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CONCUR BY: WHITE; MARSHALL; STEVENS; O'CONNOR CONCUR - Supreme court of the united states




JUSTICE WHITE, concurring.

The Court overturns the principal holding in Swain v. Alabama, 380 U.S. 202 (1965), that the Constitution does not require in any given case an inquiry into the prosecutor's reasons for using his peremptory challenges to strike blacks from the petit jury panel in the criminal trial of a black defendant and that in such a case it will be presumed that the prosecutor is acting for legitimate trial-related reasons. The Court now rules that such use of peremptory challenges in a given case may, but does not necessarily, raise an inference, which the prosecutor carries the burden of refuting,


that his strikes were based on the belief that no black citizen could be a satisfactory juror or fairly try a black defendant.

I agree that, to this extent, Swain should be overruled. I do so because Swain itself indicated that the presumption of legitimacy with respect to the striking of black venire persons could be overcome by evidence that over a period of time the prosecution had consistently excluded blacks from petit juries. * This should have warned prosecutors that using peremptories to exclude blacks on the assumption that no black


juror could fairly judge a black defendant would violate the Equal Protection Clause.

* Nor would it have been inconsistent with Swain for the trial judge to invalidate peremptory challenges of blacks if the prosecutor, in response to an objection to his strikes, stated that he struck blacks because he believed they were not qualified to serve as jurors, especially in the trial of a black defendant.

It appears, however, that the practice of peremptorily eliminating blacks from petit juries in cases with black defendants remains widespread, so much so that I agree that an opportunity to inquire should be afforded when this occurs. If the defendant objects, the judge, in whom the Court puts considerable trust, may determine that the prosecution must respond. If not persuaded otherwise, the judge may conclude that the challenges rest on the belief that blacks could not fairly try a black defendant. This, in effect, attributes to the prosecutor the view that all blacks should be eliminated from the entire venire. Hence, the Court's prior cases dealing with jury venires rather than petit juries are not without relevance in this case.


The Court emphasizes that using peremptory challenges to strike blacks does not end the inquiry; it is not unconstitutional, without more, to strike one or more blacks from the jury. The judge may not require the prosecutor to respond at all. If he does, the prosecutor, who in most cases has had a chance to voir dire the prospective jurors, will have an opportunity to give trial-related reasons for his strikes -- some


satisfactory ground other than the belief that black jurors should not be allowed to judge a black defendant.

Much litigation will be required to spell out the contours of the Court's equal protection holding today, and the significant effect it will have on the conduct of criminal trials cannot be gainsaid. But I agree with the Court that the time has come to rule as it has, and I join its opinion and judgment.

I would, however, adhere to the rule announced in DeStefano v. Woods, 392 U.S. 631 (1968), that Duncan v. Louisiana, 391 U.S. 145 (1968), which held that the States cannot deny jury trials in serious criminal cases, did not require reversal of a state conviction for failure to grant a jury trial where the trial began prior to the date of the announcement in the Duncan decision. The same result was reached in DeStefano with respect to the retroactivity of Bloom v. Illinois, 391 U.S. 194 (1968), as it was in Daniel v. Louisiana, 420 U.S. 31 (1975) (per curiam), with respect to the decision in Taylor v. Louisiana, 419 U.S. 522 (1975), holding that the systematic exclusion of women from jury panels violated the Sixth and Fourteenth Amendments.


I join JUSTICE POWELL's eloquent opinion for the Court, which takes a historic step toward eliminating the shameful practice of racial discrimination in the selection of juries. The Court's opinion cogently explains the pernicious nature of the racially discriminatory use of peremptory challenges, and the repugnancy of such discrimination to the Equal Protection Clause. The Court's opinion also ably demonstrates the inadequacy of any burden of proof for racially discriminatory use of peremptories that requires that "justice . . . sit supinely by" and be flouted in case after case before a remedy is available. 1


I nonetheless write separately to express my views. The decision today will not end the racial discrimination


that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.

1 Commonwealth v. Martin, 461 Pa. 289, 299, 336 A. 2d 290, 295 (1975) (Nix, J., dissenting), quoted in McCray v. New York, 461 U.S. 961, 965, n. 2 (1983) (MARSHALL, J., dissenting from denial of certiorari).


A little over a century ago, this Court invalidated a state statute providing that black citizens could not serve as jurors. Strauder v. West Virginia, 100 U.S. 303 (1880). State officials then turned to somewhat more subtle ways of keeping blacks off jury venires. See Swain v. Alabama, 380 U.S. 202, 231-238 (1965) (Goldberg, J., dissenting); Kuhn, Jury Discrimination: The Next Phase, 41 S. Cal. L. Rev. 235 (1968); see also J. Van Dyke, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels 155-157 (1977) (hereinafter Van Dyke). Although the means used to exclude blacks have changed, the same pernicious consequence has continued.

Misuse of the peremptory challenge to exclude black jurors has become both common and flagrant. Black defendants rarely have been able to compile statistics showing the extent of that practice, but the few cases setting out such figures are instructive. See United States v. Carter, 528 F.2d 844, 848


(CA8 1975) (in 15 criminal cases in 1974 in the Western District of Missouri involving black defendants, prosecutors peremptorily challenged 81% of black jurors), cert. denied, 425 U.S. 961 (1976); United States v. McDaniels, 379 F.Supp. 1243 (ED La. 1974) (in 53 criminal cases in 1972-1974 in the Eastern District of Louisiana involving black defendants, federal prosecutors used 68.9% of their peremptory challenges against black jurors, who made up less than one-quarter of the venire); McKinney v. Walker, 394 F.Supp. 1015, 1017-1018 (SC 1974) (in 13 criminal trials in 1970-1971 in Spartansburg County, South Carolina, involving black defendants, prosecutors peremptorily challenged 82% of black jurors), affirmance order, 529 F.2d 516 (CA4 1975). 2 Prosecutors


have explained to courts that they routinely strike black jurors, see State v. Washington, 375 So. 2d 1162, 1163-1164 (La. 1979). An instruction book used by the prosecutor's office in Dallas County, Texas, explicitly advised prosecutors that they conduct jury selection so as to eliminate "'any member of a minority group.'" 3 In 100 felony trials in Dallas County in 1983-1984, prosecutors peremptorily struck 405 out of 467 eligible black jurors; the chance of a qualified black sitting on


a jury was 1 in 10, compared to 1 in 2 for a white. 4

2 See also Harris v. Texas, 467 U.S. 1261 (1984) (MARSHALL, J., dissenting from denial of certiorari); Williams v. Illinois, 466 U.S. 981 (1984) (MARSHALL, J., dissenting from denial of certiorari).

3 Van Dyke, at 152, quoting Texas Observer, May 11, 1973, p. 9, col. 2. An earlier jury-selection treatise circulated in the same county instructed prosecutors: "Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated." Quoted in Dallas Morning News, Mar. 9, 1986, p. 29, col. 1.

4 Id., at 1, col. 1; see also Comment, A Case Study of the Peremptory Challenge: A Subtle Strike at Equal Protection and Due Process, 18 St. Louis U. L. J. 662 (1974).

The Court's discussion of the utter unconstitutionality of that practice needs no amplification. This Court explained more than a century ago that "'in the selection of jurors to pass upon [a defendant's] life, liberty, or property, there shall be no exclusion of his race, and no discrimination against them, because of their color.'" Neal v. Delaware, 103 U.S. 370, 394 (1881), quoting Virginia v. Rives, 100 U.S. 313, 323 (1880). JUSTICE REHNQUIST, dissenting, concedes that exclusion of blacks from a jury, solely because they are black, is at best based upon "crudely stereotypical and . . . in many cases hopelessly mistaken" notions. Post, at 138. Yet the Equal Protection Clause prohibits a State from taking any action based on crude, inaccurate racial stereotypes -- even an action that does not serve the State's interests. Exclusion of blacks from a jury, solely because of race, can no more be justified by a belief that blacks are less likely than whites to consider fairly or sympathetically the State's case against a black defendant than it can be justified by the notion that blacks


lack the "intelligence, experience, or moral integrity," Neal, supra, at 397, to be entrusted with that role.


I wholeheartedly concur in the Court's conclusion that use of the peremptory challenge to remove blacks from juries, on the basis of their race, violates the Equal Protection Clause. I would go further, however, in fashioning a remedy adequate to eliminate that discrimination. Merely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges in individual cases will not end the illegitimate use of the peremptory challenge.

Evidentiary analysis similar to that set out by the Court, ante, at 97-98, has been adopted as a matter of state law in States including Massachusetts and California. Cases from those jurisdictions illustrate the


limitations of the approach. First, defendants cannot attack the discriminatory use of peremptory challenges at all unless the challenges are so flagrant as to establish a prima facie case. This means, in those States, that where only one or two black jurors survive the challenges for cause, the prosecutor need have no compunction about striking them from the jury because of their race. See Commonwealth v. Robinson, 382 Mass. 189, 195, 415 N. E. 2d 805, 809-810 (1981) (no prima facie case of discrimination where defendant is black, prospective jurors include three blacks and one Puerto Rican, and prosecutor excludes one for cause and strikes the remainder peremptorily, producing all-white jury); People v. Rousseau, 129 Cal. App. 3d 526, 536-537, 179 Cal. Rptr. 892, 897-898 (1982) (no prima facie case where prosecutor peremptorily strikes only two blacks on jury panel). Prosecutors are left free to discriminate against blacks in jury selection provided


that they hold that discrimination to an "acceptable" level.

Second, when a defendant can establish a prima facie case, trial courts face the difficult burden of assessing prosecutors' motives. See King v. County of Nassau, 581 F.Supp. 493,


501-502 (EDNY 1984). Any prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill equipped to second-guess those reasons. How is the court to treat a prosecutor's statement that he struck a juror because the juror had a son about the same age as defendant, see People v. Hall, 35 Cal. 3d 161, 672 P. 2d 854 (1983), or seemed "uncommunicative," King, supra, at 498, or "never cracked a smile" and, therefore "did not possess the sensitivities necessary to realistically look at the issues and decide the facts in this case," Hall, supra, at 165, 672 P. 2d, at 856? If such easily generated explanations are sufficient to discharge the prosecutor's obligation to justify his strikes on nonracial grounds, then the protection erected by the Court today may be illusory.

Nor is outright prevarication by prosecutors the only danger here. "[It] is even possible that an attorney may lie to himself in an effort to convince himself that his motives are legal." King, supra, at 502. A prosecutor's own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is "sullen," or "distant," a characterization that would not have come to his mind if a white juror had acted identically. A judge's own conscious or unconscious racism may lead him to accept such an explanation as well supported. As JUSTICE REHNQUIST concedes, prosecutors' peremptories are based on their "seat-of-the-pants instincts" as to how particular jurors will vote. Post, at 138; see also THE CHIEF JUSTICE's dissenting opinion, post, at 123. Yet "seat-of-the-pants instincts" may often be just another term for racial prejudice. Even if all parties approach the Court's mandate with the best of conscious intentions, that mandate requires them to confront and overcome their own racism on all levels -- a challenge I doubt all of them can meet. It is worth remembering that "114 years after the close of the War Between the States and nearly 100 years after Strauder, racial and other forms of discrimination still remain a fact of life, in the administration of justice as in


our society as a whole." Rose v. Mitchell, 443 U.S. 545, 558-559 (1979), quoted in Vasquez v. Hillery, 474 U.S. 254, 264 (1986).


The inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the Court to ban them entirely from the criminal justice system. See Van Dyke, at 167-169; Imlay, Federal Jury Reformation: Saving a Democratic Institution, 6 Loyola (LA) L. Rev. 247, 269-270 (1973). Justice Goldberg, dissenting in Swain, emphasized that "[were] it necessary to make an absolute choice between


the right of a defendant to have a jury chosen in conformity with the requirements of the Fourteenth Amendment and the right to challenge peremptorily, the Constitution compels a choice of the former." 380 U.S., at 244.


I believe that this case presents just such a choice, and I would resolve that choice by eliminating peremptory challenges entirely in criminal cases.

Some authors have suggested that the courts should ban prosecutors' peremptories entirely, but should zealously guard the defendant's peremptory as "essential to the fairness of trial by jury," Lewis v. United States, 146 U.S. 370, 376 (1892), and "one of the most important of the rights secured to the accused," Pointer v. United States, 151 U.S. 396, 408 (1894). See Van Dyke, at 167; Brown, McGuire, & Winters, The Peremptory Challenge as a Manipulative Device in Criminal Trials: Traditional Use or Abuse, 14 New England L. Rev. 192 (1978). I would not find that an acceptable solution. Our criminal justice system "requires not only freedom from any bias against the accused, but also from any prejudice against his prosecution. Between him and the state the scales are to be evenly held." Hayes v. Missouri, 120 U.S. 68, 70 (1887). We can maintain that balance, not by permitting both prosecutor and defendant to engage in racial discrimination in jury selection, but by banning the use of


peremptory challenges by prosecutors and by allowing the States to eliminate the defendant's peremptories as well.

Much ink has been spilled regarding the historic importance of defendants' peremptory challenges. The approving comments of the Lewis and Pointer Courts are noted above; the Swain Court emphasized the "very old credentials" of the peremptory challenge, 380 U.S., at 212, and cited the "long and widely held belief that peremptory challenge is a necessary part of trial by jury." Id., at 219. But this Court has also repeatedly stated that the right of peremptory challenge is not of constitutional magnitude, and may be withheld altogether without impairing the constitutional guarantee of impartial jury and fair trial. Frazier v. United States, 335 U.S. 497, 505, n. 11 (1948); United States v. Wood, 299 U.S. 123, 145 (1936); Stilson v. United States, 250 U.S. 583, 586 (1919); see also Swain, 380 U.S., at 219. The potential for racial prejudice, further, inheres in the defendant's challenge as well. If the prosecutor's peremptory challenge could be eliminated only at the cost of eliminating the defendant's challenge as well, I do not think that would be too great a price to pay.

I applaud the Court's holding that the racially discriminatory use of peremptory challenges violates the Equal Protection Clause, and I join the Court's opinion. However, only by banning peremptories entirely can such discrimination be ended.

JUSTICE STEVENS, with whom JUSTICE BRENNAN joins, concurring.

In his dissenting opinion, THE CHIEF JUSTICE correctly identifies an apparent inconsistency between my criticism of the Court's action in Colorado v. Connelly, 474 U.S. 1050 (1986) (memorandum of BRENNAN, J., joined by STEVENS, J.), and New Jersey v. T. L. O., 468 U.S. 1214 (1984) (STEVENS, J., dissenting) -- cases in which the


Court directed the State to brief and argue questions not presented in its petition


for certiorari -- and our action today in finding a violation of the Equal Protection Clause despite the failure of petitioner's counsel to rely on that ground of decision. Post, at 115-116, nn. 1 and 2. In this case, however -- unlike Connelly and T. L. O. -- the party defending the judgment has explicitly rested on the issue in question as a controlling basis for affirmance. In defending the


Kentucky Supreme Court's judgment, Kentucky's Assistant Attorney General emphasized the State's position on the centrality of the equal protection issue:

". . . Mr. Chief Justice, and may it please the Court, the issue before this Court today is simply whether Swain versus Alabama should be reaffirmed. . . .

. . . .

". . . We believe that it is the Fourteenth Amendment that is the item that should be challenged, and presents perhaps an address to the problem. Swain dealt primarily with the use of peremptory challenges to strike individuals who were of a cognizable or identifiable group.

"Petitioners show no case other than the State of California's case dealing with the use of peremptories wherein the Sixth Amendment was cited as authority for resolving the problem. So, we believe that the Fourteenth Amendment is indeed the issue. That was the guts and primarily the basic concern of Swain.

. . . .

"In closing, we believe that the trial court of Kentucky and the Supreme Court of Kentucky have firmly embraced Swain, and we respectfully request that this Court affirm the opinion of the Kentucky court as well as to reaffirm Swain versus Alabama." 1

1 Tr. of Oral Arg. 27-28, 43.

In addition to the party's reliance on the equal protection argument in defense of the judgment, several amici curiae


also addressed that argument. For instance, the argument in the brief filed by the Solicitor General of the United States begins:


"A. Under Swain v. Alabama A Defendant Cannot Establish An Equal Protection Violation By Showing Only That Black Veniremen Were Subjected To Peremptory Challenge By The Prosecution In His Case" 2

2 Brief for United States as Amicus Curiae 7.

Several other amici similarly emphasized this issue. 3

3 The argument section of the brief for the National District Attorneys Association, Inc., as amicus curiae in support of respondent begins as follows:

"This Court should conclude that the prosecutorial peremptory challenges exercised in this case were proper under the fourteenth amendment equal protection clause and the sixth amendment. This Court should further determine that there is no constitutional need to change or otherwise modify this Court's decision in Swain v. Alabama." Id., at 5.

Amici supporting petitioner also emphasized the importance of the equal protection issue. See, e. g., Brief for NAACP Legal Defense and Educational Fund, American Jewish Committee, and American Jewish Congress as Amici Curiae 24-36; Brief for Lawyers' Committee for Civil Rights Under Law as Amicus Curiae 11-17; Brief for Elizabeth Holtzman as Amicus Curiae 13.



these circumstances, although I suppose it is possible that reargument might enable some of us to have a better informed view of a problem that has been percolating in the courts for several years, 4


I believe the Court acts wisely in


resolving the issue now on the basis of the arguments that have already been fully presented without any special invitation from this Court. 5

4 See McCray v. New York, 461 U.S. 961 (1983) (opinion of STEVENS, J., respecting denial of certiorari); id., at 963 (MARSHALL, J., dissenting from denial of certiorari).

The eventual federal habeas corpus disposition of McCray, of course, proved to be one of the landmark cases that made the issues in this case ripe for review. McCray v. Abrams, 750 F.2d 1113 (CA2 1984), cert. pending, No. 84-1426. See also Pet. for Cert. 5-7 (relying heavily on McCray as a reason for review). In McCray, as in almost all opinions that have considered similar challenges, the Court of Appeals for the Second Circuit explicitly addressed the equal protection issue and the viability of Swain. 750 F.2d, at 1118-1124. The pending petition for certiorari in McCray similarly raises the equal protection question that has long been central to this issue. Pet. for Cert. in No. 84-1426 (Question 2). Indeed, shortly after agreeing to hear Batson, the Court was presented with a motion to consolidate McCray and Batson, and consider the cases together. Presumably because the Court believed that Batson adequately presented the issues with which other courts had consistently grappled in considering this question, the Court denied the motion. See Abrams v. McCray, 471 U.S. 1097 (1985). Cf. ibid. (BRENNAN, MARSHALL, and STEVENS, JJ., dissenting from denial of motion to consolidate).

5 Although I disagree with his criticism of the Court in this case, I fully subscribe to THE CHIEF JUSTICE's view, expressed today, that the Court should only address issues necessary to the disposition of the case or petition. For contrasting views, see, e. g., Bender v. Williamsport Area School Dist., 475 U.S. 534, 551 (1986) (BURGER, C. J., dissenting) (addressing merits even though majority of the Court found a lack of standing); Colorado v. Nunez, 465 U.S. 324 (1984) (concurring opinion, joined by BURGER, C. J.) (expressing view on merits even though writ was dismissed as improvidently granted because state-court judgment rested on adequate and independent state grounds); Florida v. Casal, 462 U.S. 637, 639 (1983) (BURGER, C. J., concurring) (agreeing with Court that writ should be dismissed as improvidently granted because judgment rested on adequate and independent state grounds, but noting that "the citizens of the state must be aware that they have the power to amend state law to ensure rational law enforcement"). See also Colorado v. Connelly, 474 U.S. 1050 (1986) (ordering parties to address issue that neither party raised); New Jersey v. T. L. O., 468 U.S. 1214 (1984) (same).

JUSTICE O'CONNOR, concurring.

I concur in the Court's opinion and judgment, but also agree with the views of THE CHIEF JUSTICE and JUSTICE WHITE that today's decision does not apply retroactively.
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