissible use of peremptory challenges may be met by presenting a record of systematic exclusion of a particular group over a period of time in prior prosecutions. See, e.g., Swain, 320 U.S. at 227, 85 S.Ct. at 839; Hampton v. Wyrick, 606 F.2d 834, 835 (8th Cir.1979), cert. denied, 444 U.S. 1022, 100 S.Ct. 681, 62 L.Ed.2d 654 (1980); United States v. Durham, 587 F.2d 799, 801 (5th Cir.1979).

Cases where the prosecutor at trial volunteers his or her reasons for using peremptory challenges to exclude from the petit jury an identifiable group, present a situation distinguishable from Swain. In such cases, the court does not conduct the type of inquiry barred by Swain. The prosecutor's motives have been voluntarily put on the record and the prosecutor can no longer be cloaked by the presumption of correctness. Our reading of Swain, convinces us that in such circumstances a court need not blind itself to the obvious and the court may review the prosecutor's motives to determine whether "the purposes of the peremptory challenge are being perverted," Swain, 380 U.S. at 224, 85 S.Ct. at 838, by excluding an identifiable group "from juries for reasons wholly unrelated to the outcome of the particular case on trial." Id.

The Eighth Circuit suggested this approach in United States v. Greene, 626 F.2d 75 (8th Cir.), cert. denied, 449 U.S. 876, 101 S.Ct. 220, 66 L.Ed.2d 98 (1980). There, the prosecutor peremptorily challenged six prospective jurors from the panel, five of whom were black. Consequently, no black persons served on the petit jury. The Eighth Circuit recognized that a prosecutor could not, through the use of peremptory challenges, systematically and intentionally bar black persons from serving on juries in criminal trials. Id. at 76. The prosecutor's use of peremptory challenges against all black persons on a particular jury panel without more could not, however, establish discriminatory conduct. Id. The...