11th Circuit (Successive Federal Habeas Petition) - Attorney's Working File - Issues - Batson

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(ND =Cleskey v. Kemp - Issues - Batson 
  

 



@® Ys Brn ven btw be) non hance To Copl Cuneo. 

  
 



  

TO: Jack 

FROM: Kaoru 

DATE: June 4, 1987 

RE: Batson/McCleskey successive petition issue 
  

This is a rough outline of the arguments which one can make 
to support the contention that McCleskey's Eighth and 
Fourteenth Amendment intentional discrimination claim 
must be heard on his second habeas petition. 

i. Under Sanders v, United States, 373 U.S. 1 (1963), 
a federal court may refuse to hear a claim which 
wag raised and determined on the merits in a previous 
petition, if "the ends of justice would not be served by 
reaching the merits of the subsequent application." 

  

a. In determining whether the "ends of 
justice" would be served by readdressing 
the merits of the same contention raised 
in the prior petition, the Eleventh Circuit 
will look at "objective factprs, such as 
whether this was a full and fair hearing 
with respect to the first petition and whether 
there has been an intervening change in. the 
law.” Smith v, Kemp, 715 F.2d 1459, 1468 
(11th Cir. 1983), citing Sanders and 
Potts v, Zant, 638 7.24 at 739, 

  

  

Cfv In ve Shriner, 735. F.2d 1236, (11th 
Cir. 1984) (Habeas petition may be denied when 
a claim not "new or different", i.e., when 
petitioner raises essentially same legal arguments 
that he put forth in his intitial petition but 
merely alleges or presents new or different factual 
support for those claims). 

  

  

2, The U.S. Supreme Court sought to claify the "ends of 
justice" standard in Kuhlmann v. Wilson, 106 S.Ct. 2616 
(1986). Justice Powell, joined by three other justices, 
ruled that "the 'ends of justice' require federal courts to 
entertain (successive) petitions only where the prisoner 
supplements his constitutional claim with a colorable showing 
of factual innocence.” 106 5.Ct. at 2627. In so'"doing, 
Justice Powell supported Judge Friendly's argument that 
the petitioner must "show a fair probability that; in light 
of all the evidence, including that alleged to have been 
illegally admitted (but with due regard to any unreliability 
of it) and evidence tenably claimed to have been wrongly 
excluded or to have become available only after the trial, 
the trier of facts would have en ain a reasonab 
doult of his guilt.” Friendly, 1s Innocence Irrelevant? 

  

 



Re 

  

Collateral Attack on Criminal Judgments, 38 U.Chi . L.Rev, 
142 (1970). 

3. The applicability of Justice Powell's determination is 
unclear. He is joined by only three other justices (Burger, 
Rehnquist and O'Connor), and three justices (Brennan, 
Marshall and Stevens) explicitly dissented. Justices White 
and Blackmun did not join Powell's opinion as to the 
successive petition issue, but they joined him (with Burger, 
Rehnquist and O'Connor) on the second part of the Powell 
opinion which deals with the merits of the case. 

8. The Pifth Circuit, in a footnote to 
McDonald v, Blackburn, 806 F.24 613, 622 n,9 

(!15th Cir . 1986), adheres to the Powell 
determination ("We have, in effect, a four-t6- 
three division, and we are inclined to follow 
the four.") 

  

b. Another argument would be that Justices 
White and Blackmun implicitly affirmed the 
lower court decision to hear the case on the 
merits by expressing an opinion as to the 
merits of the case only. The lower court 
case is Wilson v. Henderson, 742 F.2d 741 
(2nd Cir. 1984) (Notwithstanding that in his earlier 
petition petitioner advanced substantially the 
same ground for relief that he now advanced, 
the "ends of justice" required a consideration 
of merits of petitioner's present application), 

  

4, Even if McCleskey 's petition were to be determined 
according to the Powell standard, i.e. whether there is 
a colorable claim of innocence, one can argue that this 
colorable claim in fact exists, see Giglio and Ake issues, 

  

5. Alternatively, one may argue that the interpretation 
of "ends of justice" is still unclear, since the Supreme 
Court seems to be in disagreement. 

a. One can then go back to the Smith 
standard: look at objective factors; 
such as whether there has been an intervening 
change in the law. 

  

6. The "objective factors" can by presented in this way. 

a. The Supreme Court's decision requiring 

a showing of intentional discrimination in 
capital cases for Eigth and Fourteenth Amendment 
claims alleging discrimination was a 
significant departure from the existing body 
of law (cf, employment discrimination cases, etc.) 

 



  

oy 

b. Indeed, as Justice Brennan explained in 
Reed Vv. Ross, 468 U.S. 1, 17 (1983), the 
Court in McCleskey handed down a "new" 
constitutional rule, representing "a clear break 
with the past." citing United States v,. Johnson, 
457 U.S. 537 (1982). The McCleskey decision > 
can be said to have overturned "a longstanding 
and widespread practice to which this Court has 
not spoken, but which a near-unanimous body of 
lower court authority has expressly 

approved.” ' 1d, 

  

  

  

  

c. Thus, McCleskey could not reasonably 

anticipate that the Batson-type evidence 
must be used to support his Eighthand Fourteenth 
Amendment claim. 

i) Here, you might wish to support this 
argument with affidavits from yourself and 
other attorneys working on capital cases 
raising the discrimination issue stating 
that evidence which was not useful under 
Swain was not regarded as being useful to 
the discrimination question. While the 
"legal tools" for supporting the discrimination 
issue with the Batson evidence was theoretically 
available at the time of McCleskey's first 
petition, 

1. McCleskey won in District Court on 
the Giglio claim, Thus, he saw noineed 
to file a successive petition at that time 
presenting the Batson evidence, even when 
the District Court (and subsequently the 
Eleventh Circuit) ruled that intentional 
discrimination must be shown to prevail 
on the discrimination issue.,; 

2. Even if McCleskey had lost in District 
Court, the "legal tools" were never regarded 
by attorneys litigating capital cases to 
be useful to support the discrimination 
claim. See Adams v., Wainwright, 804 F.2d 
1526, 1530 (11th Cir. 1985), amended by 
Adams v, Dugger, No, 86-3207 (1987) (when 
the "tools to construct (a) constitutional claim" 
are available, then the claim is not sufficiently 
novel to constitute cause for failure to comply 
with state procedural rules because " (w)here 
the basis of a constitutional claim is available, 
and other defense counsel have perceived and 
litigated that claim, the demands of comity 
and finality counsel against labeling alleged 
unawareness of the objection as cause for 
a procedural default." citing Engle, 456 U.S. at 

133-34), 

  

  

 



  

-le 

ii) McCleskey's case is therefore distinguishable 
from Smith, in which the "new evidence" which 
petitioner sought to use in his second petition 
was found to be merely a modified and expanded 
version of the evidence previously submitted. 

d. McCleskey was not "inexcusably neglectful" 
in failing to present the Batson evidence 
in his first round of habeas. See “Witt wv. 
Wainwright, 755 F.2d 1396 (11th Cir. 1985); 
Adams v, Remp, 758 F.24 514 (11th Cir. 1985); 

  

  

  

Dugger. 

 



  
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hg EL AE 

  

  

  

No. 

IN THE 

SUPREME COURT OF UNITED STATES 

  

October Term, 1986 

  

  

FRANK DEAN TEAGUE, 

Petitioner, 

Vv. 

MICHAEL LANE, Director, Department of Corrections, 
and MICHAEL O'LEARY, Warden, Stateville Correctional 
Center, 

Respondents. 

  

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT 

*COUNSEL OF RECORD 

  

STEVEN CLARK 
Deputy Defender 

*PATRICIA UNSINN 
Assistant Appellate Defender 
Office of the State Appellate Defender 
State of Illinois Center 
100 West Randolph St., Suite 5-500 
Chicago, Illinois 60601 
(312) 917-5472 

COUNSEL FOR PETITIONER 

  

  

 



    

QUESTIONS PRESENTED FOR REVIEW 
  

Whether the Sixth Amendment fair cross-section requirement 

prohibits the prosecution's racially discriminatory use of the 

peremptory challenge. 

Whether Batson should be applied retroactively to all 

convictions not final at the time certiorari was denied in McCray 

v. New York in order to correct the inequity and confusion 
  

resulting from the intentional postponement of the re-examination 

of Swain. 

Whether a defendant overcomes the presumption of correctness 

of the prosecution's proper use of its peremptory challenges, as 

recognized by Swain v. Alabama, where examination of the 
  

prosecutor's volunteered reasons for its exercise of its chal- 

lenges to exclude black jurors demonstrates that the prosecution 

has engaged in racial discrimination. 

 



  
PRR, EY 

  

TABLE OF CONTENTS 
  

Questions Present for Review, .:... viv. vasisvinreavnisincassvsns i 

Table Of Contents, i.e ions sir viriniinsvosnastntoelisees tion ii 

Table of AULHOTILIeS i aire criti rns snd an esos sasWaessionens iii 

85+ to oxtail oe Fy EERE a ES BE MRE Re ae a RS ON l 

OPA nIIOn Bel OW. tosis unr rmin ssa ss snsseiosesnsnnindesoisnses 1 

Statement of JUrisdi orion. sees co sii nics stern sso cnn vers 1 

Constitutional Provisions Involved. ... ceiver vnrenerinns 2 

Statement of ‘the Case... . cis i cssrrroninarmesossorions sees 2 

Reasons: for Allowance of Writ... .. i vesevrcmsnsnsssanssis S 

WHETHER THE SIXTH AMENDMENT FAIR CROSS-SECTION 
REQUIREMENT EXTENDS TO THE PETIT JURY SO AS TO BAR 
THE RACIALLY DISCRIMINATORY USE OF THE PEREMPTORY 
CHALLENGE IS A RECURRING QUESTION ON WHICH THIS 
COURT EXPRESSED NO VIEW IN BATSON, BUT WHICH 
REMAINS CONTROVERSIAL, RESULTING IN CONFLICTING 
DECISIONS FROM BOTH STATE AND FEDERAL COURTS, THUS 
MERITING THIS COURT'S REVIEW. ..suitsrvivscntmsvensncess 6 

BATSON SHOULD BE APPLIED RETROACTIVELY TO ALL 
CONVICTIONS NOT FINAL AT THE TIME CERTIORARI WAS 
DENIED IN McCRAY v. NEW YORK IN ORDER TO CORRECT 
THE INEQUITY AND CONFUSION WHICH RESULTED WHEN 
THIS COURT, WHILE SIGNALING THAT SWAIN WAS NO 
LONGER DISPOSITIVE, INTENTIONALLY DELAYED A 
DECISION ON THE ISSUE RESOLVED BY BATSON.........v..i0 8 

THE DIRECT CONFLICT BETWEEN THE DECISIONS OF THE 
EIGHT AND NINTH CIRCUIT COURTS OF APPEALS AND THE 
SEVENTH CIRCUIT COURT OF APPEALS, REGARDING WHETHER 
AN EQUAL PROTECTION VIOLATION MAY BE PROVEN PURSUANT 
TO SWAIN v. ALABAMA, OTHER THAN BY PROOF OF A 
SYSTEMATIC EXCLUSION OF BLACK JURORS BY PEREMPTORY 
CHALLENGE IN CASE AFTER CASE, A QUESTION LEFT OPEN BY 
SWAIN, SHOULD BE RESOLVED BY THIS COURT......censvsones 1) 

CONIC LU ON, is sei sve sivas ss ve Sie ainiss viene no aiaieinie sininie sin siusin vin tine 13 

Appendix A 
Unpublished and vacated panel decision of the Seventh 

Circuit Court of Appeals reversing district court 

Appendix B 
Order of Seventh Circuit Court of Appeals directing 

rehearing en banc, reported at 779 F.2d 1332 (1985) 

Appendix C 
Opinion of the en banc United States Court of Appeals 

for the Seventh Circuit, reported at 820 F.2d 832 (1987) 

Appendix D 
Unpublished order of the United States District Court for 

the Northern District of Illinois denying habeas corpus relief 
to Petitioner, dated August 8, 1984. 

ii 

 



  

TABLE OF AUTHORITIES   

  

  

  

CASES PAGES 
Allen v, Hardy, 106 S.Ct. 2878 (19868)... ....... 0... 7 

Apodaca Vv, Oregon, 406 U.S. 404 (1972)... .0.vevis 7 

Ballew v., Georgia, 435 U.S. 223 (1978)... .... 7... 05. 7 

Batson V, Yentucky, 106 S.Cr. 1712.(1986),...ivct. passim 
  

Booker v, Jabe, 775 F.2d 762 (6th Cir. 1985), vacated, 
106 5.Ct. 3289, aff'd on reconsideration, 801 F.2d 
  

  

  

  

  

  

  

  

  

  

  

  

  

871 (1380), cert. denied, 106 S.Ct. 3289....... 6, 7 

Desist v. United Stares, 394 U.S, 244 (1969), ....... 8 

Fields v. Pesople, 732 P.2d 1145 (Colo. 1987Y........ 7 

Garrett Vv. Morris, 815 F.2d 509 (8th Cir. 1987)..... 12 

Granberry v. Creey, 95 L.Fd.2d 118 (1987)... .. cesses. 13 

Griffizh v, Kentucky, 107:S.Cr. 708 (19872).......5.... 8, 9 

Lockhart v, McCree, 106-S.Ct. 1758 (1988).........+. 7 

Mackey v. Unired States, 401 U.S. 667 (1971)........ 8, 9, 10 

McCray v. Abrams, 750 F.2d4 1113 (2nd Cir. 1984)..... 7 

McCray v, Naw York, 461 .U.5. 961 (1983)... c.ctvnninns 9 

Roman v. Abrams, 41 CrL 2245 (2nd Cir. 6/9/87)..... 8,7 
Taylor v, Louisiana, 419 U.S. S22 (1975). cee tn ivs 7 

Solem v, Stumes, 465 U.S, 638 (1984)... cc overvrvnsss 10 

Swain Vv, Alabama, 380 U.S. 202 C1965)... ..ccncnsvers 9, 11, 12 
  

Ulster County Court v. Allen, 442 U.S. 140 (1979)... 13 
  

  

  

United States v. Johmson, 457 U.S. 337 (1982)....... 10 

United States ex rel. Yates v. Hardiman, 656 F.Supp. 
000 (ND, LLL Ee ces cons mrss rss sds vue nina 6,7 

Wainwrizhr v. Sykas, 433 U.S. 72 (1977) ..ceciviveivnnn 13 
  

Weathersby v. Morris, 708 F.2d 1493 (9th Cir. 1983).. ‘12 
  

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No. 

IN THE 

SUPREME COURT OF UNITED STATES 

October Term, 1986 

  

FRANK DEAN TEAGUE, 

Petitioner, 

Vv, 

MICHAEL LANE, Director, Department of Corrections, 
and MICHAEL O'LEARY, Warden, Stateville Correctional 
Center, 

Respondents. 

  

INTRODUCTION   

TO THE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURT 

OF THE UNITED STATES: 

May it Please the Court: 

Petitioner, Frank Dean Teague, respectfully prays that this 

Court issue a writ of certiorari to review the en banc decision 

of the United States Court of Appeals for the Seventh Circuit. 

OPINIONS BELOW 
  

The original panel opinion reversed the district court's 

denial of habeas corpus relief. That panel decision is unreport- 

ed but is attached to this Petition as Appendix A. The panel 

opinion was vacated and the cause was set for rehearing en banc 

pursuant to Circuit Court Rule 16(e). That order is reported at 

779 F.2d 1332 (7th Cir. 1985) and is attached as Appendix B. On 

May 11, 1987, the en banc Court of Appeals affirmed the decision 

of the district court denying habeas corpus relief, Cudahy and 

Cummings, JJ., dissenting. That opinion is reported at 820 F.2d 

832 (7th Cir. 1987) and is attached as Appendix C. The district 

court order granting summary judgment in favor of Respondents is 

unreported and attached as Appendix D. 

STATEMENT OF JURISDICTION 
  

The jurisdiction of this Court is invoked pursuant to 28 

-1s 

 



    

U.S.C. 1254(1), This Petition:is-being filed within 90 days of 

the decision of the Court of Appeals, which issued on May 11, 

1987. 

CONSTITUTIONAL PROVISIONS INVOLVED 
  

AMENDMENT VI 

In all criminal prosecutions, the accused shall enjoy the 

right to a speedy and public trial, by an impartial jury of the 

State and district wherein the crime shall have been committed, 

which district shall have been previously ascertained by law, and 

to be informed of the nature and cause of the accusation; to be 

confronted with the witnesses against him; to have compulsory 

process for obtaining witnesses in his favor, and to have the 

assistance of counsel for his defense. 

AMENDMENT XIV 

Section 1. All persons born or naturalized in the United 

States, and subject to the jurisdiction thereof, are citizens of 

the United States and: of the State wherein they reside. No State 

shall make or enforce any law which shall abridge the privileges 

or immunities of citizens of the United States; nor shall any 

State deprive any person of life, liberty, or property without 

due process of law; nor deny to any person within its 

jurisdiction the equal protection of laws. 

STATEMENT OF THE CASE 
  

Frank Teague, a black man, was convicted of the offense of 

armed robbery of an A & P supermarket and attempt murder of 

police officers who were shot at following the robbery. His 

defense was insanity which he contended was caused in part by his 

wrongful incarceration in a federal penitentiary for almost eight 

years. The jurors who were selected and sworn to decide the 

issue of his guilt or innocence were white, the prosecution 

having elected to exercise all ten of the peremptory challenges 

afforded it by statute, Ill.Rev.Stat., Ch. 38, Sec. 115-4(e), to 

excuse prospective jurors who were black. Defense counsel also 

excused a prospective black juror because she was married to a 

233 

 



    

police officer and his client was charged with attempt murder of 

police officers. (R. 97) 

When objection was made during jury selection to the prose- 

cution's use of its peremptory challenges to exclude blacks from 

the jury, the prosecutor represented that he was attempting to 

achieve a balance of men and women and age groups, noting also 

defense counsel's use of a single peremptory to excuse a prospec- 

tive black juror and that the prosecution had also excused a 

white juror who was a prospective alternate. (R. 97, 98, 177, 

178) The trial judge made no finding with respect to the validi- 

ty of the State's reasons for exercise of its challenges, but the 

record refutes the contention that blacks were eliminated from 

the jury in an effort to achieve sexual and age balance. See 

Appendix A, panel opinion, pp. 24-27. 

Although not disputing that the prosecution had utilized its 

peremptory challenges solely for the purpose of excluding a 

racial group from the jury, the Illinois Appellate Court conclud- 

ed that Teague was not entitled to any relief from his conviction 

because he had made no showing of systematic exclusion of the 

group as required by Swain v. Alabama, 380 U.S. 202 (1965). The 
  

Court declined to follow People v. Wheeler, 22 Cal. 3d 258, 584 
  

P.2d 748 (1978) on the basis that the remedy it proposed was 

vague and uncertain and would alter the nature of the peremptory 

challenge. The Court concluded that abolition of the peremptory 

challenge by the legislature would be the appropriate means to 

end the prosecution's practice of using its challenges to exclude 

a racial group. People v. Teague, 108 Ill.App.3d 891, 439 N.E.2d 
  

1066 (lst Dist. 1982) (Campbell, J. dissenting). The Illinois 

Appellate Court denied a Petition for Rehearing and the Illinois 

Supreme Court denied leave to appeal. People v. Teague, 449 
  

N.E.2d 820 (Ill. 1983) (Simon,J. dissenting). This Court denied a 

Petition for Writ of Certiorari. Teague v. Illinois, 464 U.S. 
  

867 (1983) (Marshall and Brennan, JJ., dissenting). 

On March 5, 1984, Petitioner filed a Petition for Writ of 

Habeas Corpus in the United States District Court for the North- 

ern District of Illinois, complaining that his Sixth and Four- 

teenth Amendment rights were violated when the prosecution 

-3= 

 



  
  

utilized its peremptory challenges to exclude black jurors. In 

his Brief submitted in support of the Petition, Teague asked the 

district court to accept the invitation of this Court in McCray 

v. New York, 461 U.S. 961 (1983) to re-examine the issue of 
  

whether the Constitution prohibits the use of peremptory chal- 

lenges to exclude a racial group from the jury and to conclude 

that an accused is denied his right to a jury drawn from a fair 

cross section of the community when the prosecutor employs 

peremptory challenges to exclude jurors on the basis of race. 

(Petitioner's Brief, p. 16) Petitioner also cited in support of 

his argument McCray v. Abrams, 576 F.Supp. 1244 (E.D.N.Y.1983), 
  

which held that the Equal Protection Clause, either alone or in 

in conjunction with the Sixth Amendment, prohibits the racially 

discriminatory use of the peremptory challenge. (Petitioner's 

Brief. p. 15) Respondents moved for summary judgment, contending 

Swain v. Alabama, 380 U.S. 202 (1965) controlled. (Memorandum in 
  

Support of Respondents' Motion for Summary Judgment) Petitioner 

cross-moved for summary judgment and cited in support thereof 

Weathersby v. Morris, 708 F.2d 1493 (9th Cir. 1983), wherein the 
  

Court held that if a prosecutor volunteers explanations for his 

challenges, those explanations may be reviewed to determine 

whether there has been a perversion of the peremptory challenge 

contrary to Swain. (Memorandum In Support of Cross-Motion, p. 6) 

The district court on August 8, 1984 granted summary judgment in 

favor of Respondents, concluding that although it found Petition- 

er's arguments persuasive and might be inclined to adopt his 

reasoning if the court were writing on a clean slate, the issue 

was foreclosed by Swain and Seventh Circuit decisions declining 

to depart from Swain. (Order p. 2) 

In the Court of Appeals, Petitioner again urged that Swain 

be re-examined and a procedure such as that outlined by the 

Courts in McCray v. Abrams or Weathersby v. Morris be adopted 
  

whereby an accused could complain of the prosecutor's racially 

discriminatory use of peremptory challenges in a single case. 

(Appellant's Brief, pp. 15, 25) A divided panel concluded that 

the Sixth Amendment does bar the racially discriminatory use of 

peremptory challenges so as to deprive an accused of the fair 

of 

 



  
  

possibility of obtaining a representative jury, but that opinion 

was vacated and the case set for rehearing en banc pursuant to 

Circuit Rule 16(e). U.S. ex rel. Teague v, Lane, 779 F.2d 1332 
  

{7th Cir.19835). 

Following the decision of this Court in Batson v. Kentucky, 
  

106 S.Ct. 1712 (1986), the parties were directed by the Court of 

Appeals to file additional memoranda discussing the impact of 

Batson on this case. Petitioner argued that his Sixth Amendment 

claim remined viable (Memorandum of Appellant, pp. 3-7) and that 

even if it would be determined that Batson would not be given 

full retroactive effect, Batson should apply to all cases, 

including Petitioner's, not yet final at the time certiorari was 

denied in McCray v. New York, 461 U.S. 961 (1983). (Memorandum of 
  

Appellant, pp. 14-18) In response to Respondents' argument, made 

for the first time in its post-Batson memorandum, that Petitioner 

had waived any equal protection claim by a procedural default in 

the state court (Memorandum of Respondents, pp. 2-6), Petitioner 

argued there had been. no procedural default, whether or not the 

equal protection claim had been raised in state court, because 

that claim had been rejected on its merits by the state court, 

which had denied Petitioner relief on the grounds that Swain 

controlled. Petitioner cited Ulster County Court v, Allen, 442 
  

  

U.S. 140 (1979), United States ex rel. Ross v. Franzen, 688 F.2d 

118] (7th Cir. 1982) and Thomas v. Blackburn, 623 F.2d 383 (5th 
  

Cir. 1980) as support for this argument. (Responsive Memorandum, 

pp. 3-4) Following en banc reargument, the Court of Appeals de- 

termined that Allen v. Hardy, 106 S.Ct. 2878 (1986) foreclosed 
  

retroactive application of Batson to Petitioner, Teague v. Lane, 
  

820 F.2d 832, 834 and n.4 (1987), that Petitioner had not made a 

showing of an equal protection violation pursuant to Swain, even 

assuming that claim was not procedurally barred by Wainwright v. 
  

Sykes, 433 U.S. 72 (1977), 829 F.2d at 834 n.6, and that the 

Sixth Amendment fair cross-section requirement was inapplicable 

to the petit. jury. 

REASONS FOR ALLOWANCE OF WRIT 
  

WHETHER THE SIXTH AMENDMENT FAIR CROSS-SECTION REQUIREMENT 

 



    

EXTENDS TO THE PETIT JURY SO AS TO BAR THE RACIALLY DIS- 

CRIMINATORY USE OF THE PEREMPTORY CHALLENGE IS A RECURRING 

QUESTION ON WHICH THIS COURT EXPRESSED NO VIEW IN BATSON 

BUT WHICH REMAINS CONTROVERSIAL, RESULTING IN CONFLICTING 

DECISIONS FROM BOTH STATE AND FEDERAL COURTS, THUS MERITING 

THIS COURT'S REVIEW. 

Petitioner was tried by an all white jury as a consequence 

of the prosecution's use of all ten of its peremptory challenges 

to exclude black jurors. Petitioner contends the prosecution's 

racially discriminatory use of its challenges violated his Sixth 

Amendment right to be tried by a jury drawn from a fair cross 

section of the community. Petitioner does not complain that the 

.jury that was chosen in his case did not mirror the community or 

insist that he is entitled to a jury of any particular composi- 

tion, but contends that the fair cross-section requirement 

prohibits the prosecution's use of peremptory challenges in a 

racially discriminatory manner to unreasonably restrict the 

possibility the jury is comprised of a fair cross section of the 

community. This issue was expressly left undecided by this Court 

in Barson v. Kentucky, 106 S.Ct. 1712, 1716 n.4 (1986), and 
  

considerable conflict exists among the circuit courts of appeals 

and other courts regarding whether the prosecution's racially 

discriminatory use of the peremptory challenge violates the Sixth 

Amendment. Therefore, it is appropriate that this Court grant 

certiorari. 

Both the Second and Sixth Circuit Courts of Appeals have 

adopted the view that the Sixth Amendment fair cross-section 

requirement extends to the petit jury so as to bar the prose- 

cution's use of the peremptory challenge on the basis of race. 

Roman v. Abrams, 41 CrL 2245 (2nd Cir. 6/9/87); Booker v. Jabe, 
    

775 P.2d 762 (6th Cir. 1985), vacated, 106 S.Ct. 3289, aff'd on 

reconsideration, 801 F.2d 871 (1986), cert. denied, 107 S.Ct. 

910. The split among the circuit courts of appeals and various 

state courts on this issue was noted in United States ex rel. 

Yates v, Hardiman, 656 F.Supp. 1006, 1012 (N.D.Ill1, 1987), which 

  

  

court concluded that the fair cross-section requirement is 

violated where jurors are peremptorily challenged by the 

Ge 

 



  
  

  

prosecution because they are the same race as the defendant. See 

also Fields v. People, 732 P.2d 1145 (Colo. 1987) (claim of 
  

racially discriminary use of peremptory challenges subject to 

Sixth Amendment analysis). 

The Seventh Circuit Court of Appeals rejected Petitioner's 

argument on the grounds that the fair cross-section requirement 

has no applicability to the petit jury, only to the venire from 

which the petit jury is drawn. Teague, 820 F.2d at 839. While 

Lockhart v. McCree, 106 S.Ct. 1758 (1986) has been interpreted as 
  

supporting that position, the question was left unresolved in 

Lockhart since this Court determined Witherspoon-excludables were 

not a distinctive group in the community for Sixth Amendment 

purposes. 106 S.Ct. at 1765. That this Court vacated and 

remanded McCray v. Abrams, 750 F.2d 1113 (2nd Cir. 1984) and 
  

Booker v. Jabe, 775 F.2d 762 (1985) in light of Allen v. Hardy, 
  

  

106 S.Ct. 2878 (1986) and Batson v. Kentucky, 106 S.Ct 1712 
  

(1986), and not in light of Lockhart, has also been held 

indicative of an absence of intent that Lockhart settles the 

Sixth Amendment issue. Yates, 656 F.Supp. at 1015. 

Prior decisions of this Court provide a basis to conclude 

that the fair cross-section requirement extends beyond the jury 

venire. In Apodaca v. Oregon, 406 U.S. 404, 413 (1972)5 this 
  

Court expressed the view that the fair cross-section requirement 

forbids "systematic exclusion of identifiable segments of the 

community from jury panels and from the juries ultimately drawn 
  

from those panels." (Emphasis added) Louisiana's special ex- 
  

emption for women was held to violate the Sixth and Fourteenth 

Amendments in Taylor v. Louisiana, 419 U.S. 522, 538 (1975) not 
  

merely because women were thereby excluded from the jury pool but 

because it "operate(d] to exclude them from petit juries." Trial 

by jury of less than six person was held to violate the Sixth 

Amendment in Ballew v. Georgia, 435 U.S. 223, 237 (1978) because 
  

it deceases the opportunity for meaningful and appropriate 

representation of a cross section of the community on the petit 

jury, not on the panel or venire from which the jury is drawn. 

Permitting the prosecution to exercise its peremptory 

challenges to excuse perspective jurors on the basis of race 

AE) BERS 13 SR URE Say ror é PIE TIRE, ST I. Ma LR Pare SORT 23 dd sea. “ * Lh od cya Cal gh 8} rss or tye HAE Sa) . CHG CE ‘of My RATES > 
/ . ELIE RRS es 187 rae: 2 A 3 : <a :   



  
a“ *s, wiz? din 

ho LER HR 8 A TL Te LE dN ah 
2 . < o . : 

alone similarly violates the fair cross-section requirement 

because it presents no less an obstacle to the possibility of 

minority representation on the jury. Selection of a jury drawn 

from a fair cross section of the community is not an end in 

itself, but contemplates the possibility that the petit jury will 

be similarly comprised. The fair cross-section requirement would 

be illusory if no restriction existed on the ability of the 

prosecution to interpose an obstacle to minority representation 

on the petit jury so long as minorities were not excluded from 

the venire. 

The controversy over the continued vitality of the Sixth 

Amendment analysis to the peremptory challenge issue persists. A 

direct conflict exists among the circuit courts of appeals 

regarding whether the fair cross-section requirement can have any 

applicability to the petit jury. This Court declined to adopt 

any view on this issue in Batson but the continued divergence of 

opinions demands that this Court grant certiorari to finally 

resolve the dispute. . 

BATSON SHOULD BE APPLIED RETOACTIVELY TO ALL CONVICTIONS 

NOT FINAL AT THE TIME CERTIORARI WAS DENIED IN McCRAY 

v. NEW YORK IN ORDER TO CORRECT THE INEQUITY AND 
  

CONFUSION WHICH RESULTED WHEN THIS COURT, WHILE SIGNALING 

THAT SWAIN WAS NO LONGER DISPOSITIVE, INTENTIONALLY DELAYED 

A DECISION ON THE ISSUE RESOLVED BY BATSON. 

In Griffith v. Kentucky, 107 S.Cr. 708 (1987), this Court 
  

extended the benefits of Batson v. Kentucky, 106 S.Ct. 1712 
  

(1986) to all cases pending on direct review or not yet final at 

the time the decision in Batson was reached. In a concurring 

opinion, Justice Powell expressed his agreement with the views of 

Justice Harlan respecting rules of retroactivity as stated in 

Mackey v. United States, 401 U.S. 667, 675 (1971) (Harlan, J. 
  

  

concurring and dissenting) and Desist v. United States, 394 U.S. 
  

244, 256 (1969) (Harlan, J. dissenting), and his hope that, when 

squarely presented with the question, the Harlan view that habeas 

petitions should generally be judged according to the constitu- 

tional standards existing at the time of the conviction, would be 

   



  
  

adopted by the Court. Griffich, 107 S.Ct. at 716 (Powell, J., 

concurring). Petitioner submits that this case squarely 

presentes the issue of the retroactivity of decisions to habeas 

petitions and asks that a rule of retroactivity be adopted to 

extend the benefits of Batson to those habeas corpus petitioners, 

including Petitioner herein, whose cases were not yet final at 

the time this Court denied certiorari in McCray v. New York, 461 

U.S. 961 (1983), 

  

In Harlan's view, generally, the law prevailing at the time 

a conviction became final is to be applied in adjudicating habeas 

petitions. The justification for extending the scope of habeas 

to all alleged constitutional errors being to force trial and 

“appellate courts in the federal and state system to toe the 

constitutional mark, it is unnecessary to apply new constitution- 

al rules on habeas to serve that interest. Mackey, 401 U.S. at 

688. 

At the time Petitioner's conviction became final,?! the state 

of the law respecting a prosecutor's discriminatory use of 

peremptory challenges was uncertain. When certiorari was denied 

in McCray v. New York, 461 U.S. 961 (1983), Justices Brennan and 
  

Marshall dissented, while Justices Stevens, Powell and Blackman 

joined in an opinion stating they recognized the importance of 

the issue presented, but believed further consideration of the 

problem by other courts would enable the Court to address the 

problem more wisely at a later date and asked that the various 

states serve as laboratories in which the issue would receive 

further study before it was finally addressed. This concurrence, 

coupled with the dissent, signaled that the state courts were no 

longer bound by Swain v. Alabama, 380 U.S. 202 (1965). At the 
  

same time the Court inteutionally delayed resolution of the issue 

on the assumption that lower courts would accept the Court's 

invitation to re-examine the issue on its merits, an assumption 

which proved to be untrue in Illinois which continued to hold the 

issue foreclosed by Swain. 

  

certiorari was denied in McCray on May 31, 1983. Petitioner's 
SonViceion became final when certiorari was denied on October 3, 
1983. 

 



  
  

  

Just as Justice Harlan found it indefensible for the Court 

to "[fish] one case from the stream of appellate review, [use] it 

as a vehicle for pronouncing new constitutional standards, and 

then [permit] a stream of similar cases to flow by unaffected by 

that new rule,” Mackey, 401 U.S. at 679 (Harlan, J., dissenting), 

it is indefensible to fish one case from the stream of appellate 

review, signal that a change is forthcoming, yet leave it entire- 

ly to the discretion of lower courts whether to follow precedent 

that was at that point questioned or discredited, though not 

expressly overruled. In intentionally delaying a decision, this 

Court increased the possibility that different constitutional 

protection would be meted out to defendants simultaneously 

subjected to identical constitutional deprivation, which is 

inconsistent with the goal of treating similarly situated defen- 

dants similarly. United States v. Johnson, 457 U.S. 537, 556 
  

(1982). Moreover, since the opinion of Justice Stevens 

respecting the denial of certiorari in McCray made it difficult 

if not impossible for. lower courts to discern what was the 

prevailing state of the law since they were cast in the role of 

laboratories where the law was open to experimentation, lower 

courts were unable to determine after McCray if they were '"toeing 

the constitutional mark." Solem v.Stumes, 465 U.S. 638, 653 
  

(1983). The failure of this Court to provide firm guidance to 

the lower courts from the time of denial of certiorari in McCray 

until Batson compels the conclusion that if Batson is to be given 

limited retroactive effect, it should be measured from the date 

of denial of certiorari in McCray and be held applicable to all 

cases then pending on direct review.’ The inequity and confusion 

which resulted from the Supreme Court's intentional postponement 

of resolution of the issue of the vitality of Swain can only be 

corrected by extension of the benfits of Batson to all those thus 

affected. 

  

2 This holding would be consistent with this Court's 
resolution of Allen v. Hardy, 106 S.Ct. 2878 (1986) inasmuch as 
  

Allen's conviction was final when certiorari was denied in 

-102 
McCray. 

05 LAR Bo Bl No BE SA 3 ANE. § i LTR 

    

  



  
wr EER RA terra AAP EIT ET TN 
PS Iw, UL A . 
  

THE DIRECT CONFLICT BETWEEN THE DECISIONS OF THE EIGHTH 

AND NINTH CIRCUIT COURTS OF APPEALS AND THE SEVENTH CIRCUIT 

COURT OF APPEALS REGARDING WHETHER AN EQUAL PROTECTION 

VIOLATION MAY BE PROVEN PURSUANT TO SWAIN v. ALABAMA 
  

OTHER THAN BY PROOF OF A SYSTEMATIC EXCLUSION OF BLACK 

JURORS BY PEREMPTORY CHALLENGE IN CASE AFTER CASE, A 

QUESTION LEFT OPEN BY SWAIN, SHOULD BE RESOLVED BY 

THIS COURT. 

Even should this Court decline to hold Batson v. Kentucky, 
  

106 S.Ct. 1712 (1986) has any retrospective application to his 

case, Petitioner contends that he is entitled to relief from his 

conviction because the record establishes an equal protection 

violation pursuant to Swain v. Alabama, 380 U.S. 202 (1965). In 
  

Swain, this Court reaffirmed that 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 

Proctection Clause." 380 U.S. at 204. However, after reviewing 

the purpose and function of the peremptory challenge system, it 

concluded that a presumption must exist in any particular case 

that the prosecution is using its challenges to obtain a fair and 

impartial jury to try the case before the court, and that this 

presumption would not be overcome by allegations that all the 

Negroes had been removed or that they were removed because they 

were Negroes. 380 U.S. at 222, The Court did agree that the 

presumption of proper use might be overcome if a prosecutor in a 

county, in case after case, whatever the circumstances, whatever 

the crime and whoever the defendant or victim may be, is respon- 

sible for the removal of Negroes with the result that none ever 

serve on petit juries. 380 U.S. at 223, 224. Swain did not limit 

a defendant's demonstration of a perversion of the peremptory 

challenge amounting to an equal protection violation to proof of 

such circumstances, but merely acknowledged such proof would 

overcome the presumption of proper use. The question remains, 

therefore, as to what other circumstances might demonstrate 

purposeful discrimination by a prosecutor in his use of his 

challenges. 

Petitioner contends that where a prosecutor volunteers his 

-11 

   



  

read Swain so broadly,’ 

  

reasons for exercising his peremptory challenges, the prosecutor 

is no longer cloaked with the presumption of correctness, but 

opens up the issue and the court may review his motives to 

determine whether the purposes of the peremptory challenge are 

being perverted. The court must then be satisfied that the 

challenges are being exercised for permissible trial-related 

considerations, and that the proffered reasons are genuine ones 

and not merely a pretext for discrimination. The Ninth and 

Eighth Circuit Courts of Appeals have both held that a defendant 

may establish a violation of the equal protection principles of 

Swain by such a method. Weathersby v. Morris, 708 F.2d 1493 (9th 
  

Cir. 1983); Garretr v, Morris, 815 F.2d 509 (8th Cir. 1987), The 
  

Seventh Circuit Court of Appeals in Petitioner's case refuses '"to 

' and insists that absent evidence that 

establishes a pattern of systematic exclusion of blacks larger 

than the single case there is no basis for an equal protection 

challenge even if it could be demonstrated that the prosecution 

exercised its peremptories on the basis of race. Teague, 820 F.2d 

at 834 n.6. This interpretation of Swain is questionable in light 

of the fact that the Batson Court attributed the requirement of 

proof of repeated striking over a number of cases to lower 

courts, 106 S.Ct. at 1720, ‘and Justice White, author of the Swain 

opinion, noted in his Batson concurrence that it would not be 

"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." Batson 106 S.Ct 

at 1725 n.* (White, J., concurring). Certiorari jurisdiction 

should therefore be exercised by this Court to resolve the direct 

conflict which exists among the circuit courts of appeals 

regarding whether an equal protection violation may be found, 

consistent with Swain, in circumstances other than where a 

systematic pattern of exclusion occurs over a large number of 

cases, a question which is not resolved by Swain or Batson. 
  

Although the Seventh Circuit opinion in this case states 

«12s 

 



  
  

that no Swain claim was raised in state court and therefore it is 

procedurally barred pursuant to Wainwright v. Sykes, 433 U.S. 72 
  

(1977), this circumstance does not make it inappropriate for this 

Court to grant certiorari. Not only did the State waive this 

argument by failing to raise this objection when Weathersby was 

cited and argued by Petitioner in the district court and court of 

appeals, but the court of appeals reached this argument on its 

merits. Cf Granberry v. Greer, 95 L.Ed.2d 119 (1987). Moreover, 
  

since Petitioner was denied relief in the state court on the 

ground that a Swain equal protection analysis controlled the 

result, Teague, 439 N.E. at 1070, thus rejecting any equal 

protection claim on its merits, there has been no procedural 

default which bars the federal courts from addressing this issue. 

  

Ulster County Court v. Allen, 442 U.S. 140 (1979). 

CONCLUSION 

Wherefore, Petitioner, Frank Dean Teague, prays that a writ 

of certiorari issue to the United States Court of Appeals for the 

Seventh Circuit. 

Respectfully submitted, 

STEVEN CLARK 
Deputy Defender 

PATRICIA UNSINN 
Assistant Appellate Defender 
Office of the State Appellate Defender 
State of Illinois Center 
100 West Randolph St., Suite 52500 
Chicago, Illinois 60601 

COUNSEL FOR PETITIONER 

-13= 

 



  

  

355 SOUTH EASTERN REPORTER, 2d SERIES 
£589 25 TEs BL Ie Thiam alld 

gia; Where husband had sot been resident 
of Georgia for nearly. 20 years and, thus, 
did net avail himself of State's privileges. 

_O.CGA. § 9-10-91(5); USCA. Const. 
Amends. 5, 14. va —F ; 

mE REEL 

Sars) Ww. ‘Worthington, 111, Worthing- 
ton & Flournoy, Columbus, for Richard W. 

Popple: RIFE 

John W._Roper, Columbus, for Rose M. 
~ Popple. 

- re AE 1 ~ = 

~ HUNT, Jota: £70 1 

In this granted domestic relations appeal, 
‘we again consider the extent of our juris- 
diction under OCGA "Section 9-10-91(5), 

~ providing for long-arm jurisdiction in “pro- 
ceedings for alimony, child support, or divi- 

gion of property in ‘cotinection with an ac- 

tion for divorce or With ‘respect to an inde- 

_ pendent ‘action for Support of dependents.” 
We have already held in Smith v.- Smith, 

254:Ga. 450,451,830 S.E:2d 706 (1985), 
that this statute is applicable’to actions for 

modification. ‘In the ease before us, the 
"trial court ‘overruled the husband's chal 
lenge to its jurisdiction -and modified the 

wife’s alimony award.--The husband made 
only a special appearance to eontest juris- 

sonal appedly ihe tis son's ruling,  - 

‘The ‘parties ‘did live together in” Georgia - 
from 1953 until 1967, ‘When the husband 
left “the state ‘seeking ‘new “employment. 

After three years’ separation “the husband 
sued the wife ifor divorce in Arkansas, 

~ where she made an ‘appearance and was 
awarded alimony in 1971. The husband 

now lives in Florida and has not resided in 

~ Georgia - after the peitiey Ssepagation; in 

1967. } z SS 5 2a 

“in Smith wv. Smiliyaire dittl ig 
8:E.2d 706, we ‘recognized that each case 

._ ‘mustbe considered on its own facts. Here, 

_in- Georgia -and the separation occurred 

here, the divorce decree was actually en 
"fered in Arkansas. The husband has not 

~ ‘pus ‘garnishment or contempi actions against 
_- zisthe husband in the courts of Muscogee County 

- z'between 1971 and 1981, But Ahis is not: revealed 
sin the record. L- pe. $1.61 - ov 3 2 

at 

© while the husband maintained 8 marital res - 

been. »: resident: of this: state: for nearly 
twenty years. and thus has not availed him 
self of the privileges of this state. we find 
his connection with the state sufficien y 
sttenuated under these facts that due pro- 
cess would: be offended by. the exercise of 
jurisdiction oyer his person to modify 
domesticated Arkansas : divorce. . decree, 

_ Compare Smith v. Smith, supra 2 254 Ga. 
450, 330 S.E.2d 706, where the parties We 
divorced in 1982, the husband moved to 
Colorado in 1983, and -the wife's suit for 
contempt and modification wére filed soon 
thereafter, and Marbury v. Marbury, 256 ° 
Ga. 651, 352 S.E.2d 564 (1987), where the 
husband and his family had left the state 

ten years before the wife sued the husband | * 

for divorce here i in orgia,” 

Assuming without deciding that the Yo | 
and second prongs of the three-part test 
set out in Davis Metals, Inc. v. Allen, 230 

Ga. 623, 625, 198 SE.2d 285 (1973), have 
been met in this case, we hold that the 
exercise of jurisdiction over the husband 
under the facts of this case offends notions’ 
of fair play and justice and fails the third 
prong of the test. The Judgment must be 
reversed. = 

Judgment 2 

Al the Justices cORCUE. 4 

“The STATE 
: ulin 

_ SPARKS. 

- “No. 44010... v1 

“Supreme. Court of Georgia. 

¥sy, 19, 1987. 
- 

. 3 Defendants was Saath in the Sree 
or Court, Upson County, Ben J. Miller, zi2] 

The Afkansgs decree wag Es in con- 

, ; 
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RAD-- ORE 
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n
 
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DRTER. 2d SERIES 

82 ag andl 

would. be effet 1 by. the e 

diction over his pers ercise ; Person to n 
-2 

mpt and modification Were filed soon | 

mend 2 Marbury v. Marby ry, 256 
i 2 Sd orm where the fe u 

before the wife £4 eft the state 

vorce here i in Georgia~ 

uming without deciding that the fist ; 
cond prongs of the three-part 3 test t in Davis Metts Inc. v- Allen, 230 

3, 625, 198 S.E2d 285 
met So? this case, we hold that the of jurisdiction’ over the husband 3 he facts of this | case offen ds ‘notions 3 

Play and justice and fails the EL 
$ third Po 

z the test. The Juan; must be i 

“ TheSTATE 
gin! ng AECL ITEC E 

> Noe i010, os 
ipreme Court ‘of ‘Georgi 
May 19, 1987: 

ROOF ETRE 

+ J al . 

; dant » was Cor : in the Si : 
Upson County, Ben J. 2 

  

(1973), Yove 3 ; 

SEIHAE bE 3 I STATE ¥ SPARKS 3 3 HTIOE 338 oa 659 
= ¥ Cite 2s 355 S.E.2d 658 (Ga. 1987) 

ter -alia; -armed. robbery; and he ap- 
d: The Court of Appeals, 180 Ga.App. 

849 SE.24 504, remanded case with 
- and. “writ of certiorari was 

ght. - The Supreme Court,-Hunt, J., held 
t= {1 defendant's claim under Batson 

timely, hut (2)-in.subsequent-cases, 
under ‘Batson should be raised prior 

ime: Jurors pelocted; toy case -are 
pays 28, BT Ar BORED. 

- Defendant's constititional ¢hallengé t to 
tor's “use :6f ‘peremptory challenges 

to exclude blacks from jury panel, which 

was made following voir dire and after jury 

-was selected, sworn, given preliminary in- 

- structions, and excused- for lunch, was. 

timely because, although defendant was 

not prevented from raising challenge prior 

to time jury was sworn, there were no 
judicial guidelines regarding’ time and man- 
ner in which such claim was to be present- 

ed, and defendant’s motion was made rela- 
tively promptly i in court ‘proceedings; how- — 
ever, in subsequent cases, any claim under 
Batson should be raised prior to time ju- 
rors ‘selected to try case are sworn. US. 

CR Const. Amend. H 

Jobank L. Caldwell, Jr. Dist. Atty., J. 

David Fowler, Asst. Dist. As Fhoma- 
ston, for the State. © 3» 

‘Bentley ‘C.: Adams, I, “Thomaston,” for 
umes Albert Sharks’ 

We erator eertiorar in  Sherias State, 
180 Ga.App. 467, 349 S.E:2d 504 (1986) to 
determine the applicability of Batson .v. 
Kentucky, 476 U.S. —, 106 S.Ct. 1712, 90 

L.Ed.2d 69 (1986) to this. case. In Batson, 

“the United States Supreme Court held that 

[3 state criminal defendant could establish a 

; prima facie case of racial “discrimination 
violative of _the- Fourteenth Amendment 
based on the ‘prosecutor's use of perempto- 

ry challenges to strike members of the 

defendant's ‘race from the jury and that, 

once the ‘defendant hdd made ‘the prima 

facie showing, the burden shifted to the 
prosecution to come forward with a neutral 

_ explanation for these Stallenges. ns 

The ruling in Batson ap to this case 
which was on direct appeal to the Georgia 
Court of Appeals:at the time Batson was 

“decided. - Griffith v. Kentucky, — US. 
——, 107 S.Ct. 708, 93 LEd.2d 649 (1987). 
The issue presehled hee : is ‘whether the _ 
defendant's Batson claim was timely made. 
The record reflects that following voir dire, 
the j jury ‘Was ‘selected, sworn, given prelimi- 
nary instructions ‘by ‘the -trial court, and 

excused for Junch. . Following the recess 
“and a lengthy hearing on an unrelated de- 
_fénse motion, counsel for défendant moved 
for a mistrial, claiming that his’ constitu- 
tional rights had been violated by the pros- 

ecutor’s use of peremptory challenges to 
exclude ‘blacks from ‘the jury panel, which 
motion was also denied. The Court of Ap- 
peals held that defendant's Balson claim 
was timely because it was raised-at the 
first opportunity, and remanded the case to 
the trial court for further proceedings pur- 
suant to the principles enunciated in Bat- 

son. ‘While it does mot appear that ‘the 
defendant in this case was prevented from 

- raising his Batson: claim ‘prior ‘to the time 
_ the jury was sworn, because there ‘have - 
been no judicial guidelines regarding the 

"time and manner in which such a claim is to - 

- be presented, and because the défendant’s 
motion in this regard was made relatively 
promptly in the course of the proceedings, 

we affirm the holding ‘of ‘the Court of Ap- 
peals. ' However; ‘we ‘hold ‘that hereafter 
any claim under Batson should be raised - 
prior to the time the jurors selected to try 
the ‘case ‘are sworn.-sIn this manner, the 

“trial court will have an oppertunity to de- 

termine whether there has been a violation 

of the defendant's constitutional rights un- 
der Batson and, if so, to remedy that viola- - 

* Son nd ipranssi 10 the S0iRl Fie tee 

Judgment pl   
 



   
PORTS 92 L Ed 2d 

    
laggio v Fulford, 462 US 
121, 76 L Ed 2d 794, 103 S 
1983) (Marshall, J., dissent- 

  

  

   

  

tAule 0 Gam 

   
   

   
   
   

    

  

    

    
   

                                

   

    

EARL ALLEN, Petitioner 

Vv 

STEPHEN L. HARDY, et al. 

478 US —, 92 L Ed 2d 199, 106 S Ct — 

[No. 85-6593] 

Decided June 30, 1986. 

Decision: Rule of Batson v Kentucky, that prosecutor’s use of peremptory 
challenges to exclude blacks from jury trying black defendant may violate 
equal protection, held not retroactively applicable on collateral review of 
final convictions. ; - 

SUMMARY 

At the trial before the Circuit Court of Cook County, Illinois, of a black 
man charged with murder, 9 of the prosecution’s 17 peremptory challenges 
were used to strike all of the black and Hispanic persons on the venire. 
Defense counsel unsuccessfully moved to discharge the jury, on the ground 
that the prosecution’s use of peremptory challenges undercut the defen- 
dant’s right to an impartial jury selected from a cross-section of the 
community; and counsel raised the same claim on appeal from the defen- 
dant’s conviction, alleging that the defendant’s rights under the Sixth and 
Fourteenth Amendments to the Federal Constitution, as well as various 
state constitutional provisions, had been violated. The Appellate Court of 
Illinois, First District, affirmed the conviction, citing Swain v Alabama 
(1965) 380 US 202, 13 L Ed 2d 759, 85 S Ct 824, as holding that a 
prosecutor’s motives in excluding members of a particular racial group from 
the jury in a particular case may not be inquired into absent a showing that 
that group has been systematically excluded from juries in that jurisdiction 
(96 111 App 3d 871, 52 Ill Dec 419, 422 NE2d 100). The United States District 
Court for the Northern District of Illinois similarly relied on Swain v 
Alabama in dismissing the defendant’s petition for a writ of habeas corpus 
(577 F Supp 984, 583 F Supp 562, 586 F Supp 103). The United States Court 
of Appeals for the Seventh Circuit denied the defendant’s request for a 
certificate of probable cause to appeal. Subsequently, the United States 
Supreme Court handed down its decision in Batson v Kentucky (1986) 476 

199 

      
    

  



U.S. SUPREME COURT REPORTS 92 L Ed 2d 

US —, 90 L Ed 2d 69, 106 S Ct 1712, overruling Swain v Alabama in 
pertinent part, and holding that a prosecutor’s use of peremptory challenges 
to exclude blacks from a jury trying a black defendant may violate equal 
protection. 

Granting certiorari, the United States Supreme Court affirmed the judg- 
ment of the Court of Appeats~Ig a per curiam decision expressing the view 
of BURGER, Ch. J, 8 d@ Brena, Ware, Powter, REsnQuisT, and G*Con- 
NOR, JJ., it was held the decision in Batson v Kentucky would not be applied retroactively on collateral review of convictions that became final before that decision was announced. 

BLACKMUN, J., would grant certiorari and set the case for oral argument. 

MARSHALL, J., joined by STEVENS, J., dissented, expressing the view that the case at hand should be set for briefing on the merits and oral argument in order to permit informed evaluation of the factors which bear on the retroactivity of a new constitutional rule. 

     



yr) Rd 2d 

ihn in 

§ Jnl lenges 

3 Jirky qual 

jh ndg- 

fg fe Y0W 
ol IV ON- 

Ab wa be 
aw Raal 

‘¥ Jaen. 

Lown that 
AL want 

WW the 

ALLEN v HARDY 
92 L Ed 2d 199 
  

  

  

    

TOTAL CLIENT-SERVICE LIBRARY® REFERENCES 

16A Am Jur 2d, Constitutional Law § 820; 20 Am Jur 2d, 
Courts §§ 233, 236; 47 Am Jur 2d, Jury §§ 173-176, 183, 184, 
235-238, 265, 284 

9 Federal Procedure, L Ed, Criminal Procedure § 22:799 33 
Federal Procedure, L Ed, Trial §§ 77:127, 77:136, 77:177- 
77179 

7 Federal Procedural Forms, L. Ed, Criminal Procedure 
§ 20:833 

8 Am Jur Pl & Pr Forms (Rev), Criminal Procedure, Form 
334 

9 Am Jur Proof of Facts 2d 407, Discrimination in Jury 
Selection—Systematic Exclusion or Underrepresentation of 
Identifiable Group 

30 Am Jur Trials 561, Jury Selection and Voir Dire in 
Criminal Cases 

USCS, Constitution, 14th Amendment 

US L Ed Digest, Civil Rights § 8; Courts § 777.5 

L Ed Index to Annos, Civil Rights; Jury; Retrospective Opera- 
tion 

ALR Quick Index, Discrimination; Equal Protection of Law; 
Jury and Jury Trial; Peremptory Challenges; Retroactive: 
Operation : 

Federal Quick Index, Civil Rights; Equal Protection of th 
Laws; Jury and Jury Trial; Retrospective Operation 

VERALEX™: Cases and annotations referred to herein can 
be further researched through the VERALEX™ electronic 
retrieval system’s two services, Auto-Cite® and 
SHOWME™. Use Auto-Cite to check citations for form, 
parallel references, prior and later history, and annotation 
references. Use SHOWME to display the full text of cases 
and annotations. 

ANNOTATION REFERENCES 

United States Supreme Court’s views as to retroactive effect of its own 
decisions announcing new rules. 65 L Ed 2d 1219. 

Group or class discrimination in selection of grand or petit jury as 
prohibited by Federal Constitution. 33 L Ed 2d 783. 

Retroactive or merely prospective operation of new rule adopted by 
court in overruling precedent—federal cases. 14 L. Ed 2d 992. 

Use of peremptory challenge to exclude from jury persons belonging to 
a class or race. 79 ALR3d 14. 

Prospective or retroactive operation of overruling decision. 10 ALR3d 
1371.   
  

  

2 Ee et BER TEN   
  

 



U.S. SUPREME COURT REPORTS 

HEADNOTES 

Classified to U.S. Supreme Court Digest, Lawyers’ Edition 

tions. (Marshall and Stevens, JJ., 
dissented in part from this holding.) 

Civil Rights § 8; Courts § 777.5 — 
retroactivity — racial exclu- 
sion from jury 

la-1f. The’ decision in Batson v 
Kentucky (1986) 476 US —, 90 LL 
Ed 2d 69, 106 S Ct 1712, holding 
that a prosecutor’s use of peremp- 
tory challenges to exclude blacks 
from a jury trying a black defendant 
may violate equal protection, and 
overruling a previous decision which 
had held that a prosecutor’s motives 
in excluding members of a particu- 
lar racial group from the jury in a 
particular case may not be inquired 
into absent a showing that that 
group has been systematically ex- 
cluded from juries in that jurisdic- 
tion, will not be applied retroac- 
tively on collateral review of convic- 
tions that became final before the 
United States Supreme Court’s opin- 
ion in Batson v Kentucky was an- 
nounced, that is, where the judg- 
ment of conviction was rendered, the 
availability of appeal exhausted, and 
the time for petition for certiorari 
had elapsed before that decision, 
since (1) the new rule does not have 
such a fundamental effect on the 
integrity of factfinding as to compel 
retroactive application, (2) law en- 
forcement officers’ justifiable reli- 
ance on the overruled case supports 
a decision that the new rule should 
not be retroactive, and (3) retroac- 
tive application of the new rule on 
collateral review of final convictions 
would seriously disrupt the adminis- 
tration of justice; thus, the rule in 
Batson v Kentucky is not available 
to a convicted murderer on federal 
habeas corpus review of his convic- 

202 

Courts § 777.5 — retroactivity 
2. In deciding the extent to which 

a decision announcing a new consti- 
tutional rule of criminal procedure 
should be given retroactive effect, 
there are three factors to be 
weighed: (1) the purpose to be served 
by the new standards; (2) the extent 
of the reliance by law enforcement 
authorities on the old standards; and 
(3) the effect on the administration 
of justice of a retroactive application 
of the new standards. 

Courts § 777.5 — retroactivity 
3. Retroactive effect for a decision 

announcing a new constitutional 
principle is appropriate where the 
principle is designed to enhance the -- 
accuracy of criminal trials, but the 
fact that a rule may have some im- 
pact on the accuracy of a trial does 
not compel a finding of retroactivity; 
instead, the purpose to be served by 
the new standard weighs in favor of 
retroactivity where the standard 
goes to the heart of the truth-finding 
function. 

Habeas Corpus § 17 — procedural 
default — cause and preju- 
dice 

4a, 4b. A black convicted mur- 
derer who had made no offer of 
proof at trial regarding his claim 
that prosecutors had systematically 
excluded minorities from petit juries 
in the jurisdiction waives that claim, 
and is required to establish cause 
and prejudice excusing his default 
when petitioning the federal courts 
for a writ of habeas corpus.   

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+ this holding.) 

LL oactivity 

.ient to which 
« New consti- 

sual procedure 
witive effect, 
ors to be 

to be served 
i») the extent 
gnforcement 

.andards; and 
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N witivity 

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~vnstitutional 

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enhance the 
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I courts   

ALLEN v HARDY Hi 
2L EIN Proccelinal dafzuslt iil 

OPINION OF THE COURT A 5 : 

Per Curiam. 

In 1978, petitioner Earl Allen, a 
black man, was indicted for murder- 

ing _his_girlfTiend_Ang_Mer—brother. 

  

Turing selection of the petit jurors 

the ground that the “ “State’s use of 

peremptory challenges undercut [pe- 

titioner’s] right to an impartial jury 

selected from a cross-section of the 

community by systematically exclud- 

ing minorities from the petit jury.’ ” 

People v Allen, 96 Ill App 3d 871, 

875, 422 NE2d 100, 104 (1981). The 
trial judge denied the motion. The 
jury convicted petitioner on both 
counts, and the judge sentenced him 

to two. concurrent prison terms of 
from 100 to 300 years. 

On appeal, petitioner repeated his 
argument concerning the State’s ex- 
ercise of peremptory challenges. Re- 

ing on Swain v Alabama, 380 US 
202, IC EQ 2a 759, 85 S Ct 824 
(1965), and on Illinois case law de- 
cided under Swain, the Illinois Ap- 

pellate Court rejected thE ATZUMEh. 
The court reasoned that in the ab- 
sence of a showing that prosecutors 
in the jurisdiction systematically 
were using their challenges to strike 
members of a particular racial 
group, “a prosecutor’s motives may 
not be inquired into when he ex- 
cludes members of that group from 
sitting on a_particular_ case by the 
use of peremptory challenges.” 96 Ill 
App 3d, at 875, 422 NE2d, at 104. 

The record in this case did not estab- 
lish systematic exclusion as required 
by Swain. Id., at 876, 422 NE2d, at 
104. The court therefore affirmed 

wef am ) SSAA 

petitioner’s convictions. Id., at 880, 
422 NE2d, at 107. 

Petitioner then filed a petition for 
federal habeas corpus relief in the 
District Court for the Northern Dis- 
trict of Illinois, on which he renewed 
his argument concerning the State’s 
use of peremptory challenges. Con- 
struing this argument as alleging 
only that prosecutors in the jurisdic- 

tion systematically excluded minori- 
ties from juries, the District Court 
denied petitioner s.motion for discov- 
ery to support the claim, and denied 
relief. Petitioner’s failure at trial “to 
make even an offer of proof’ to sat- 
isTy the evidentiary standard of 
Swain constituted a procedural de- 
fault for which petitioner had of- 
fered no excuse. 577 F Supp 984, 986 

(ND Ill 1984); see 583 F Supp 562 
(ND Ill 1984). In a subsequent opin- 
ion, the District Court also consid- 
ered and rejected petitioner’s conten- 
tion that the State’s exercise of its 
peremptory challenges at his trial 

violated the Sixth Amendment. 586 
F Supp 103, 104-106 (1984). More- 
over, noting that the Court of Ap- 
peals for the Seventh Circuit had 
“twice within the past 60 days re- 
confirmed the continuing validity of 
Swain,” the decision on which the 
orders in this case rested, the Dis- 
trict Court declined to issue a certifi- 
cate of probable cause. 

Petitioner filed a notice of appeal, 
which the Court of Appeals for the 
Seventh Circuit construed as an ap- 
plication for a certificate of probable 
cause to appeal. Finding that peti- 
tioner failed to make a “substantial 
showing of the denial of a federal 
right” or that the questions he 
sought to raise “deserve[d] further 
proceedings,” the court denied the 

  

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U.S. SUPREME COURT REPORTS 92 L Bd 24 

request for a certificate of probable 
cause. 

[1a] In his petition for certiorari, 
petitioner argues that the Court of 
Appeals” refusal to issue a certificate 
of probable cause was erroneous in 
view of the Tact that Batson v Ken] 
TucKy, 276" US—=90"T"Fqd 2d 69, 
106 S Ct 1712 (1986), was. pending 
before us at the time of the Court of 
Appeals’ decision. The thrust of peti- 
tioner’s argument is that the rule in 
Batson should be available to hig ag 
a ground for relief on remand) We 
conclude that our decision in Batson 
should not be applied retroactively 
on collateral review of convictions 
that became final before our opinion 
was announced.! Accordingly, we 
grant petitioner’s motion for leave to 
proceed in forma pauperis, grant the 
petition for a writ of certiorari, and 
affirm the judgment of the Court of 

\ Appeals, 

/ [2] In deciding the extent to which 
"a decision announcing a new consti- 

tutional rule of criminal procedure 
sy) should be given retroactive effect, 
Tdibn the Court traditionally has weighed 
3 [A Jot three factors. They are ‘(a) the pur- 

ds " pose to be served by the new sian. 
As dards, (b) the extent of the reliance 

| by law enforcement authorities on 
(V) YGR| tHE Old standards, and (c) the effect 
"7 oF xelhcpn the administration of justice of a 

| retroactrve—appheation of the new 
~ | standards.’ ” Solem v Stumes, 465 

Avgdvi- US 638, 643, 79 L Ed 2d 579, 104 S 
0 lod Ct 1338 (1984) (quoting Stovall y “»31*™ Denno, 388 US 293, 297, ITT EI Ta 

| 

0, pu X 

fz \ oC G)etkd 

1199, 87 S Ct 1967 (1967)); see Link- 
letter v Walker, 381 US 618, 635, 14 
L Ed 2d 601, 85 S Ct 1731, 5 Ohio 
Misc 49, 33-Ohio Ops 2d 118 (1965). 
While a decision on retroactivity re- 
Quires careful consideration eof all 
three criteria, the Court has held 
that a decision announcing a mew 
standard is BIOS AUTOMATE 
‘nonretroactive” where the decision 
“has explicitly overruled past prece- 
dent.” Solem v Stumes, supra. at 
636,647, 79 L Ed 2d 579, 104 S Ct 

y 1338. The rule in Batson v Kentucky 
| is an explicit and substantial breal 
with prior precedent. In Swain =v 
Alabama, the Court held that, al- 
though the use of peremptory chal- 
lenges to strike black jurors on ac- 
count of race violated the Equal Pro- 
tection Clause, a defendant could not 
establish such a violation solely on 
proof of the prosecutor’s action at 
his own trial. 380 US, at 220-226, 13 
L Ed 2d 759, 85 S Ct 824. Batson. 
overruled that portion of Swain, 
changing the standard for proving 
unconstitutional abuse of peremp- 
tory challenges. Against that back- 
ground, we consider whether the 
standard announced in Batson 
should be available on habeas review 
of petitioner’s murder convictions. 

[1c, 3] The first factor concerns the 
purpose to be served by the new 
rule. Retroactive effect is “appropri- PLup 
ate where a new constitutional prin- 
Cipte-is~desiprred—toenNaNce. Ihe. ac. 
curacy of criminal trials,” Solem v 
Stumes, supra, at 643, 79 L Ed 2d 
579, 104 S Ct 1338, but the fact that 

  
1. [1b] “By final we mean where the judg- 

ment of conviction was rendered, the _availa- 
bilitx.of appeal exhausted, and the time for 
petition for certiorari had elapsed before our 
@eCEOh in” Batson v Kentucky. Linkletter v 
Walker, 381 US 618, 622, n 5, 14 L Ed 2d 601, 
85 S Ct 1731, 5 Ohio Misc 49, 33 Ohio Ops 2d 
118 (1965). We express no view on the gues. 

204 

tion whether our decision in Batson should be 
apPIEEto-cases thal were pending on direct 
appeal at the time our decision was &n- 
nounced. See Griffith v Kentucky, No. 85-5221 
(cert granted, 90 L Ed 2d 717, 106 S Ct 2274 
June 2, 1986), and Brown v United States, 85- 
5731 (cert granted, 90 L Ed 2d 718, 106 S Ct 
2275 June 2, 1986).   

  

  
 



  

   

  

92 L Ed 2d 

1 146,7 (1967)); see Link- 
4%1 US 618, 636, 14 

vi, 8 Ct 1731, 5 Ohio 
go Ops 2d 118 (1965). 
1. on retroactivity re- 
consideration of all 
thie Court has held 
announcing a new \ 

«hinost automatically 
where the decision 

uverruled past prece- 
. Btumes, supra, at 
itd 2d 579, 104 S Ct 

iii Batson v Kentucky 
ud substantial break 
.edent. In Swain v 

i ‘ourt held that, al- 
of peremptory chal- 
black jurors on ac- 

lated the Equal Pro- 
, defendant could not 
, violation solely on 

i asecutor’s action at 
init US, at 220-226, 13 
wn S Ct 824. Batson 

portion of Swain, 
4andard for proving 

| abuse of peremp- 
Against that back- 

ansider whether the 

sunced in Batson 
ahle on habeas review 
nunder convictions. 

Lu! factor concerns the 
served by the new 

ve effect 1s “appropri- 
» constitutional prin- 
«J tw enhance the ac- 
ina. trials,” Solem v 
a1 &3. 79 L Ed 2d 

»ut the fact that EON 
  

CIS Im Batson should be 

sa wer pending on direct 
me pur decision was an- 

r Srucky, No. 85-5221 
%2 "17.106 S Ct 2274 

Swe « United States, 85- 

¥ 32d 718,106 S Ct 

5. = oe Tee 

  

Nm — 
? 

~~ 5 
urn 

  

  

  % UF 
2 beast’ 

ALLEN v HARDY 
92 L Ed 2d 199 

a rule may have some impact.on. the 

accuracy of a trial does ToL compeln 

finding of retroactivity. Id., at 643- 
645. 79 L Ed 2d 579, 104 S Ct 1338. 
Instead, the purpose to be served by 

the new standard weighs in favor of 

retroactivity where the standard 

“goes to the heartof the IruiBind-" 
img-function,” Id., at 645, 79 L Ed 2d 

579, 104 S Ct 1338. By serving a 

criminal defendant’s interest in neu- | 

tral jury selection procedures, the | 

rule in Batson may have some bear- | 

ng on the truthfinding function of a | 

Sreathal tnial. But. the decision | 

serves other values as well. Our 

Polding ensures that States "do not| 

discriminate against citizens whol 

  

are summoned to sit in judgment\ 

against a member of their own race 

and strengthens public confidence in 

the administration of justice. The 

rule in Batson, therefore, was de- 

signed “to serve multiple ends,” only 

te Arst_of whic may have some 
impact on truthfinding. See Brown v 

Lousiana, 447 US 323, 329, 65 L Ed 
2d 159, 100 S Ct 2214 (1980); see also 

Tehan v United States ex rel. Shott, 

382 US 406, 414, 15 L Ed 2d 453, 86 

S Ct 459, 8 Ohio Misc 81, 35 Ohio 

Ops 2d 391 (1966). Significantly, the 

new rule joins other procedures that 

protect a defendants interest in a 

neutral _facthnder.” Those other 

mechanisms existed prior to our de- 

cision in Batson, creating a high 

probability that the individual jurors 

Seated Tn a particular case were free 
frem. bias. Accordingly, we cannot 

say that the new rule has such a 

only overruled the evidentiary stan- 

fundamental impact on the integrity 

of factfinding as to compel retroac- 

tive application. 

[1d] Moreover, the factors concern- 

ing reliance on the old rule and the 

effect of retroactive application on 

the administration of justice weigh 

heavily in favor of nonrg roactive 

effect. As noted above,] Batson not’) 

dard of Swain, it also announced a 

new standard that significantly | 

changes the burden of proof imposed | 

on both defendant and prosecutor. { 

There is no question that prose- ! 

cutors, trial judges, and appellate ! 

courts throughout our state and fed- { 

eral systems justifiably have relied ; 

on the standard of Swain MH deen 

the decisions of the Illinois Appel- 

late Court affirming petitioner’s con- 

victions and of the District Court 

denying habeas corpus relief clearly 

illustrate the reliance lower courts 

placed on Swain. Under these cir- 

cumstances, the reliance interest of 

law enforcement officials is “compel- 

ling” and supports a decision that 

the new rule should not be retroac- 

tive. Solem v Stumes, supra, at 650, 

79 L Ed 2d 579, 104 S Ct 1338. 

[te] Similarly, retroactive applica- 

tion of the Batson rule on collateral 

review of final convictions would se- 

riously disrupt the administration of 

justice. Retroactive application 

would require trial courts to hold 

HEATINE Softer years after_the con: 

viction became hnal.-to-defermine 

whether the defendant’s proof con- 

  

2. K oir dire examination is designed to 

T™Veniremen who are biased so that identily 
those persons may be excused through chal- 

lenges for cause. Moreover, the J] sharge 

typically includes inStIUCUONSCIRRaSIZIDE 
that the jurors must not rest their decision on 

ROY _ITpeTIEstTE TaCtor, Such as passion or 
prejudice. 

8. The substantial reliance by lower courts 

on the standard in Swain has been fully 

documented elsewhere. See Batson Vv Ken- 

tucky, 476 US —, —, n 1, 90 L Ed 2d 69, 

106 S Ct 1712 (1986); McCray v Abrams, 750 

F2d 1113, 1120, n 2 (CA2 1984), vacated and 

remanded, post, p —, 92 L Ed 2d —. 

205 

a a ana 

     

        
   
    

  

   
    

  

   

    
        

   
    

  

    

   

   

  

   
   
   

  

   
     

   
    
   

  

   

   
   
   

  

   

      

   

  

   
   
    

   

    

        

   
   

   

  

           

  

  

  

 



U.S. SUPREME COURT REPO®TS 

cerning the prosecutor's exercise of 
challenges established a prima facie 
‘case of discrimination. Where a de- 

4 fendant made out a prima facie case, 
| the court then would be required to 
| ask the prosecutor to explain his 

| reasons for the challenges, a task 
| that.would be impossible in virtually 

every case since the prosecutor, rely- 
ing on Swaht, would have had no 
reason to think such an explanation 
would someday be necessary. Many 
final convictions therefore would be 
vacated, with retrial “hampered by 
problems of lost evidence, faulty 
memory, and missing witnesses.” So- 
lem v Stumes, supra, at 650, 79 L Ed 

92 L Ed 24 

2d 579, 104 S Cz 1338; see also Link- 
letter v Walker, 381 US, at 637, 14 
Ed 2d 601, 85 § Ct 1731, 5 Ohio Misc 
49, 33 Ohio Op= 2d 118. 

[1f, 4a] Our weighing of the perti- 
nent criteria compels the conclusion 
that the rule in Batson should not 
be available t2 pZrItioNer-omtederal 
habeas corpu: review of Hig Convic- 
tions. We therefore affirm the judg- 
ment of the Court of Appeals.* 

Affirmed. 

Justice Blackmun would grant 
the petition for a writ of certiorari 
and set the case for oral argument. 

SEPARATE OPINION 

Justice Marshall, with whom Jus- 
tice Stevens joins, dissenting. 

On all too many occasions in re- 
cent years, I have felt compelled to 
express my dissatisfaction with this 
Court’s readiness to dispose summar- 
ily of petitions for certiorari on the 
merits without affording the parties 
prior notice or an opportunity to file 
briefs. See, e.g., City of Los Angeles 
v Heller, 475 US —, —— 89 I, Ed 
2d 806, 106 S Ct 1571 (1986) (Mar- 
shall, J., dissenting); Cuyahoga Val- 
ley R. Co. v Transportation Union, 
474 US —, —— 88 L Ed 2d 2, 106 
S Ct 286 (1985) (Marshall, J ., dissent- 
ing); Maggio v Fulford, 462 US 111, 
120-121, 76 L Ed 2d 794, 103 S Ct 
2261 (1983) (Marshall, J., dissenting). 

“[Bly deciding cases summarily, 
without benefit of oral argument and 
full briefing, and often with only 
limited access to, and review of, the 
record, this Court runs a great risk 
of rendering erroneous or ill-advised 
decisions that may confuse the lower 
courts: there is no reason to believe 
that this Court is immune from 
making mistakes, particularly under 
these kinds of circumstances.” Har- 
ris v Rivera, 454 US 339, 349, 70 L 
Ed 2d 530, 102 S Ct 460 (1981) (Mar- 
shall, J., dissenting). 

The circumstances are even less 
propitious in this case. Generally 
when this Court summarily disposes 
of a petition for certiorari, we have 
at least benefited from the tendency 

  4. [4b] In his petition for certiorari, peti- 
tioner also argues that the District Court 
erroneously denied him discovery on his claim 
that prosecutors systematically had excluded 
minorities from petit juries in the jurisdiction. 
In effect, the District Court held that, by 
making no offer of proof on this claim, peti- 
tioner’s bare objection failed to preserve the 
claim for review. Since petitioner points to no 
Illinois authority casting doubt on the District 

206 

Court’s conclusion that, at the least, an offer 
of proof was necessary to preserve the issue, 
we have no reason to question the District 
Court's conclusion that the claim was waived. 
Similarly, the District Court properly deter- 
mined that petitioner was required to, and did 
not, establish cause and prejudice excusing 
his default. See Wainwright v Sykes, 433 US 
72, 53 L Ed 2d 594, 97 S Ct 2497 (1977).    



p2 L Ed 2d 

Jha aoe also Link- 

5 \/n, at 637,14 L 
41, 0 Ohio Misc 

PAH 

Lup Of the perti- 
"the conclusion 
Aah should not 

ner on federal 
_. of his convic- 
orm the judg- 
Appeals. 

g™ 

wi would grant 
" «iit of certiorari 

4a! argument. 

sos summarily, 

+w argument and 
dren with only 

4 anid review of, the 

ns 8a great risk 

or ill-advised 
_. .smfuse the lower 

  

ALLEN v HARDY 
92 L Ed 2d 199 

of both petitioners and respondents 
to focus excessively on the merits of 
the question they ask the Court to 
consider. Here, because the petition 
was filed prior to our decision in 
Batson v Kentucky, 476 US —, 90 
L Ed 2d 69, 106 S Ct 1712 (1986), 
petitioner never had the opportunity 
10 address whether that decision 
shoutd—be—applied retroactively to 
throse—seekimg—coliateral—review of 
their convictions, and. respondent 
chose to devote but a single sentence 
to the issue. In addition, that issue 
Ras Tol been addressed by lower 
courts-trthis-case-or-any-other—See 
“Hrrited—States—v—Hohywood—Motor 
Car Co. 458 US 263, 271, 73 L Ed 2d 
754, 102 S Ct 3081 (1982) (Blackmun, 
J., dissenting). We write on a clean 
slate in this case—a position we or- 
dinarily take great pains to avoid. 

I believe that the Court’s opinion 

today reflects the unseemly haste 
with which the important question 
presented here has been resolved. 
Like the Court, ante at ——, 92 L Ed 
2d —, 1 believe that the impact of 
G~IeW, constitutional rule” on the 
(accuracy: Jof a trial should be critical 
CONMCTern in any inguiry Into wiretiter 
that rule should be applied retroac- 
tively to cases pending on collateral 
review; indeed, 1 think that factor 
should generally be decisive. See 
Williams v United States, 201 US 
646, 666, 28 L Ed 2d 388, 91 S Ct 
1148 (197 1) (Marshall, J., concurring 
in part and dissenting in part). How- 
ever, I am not at all persuaded by 
the majority's conclusion that the 
rule announced in Batson lacks 
“such a fundamental impact on the 
integrity of factfinding as to compel 
retroactive application,” ante, at 
——, 92 L Ed 2d 205. The Court is 
surely correct to note that the rule 
“serves other values” besides accu- 
rate factfinding. Ibid. “The effect of 

excluding minorities goes beyond the 
individual defendant, for such exclu- 
sion produces ‘injury to the jury 
system, to the law as an institution, 
to the community at large, and to 
the democratic ideal reflected in the 
processes of our courts.”” McCray v 
New York, 461 US 961, 968, 77 L Ed 
2d 1322, 103 S Ct 2437 (1983) (Mar- 
shall, J., dissenting from denial of 
certiorari). A rule that targets such 
discriminatory practices will thus 
provide redress to citizens unconsti- 
tutionally struck from jury panels. 
That criminal defendants will not be 
the only beneficiaries of the rule, 
however, should hardly diminish our 
assessment of the rule’s impact upon 
the ability of defendants to receive a 
fair and accurate trial. Moreover, I 
do not share the majority’s confi- 
dere tHat other procedures. ..io 
prace prior to our decision in Batson 
“Greatle] a high probability that the 
individual jurors seated in a particu: 
181 case were free from bias,” ante, 
at —, 92 L Ed 2d 205. When the 
prosecution unconstitutionally uses 
its peremptory strikes to remove 
blacks and Hispanics from the jury, 
the threat to the truthfinding pro- 
cess is not cured by measures de- 
signed merely to ensure that white 
jurors permitted to serve satisfy the 
legal standard for impartiality. 

“When any large and identifiable 
segment of the community is ex- 
cluded form jury service, the effect 
is to remove from the jury room 
qualities of human nature and va- 
rieties of human experience, the 
range of which is unknown and 
perhaps unknowable. It is not nec- 
essary to assume that the ex- 
cluded group will consistently vote 
as a class in order to conclude . 
that its exclusion deprives the jury 
of a perspective on human events 

207   
 



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I
 

A 
IS 

TR 
RE

TI
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Try
 

es 

U.S. SUPREME COURT REPORTS 92 L Ed 2d 

that may have unsuspected impor- 
tance in any case that may be 
presented.” Peters v Kiff, 407 US 
493, 503-504, 33 L Ed 2d 83, 92 S 
Ct 2163 (1972) (opinion of Mar- 
shall, J.). 

Certainly, one need not assume that 
the exclusion of any distinctive 
group from the venire will affect the 
integrity of the factfinding process to 
believe, as I do, that where the pros- 
ecution uses its peremptory chal- 
lenges to cull black and Hispanic 
jurors from the jury empaneled for 
the trial of a black defendant, the 
threat to the accuracy of the trial is 
significant and unacceptable. See 
Batson, supra, at —, n 8, 90 L Ed 
2d 69, 106 S Ct 1712 (“For a jury to 
perform its intended function as a 
check on official power, it must be a 
body drawn from the community”). 

The other considerations that the 
Court finds to counsel against retro- 
activity here are similarly unpersua- 
sive. While Batson overruled Swain 
v Alabama, 380 US 202, T3T Ed 2d 
T59;-85-SCt 824 (1965) by changing 
the burden of proof imposed upon 
both defendants and prosecutors, 
ante, at ——, 92 L Ed 2d 205, the 
Court seriously overestimates the 
“rettarrce—interest—of—taW enforce 
ment_omcials” in the old regime. 
This is not a case in which primary 
conduct by such officials was permit- 
ted by one decision of this Court and 
then prohibited by another. Swain, 

made quite clear that the use of = 

peremptory challenges to strike Eo 

black jurors on account of their race 
violated the Equal Protection 
Clause. All Batson did was give de- 
fendants a means of enforcing this 
prohibition. Even if the Court is will- 
ing to consider prosecutors to have 
relied on the effective unentorceabil- 
ity of the pronouncements in Swain, 
it should at least give some thought 
aS to whether that reliance should 
be-deemed tegitinate: 

Finally, the Court observes that 
“retroactive application of the Bat- 
son rule on collateral review of final 
convictions would seriously disrupt 
the administration of justice.” Ante, 
at —, 92 L Ed 2d 205. Perhaps 
this is true; perhaps it is not. Cer- 
tainly, the papers before us in this 
case allow us no basis for making 
any estimate of how many defen- 
dants pursuing federal habeas relief 
have preserved a Batson claim in 
the State courts. In this inquiry, 
perhaps more than in any other as- 
pect of the case, the need for further 
briefing, and perhaps the participa- 
tion of interested amici, is compel- 
ling, and the majority’s readiness to 
act on its own uninformed assump- 
tions, disturbing. 

I would grant the petition for cer- 
tiorari and set the case for briefing 
on the merits and oral argument 
next Term. 

  

  

  

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Jase tar tuned), Petitioner/Appellee, Cross-Appellant, v. 
Ralph Kemp, Warden, Respondent/Appellant, Cross-Appellee 

NO. 85-8989 

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT 

Slip Opinion 

June 4, 1787 

APPEAL-STATEMENT: 
Appeal from the United States District Court for the Southern District of 

beorgia. 

COUNSELS 
Mary Beth Westmoreland, William B. Hill, Jr., AAG; for CROSS~APPELLEE. 

Bradiey 5. Stetler, Michael C. Garrett; for CROSS5-APPELLANT. 
  

OPINIONBY: HILL 

  Slip Opinion 

OPINION:   

  

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REPORTS 90 L Ed 2g 

Diamond, then, was not 
intervenor in the Court of 

ils, although of course it would 
been open to that court tg 
him to file a brief as an amj. ' 
uriae. Accordingly, Dr. Dia. 
was not authorized to bring an 

| in this Court, and the appeal] 
be dismissed for want of juris. 

    
   

   
   

  

   

   

     
    

    

  

JAMES KIRKLAND BATSON, Petitioner IE 

v 

KENTUCKY   
476 US —, 90 L Ed 2d 69, 106 S Ct — 

   

        

       
    
     

         

      
    

      
       
       

       

      

      
     

       
     
    

       

    

[No. 84-6263] 

Argued December 12, 1985. Decided April 30, 1986. 

Decision: Prosecutor’s use of peremptory challenges to exclude blacks from 

jury trying black defendant held basis for equal protection claim of 

purposeful discrimination. 

SUMMARY 

At the trial before the Circuit Court of Jefferson County, Kentucky, of a 

black man charged with second-degree burglary and receipt of stolen goods, 

the prosecutor used his peremptory challenges to strike all four black 

persons on the venire, so that a jury composed only of white persons was 

selected. Defense counsel moved to discharge the jury, partly on the ground 

that the prosecutor’s actions in this case violated the accused’s right to 

equal protection of the laws under the Fourteenth Amendment. Without 

expressly ruling on defense counsel’s request for a hearing on these issues, 

the Circuit Court denied the motion, noting that parties could use their 

peremptory challenges to strike anybody they wanted to. Conceding that the 

decision in Swain v Alabama (1965) 380 US 202, 13 L Ed 2d 759, 85 S Ct 

824, which found /no basis for an inference of purposeful discrimination 

where a defendant offered no proof, beyond the facts of his own case, of the 

circumstances under which prosecutors had used peremptory challenges to 

strike black jurors, apparently foreclosed his equal protection claim, the 

accused relied on other theories in appealing his subsequent conviction. The 

Supreme Court of Kentucky affirmed, noting that it had recently reaffirmed 

its reliance on Swain v Alabama, supra. 

On certiorari, the United States Supreme Court reversed and remanded 

for further proceedings. In an opinion by POWELL, J., joined by BRENNAN, 

WHITE, MARSHALL, BLACKMUN, STEVENS, and O’CONNOR, JJ., overruling in 

part Swain v Alabama, supra, it was held (1) that the equal protection 

clause forbids a prosecutor to peremptorily challenge potential jurors solely



«PORTS 90 L Ed 2d 

, wlecting the venire also gov- 
. Ntate’s use of peremptory 
ow to strike individual jurors 
petit jury. Although a pros- 
sinarily is entitled to exer- 
wuptory challenges for any 
« long as that reason is 

_ « his view concerning the 
. the case to be tried, the 
nwwction Clause forbids the 
+ to challenge potential ju- 
..» on account of their race 
oe assumption that black ju- 

_ , group will be unable im- 
», »o consider the State’s case 
, Mack defendant. 
ne portion of Swain v Ala- 
gprs. concerning the eviden- 

«sec. placed on a defendant 
kyase that he has been denied 
geswction through the State’s 
saeory use of peremptory 

g= = rejected. In Swain, it 
sie that a black defendant 

gahe out a prima facie case of 
Wg discrimination on proof 
ie peremptory challenge sys- 
& whole was being perverted. 
i afered by the defendant in 

pot meet that standard 
| not demonstrate the 

: under which prose- 
#4 jurisdiction were re- 

8 striking black jurors 
facts of the defendant’s 

iary formulation is 
i equal protection 
gently developed in 
to selection of the 
ndant may make 

of purposeful 
#98 In selection of 

solely on the 
on in his 

establish a 
poseful dis- 

BNce con- 

  
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BATSON v KENTUCKY 
90 L Ed 2d 69 

cerning the prosecutor’s exercise of 
peremptory challenges at the defen- 
dant’s trial. The defendant first must 
show that he is a member of a cogni- 
zable racial group, and that the pros- 
ecutor has exercised peremptory 
challenges to remove from the ve- 
nire members of the defendant’s 
race. The defendant may also rely 
on the fact that peremptory chal- 
lenges constitute a jury selection 
practice that permits those to dis- 
criminate who are of a mind to dis- 
criminate. Finally, the defendant 
must show that such facts and any 
other relevant circumstances raise 
an inference that the prosecutor 
used peremptory challenges to ex- 
clude the veniremen from the petit 
jury on account of their race. Once 
the defendant makes a prima facie 
showing, the burden shifts to the 
State to come forward with a neu- 
tral explanation for challenging 
black jurors. The prosecutor may not 
rebut a prima facie showing by stat- 
ing that he challenged the jurors on 
the assumption that they would be 
partial to the defendant because of 
their shared race or by affirming his 
good faith in individual selections. 

4. While the peremptory challenge 
occupies an important position in 
trial procedures, the above-stated 
principles will not undermine the 
contribution that the challenge gen- 
erally makes to the administration 
of justice. Nor will application of 
such principles create serious admin- 
istrative difficulties. 

5. Because the trial court here 
flatly rejected petitioner's objection 
to the prosecutor’s removal of all 
black persons on the venire without 
requiring the prosecutor to explain 
his action, the case is remanded for 
further proceedings. 

Reversed and remanded. 
Powell, J., delivered the opinion of 

the Court, in which Brennan, White, 
Marshall, Blackmun, Stevens, and 
O’Connor, JdJ., joined. White and 
Marshall, JJ., filed concurring opin- 
ions. Stevens, J., filed a concurring 
opinion, in which Brennan, J. 
joined. O’Connor, J., filed a concur- 
ring opinion. Burger, C. J., filed a 
dissenting opinion, in which Rehn- 
quist, J., joined. Rehnquist, J., filed a 
dissenting opinion, in which Burger, 
C. J., joined. : 

APPEARANCES OF COUNSEL 

J. David Niehaus argued the cause for petitioner. 
Rickie L. Pearson argued the cause for respondent. 
Lawrence G. Wallace argued the cause for the United States, as 

amicus curiae, in support of the respondent by special leave of 

Court. 

OPINION OF THE COURT 

Justice Powell delivered the opin- 
ion of the Court. 

[1a] This case requires us to reex- 
amine that portion of Swain v Ala- 
bama, 380 US 202, 13 L. Ed 2d 759, 
85 S Ct 824 (1965), concerning the 

evidentiary burden placed on a crim- 
inal defendant who claims that he 
has been denied .equal protection 
through the State’s use of peremp- 
tory challenges to exclude members 
of his race from the petit jury.’ 

  

1. Following the lead of a number of state 
courts construing their state's constitution, 

two federal Courts of Appeals recently have 
accepted the view that peremptory challenges 

77   

   



US. SUPREME COURT REPORTS 

I 

Petitioner, a black man, was in- 
dicted in Kentucky on charges of 
second-degree burglary and receipt 
of stolen goods. On the first day of 
trial in Jefferson Circuit Court, the 
judge conducted voir dire examina- 
tion of the venire, excused certain 
jurors for cause, and permitted the 
parties to exercise peremptory chal- 
lenges.? The prosecutor used his pe- 
remptory challenges to strike all 
four black persons on the venire, 
and a jury composed only of white 
persons was selected. Defense coun- 
sel moved to discharge the jury be- 
fore it was sworn on the ground that 
the prosecutor’s removal of the black 
veniremen violated petitioner’s 
rights under the Sixth and Four- 
teenth Amendments to a jury drawn 
from a cross-section of the commu- 
nity, and under the Fourteenth 

90 L Ed 2d 

Amendment to equal protection of 
the laws. Counsel requested a hear- 
ing on his motion. Without expressly 
ruling on the request for a hearing, 
the trial judge observed that the 
parties were entitled to use their 
peremptory challenges to “strike 
anybody they want to.” The judge 
then denied petitioner’s motion, rea- 
soning that the cross-section require- 
ment applies only to selection of the 
venire and not to selection of the 
petit jury itself. 

The jury convicted petitioner on 
both counts. On appeal to the Su- 
preme Court of Kentucky, petitioner 
pressed, among other claims, the ar- 
gument concerning the prosecutor’s 
use of peremptory challenges. Con- 
ceding that Swain v Alabama, supra, 
apparently foreclosed an equal pro- 
tection claim based solely on the 
prosecutor’s conduct in this case, 

  

used to strike black jurors in a particular case 
may violate the Sixth Amendment. Booker v 
Jabe, 775 F2d 762 (CA6 1985), cert pending, 
No. 85-1028; McCray v Abrams, 750 F2d 1113 
(CA2 1984), cert pending, No. 84-1426. See 
People v Wheeler, 22 Cal 3d 258, 583 P2d 748 
(1978); Riley v State, 496 A2d 997, 1009-1-13 
(Del 1985); State v Neil, 457 So 2d 481 (Fla 
1984); Commonwealth v Soares, 377 Mass 461, 
387 NE2d 499, cert denied, 444 US 881, 62 L 
Ed 2d 110, 100 S Ct 170 (1979). See also State 
v Crespin, 94 NM 486, 612 P2d 716 (App 
1980). Other Courts of Appeals have rejected 
that position, adhering to the requirement 
that a defendant must prove systematic exclu- 
sion of blacks from the petit jury to establish 
a constitutional violation. United States v 
Childress, 715 F2d 1313 (CA8 1983) (en banc), 
cert denied, 464 US 1063, 79 L Ed 2d 202, 104 
S Ct 744 (1984); United States v Whitfield, 715 
F2d 145, 147 (CA4 1983). See Beed v State, 
271 Ark 526, 530-531, 609 SW2d 898, 903 
(1980); Blackwell v State, 248 Ga 138, 281 
SE2d 599, 599-600 (1981); Gilliard v State, 428 
So 2d 576, 579 (Miss), cert denied, 464 US 867, 
78 L Ed 2d 179, 104 S Ct 40 (1983); People v 
McCray, 57 NY2d 542, 546-549, 443 NE2d 
915, 916-919 (1982), cert denied, 461 US 961, 

78 

77 L Ed 2d 1322, 103 S Ct 2438 (1983); State v 
Lynch, 300 NC 534, 546-547, 268 SE2d 161, 
168-169 (1980), Federal Courts of Appeals also 
have disagreed over the circumstances under 

which supervisory power may be used to scru- 
tinize the prosecutor's exercise of peremptory 
challenges to strike blacks from the venire. 
Compare United States v Leslie, — F2d 
—— (CA5 1986) (en banc), with United States 
v Jackson, 696 F2d 578, 592-593 (CA8 1982), 
cert denied, 460 US 1073, 75 L Ed 2d 952, 103 
S Ct 1531 (1983). See also United States v 
McDaniels, 379 F Supp 1243 (ED La 1974). 

2. The Kentucky Rules of Criminal Proce- 
dure authorize the trial court to permit coun- 

sel to conduct voir dire examination or to 

conduct the examination itself. Ky Rule Crim 
Proc 9.38. After jurors have been excused for 

cause, the parties exercise their peremptory 
challenges simultaneously by striking names 
from a list of qualified jurors equal to the 
number to be seated plus the number of 

allowable peremptory challenges. Rule 9.36. 

Since the offense charged in this case was a 

felony, and an alternate juror was called, the 
prosecutor was entitled to six peremptory 

challenges, and defense counsel to nine. Rule 
9.40. 

  

  
  

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REPORTS 90 L Ed 2d 

ment to equal protection of 
bs. Counsel requested a hear- 

is motion. Without expressly 
bn the request for a hearing, 
al judge observed that the 
were entitled to use their 

tory challenges to “strike 
7 they want to.” The judge 
nied petitioner’s motion, rea- 
hat the cross-section require- 
pplies only to selection of the 
and not to selection of the 
y itself. 

ury convicted petitioner on 
ints. On appeal to the Su. 
ourt of Kentucky, petitioner 
among other claims, the ar- 
concerning the prosecutor’s 
eremptory challenges. Con- 
at Swain v Alabama, supra, 
ly foreclosed an equal pro- 
claim based solely on the 
r's conduct in this case, 
  

1322, 108 S Ct 2438 (1983); State v 
ft NC 534, 546-547, 268 SE24 161, 
80), Federal Courts of Appeals also 
feed over the circumstances under 
rvisory power may be used to scru- 
prosecutor's exercise of peremptory 
#o strike blacks from the venire. 
‘mited States v Leslie, — F24 
#86) (en banc), with United States 
#96 F2d 578, 592-593 (CAS 1982), 
480 US 1073, 75 L Ed 2d 952, 103 
F983). See also United States v 
#%% F Supp 1243 (ED La 1974). 

wcky Rules of Criminal Proce 
ie the trial court to permit coun- 
WS woir dire examination or to 

| $Sssmination itself. Ky Rule Crim 
“jurors have been excused for Ses exercise their perempto 
aianeously by striking ay 

MSlified jurors equal to the 
Momied plus the number of 

hallenges. Rule 9.36. 
re in this case was a 
 Wremagy #aror was called, the 

to six peremptory 
#umsel to nine. Rule 

  
  

BATSON v KENTUCKY 
90 L Ed 2d 69 

petitioner urged the court to follow 
decisions. of other states, People v 
Wheeler, 22 Cal 3d 258, 583 P2d 748 
(1978); Commonwealth v Soares, 377 
Mass 461, 387 NE2d 499, cert de- 
nied, 444 US 881, 62 L Ed 2d 110, 
100 S Ct 170 (1979), and to hold that 
such conduct violated his rights un- 
der the Sixth Amendment and Sec- 
tion 11 of the Kentucky Constitution 
to a jury drawn from a cross-section 
of the community. Petitioner also 
contended that the facts showed that 
the prosecutor had engaged in a 
“pattern” of discriminatory chal- 
lenges in this case and established 
an equal protection violation under 
Swain. 

The Supreme Court of Kentucky 
affirmed. In a single paragraph, the 
court declined petitioner’s invitation 
to adopt the reasoning of People v 
Wheeler, supra, and Commonwealth 
v Soares, supra. The court observed 
that it recently had reaffirmed its 
reliance on Swain, and had held that’ 
a defendant alleging lack of a fair 

cross-section must demonstrate sys- 
tematic exclusion of a group of ju- 
rors from the venire. See Common- 
wealth v McFerron, 680 SW2d 924 
(1984). We granted certiorari, 471 
US ——, 85 L Ed 2d 476, 105 S Ct 
2111 (1985), and now reverse. 

II 

[2, 3a] In Swain v Alabama, this 
Court recognized that a “State’s pur- 
poseful or deliberate denial to Ne- 
groes on account of race of participa- 
tion as jurors in the administration 
of justice violates the Equal Protec- 
tion Clause.” 380 US, at 203-204, 13 
L Ed 2d 759, 85 S Ct 824. This 
principle has been “consistently and 
repeatedly” reaffirmed, id., at 204, 
13 L Ed 2d 759, 85 S Ct 824, in 
numerous decisions of this Court 
both preceding and following Swain.? 
We reaffirm the principle today. 

A 

More than a century ago, the 
  

3. See, e. g., Strauder v West Virginia, 100 
US 308, 25 L Ed 664 (1880); Neal v Delaware, 
103 US 370, 26 L Ed 567 (1881); Norris v 
Alabama, 294 US 587, 79 L Ed 1074, 55 S Ct 
579 (1935); Hollins v Oklahoma, 295 US 394, 
79 L Ed 1500, 55 S Ct 784 (1935) (per curiam); 
Pierre v Louisiana, 306 US 354, 83 L Ed 757, 
59 S Ct 536 (1939); Patton v Mississippi, 332 
US 463, 92 L Ed 76, 68 S Ct 184 (1947); Avery 
v Georgia, 345 US 559, 97 L Ed 1244, 73 S Ct 
891 (1953); Hernandez v Texas, 347 US 475, 
98 L Ed 866, 74 S Ct 667 (1954); Whitus v 
Georgia, 385 US 545, 17 L Ed 2d 599, 87 S Ct 
643 (1967); Jones v Georgia, 389 US 24, 19 L 
Ed 2d 25, 88 S Ct 4 (1967) (per curiam); Carter 
v Jury Commission of Greene County, 396 US 
320, 24 L Ed 2d 549, 90 S Ct 518 (1970); 
Castaneda v Partida, 430 US 482, 51 L Ed 2d 
498, 97 S Ct 1272 (1977); Rose v Mitchell, 443 
US 545, 61 L Ed 2d 739, 99 S Ct 2993 (1979); 
Vasquez v Hillery, 474 US ——, 88 L Ed 2d 
598, 106 S Ct 617 (1986). 

[3b] The basic principles prohibiting exclu- 
sion of persons from participation in jury 
service on account of their race “are essen- 

tially the same for grand juries and for petit 
juries.” Alexander v Louisiana, 405 US 625, 
626, n 3, 31 L Ed 2d 536, 92 S Ct 1221 (1972); 
see Norris v Alabama, 294 US 587, 589, 79 L 
Ed 1074, 55 S Ct 579 (1935). These principles 
are reinforced by the criminal laws of the 
United States. 18 USC § 243 [18 USCS § 243]. 

4. In this Court, petitioner has argued that 
the prosecutor's conduct violated his rights 
under the Sixth and Fourteenth Amendments 
to an impartial jury and to a jury drawn from 
a cross-section of the community. Petitioner 
has framed his argument in these terms in an 
apparent effort to avoid inviting the Court 
directly to reconsider one of its own prece- 
dents. On the other hand, the State has in- 
sisted that petitioner is claiming a denial of 
equal protection and that we must reconsider 
Swain to find a constitutional violation on 
this record. We agree with the State that 
resolution of petitioner’s claim properly turns 
on application of equal protection principles 
and express no view on the merits of any of 
petitioner’s Sixth Amendment arguments.   

 



U.S. SUPREME COURT REPORTS 

Court decided that the State denies 
a black defendant equal protection 
of the laws when it puts him on trial 
before a jury from which members 
of his race have been purposefully 
excluded. Strauder v West Virginia, 
100 US 303, 25 L Ed 664 (1880). 
That decision laid the foundation for 
the Court’s unceasing efforts to erad- 
icate racial discrimination in the 
procedures used to select the venire 
from which individual jurors are 
drawn. In Strauder, the Court ex- 
plained that the central concern of 
the recently ratified Fourteenth 
Amendment was to put an end to 
governmental discrimination on ac- 
count of race. Id., at 306-307, 25 L 
Ed 664. Exclusion of black citizens 
from service as jurors constitutes a 
primary example of the evil the 
Fourteenth Amendment was de- 
signed to cure. 

[4, 5a, 6a, 7] In holding that racial 
discrimination in jury selection of- 
fends the Equal Protection Clause, 
the Court in Strauder recognized, 
however, that a defendant has no 
right to a “petit jury composed in 
whole or in part of persons of his 
own race.” Id, at 305, 25 L Ed 664.5 
“The number of our races and na- 
tionalities stands in the way of evo- 

90 L Ed 2d 

lution of such a conception” of the 
demand of equal protection. Akins v 
Texas, 325 US 398, 403, 89 L Ed 
1692, 65 S Ct 1276 (1945).¢ But the 
defendant does have the right to be 
tried by a jury whose members are 
selected pursuant to nondiscrimina- 
tory criteria. Martin v Texas, 200 
US 316, 321, 50 L Ed 497, 26 S Ct 
338 (1906); Ex parte Virginia, 100 
US 339, 345, 25 L Ed 676 (1880). The 
Equal Protection Clause guarantees 
the defendant that the State will not 
exclude members of his race from 
the jury venire on account of race, 
Strauder, supra, at 305, 25 L Ed 
664,” or on the false assumption that 
members of his race as a group are 
not qualified to serve as jurors, see 
Norris v Alabama, 294 US 587, 599, 
79 L Ed 1074, 55 S Ct 579 (1935); 
Neal v Delaware, 103 US 370, 397, 
26 L Ed 567 (1881). 

[8] Purposeful racial discrimina- 
tion in selection of the venire vio- 
lates a defendant’s right to equal 
protection because it denies him the 
protection that a trial by jury is 
intended to secure. “The very idea of 
a jury is a body . . . composed of the 
peers or equals of the person whose 
rights it is selected or summoned to 
determine; that is, of his neighbors, 

    5. See Hernandez v Texas, supra, at 482, 98 
L Ed 866, 74 S Ct 667; Cassell v Texas, 339 
US 282, 286-287, 94 L Ed 839, 70 S Ct 629 
(1950) (plurality opinion); Akins v Texas, 325 
US 398, 403, 89 L Ed 1692, 65 S Ct 1276 
(1945); Martin v Texas, 200 US 316, 321, 50 L 
Ed 497, 26 S Ct 338 (1906); Neal v Delaware, 
supra, at 394, 26 L Ed 567. 

6. [5b] Similarly, though the Sixth Amend- 
ment guarantees that the petit jury will be 
selected from a pool of names representing a 
cross-section of the community, Taylor v Loui- 
siana, 419 US 522, 42 L Ed 2d 690, 95 S Ct 
692 (1975), we have never held that the Sixth 
Amendment requires that “petit juries actu- 
ally chosen must mirror the community and 

80 

reflect the various distinctive groups in the 
population,” id., at 538, 42 L Ed 2d 690, 95 S 
Ct 692. Indeed, it would be impossible to 
apply a concept of proportional representation 
to the petit jury in view of the heterogeneous 
nature of our society. Such impossibility is 
illustrated by the Court’s holding that a jury 
of six persons is not unconstitutional. Wil- 
liams v Florida, 399 US 78, 102-108, 26 L Ed 
2d 446, 90 S Ct 1893 (1970). 

7. See Hernandez v Texas, supra, at 482, 98 
L Ed 866, 74 S Ct 667; Cassell v Texas, supra, 
at 287, 94 L Ed 839, 70 S Ct 629; Akins v 
Texas, supra, at 403, 89 L Ed 1692, 65 S Ct 
1276; Neal v Delaware, 103 US, at 394, 26 L 
Ed 567. : 

    
  
 



JORTS 90 L Ed 28 

.h a conception” of the 
. «qunl protection. Akins v 

» \)S 398, 403, 89 L Ed 
« 1 1276 (1945). But the 
Li» have the right to be 

»1y whose members are 
suant to nondiscrimina- 

+~— Martin v Texas, 200 
tv... 50 L Ed 497, 26 S Ct 

_ kx parte Virginia, 100 
L.. 25 L Ed 676 (1880). The 

wn Clause guarantees 
that the State will not 
.wbers of his race from 
waire on account of race, 
wpra, at 305, 25 L Ed 

whe false assumption that 
, his race as a group are 

ww tO Serve as jurors, see 
wadbama, 294 US 587, 599, 
wd. 85 S Ct 579 (1935); 

mmware, 103 US 370, 397, 

Lpeweful racial discrimina- 
gsetion of the venire vio- 
adendant’s right to equal 
x Because it denies him the 
s What a trial by jury is 
# wcure. “The very idea of 

5 %ady . . . composed of the 
gusls of the person whose 
i selected or summoned to 
% hat is, of his neighbors, 
  

Proportional representation 
§ #8 view of the heterogeneous 

SF Selby. Such impossibility is 
Be £urt’s holding that a jury 
lS % Wet unconstitutional Wil- 

8 US 78, 102-103, 26 I, Eq 

v Texas, supra, 

1 8d 1692 65 S Ct 
US, at 394, 26 1. 

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Z RE TES TTT RN IIR RYT a 

BATSON v KENTUCKY 
90 L Ed 2d 69 

fellows, associates, persons having 
the same legal status in society as 
that which he holds.” Strauder, su- 
pra, at 308, 25 L Ed 664; see Carter 
v Jury Commission of Greene 
County, 396 US 320, 330, 24 L Ed 2d 
549, 90 S Ct 518 (1970). The petit 
jury has occupied a central position 
in our system of justice by safe- 
guarding a person accused of crime 
against the arbitrary exercise of 
power by prosecutor or judge. Dun- 
can v Louisiana, 391 US 145, 156, 20 
L Ed 2d 491, 88 S Ct 1444 (1968).® 
Those on the venire must be “indif- 
ferently chosen,” to secure the de- 
fendant’s right under the Four- 
teenth Amendment to “protection of 
life and liberty against race or color 
prejudice.” Strauder, supra, at 309, 
25 L Ed 664. 

[9-11] Racial discrimination in se- 
lection of jurors harms not only the 
accused whose life or liberty they 
are summoned to try. Competence to 
serve as a juror ultimately depends 
on an assessment of individual quali- 
fications and ability impartially to 
consider evidence presented at a 
trial. See Thiel v Southern Pacific . 
Co., 328 US 217, 223-224, 90 L Ed 
1181, 66 S Ct 984 (1946). A person’s 
race simply “is unrelated to his 

fitness as a juror.” Id., at 227, 90 L 
Ed 1181, 66 S Ct 984 (Frankfurter, 
J., dissenting). As long ago as Strau- 
der, therefore, the Court recognized 
that by denying a person participa- 
tion in jury service on account of his 
race, the State unconstitutionally 
discriminated against the excluded 
juror. 100 US, at 308, 25 LL Ed 664; 
see Carter v Jury Commission of 
Greene County, supra, at 329-330, 24 
L Ed 2d 549, 90 S Ct 518; Neal v 
Delaware, supra, at 386, 26 L Ed 
567. 

The harm from discriminatory 
jury selection extends beyond that 
inflicted on the defendant and the 
excluded juror to touch the entire 
community. Selection procedures 
that purposefully exclude black per- 
sons from juries undermine public 
confidence in the fairness of our sys- 
tem of justice. See Ballard v United 
States, 329 US 187, 195, 91 L Ed 
181, 67 S Ct 261 (1946); McCray v 
New York, 461 US 961, 968, 77 L Ed 
2d 1322, 103 S Ct 2438 (1983) (Mar- 
shall, J., dissenting from denial of 
certiorari). Discrimination within 
the judicial system is most perni- 
cious because it is “a stimulant to 
that race prejudice which is an im- 
pediment to securing to [black citi- 
zens] that equal justice which the 

  

8. See Taylor v Louisiana, supra, at 530, 42 
L Ed 2d 690, 95 S Ct 692; Williams v Florida, 
supra, at 100, 26 L Ed 2d 446, 90 S Ct 1893. 
See also Powell, Jury Trial of Crimes, 23 
Wash & Lee L Rev 1 (1966). 

In Duncan v Louisiana, decided after 
Swain, the Court concluded that the right to 
trial by jury in criminal cases was such a 
fundamental feature of the American system 
of justice that it was protected against state 
action by the Due Process Clause of the Four- 
teenth Amendment. 391 US, at 147-158, 20 L 
Ed 2d 491, 88 S Ct 1444. The Court empha- 
sized that a defendant’s right to be tried by a 
jury of his peers is designed “to prevent op- 
pression by the Government.” Id., at 155, 156- 
157, 20° L Ed 2d 491, 88 S Ct 1444. For a jury 

to perform its intended function as a check on 
official power, it must be a body drawn from 
the community. Duncan v Louisiana, supra, 
at 156, 20 L Ed 2d 491, 88 S Ct 1444; Glasser 

v United States, 315 US 60, 86-88, 86 L Ed 
680, 62 S Ct 457 (1942). By compromising the 
representative quality of the jury, discrimina- 
tory selection procedures make “juries ready 
weapons for officials to oppress those accused 
individuals who by chance are numbered 
among unpopular or inarticulate minorities.” 
Akins v Texas, 325 US, at 408, 89 L Ed 1692, 
65 S Ct 1276 (Murphy, J., dissenting). 

9. 4 W. Blackstone, Commentaries 349 (Coo- 
ley ed 1899) (quoted in Duncan v Louisiana, 
supra, at 152, 20 L Ed 2d 491, 88 S Ct 1444). 

81  



U.S. SUPREME COURT REPORTS 

law aims to secure to all others.” 
Strauder, supra, at 308 25 I, Ed 664. 

B 

[6b, 12] In Strauder, the Court 
invalidated a state statute that pro- 
vided that only white men could 
serve as jurors. 100 US, at 305, 25 L 
Ed 664. We can be confident that no 
state now has such a law. The Con- 
stitution requires, however, that we 
look beyond the face of the statute 
defining juror qualifications and also 
consider challenged selection prac- 
tices to afford “protection against 
action of the State through its ad- 
ministrative officers in effecting the 
prohibited discrimination.” Norris v 
Alabama, 294 US, at 589, 79 L Ed 
1074, 55 S Ct 579; see Hernandez v 
Texas, 347 US 475, 478479, 98 L Ed 
866, 74 S Ct 667 (1954). Ex parte 
Virginia, 100 US, at 346-347, 25 L 
Ed 676. Thus, the Court has found a 
denial of equal protection where the 
procedures implementing a neutral 
statute operated to exclude persons 
from the venire on racial grounds,® 
and has made clear that the Consti- 
tution prohibits all forms of purpose- 
ful racial discrimination in selection 

10. E. g., Sims v Georgia, 389 US 404, 407, 
19 L Ed 2d 634, 88 S Ct 523 (1967) (per 
curiam); Whitus v Georgia, 385 US, at 548- 
549, 17 L Ed 2d 599, 87 S Ct 643; Avery v 
Georia, 345 US, at 561, 97 L Ed 1244, 73 S 

1. 

11. See Norris v Alabama, 294 US, at 589, 
79 L Ed 1074, 55 S Ct 579; Martin v Texas, 
200 US, at 319, 50 L Ed 497, 26 S Ct 338: 
Neal v Delaware, 103 US, at 394, 397, 26 L 

567. 

12. We express no views on whether the 
Constitution imposes any limit on the exercise 
of peremptory challenges by defense counsel. 

Nor do we express any views on the tech- 
niques used by lawyers who seek to obtain 
information about the community in which a 
case is to be tried, and about members of the 
venire from which the jury is likely to be 

82 

  

  

90 L Ed 2d 

of jurors.” While decisions of this 
Court have been concerned largely 
with discrimination during selection 
of the venire, the principles an- 
nounced there also forbid discrimi- 
nation on account of race in selec- 
tion of the petit jury. Since the Four- 
teenth Amendment protects an ac- 
cused throughout the proceedings 
bringing him to justice, Hill v Texas, 
316 US 400, 406, 86 L Ed 1559, 62 S 
Ct 1159 (1942), the State may not 
draw up its jury lists pursuant to 
neutral procedures but then resort 
to discrimination at “other stages in 
the selection process,” Avery v Geor- 
gia, 345 US 559, 562, 97 L Ed 1244, 
73 S Ct 891 (1953); see McCray v 
New York, supra, at 965, 968, 77 L 
Ed 2d 132, 103 S Ct 2438 (Marshall, 
J., dissenting from denial of certio- 
rari); see also Alexander v Louisi- 
ana, 405 US 625, 632, 31 L Ed 2d 
536, 92 S Ct 1221 (1972). 

[13, 14a] Accordingly, the compo- 
nent of the jury selection process at 
issue here, the State’s privilege to 
strike individual jurors through pe- 
remptory challenges, is subject to 
the commands of the Equal Protec- 
tion Clause.” Although a prosecutor 

drawn. See generally J. Van Dyke, Jury Se- 
lection Procedures: Our Uncertain Commit- 
ment to Representative Panels, 183-189 
(1977). Prior to voir dire examination, which 

serves as the basis for exercise of challenges, 

lawyers: wish to know as much as possible 
about prospective jurors, including their age, 
education, employment, and economic status, 
so that they can ensure selection of jurors 
who at least have an open mind about the 

case. In some jurisdictions, where a pool of 
jurors serves for a substantial period of time, 
see J. Van Dyke, supra, at 116-118, counsel 
also may seek to learn which members of the 
pool served on juries in other cases and the 
outcome of those cases. Counsel even may 
employ professional investigators to interview 

persons who have served on a particular petit 

jury. We have had no occasion to consider 

  

   



JRTS 

While decisions of this 
been concerned largely 

aination during selection 
ure; the principles an- 

wre also forbid discrimi- 
woount of race in selec- 
wiit jury. Since the Four- 

_ .adment protects an ac- 
. ~uphout the proceedings 
_u to justice, Hill v Texas, 

5. 406, 86 L Ed 1559, 62 S 
+42), the State may not 

_ iw Jury lists pursuant to 
"_.wwwlures but then resort 
uation at “other stages in 
ou process,” Avery v Geor- 
Lox 339, 562, 97 L Ed 1244, 
L w: (19563); see McCray v 
em, SUPTa, at 965, 968, 7 L 
L103 S Ct 2438 (Marshall, 
Lang from denial of certio- 

uso Alexander v Louisi- 
le ¥S 625, 632, 31 L Ed 24 
ay 1321 (1972). 

si Accordingly, the compo- 
Jeary selection process at 
the State’s privilege to 

hsal jurors through pe- 
shallenges, is subject to 

of the Equal Protec- 
' Although a prosecutor 
  

mlly J. Van Dyke, Jury Se- 
Our Uncertain Commit- 

i tive Panels, 183-189 
% weir dire examination, which 
Susie for exercise of challenges, 
# know as much as possible 

, jurors, including their age, 

: i, and economic status, 
pn haure selection of jurors 

* &B open mind about the 
sections, where a pool of 

. tial period of time, 
#uprs, at 116-118, counsel 

] members of the 

In other cases and the 

90 L Ed 2d 

  § 
b 

X against a black defendant. 
hp 

BATSON v KENTUCKY 
90 L Ed 2d 69 

ordinarily is entitled to exercise per- 
mitted peremptory challenges “for 
any reason at all, as long as that 
reason is related to his view concern- 
ing the outcome” of the case to be 
tried, United States v Robinson, 421 
F Supp 467, 473 (Conn 1976), manda- 
mus granted sub nom. United States 
ww Newman, 549 F2d 240 (CA2 1977), 

{ the Equal Protection Clause forbids 
the prosecutor to challenge potential 
jurors solely on account of their race 
or on the assumption that black ju- 
rors as a group will be unable im- 
partially to consider the State’s case 

» 

rapes 

III 

The principles announced in 
Strauder never have been ques- 
tioned in any subsequent decision of 
this Court. Rather, the Court has 
been called upon repeatedly to re- 
view the application of those princi- 
ples to particular facts.!®* A recurring 
question in these cases, as in any 
case alleging a violation of the Equal 
Protection Clause, was whether the 

defendant had met his burden of 
proving purposeful discrimination on 
the part of the State. Whitus v Geor- 
gia, 385 US, at 550, 17 L Ed 2d 599, 
87 S Ct 643; Hernandez v Texas, 347 
US, at 478-481, 98 L Ed 866, 74 S Ct 
667; Akins v Texas, 325 US, at 403- 
404, 89 L Ed 1692, 65 S Ct 1276; 
Martin v Texas, 200 US 316, 50 L Ed 
497, 26 S Ct 338 (1906). That ques- 
tion also was at the heart of the 
portion of Swain v Alabama we reex- 
amine today. 

A 

Swain required the Court to de- 
cide, among other issues, whether a 
black defendant was denied equal 
protection by the State’s exercise of 
peremptory challenges to exclude 
members of his race from the petit 
jury. 380 US, at 209-210, 13 L Ed 2d 
759, 85 S Ct 824. The record in 
Swain showed that the prosecutor 
had used the State’s peremptory 
challenges to strike the six black 
persons included on the petit jury 
venire. Id., at 210, 13 L. Ed 2d 759, 

  

particularly this practice. Of course, counsel’s 
effort to obtain possibly relevant information 
about prospective jurors is to be distinguished 
from the practice at issue here. 

13. See, e. g., Vasquez v Hillery, 474 US 
——, 88 °'L Ed 2d 598, 106 S Ct 617 (1986); 
Rose v Mitchell, 443 US 545, 61 L Ed 2d 739, 
99 S Ct 2993 (1979); Castaneda v Partida, 430 

US 482, 51 L Ed 2d 498, 97 S Ct 1272 (1977); 
Alexander v Louisiana, 405 US 625, 628-629, 
31 L Ed 2d 536, 92 S Ct 1221 (1972); Whitus v 
Georgia, 385 US 545, 549-550, 17 L Ed 2d 599, 
87 S Ct 643 (1967); Swain v Alabama, supra, 
at 205, 13 L Ed 2d 759, 85 S Ct 824; Coleman 
v Alabama, 377 US 129, 12 L Ed 2d 190,84 S 
Ct 1152 (1964); Norris v Alabama, 284 US 
587, 589, 79 L Ed 1074, 55 S Ct 579 (1935); 
Neal v Delaware, 103 US, at 394, 26 L Ed 

567. 

14. The decision in Swain has been the 
subject of extensive commentary. Some au- 
thors have argued that the Court should re- 

consider the decision. E. g., J. Van Dyke, Jury 
Selection Procedures: Our Uncertain Commit- 
ment to Representative Panels 166-167 (1977); 

Imlay, Federal Jury Reformation: Saving a 
Democratic Institution, 6 Loyola (LA) L Rev 
247, 268-270 (1973); Kuhn, Jury Discrimina- 
tion: The Next Phase, 41 S Cal L Rev 235, 
283-303 (1968); Note, Rethinking Limitations 
on the Peremptory Challenge, 85 Colum L 
Rev 1357 (1985); Note, Peremptory Challenge 
—Systematic Exclusion of Prospective Jurors 
on the Basis of Race, 39 Miss L J 157 (1967); 
Comment, Swain v Alabama: A Constitutional 
Blueprint for the Perpetuation of the All- 
White Jury, 52 Va L Rev 1157 (1966). See also 
Johnson, Black Innocence and the White 
Jury, 83 Mich L Rev 1611 (1985). 

On the other hand, some commentators 
have argued that we should adhere to Swain. 
See Saltzburg & Powers, Peremptory Chal- 
lenges and the Clash Between Impartiality 
and Group Representation, 41 Md L Rev 337 
(1982). 

83 

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U.S. SUPREME COURT REPORTS 

8 S Ct 824. The record in Swain 
showed that the prosecutor had used 
the State’s peremptory challenges to 
strike the six black persons included 
on the petit jury venire. Id., at 210, 
13 L Ed 2d 759, 85 S Ct 824. While 
rejecting the defendant’s claim for 
failure to prove purposeful discrimi- 
nation, the Court nonetheless indi- 
cated that the Equal Protection 
Clause placed some limits on the 
State’s exercise of peremptory chal- 
lenges. Id., at 222-224, 13 L Ed 2d 
759, 85 S Ct 824. 

The Court sought to accommodate 
the prosecutor’s historical privilege 
of peremptory challenge free of judi- 
cial control, id., at 214-220, 13 L Ed 
2d 759, 85 S Ct 824, and the consti- 
tutional prohibition on exclusion of 
persons from jury service on account 
of race, id., at 222-224, 13 L Ed 2d 
759, 85 S Ct 824. While the Constitu- 
tion does not confer a right to pe- 
remptory challenges, id., at 219, 13 L 
Ed 2d 759, 85 S Ct 824 (citing Stilson 
v United States, 250 US 583, 586, 63 
L Ed 1154, 40 S Ct 28 (1919), those 
challenges traditionally have been 
viewed as one means of assuring the 
selection of a qualified and unbiased 
Jury, 380 US, at 219, 13 L Ed 2d 759, 
85 S Ct 824." To preserve the pe- 
remptory nature of the prosecutor’s 
challenge, the Court in Swain de- 
clined to scrutinize his actions in a 
particular case by relying on a pre- 
sumption that he properly exercised 
the State’s challenges. Id., at 221- 
222,13 L Ed 2d 759, 85 S Ct 824. 

The Court went on to observe, 
however, that a state may not exer- 
cise its challenges in contravention 
of the Equal Protection Clause. It 

F 

TT TT CE ANC ei oh ST a Sn alt. dr as: 3 Sa : 

90 L Ed 2d 

was impermissible for a prosecutor 
to use his challenges to exclude 
blacks from the jury “for reasons 
wholly unrelated to the outcome of 
the particular case on trial” or to 
deny to blacks “the same right and 
opportunity to participate in the ad- 
ministration of justice enjoyed by 
the white population.” Id., at 224, 13 
L Ed 2d 759, 85 S Ct 824. Accord- 
ingly, a black defendant could make 
out a prima facie case of purposeful 
discrimination on proof that the pe- 
remptory challenge system was “be- 
ing perverted” in that manner. Ibid. 
For example, an inference of pur- 
poseful discrimination would be 
raised on evidence that a 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 who have been 
selected as qualified jurors by the 
jury commissioners and who have 
survived challenges for cause, with 
the result that no Negroes ever 
serve on petit juries.” Id., at 223, 13 
L Ed 2d 759, 85 S Ct 824. Evidence 
offered by the defendant in Swain 
did not meet that standard. While 
the defendant showed that prose- 
cutors in the jurisdiction had exer- 
cised their strikes to exclude blacks 
from the jury, he offered no proof of 
the circumstances under which pros- 
ecutors were responsible for striking 
black jurors beyond the facts of his 
own case. Id., at 224-228, 13 L Ed 2d 
759, 85 S Ct 824. 

[tb] A number of lower courts 
following the teaching of Swain rea- 
soned that proof of repeated striking 
of blacks over a number of cases was 

  

15. In Swain, the Court reviewed the “very 
old credentials” of the peremptory challenge 
system and noted the “long and widely held 
belief that peremptory challenge is a neces- 

84 

sary part of trial by jury.” 380 US, at 219, 13 

L Ed 2d 759, 85 S Ct 824; see id., at 212-219, 
13 L Ed 2d 759, 85 S Ct 824. 

  

  
  

S
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ht
  



ORTS 90 L Ed 2d 

missible for a prosecutor 
challenges to exclude 

nm the jury “for reasons 
elated to the outcome of 

iar case on trial” or to 
hicks “the same right and 

to participate in the ad- 
p of justice enjoyed by 
opulation.” Id., at 224, 13 
pg, 85 S Ct 824. Accord- 
ck defendant could make 
z facie case of purposeful 
on on proof that the pe- 
allenge system was “be- 
d” in that manner. Ibid. 

le, an inference of pur- 
rimination would be 

idence that a prosecutor, 
er case, whatever the 

es, whatever the crime 
r the defendant or the 
be, is responsible for the 
Negroes who have been 
qualified jurors by the 
ssioners and who have 
hllenges for cause, with 
that no Negroes ever 
it juries.” Id., at 223, 13 
, 85 S Ct 824. Evidence 
he defendant in Swain 
t that standard. While 

t showed that prose- 
2 jurisdiction had exer- 
irikes to exclude blacks 
v, he offered no proof of 
ances under which pros- 
responsible for striking 
beyond the facts of his 

p at 224-228, 13 L Ed 2d 
[ 4 

fmber of lower courts 
teaching of Swain rea- 
vof of repeated striking 

" & number of cases was 
Oe ——— 
  

by jury.” 380 US, at 219, 13 
8 oh see id., at 212-219, 

  

  

I dir: 

BATSON v KENTUCKY 
90 L Ed 2d 69 

necessary to establish a violation of 
the Equal Protection Clause.’ Since 
this interpretation of Swain has 
placed on defendants a crippling 
burden of proof,” prosecutors’ pe- 
remptory challenges are now largely 
immune from constitutional scru- 
tiny. For reasons that follow, we 
reject this evidentiary formulation 
as inconsistent with standards that 
have been developed since Swain for 
assessing a prima facie case under 
the Equal Protection Clause. 

B 

[15-18] Since the decision in 
Swain, we have explained that our 
cases concerning selection of the ve- 
nire reflect the general equal protec- 
tion principle that the “invidious 
quality” of governmental action 
claimed to be racially discriminatory 
purpose.” Washington v Davis, 426 
US 229, 240, 48 L Ed 2d 597, 96 S Ct 
2040 (1976). As in any equal protec- 
tion case, the “burden is, of course,” 
on the defendant who alleges dis- 
criminatory selection of the venire 
“to prove the existence of purposeful 
discrimination.” Whitus v Georgia, 
385 US, at 550, 17 L Ed 2d 599, 87 S 
Ct 643 (citing Tarrance v Florida, 
188 US 519, 47 L Ed 572, 23 S Ct 
402 (1903). In deciding if the defen- 

dant has carried his burden of per- 
suasion, a court must undertake “a 
sensitive inquiry into such circum- 
stantial and direct evidence of intent 
as may be available.” Village of Ar- 
lington Heights v Metropolitan 
Housing Development Corp., 429 US 
252, 266, 50 L Ed 2d 450, 97 S Ct 
555 (1977). Circumstantial evidence 
of invidious intent may include proof 
of disproportionate impact. Washing- 
ton v Davis, 426 US, at 242, 48 L Ed 
2d 597, 96 S Ct 2040. We have ob- 
served that under some circum- 
stances proof of discriminatory im- 
pact “may for all practical purposes 
demonstrate unconstitutionality be- 
cause in various circumstances the 
discrimination is very difficult to ex- 
plain on nonracial grounds.” Ibid. 
For example, “total or seriously dis- 
proportionate exclusion of Negroes 
from jury venires,” ibid. “is itself 
such an ‘unequal application of the 
law ... as to show intentional 
discrimination,’ ” id., at 241, 48 L Ed 
2d 597, 96 S Ct 2040 (quoting Akins 
v Texas, 325 US, at 404, 89 L Ed 2d 
1692, 65 S Ct 1276). 

[19, 20a] Moreover, since Swain, 
we have recognized that a black de- 

¢ fendant alleging that members of his 
race have been impermissibly ex- 

  

16. E. g., United States v Jenkins, 701 F2d 
850, 859-860 (CA10 1983); United States v 
Boykin, 679 F2d 1240, 1245 (CA8 1982); 
United States v Pearson, 448 F2d 1207, 1213- 
1218 (CA5 1971); Thigpen v State, 49 Ala App 
233, 270 So 2d 666, 673 (1972); Jackson v 
State, 245 Ark 331, 432 SW2d 876, 878 (1968); 
Johnson v Maryland, 9 Md App 143, 262 A2d 
792, 796-797 (1970); State v Johnson, 125 NJ 
Super 438, 311 A2d 389 (1973) (per curiam); 
State v Shaw, 284 NC 366, 200 SE2d 585 

(1973). 

17. See McCray v Abrams, 750 F2d 1113, 
1120, and n 2 (CA2 1984), cert pending, No. 
84-1426. The lower courts have noted the 
practical difficulties of proving that the State 
systematically has exercised peremptory chal- 

lenges to exclude blacks from the jury on 
account of race. As the Court of Appeals for 
the Fifth Circuit observed, the defendant 
would have to investigate, over a number of 

cases, the race of persons tried in the particu- 
lar jurisdiction, the racial composition of the 
venire and petit jury, and the manner in 
which both parties exercised their peremptory 

challenges. United States v Pearson, 448 F2d 
1207, 1217 (CA5 1971). The court believed this 
burden to be “most difficult” to meet. Ibid. In 

jurisdictions where court records do not 
reflect the jurors’ race and where voir dire 
proceedings are not transcribed, the burden 
would be insurmountable. See People v 
Wheeler, 22 Cal 3d 258, 583 P2d 748, 767-768 
(1978). 

85 

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U.S. SUPREME COURT REPORTS 

cluded from the venire may make 
out a prima facie case of purposeful 
discrimination by showing that the 
totality of the relevant facts gives 
rise to an inference of discrimina- 
tory purpose. Washington v Davis, 
supra, at 239-242, 48 L Ed 2d 597, 96 
S Ct 2040. Once the defendant 
makes the requisite showing, the 
burden shifts to the State to explain 
adequately the racial exclusion. Al- 
exander v Louisiana, 405 US, at 632, 
31 L Ed 2d 536, 92 S Ct 1221. The 
State cannot meet this burden on 
mere general assertions that its 
officials did not discriminate or that 
they properly performed their 
official duties. See Alexander v Loui- 
siana, supra, at 632, 31 L Ed 2d 536, 
92 S Ct 1221; Jones v Georgia, 389 
US 24, 25, 19 L Ed 2d 25, 88 S Ct 4 
(1967). Rather, the State must dem- 
onstrate that “permissible racially 
neutral selection criteria and proce- 
dures have produced the monochro- 
matic result.” Alexander v Louisi- 
ana, supra, at 632, 31 L Ed 2d 536, 
92 S Ct 1221; see Washington v Da- 
vis, supra, at 241, 48 L Ed 2d 597, 96 
S Ct 2040.¢ 

[21] The showing necessary to es- 
tablish a prima facie case of pur- 
poseful discrimination in selection of 
the venire may be discerned in this 
Court’s decisions. E. g., Castaneda v 
Partida, 430 US 482, 494-495, 51 L 
Ed 2d 498, 97 S Ct 1272 (1977); 
Alexander v Louisiana, supra, at 
631-632, 31 L Ed 2d 536, 92 S Ct 
1221. The defendant initially must 
show that he is a member of a racial 

Loar 

90 L Ed 2d 

group capable of being singled out 
for differential treatment. Castaneda 
v Partida, supra, at 494, 51 L Ed 2d 
498, 97 S Ct 1272. In combination 
with the evidence, a defendant may 
then make a prima facie case by 
proving that in the particular juris- 
diction members of his race have not 
been summoned for jury service over 
an extended period of time. Id., at 
494, 51 L Ed 2d 498, 97 S Ct 1272. 
Proof of systematic exclusion from 
the venire raises an inference of 
purposeful discrimination because 
the “result bespeaks discrimina- 
tion.” Hernandez v Texas, supra, at 
482, 98 L Ed 866, 74 S Ct 667; see 
Arlington Heights v Metropolitan 
Housing Corp., supra, at 266, 50 L 
Ed 2d 450, 97 S Ct 555. 

Since the ultimate issue is 
whether the State has discriminated 
in selecting the defendant’s venire, 
however, the defendant may estab- 
lish a prima facie case “in other 
ways than by evidence of long-con- 
tinued unexplained absence” of 
members of his race “from many 
panels.” Cassell v Texas, 339 US 
282, 290, 94 L Ed 839, 70 S Ct 629 
(1950) (plurality opinion). In cases 
involving the venire, this Court has 
found a prima facie case on proof 
that members of the defendant’s 
race were substantially underrepre- 
sented on the venire from which his 
jury was drawn, and that the venire 
was selected under a practice provid- 
ing “the opportunity for discrimina- 
tion.” Whitus v Georgia, 385 US, at 

  

18. [20b] Our decisions in the context of 
Title VII “disparate treatment” have ex- 
plained the operation of prima facie burden of 
proof rules. See McDonnell Douglas Corp. v 

- Green, 411 US 792, 36 L Ed 2d 668, 93 S Ct 
~ 1817 (1973); Texas Department of Community 

Affairs v Burdine, 450 US 248, 67 L Ed 2d 
% 207, 101 S Ct 1089 (1981); United States 

Postal Service Board of Governors v Aikens, 
460 US 711, 75 L Ed 2d 403, 103 S Ct 1478 
(1983). The party alleging that he has been 
the victim of intentional discrimination car- 
ries the ultimate burden of persuasion. Texas 
Department of Community Affairs v Burdine, 
supra, at 252-256, 67 L Ed 2d 207, 101 S Ct 
1089. 

A vane (1 ATR Les ts SE 

  

  
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nation of 
inference 
tion beca 
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black cit 
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count al 
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der v Lc 
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[22-24: 
Swain, 
that a d 
facie st 
discrimi 

venire 
concern 
These « 
with th 
Arlingt 
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pattern 
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7 hs ie Se aS AY RA 

BATSON v KENTUCKY 
90 L Ed 2d 69 

5562, 17 L Ed 2d 599, 87 S Ct 643; see 
Castaneda v Partida, supra, at 494, 
51 L Ed 2d 498, 97 S Ct 1272; Wash- 
ington v Davis, supra, at 241, 48 L 
Ed 2d 597, 16 S Ct 2040; Alexander 
v Louisiana, supra, at 629-631, 31 L 
Ed 2d 536, 92 S Ct 1221. This combi- 
nation of factors raises the necessary 
inference of purposeful discrimina- 
tion because the Court has declined 
to attribute to chance the absence of 
black citizens on a particular jury 
array where the selection mecha- 
nism is subject to abuse. When cir- 
cumstances suggest the need, the 
trial court must undertake a “fac- 
tual inquiry” that “takes into ac- 
count all possible explanatory fac- 
tors” in the particular case. Alexan- 
der v Louisiana, supra, at 630, 31 L 
Ed 2d 536, 92 S Ct 1221. 

122-24a] Thus, since the decision in 
Swain, this Court has recognized 
that a defendant may make a prima 

—_— 

facie showing of purposeful racial | 
discrimination in selection of the 
venire by relying solely on the facts 
concerning its selection in his case. 
These QeCISIONE Are I HCCOTANT Ce 
with the proposition, articulated in 
Arlington Heights v Metropolitan 
Housing Corp. that “a consistent 
pattern of official racial discrimina- 
tion” is not “a necessary predicate to 
a violation of the Equal Protection 

| 
¥ 

Tr 

McCray v New York, 461 US, at 965, 
77 L Ed 2d 1322, 103 S Ct 2438 
(Marshall, J., dissenting from denial 
of certiorari), would be inconsistent 
with the promise of equal protection 
to all.1® 

C 

[1c] The standards for assessing a 
prima facie case in the context of 
discriminatory selection of the ve- 
nire have been fully articulated 
since Swain. See Castaneda v Par- 
tida, supra, at 494-495, 51 L Ed 2d 
498, 97 S Ct 1272; Washington v 
Davis, supra, at 241-242, 48 L. Ed 2d 
597, 96 S Ct 2040; Alexander v Loui- 
siana, supra, at 629-631.31 1 Ed 2d 
236, 92 S Ct 1221f These principles \ 

{ support our conclusion that a defen- 
dant may establish a prima facie 
case of purposeful discrimination in 
selection of the petit jury solely on 
evidence concerning the prosecutor’s 
exercise of peremptory challenges at 
the defendant’s trial. ffo_astablish 
such a case, the defendany first must 
show that he is a member of-a”"cogni- 

{ zable racial group, Castaneda v Par- 

Clause. A single invidiously discrimi- | 
natory governmental act” is not um- 
Munized BY tHE absence of such dis- | 
crimination in the making of other | 
comparable decisions.” 429 US, at | 
266, n 14, 50 L Ed 2d 450, 97 S Ct] 
555. For evidentiary requirements to | 
dictate that “several must suffer dis- [ Finally 

tida, supra, at 494, 51 L Ed 2d 498, 
[97 S Ct 1272, and that the prose- 
| cutor has exercised peremptory chal- 
| lenges to remove from the venire / 
| pembers of the defendants race. / 
r(Secony the defendant 1s entitled to 

wv 

rély on the fact, as to which there 
can be no dispute, that peremptory 
challenges constitute a jury selection* 

| practice that permits “those to dis- 
criminate who are of a mind to dis- 

at 562, 97 L Ed 1244, 73 S Ct 891. J 

crimination” before one could object, \ that these facts and any other rele- 
  

19. [24b] Decisions under Title VII also 
recognize that a person claiming that he has 
been the victim of intentional discrimination 
may make out a prima facie case by relying 

solely on the facts concerning the alleged 
discrimination against 
pra, n 18. ; 

SAT {him 

y criminate.” Avery v Georgia, supra,’| 

him. See cases at su- 

, 

| 

1 
8 

\ 
| 1 

| 
the Geren must Show 

 



U.S. SUPREME COURT REPORTS 

vant circumstances raise an infer- 
ence that the prosecutor used that 
practice to exclude the veniremen 
from the petit jury on account of 

1s combination of tac- 
rs 1n the empanelling of the petit 

jury, as in the selection of the ve- 
nire, raises the necessary inference 
of purposeful discrimination. 

In deciding whether the defendant 
has made the requisite showing, the 
trial court should consider all rele- 
Vv ircumstances. 
fa z To against black 
jdrors inclu in the particular ve- 
fife might give rise to an inference 
of discrimination. Similarly, the 
prosecutor’s questions and state- 
ments during voir dire examination 
and in exercising his challenges may 
support or refute an inference of 
discriminatory purpose. These exam- 
ples are merely illustrative. We have 
confidence that trial judges, experi- 
enced in supervising voir dire, will 
be able to decide if the circum- 
stances concerning the prosecutor’s 
use of peremptory challenges creates 
a prima facie case of discrimination 
against black jurors. 

[14b, 25a, 26a] Once “ defendant 
makes a prima facie showing, the 
burden SHIT To The Stato ome 
orward with a neutr explanation 

for challenging blac Jurors. Though 
this requirement imposes a limita- 
tion in some cases on the full pe- 
remptory character of the historic 
challenge, we emphasize that the 
prosecutor’s explanation need not 
rise to the level justifying exercise of 
a challenge for cause. See McCray v 
Abrams, 750 F2d, at 1132; Booker v 
Jabe, 775 F2d 762, 773 (CA6 1985), 
cert pending 85-1028. But the prose- 
cutor may not rebut the defendant’s 

20. [25b] The Court of Appeals for the 
Second Circuit observed in McCray v Abrams, 

88 

90 L Ed 2d 

prima facie case of discrimination by 
stating merely that he challenged 
jurors of the defendant’s race on the 
assumption—or his intuitive judg- 
ment—that they would be partial to 
the defendant because of their 
shared race. Cf. Norris v Alabama, 
294 US, at 598-599, 79 L Ed 1074, 55 
S Ct 579; see Thompson v United 
States, — US ——, —— 83 L Ed 
2d 369, 105 S Ct 443 (Brennan, J., 
dissenting from denial of certiorari). 
Just as the Equal Protection Clause 
forbids the States to exclude black 
persons from the venire on the as- 
sumption that blacks as a group are 
unqualified to serve as jurors, supra, 
at —, 90 L Ed 2d 80, so it forbids 
the States to strike black veniremen 
on the assumption that they will be 
biased in a particular case simply 
because the defendant is black. The 
core guarantee of equal protection, 
ensuring citizens that their State 
will not discriminate on account of 
race, would be meaningless were we 
to approve the exclusion of jurors on 
the basis of such assumptions, which 
arise solely from the jurors’ race. 
Nor may the prosecutor rebut the 
defendant’s case merely by denying 
that he had a discriminatory motive 
or “affirming his good faith in indi- 
vidual selections.” Alexander v Loui- 
siana, 405 US, at 632, 31 L Ed 2d 
536, 92 S Ct 1221. If these general 
assertions were accepted as rebut- 

ting a defendant’s prima facie case, 
the Equal Protection Clause “would 
be but a vain and illusory require- 
ment.” Norris v Alabama, supra, at 
598, 79 L Ed 1074, 55 S Ct 579. The 
prosecutor therefore must articulate 
a neutral explanation related to the 
particular case to be tried.?® The 
trial court then will have the duty to 
determine if the defendant has es- 

750 F2d, at 1132, that “[t]here are any num- 

ber of bases” on which a prosecutor reason- 

  

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90 L Ed 2d 

- of discrimination by 
that he challenged 

iviendant’s race on the 
: his intuitive judg- 

+ would be partial to 
because of their 

1 Norris v Alabama, 
wd, 79 L Ed 1074, 55 

. thompson v United 
t's ——, —— 83 L Ed 

i \\ 443 (Brennan, J. 
denial of certiorari). 

i. «a! Protection Clause 
4. to exclude black 
Jw venire on the as- 
aacks as a group are 
wi Ve 88 jurors, supra, 

. »u 2d 80, so it forbids "wi ike black veniremen 
Lowon that they will be 

'. awucular case simply 
wwendant is black. The 

. of equal protection, 
sens that their State 
Lamnate on account of 
w% meaningless were we 

ig exclusion of jurors on 
i wah assumptions, which 

~ pum the jurors’ race. 
jgeosecutor rebut the 

se merely by denying 
& #scriminatory motive 
, ws good faith in indi- 

w.” Alexander v Loui- 
at 632, 31 L Ed 2d 

“221. If these general 
+ accepted as rebut- 
#ts prima facie case, 
ction Clause “would 
and illusory require- 

a, supra, at 
55 S Ct 579. The 

re must articulate 
ion related to the 
Ww tried. The 

have the duty to 
endant has es. 

are any num- 
tor reason- 

  

  

BATSON v KENTUCKY 
90 L Ed 2d 69 

tablished purposeful discrimina- 
tion.* 

Iv 

The State contends that our hold- 
ing will eviscerate the fair trial val- 
ues served by the peremptory chal- 
lenge. Conceding that the Constitu- 
tion does not guarantee a right to 
peremptory challenges and that 
Swain did state that their use ulti- 
mately is subject to the strictures of 
equal protection, the State argues 
that the privilege of unfettered exer- 
cise of the challenge is of vital im- 
portance to the criminal justice sys- 
tem. 

While we recognize, of course, that 
the peremptory challenge occupies 
an important position in our trial 
procedures, we do not agree that our 
decision today will undermine the 
contribution the challenge generally 
makes to the administration of jus- 
tice. The reality of practice, amply 
reflected in many state and federal 
court opinions, shows that the chal- 

lenge may be, and unfortunately at 
times has been, used to discriminate 
against black jurors. By requiring 
trial courts to be sensitive to the 
racially discriminatory use of pe- 
remptory challenges, our decision 
enforces the mandate of equal pro- 
tection and furthers the ends of jus- 
tice.2 In view of the heterogeneous 
population of our nation, public re- 
spect for our criminal justice system 
and the rule of law will be strength- 
ened if we ensure that no citizen is 
disqualified from jury service be- 
cause of his race. 

Nor are we persuaded by the 
State’s suggestion that our holding 
will create serious administrative 
difficulties. In those states applying 
a version of the evidentiary standard 
we recognize today, courts have not 
experienced serious administrative 
burdens,” and the peremptory chal- 
lenge system has survived. We de- 
cline, however, to formulate particu- 
lar procedures to be followed upon a 

  

ably may believe that it is desirable to strike 
a juror who is not excusable for cause. As we 
explained in another context, however, the 
prosecutor must give a “clear and reasonably 
specific” explanation of his “legitimate rea- 
sons” for exercising the challenges. Texas 
Dept. of Community Affairs v Burdine, 450 
US 248, 258, 67 L Ed 2d 207, 101 S Ct 1089 
(1981). 

21. [26b] In a recent Title VII sex discrimi- 
nation case, we stated that “a finding of in- 
tentional discrimination is a finding of fact” 

. entitled to appropriate deference by a review- 
ing court. Anderson v Bessemer City, 470 US 
—— 84 L Ed 2d 518, 105 S Ct 1504 (1985). 
Since the trial judge’s findings in the context 
under consideration here largely will turn on 
evaluation of credibility, a reviewing court 
ordinarily should give those findings great 
deference. Id., at ——, 84 L Ed 2d 518, 105 S 
Ct 1504. 

22. While we respect the views expressed in 
Justice Marshall’s concurring opinion, con- 
cerning prosecutorial and judicial enforce- 

ment of our holding today, we do not share 
them. The standard we adopt under the fed- 
eral Constitution is designed to ensure that a 
State does not use peremptory challenges to 
strike any black juror because of his race. We 
have no reason to believe that prosecutors 
will not fulfill their duty to exercise their 
challenges only for legitimate purposes. Cer- 
tainly, this Court may assume that trial 
judges, in supervising voir dire in light of our 
decision today, will be alert to identify a 
prima facie case of purposeful discrimination. 
Nor do we think that this historic trial prac- 
tice, which long has served the selection of an 
impartial jury, should be abolished because of 

an apprehension that prosecutors and trial 
judges will not perform conscientiously their 

respective duties under the Constitution. 

28. For example, in People v Hall, 35 Cal 3d 

161, 672 P2d 854 (1983), the California Su- 
preme Court found that there was no evi- 

dence to show that procedures implementing 
its version of this standard, imposed five years 
earlier, were burdensome for trial judges. 

89   

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U.S. SUPREME COURT REPORTS 

defendant’s timely objection to a 
prosecutor’s challenges. 

\% 

[27] In this case, petitioner made a 
timely objection to the prosecutor’s 
removal of all black persons on the 
venire. Because the trial court flatly 
rejected the objection without re- 
quiring the prosecutor to give an 
explanation for his action, we re- 
mand this case for further proceed- 
ings. If the trial court decides that 

90 L Ed 2d 

the facts establish, prima facie, pur- 
poseful discrimination and the prose- 
cutor does not come forward with a 
neutral explanation for his action, 
our precedents require that petition- 
er’s conviction be reversed. E. g., 
Whitus v Georgia, 385 US, at 549- 
550, 17 L Ed 2d 599, 87 S Ct 643; 
Hernandez v Texas, supra, at 482, 98 
L Ed 866, 74 S Ct 667; Patton v 
Mississippi, 332 US, at 469, 98 L Ed 
866, 74 S Ct 667. 

It is so ordered. 

SEPARATE OPINIONS 

Justice White, concurring. 

The Court overturns the principal 
holding in Swain v Alabama, 380 US 
202, 13 L Ed 2d 759, 85 S Ct 824 
(1965), that the Constitution does not 
require In any given case an INQUILY 

\ ifitS the prosecutor's reasons for us- 
Thg 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 nec- 
essarily, 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 pre- 
sumption of legitimacy with respect 
to the striking of black venire per- 
sons could be overcome by evidence 
that over a period of time the prose- 
cution had consistently excluded 
blacks from petit juries.* This 
should have warned prosecutors that 
using peremptories to exclude blacks 
on the assumption that no black 

  

24. In light of the variety of jury selection 
practices followed in our state and federal 
trial courts, we make no attempt to instruct 
these courts how best to implement our hold- 
ing today. For the same reason, we express no 
view on whether it is more appropriate in a 
particular case, upon a finding of discrimina- 
tion against black j jurors, for the trial court to 
discharge the venire and select a new jury 
“TrOMT=~panel not previously associated with 
the case, see Booker v Jabe, 775 F2d, at 773, 
or to disallow the discriminatory challenges 
and resume selection with the improperly 
challenged jurors reinstated on the venire, see 
United States v Robinson, 421 F Supp 467, 
474 (Conn 1976), mapdamus.granted sub nom. 
— 

United States v Newman, 549 F2d 240 (CA2 
1977). 

25. To the extent that anything in Swain v 
Alabama, 380 US 202, 13 L Ed 2d 759, 85 S 
Ct 824 (1965), is contrary to the principles we 
articulate today, that decision is overruled. 

* Nor would it have been inconsistent with 
Swain for the trial judge to invalidate pe- 

remptory challenges of blacks if the prose 
cutor, 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 defen- 
dant.   

  

  

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   1 IETS 90 L Ed 24 

|@kAssh, prima facie, pur- 
. rmination and the prose- 
nit come forward with a 

. ilanation for his action, 
l:ni# require that petition- 
lion be reversed. E. g., 
{icorgia, 385 US, at 549- 
jid 2d 599, 87 S Ct 643; 
v Texas, supra, at 482, 98 
74 8 Ct 667; Patton v 
382 US, at 469, 98 LL Ed 

| 667. 

dered. 

ur carries the burden of 
{ his strikes were based 

t that no black citizen 
_«sfactory juror or fairly 
. Jdcfendant. 

at, to this extent, Swain 
verruled. I do so because 

© indicated that the pre- 
legitimacy with respect 
ug of black venire per- 

© Ww overcome by evidence 
. riod of time the prose- 

: consistently excluded 
aw petit juries.* This 

. warned prosecutors that 
Luptories to exclude blacks 
sumption that no black 
  

  

Newman, 549 F2d 240 (CA2 

| sadent that anything in Swain v 
U8 202, 13 L Bd4 2d 759, 85 S 

wutrary to the principles we 
.. ‘bat decision i= overruled. 

   

: nave been inconsistent with 

“mal judge to invalidate pe 
ges of blacks if the prose 

0 an obgection to his 
# he struck blacks because 

not qualified to serve as 
he trial of a black defen- 

   

   
     
    

  

  

  

  

    

  

BATSON v KENTUCKY 
90 L Ed 2d 69 

juror could fairly judge a black de- 
fendant would violate the Equal Pro- 
tection Clause. 

It appears, however, that the prac- 
tice of peremptorily eliminating 
blacks from petit juries in cases with 
black defendant remains widespread, 
so much so that I agree that an 
opportunity to inquire should be af- 
forded when this occurs. If the de- 
fendant objects, the judge, in whom 
the Court puts considerable trust, 
may determine that the prosecution 
must respond. If not persuaded oth- 
erwise, the judge may conclude that 
the challenges rest on the belief that 
blacks could not fairly try a black =~ 

Tinos, 391 US 194, 20 L Ed 2d 522, 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 with- 
out 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 rea- 
sons for his strikes—some satisfac- 
tory ground other than the belief 
that black jurors should not be al- 
lowed 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. 
a 

rule announced in DeStefano v | 
Woods, 392 US 631, 20 L Ed 2d 1308, | 
88 S Ct 2093 (1968), that Duncan v 
Louisiana, 391 US 145, 20 L Ed 2d 
491, 88 S Ct 1444 (1968), which held 
that the States cannot deny jury 
trials in serious criminal cases, did 
not require reversal of a state con- 
viction 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 re- 
Sper 10 Lhe retroactivity of Bloom v 

88 S Ct 1477 (1968), as it was in 
Daniel v Louisiana, 420 US 31, 42 L 
TA 2d 790, 95 S Ct 704 (1975) (per 
curiam), with respect fo.the decision 
in Taylor v Louisiana, 419 US 522, 
ITTEd 2d 690, 95 S Ct 692 (1975), 
holding that the systematic exclu- 
sion of women from jury panels vio- 
lated the Sixth and - Fourteenth 
Amendments. 

Justice Marshall, concurring. 

I join Justice Powell's eloquent 
opinion for the Court, which takes a 
historic step toward eliminating the 
shameful practice of racial discrimi- 
nation in the selection of juries. The 
Court’s opinion cogently explains the 
pernicious nature of the racially dis- 
criminatory use of peremptory chal- 
lenges, and the repugnancy of such 
discrimination to the Equal Protec- 
tion Clause. The Court’s opinion also 
ably demonstrates the inadequacy of 
any burden of proof for racially dis- 
criminatory use of peremptories that 
requires that “justice ... sit su- 
pinely by” and be flouted in case 
after case before a remedy is avail- 

81 

  

     

    

   
     

     
    

I would, however, adhere to the yo 

  

   

  

    

    
    
   

    
     

      

  

       

          
       

      
    
       
    

          

     

      
    

  

    
    

         
  



U.S. SUPREME COURT REPORTS 

able.! I nonetheless write separately 
to express my views. The decision 
today will not end the racial discrim- 
ination that peremptories inject into 
the jury-selection process. That goal 
can be accomplished only by elimi- 
nating peremptory challenges en- 
tirely. 

I 

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 US 303, 25 L Ed 664 
(1880). State officials then turned to 
somewhat more subtle ways of keep- 
ing blacks off jury venires. See 
Swain v Alabama, 380 US 202, 231- 
238, 13 L Ed 2d 759, 85 S Ct 824 
(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 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 chal- 
lenge 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 Car- 

90 L Ed 2d 

ter, 528 F2d 844, 848 (CA8 1975) (in 
15 criminal cases in 1974 in the 
Western District of Missouri involv- 
ing black defendants, prosecutors pe- 
remptorily challenged 81% of black 
jurors), cert denied, 425 US 961, 48 
L Ed 2d 206, 96 S Ct 1745 (1976); 
United States v McDaniels, 379 F 
Supp 1243 (ED La 1974) (in 53 crimi- 
nal cases in 1972-1974 in Eastern 
District of Louisiana involving black 
defendants, federal prosecutors used 
68.9% of their peremptory chal- 
lenges 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 Caro- 
lina, involving black defendants, 
prosecutors peremptorily challenged 
82% of black jurors), affirmance or- 
der, 529 F2d 516 (CA4 1975).2 Prose- 
cutors have explained to courts that 
they routinely strike black jurors, 
see State v Washington, 375 So 2d 
1162, 1163-1164 (La 1979). An in- 
struction book used by the prose- 
cutor’s office in Dallas County, 
Texas, explicitly advised prosecutors 
that they conduct jury selection so 
as to eliminate “ ‘any member of a 
minority group.’ ””® In 100 felony tri- 
als 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 one-in-ten, compared to 

  

1. Commonwealth v Martin, 461 Pa 289, 

299, 336 A2d 290, 295 (1975) (Nix, J., dissent- 
ing), quoted in McCray v New York, 461 US 
961, 965, n 2, 77 L Ed 2d 1322, 103 S Ct 2438 
(1983) (Marshall, J., dissenting from denial of 
certiorari). 

2. See also Harris v Texas, 467 US 1261, 82 
L Ed 2d 858, 104 S Ct 3556 (1984) (Marshall, 
J., dissenting from denial of certiorari); Wil- 
liams v Illinois, 466 US 981, 80 L Ed 2d 836, 

92 

104 S Ct 2364 (1984) (Marshall, J., dissenting 
from denial of certiorari). 

* 3. Van Dyke, supra, 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, March 9, 1986, p 29, col 1. 

  

  

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exclusio 
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PO L Ed 2d 

1h IAB 1975) (in 
i» 1874 in the 
jj issouri involv- 

__pivsecutors pe- 
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Jub US 961, 48 

(1 1745 (1976); 
jniels, 379 F 

I 414! (in 83 crimi- 
{IH in Eastern 
"nvelving black 

ji hh wtors used 

oinptory  chal- 

jurors, who 
quarter of the 
Aiiker, 394 F 
(W 1974) (in 
{#1971 in 
wwth Caro- 

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4", challenged 
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BATSON v KENTUCKY 
90 L Ed 2d 69 

one-in-two for a white. * 

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, lib- 
erty, or property, there shall be no 
exclusion of his race,and no discrim- 
ination against them, because of 
their color.’” Neal v Delaware, 103 
US 370, 394, 26 L Ed 567 (1881), 
quoting Virginia v Rives, 100 US 
313, 323, 25 L Ed 667 (1880). Justice 
Rehnquist, dissenting, concedes that 
exclusion of blacks from a jury, 
solely because they are black, is at 
best based upon *“‘crudely stereotypi- 
cal and ... in many cases hope- 
lessly mistaken” notions. Post, at 
——, 90 L Ed 2d 115. 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 sympa- 
thetically the State’s case against a 
black defendant than it can be justi- 
fied by the notion that blacks lack 
the “intelligence, experience, or 
moral integrity,” Neal, supra, at 
397, 26 L Ed 567, to be entrusted 
with that role. 

II 

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 Protec- 
tion Clause. I would go further, how- 
ever, in fashioning a remedy ade- 
quate to eliminate that discrimina- 
tion. 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 
——, 90 L Ed 2d ——, has been 
adopted as a matter of state law in 
States including Massachusetts and 
California. Cases from those jurisdic- 
tions illustrate the limitations of the 
approach. First, defendants cannot 
attack the discriminatory use of pe- 
remptory 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 prose- 
cutor need have no compunction 
about striking them from the jury 
because of their race. See Common- 
wealth v Robinson, 382 Mass 189, 
195, 415 NE2d 805, 809-810 (1981) 
(no prima facie case of discrimina- 
tion where defendant is black, pro- 
spective jurors include three blacks 
and one Puerto Rican, and prose- 
cutor 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 prose- 
cutor peremptorily strikes only two 
blacks on jury panel). Prosecutors 
are left free to discriminate against 
blacks in jury selection provided 

  

4. Dallas Morning News, March 9, 1986, p 
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 ULJ 662 (1974). 

93  



U.S. SUPREME COURT REPORTS 

that they hold that discrimination to 
an “acceptable” level. 

Second, when a defendant can es- 
tablish 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 Peo- 
ple v Hall, 35 Cal 3d 161, 672 P2d 
854 (1983), or seemed “‘uncommuni- 
cative,” King, supra, at 498, or 
“never cracked a smile” and, there- 
fore “did not possess the sensitivities 
necessary to realistically look at the 
issues and decide the facts in this 
case,” Hall, supra, at 165, 672 P2d, 
at 856? If such easily generated ex- 
planations 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. 
“[Ilt is even possible that an attor- 
ney 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 uncon- 
scious 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, prose- 
cutors’ peremptories are based on 

04 

90 L Ed 2d 

their “seat-of-the-pants instincts” as 
to how particular jurors will vote. 
Post, at ——, 90 L Ed 2d 115; see 
also the Chief Justice’s dissenting 
opinion, post at — -—— 90 L, Ed 
2d 105-106. Yet “seat-of-the-pants 
instincts” may often be just another 
term for racial prejudice. Even if all 
parties approach the Court’s man- 
date with the best of conscious inten- 
tions, 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 af- 
ter Strauder, racial and other forms 
of discrimination still remain a fact 
of life, in the administration of jus- 
tice as in our society as a whole.” 
Rose v Mitchell, 443 US 545, 558- 
559, 61 L Ed 2d 739, 99 S Ct 2993 
(1979), quoted in Vasquez v Hillery, 

S —, ——, 88 L Ed 2d 598, 
106 S Ct 617 (1986). 

ITI 

The inherent potential of peremp- 
tory 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 “[wlere it 
necessary to make an absolute 
choice between the right of a defen- 
dant to have a jury chosen in con- 
formity with the requirements of the 
Fourteenth Amendment and the 
right to challenge peremptorily, the 
Constitution compels a choice of the 
former.” 380 US, at 244, 13 L Ed 2d Ab

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BATSON v KENTUCKY 
90 L Ed 2d 69 

759, 85 8S Ct 824. 1 believe that this 
case presents just such a choice, and 
I would resolve that choice by elimi- 
nating peremptory challenges en- 
tirely in criminal cases. 

Some authors have suggested that 
the courts should ban prosecutors’ 
peremptories entirely, but should 
zealously guard the defendant’s pe- 
remptory as “essential to the fair- 
ness of trial by jury,” Lewis v 
United States, 146 US 370, 376, 36 L 
Ed 1011, 13 S Ct 136 (1892), and 
“one of the most important of the 
rights secured to the accused,” 
Pointer v United States, 151 US 396, 
408, 38 L Ed 208, 14 S Ct 410 (1894). 
See Van Dyke, at 167; Brown, Mc- 
Guire, & 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 US 68, 70, 30 L Ed 578, 7 S Ct 
350 (1887). We can maintain that 
balance, not by permitting both pros- 
ecutor and defendant to engage in 
racial discrimination in jury selec- 
tion, but by banning the use of pe- 
remptory challenges by prosecutors 
and by allowing the States to elimi- 
nate the defendant’s peremptory as 
well. 

Much ink has been spilled regard- 
ing the historic importance of defen- 
dants’ peremptory challenges. The 
approving comments of the Lewis 
and Pointer Courts are noted above; 
the Swain Court emphasized the 
“very old credentials” of the peremp- 
tory challenge, 380 US, at 212, 13 L 

Ed 2d 759, 85 S Ct 824, and cited the 
“long and widely held belief that 
peremptory challenge is a necessary 
part of trial by jury.” Id., at 219, 13 
L Ed 2d 759, 85 S Ct 824. 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 guaran- 
tee of impartial jury and fair trial. 
Frazier v United States, 335 US 497, 
505, n 11, 93 L Ed 187, 69 S Ct 201 
(1948); United States v Wood, 299 
US 123, 145,81 L Ed 78, 67 S Ct 177 
(1936); Stilson v United States, 250 
US 583, 586, 63 L Ed 1154, 40 S Ct 
28 (1919); see also Swain, supra, at 
219, 13 L Ed 2d 759, 85 S Ct 824. 
The potential for racial prejudice, 
further, inheres in the defendant’s 
challenge as well. If the prosecutor’s 
peremptory challenge could be elimi- 
nated 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 Jus- 
tice 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 US ——, 88 
L Ed 2d 763, 106 S Ct 785 (1986) 
(memorandum of Brennan, J., joined 
by Stevens, J.), and New Jersey v T. 
L. O. 468 US 1214, 82 L Ed 2d 881, 
104 S Ct 3583 (1984) (Stevens, J., 
dissenting)—cases in which the 

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U.S. SUPREME COURT REPORTS 

Court directed the State to brief and 
argue questions not presented in its 
petition for certiorari—and our ac- 
tion today in finding a wiolation of 
the Equal Protection Clause despite 
the failure of petitioner’s counsel to 
rely on that ground of decision. Post, 
at —-—— nn 1, and 2, 90 L Ed 
2d 99-100. In this case, however 
—unlike Connelly and T. L. O.—the 
party defending the judgment has 
explicitly rested on the issue in ques- 
tion as a controlling basis for affir- 
mance. In defending the Kentucky 
Supreme Court’s judgment, Ken- 
tucky’s Assistant Attorney General 
emphasized the State’s position on 
the centrality of the Equal Protec- 
tion 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 chal- 
lenged, and presents perhaps an 
address to the problem. Swain 
dealt primarily with the use of 
peremptory challenges to strike 
individuals who were of a cogniza- 
ble or identifiable group. 

“Petitioners show no case other 
than the State of California’s case 
dealing with the use of perempto- 
ries wherein the Sixth Amend- 

90 L Ed 2d 

ment was cited as authority for 
resolving the problem. So, we be- 
lieve that the Fourteenth Amend- 
ment 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 re- 
affirm Swain versus Alabama.” 

In addition to the party’s reliance 
on the Equal Protection argument in 
defense of the judgment, several am- 
ici curiae also addressed that argu- 
ment. For instance, the argument in 
the brief filed by the Solicitor Gen- 
eral of the United States begins: 

“PETITIONER DID NOT ESTAB- 
LISH THAT HE WAS DEPRIVED 
OF A PROPERLY CONSTI- 
TUTED PETIT JURY OR DE- 
NIED EQUAL PROTECTION OF 
THE LAWS 

“A. Under Swain v Alabama A 
Defendant Cannot Establish An 
Equal Protection Violation By 
Showing Only That Black Venire- 
men Were Subjected To Peremp- 
tory Challenge By The Prosecution 
In His Case’ 

Several other amici similarly em- 
phasized this issue.? 

  

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

2. Brief for United States as Amicus Curiae 
7. 

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 prosecu- 

96 

torial 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 —, 13 
L Ed 2d 759, 85 S Ct 824. 

Amici supporting the petitioner also empha- 
sized the importance of the equal protection  



RTS 90 L Ed 24 

cited as authority for 
the problem. So, we be- 
the Fourteenth Amend- 
deed the issue. That was 
ind primarily the basic 
Swain. 

ng, we believe that the 
of Kentucky and the 

ourt of Kentucky have 
braced Swain, and we 

y request that this 
m the opinion of the 

court as well as to re- 
in versus Alabama.” 

to the party’s reliance 
Protection argument in 

e judgment, several am- 
po addressed that argu- 

ptance, the argument in 
d by the Solicitor Gen- 

[ER DID NOT ESTAB- 
I' HE WAS DEPRIVED 
ROPERLY CONSTI. 

JURY OR DE- 
AL PROTECTION OF 

Swain v Alabama A 
Cannot Establish An 

ion Violation By 
ply That Black Venire- 
Subjected To Peremp- 
ge By The Prosecution 

PT amici similarly em- 
ssue.? 
  

challenges exercised in this 
er under the fourteenth 
protection clause and the 
This Court should further 

°T€ 18 no constitutional need 
erwise modify this Court’s 
v Alabama.” Id., at —. 13 Ct 824. 
€ the petitioner also empha- 
fice of the equal protection 

BATSON v KENTUCKY 
90 L Ed 2d 69 

In these circumstances, although I 
suppose it is possible that reargu- 
ment might enable some of us to 
have a better informed view of a 
problem that has been percolating in 
the courts for several years, 1 be- 
lieve the Court acts wisely in resolv- 
ing the issue now on the basis of the 
arguments that have already been 
fully presented without any special 
invitation from this Court. 

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. 

Chief Justice Burger, joined by 
Justice Rehnquist, dissenting. 

We granted certiorari to decide 
whether petitioner was tried “in vio- 
lation of constitutional provisions 
guaranteeing the defendant an im- 
partial jury and a jury composed of 
persons representing a fair cross sec- 
tion of the community.” Pet for Cert 

5 : 

I 

Today the Court sets aside the 
peremptory challenge, a procedure 
which as been part of the common 
law for many centuries and part of 
our jury system for nearly 200 years. 

  

issue. See, e.g.; Brief for NAACP Legal De- 
fense and Educational Fund, American Jew- 
ish Committee, and American Jewish Con- 
gress as Amici Curiae, 24-36; Brief for Law- 
yers’ Committee for Civil Rights Under Law 
as Amicus Curiae, 11-17; Brief for Elizabeth 
Holtzman as Amicus Curiae, 13. 

4. See McCray v New York, 461 US 961, 77 
L Ed 2d 1322, 103 S Ct 2438 (1983) (opinion of 
Stevens, J., respecting denial of certiorari); 
id., at 963, 77 L. Ed 2d 1322, 103 S Ct 2438 
(Marshall, J., dissenting from denial of certio- 
rari). 

The eventual federal habeas corpus disposi- 
tion 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 F2d 1113 (CA2 1984), petition for cert 
pending. See also Batson’s cert petition, 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 ex- 
plicitly addressed the equal protection issue 
and the viability of Swain. Id., 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, 84-1426 (Question 2). Indeed, shortly 
after agreeing to hear Batson, the Court was 
presented with a motion to consolidate Mc- 
Cray and Batson, and consider the cases to- 
gether. Presumably because the Court be- 
lieved that Batson adequately presented the 
issues with which other courts had consis- 
tently grappled in considering this question, 

the Court denied the motion. See Journal, OT 
’84, pp 631-632. Cf. id., at 632 (Brennan, Mar- 
shall, 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 Wil- 

liamsport School Dist. 475 US —— ——, 89 L 
Ed 2d 501, 106 S Ct 1326 (1986) (Burger, C. J., 

dissenting) (addressing merits even though 
majority of the Court has found a lack of 
standing); Colorado v Nunez, 465 US 324, 79 
L Ed 2d 338, 104 S Ct 1257 (1984) (concurring 
opinion, joined by Burger, C. J.) (expressing 
view on merits even though writ is dismissed 
as improvidently granted because state court 
judgment rested on adequate and independent 
state grounds); Florida v Casal, 462 US 637, 
639, 77 L Ed 2d 277, 103 S Ct 3100 (1983) 
(Burger, C. J., concurring) (agreeing with 

Court that writ should be dismissed as im- 
providently granted because judgment rests 
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 enforce- 
ment”). See also Colorado v Connelly, 474 US 
——, 88 L Ed 2d 763, 106 8S Ct 785 (1986) 
(ordering parties to address issue that neither 
party raised); New Jersey v T. L. O. 468 US 
1214, 82 L Ed 2d 881, 104 S Ct 3583 (1984 
(same). : 

97  



  

U.S. SUPREME COURT REPORTS 

It does 50 on the basis of a constitu- 
tional argument ‘that was rejected, 
without a single dissent, in Swain v 

380 US. 202, 13 L Ed 2d Alabama, 

759, 85 S Ct. 824 (1965). Reversal .of 
such settled principles would be unu- 
sual enough.on its own terms, for 
only five years ago we said that 
“stare decisis, ‘while perhaps never 
entirely persuasive on a constitu- 
tional question, is a doctrine that 
demands respect in a society gov- 
erned by the rule of law.” Akron v 
Akron Center for Reproductive 
Health, Inc., 462 US 4186, 420, 76 L 
Ed 2d 687, 108 S Ct 2481 (1983). 
What makes today’ 8 holding truly 
extraordinary is that it is based on 
on .a constitutional argument that 
the petitioner has expressly declined 
to raise, both inthis Court and in 
the Supreme Court of Kentucky. 

«In the Kentucky Supreme Court, 
petitioner disclaimed specifically any 
reliance on the Equal Protection 
Clause of the Fourteenth Amend- 
ment, pressing instead only a claim 
based on the Sixth Amendment. See 
Brief for Appellant 14 and Reply 
Brief for Appellant 1 in No. 84-SC- 
733-MR (Ky). As petitioner explained 
at oral argument here, “We have 
.not made an equal protection claim. 

.-We have not made -a specific 
drgument inthe briefs that have 
been filed either in the’ Supreme 
Court of Kentucky or in this Court 
saying that we are attacking Swain 
as such.” Tr of Oral Arg 6-7. Peti- 
tioner has not suggested any barrier 
prevented raising an equal protec- 
‘tion claim in the Kentucky courts. 
In such circumstances, review of an 
‘equal protection argument is im- 
‘proper in this Court: “The Court 
has consistently refused to decide 

9 

state court decisions . . 
‘av Gates, 459 US 1028, 1029, n2 74 

90 L Ed 2d 

federal ‘constitutional issues raised 
here for the first time on review of 

. 4" Illinois 

L Ed 2d 595, 103 S Ct 436 (1982) 
(Stevens, J., dissenting) (quoting Car- 
dinale v Louisiana, 394 US 437, 438, 
22 I. Ed 2d 398, 89'S Ct 1161 (1969)). 
Neither the Court nor Justice Ste- 
vens offers any justification for de- 
parting from this time-honored prin- 
ciple, which dates to Owings v Nor- 
wood’s Lessee, 5 Cranch 344, 3 L Ed 
120 (1809), and Crowell v Randell, 10 
‘Pet 368,9 L Ed 458 (1836). 

Even if the equal protection issue 
had been pressed in the Kentucky 
Supreme Court, it has surely not 
been pressed here. This provides an 
additional ‘and completely separate 
procedural novelty to today’s deci- 
sion. Petitioner’s “question pre- 
sented” involved only the “constitu- 
tional provisions guaranteeing the 
defendant an impartial jury and a 
jury composed of persons represent- 
‘ing ‘da fair cross section of the com- 
munity.” Pet for Cert i. These provi- 
sions are found in the Sixth Amend- 
ment, not - the Equal : Protection 
Clause “of the Fourteenth Amend- 
‘ment relied upon by the Court. In 
his brief on the merits, under a 
heading distinguishing equal protec- 

tion cases, petitioner noted “the irre- 
levance of the Swain analysis to the 
present case,” Brief for Petitioner 
-11; instead petitioner relied solely on 
Sixth Amendmerit analysis found in 
cases such as Taylor v Louisiana, 
419 US 522, 42 L Ed 2d 690, 95 S Ct 
692: (1975). During ‘oral ‘argument, 
counsel for  Fetioner was pointedly 
asked: 

h “QUESTION; “Mr. Nichaus, 
Swain was an ‘equal protection 
challenge, was itnot? 4            



BATSON v KENTUCKY 
90 L Ed 2d 69 

: ““MR."NIEHAUS: Yes. 

“QUESTION: Your claim here is 
based solely on the Sixth Amend- 
ment? : 

“MR, NIEHAUS. Yes. 

"QUESTION: Is that correct? 

“MR, ‘NIEHAUS: That is what 
we are ‘arguing, yes. 

“QUESTION: You are not ask- 
ing for a reconsideration of Swain, 
and you: ‘are ‘making no equal pro- 

. tection ¢laim here. Is that correct? 

“MR. NIEHAUS: We have not 
made an equal protection claim. I 
think that Swain will have to be 

reconsidered to a certain extent if 
only to consider the arguments 
that are made on behalf of affir- 
mance by-the Fespondent & and the 
solicitor general, 

“We have not made a specific 
argument in the briefs that have 
been filed either in the Supreme 
Court of Kentucky or in this Court 
Saying that we oe “ attacking 

a gh 1.8 of Oral 

A short time later; after discussing 
the difficulties attendant with a 
Sixth Amendment Slain: the follow- 

“QUESTION: oe 1 come. back 
‘again to omy question why you 
didn’t attack Swain head on, but 1 

take it if the Court were to over- 
" Fou wouldn't like | 

“MR. NIEHAUS: rom - 

rule Swain without: ajopting the 
remedy? i 

“QUESTION: Yes! 

“MR. NIEHAUS: Tdo not think 

-that would give us much comfort, 

“Your Honor, no. ; 

“QUESTION: That is a conces- 

sion.” 1d., at 10. 

Later, petitioner’s counsel refused to 
answer the Court’s questions con- 

cerning the implications of a holding 
based on equal protection concerns: 

“MR. NIEHAUS: . there is 
no state action involved Where the 
defendant is exercising his. pe 
remptory Challenge, i BTR 

“QUESTION: ‘But hers might 
be under an equal protection chal- 
lenge if it is the state system that 
allows that kind of a strike. 

“MR. NIEHAUS: I believe that 
"is possible. I am really not pre- 
pared to . answer that specific 
question. , . .” Id., at 20. 

In. reaching the equal protection 
issue despite petitioner’s clear re- 
fusal to present it, the Court departs 
dramatically from its normal proce- 
dure without any explanation. When 
we granted certiorari, we could have 
—as ‘we sometimes do——directed the 

parties to brief the equal protection 
question in addition to the Sixth 
Amendment question. See, e.g. Paris 
Adult Theatre I v Slaton, 408 US 
921, 33 L Ed 2d 331, 92 S Ct 2493 
(1972); Colorado v Connelly, 474 US 
=, 88 L Ed 2d 763, 106 S‘Ct 785 

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IN THE UNITED STATES COURT OF APPEALS 

fOR THE ELEVENTH - CIKCUIT 

  

  

ROGER COLLINS, Petitioner/Appellant, 
Cross-Appellee, : 

versus 

RALPH KEMP, Warden, ; Respondent /aAppellee, 

Ee Cross~Appellant. 

Eo 

  

i appeal from the United States District Court 
- ~ for the Middle District of Georgia 

VEN 
Fa 3 8 SEE 

2X3 Ay Wop 
  

vA RR WE Rh 

BRIEF FOR PETITIONFR/APPFLLANT 
  

Christine A. Freeman , 
1202 Stahlman Building 
Nashville, Tennessee 37201 
(615): 259-6211 

Palmer Singleton 
“Bryan: A, Stevenson 
185 Walton Street, N.W. 
Atlanta, Georgia 30303 
(404) 69€--12032 

ay COUNSEJ. FOR RCGER COLLINS 

 



  

controversy: did Roger Collins act with the intent required of 

an aider and abettor? Since he could be presumed to be an aider 
of 

and abettor, the need for an answer to the alternative question, 

of who struck the fatal blows, was completely obviated. 

Given the conflict in the evidence concerning Mr. Collins’ 

intent and wole, it cannot be said with the requisite confidence 

that the unconstitutional instruction did not contribute to the 

verdict. Under Clark and Drake, Mr. Collins’ convictions and 

sentence of death should therefore be vacated. 

® 

IT. MICHIGAN v. JACKSON APPLIES TO THE CASE AT 
BAR BECAUSE JACKSON DOES NOT ARTICULATE A NEW 
CONSTITUTIONAL RULE, AND EVEN IF IT DID, RETRO- 

ACTIVITY PRINCIPLES COMPEL FULL RETROACTIVE 
APPLICATION OF THE DECISION. 

  

- 

Roger Collins' convictions and sentence of .death rest on the 

admission in evidence of a post-indictment statement obtained 

after Mr. Collins hall @sserted his right to counsel at 

arraignment. See Collins, 728 F.2d at 1331-1334. 
  

  

%0n August 7, 1977, ‘subsequent to his arrest, Mr. Collins 
was interrogated by the police several times. The next morning, 
on August 8, Mr. Collins was arraigned. At that time, in open 
court, he asked for an attorney. PT. 57-59 - 10/21/77; Tr. 260. 
None was appointed. Two days later, on August 10, he was indic- 
ted for rape and malice murder. R. 4-5. On August 12, following 
both the indictment and Mr. Collins' assertion at the arraignment 
of his right to counsel, the very officers who appeared with 
appellant at his arraignment returned and reinitiated questioning. 
PT. 59 - 10/21/81: Tr. 213. Mr. Collins' request for counsel was 

not honored until September 1. 
The admission of the unconstitutionally obtained statement 

was prejudicial. The panel opinion in Mr. Collins' first attempt 
to secure habeas relief noted, "We cannot agree that the 
admission was harmless; the Second Statement provided the jury 
with some details of the tragedy and corroborated aspects of the 
State's case against Collins." Collins, 728 F.24 at 1331. 

20 

 



  

While finding that the Supreme Court's recent holding in 
+ 

Michigan v. Jackson, 475sU.S. _, 106 S.Ct#1404, 89 L.Ed.2d 631 
  

(1986), forbids the manner in which the statement was obtained, 

the court below relied solely on Solem v. Stumes, 465 U.S. 638 
  

(1984), to hold that Jackson does not apply to. Mr. Collins’ 

case. In reaching this result, without the benefit of appellate 

precedent or adequate time..for full consideration, the lower court 

failed to consider essential elements of retroactivity doctrine. 

This Court should hold that Jackson applies to the case at bar.® 

In a legal system built on the application of precedent and 

stare decisis, the retroactive application of constitutional 
  

principles is the norm. Solem v. Stumes, 465 U.S. 638, 642 
  

(1984). Retroactivity is only at issue when a decision 
re 

establishes a new constitutional rule which represents a S'clear ;) 

break with the past." See Henderson v. Morgan, 426 U.S. 637, 
  

651-652 (1976) (White, J. concurring). See also, Desist v. Uni- 
  

ted States, 394 U.S. 244 (1969). However, Jackson does not 
  

represent a departure from governing case law. As the majority in 

Jackson explains, the decision clearly emanates from principles 
( 

previously announced in such seminal decisions as Massiah v. 

United States, 377 U.S. 201 (1964), Mcleod v. Ohio, 381 u.S. 356 
    

  

(1965), and Brewer v. Williams, 430 U.S. 387 (1977). Jackson, 89 

L.Ed.2d at 638-640. Consequently, Jackson is not a "new consti- 

tutional rule" and retroactivity doctrine does not bar relief. 

21 

 



  

Morgan; Desist.10 
  

Even if Jackson does pose a new rule, the District Court . * 
: at 2 

erred when it concluded, based on Stumes, that Jackson is 

3 

prospective only. Stumes held that Edwards v. Arizona, 451 U.S. 
  

477 (1981), should not be given full retroactive effect. 

Retroactivity analysis and doctrine is premised on the 

fundamental principle that every new decision has a different 

purpose and history, requiring an independent determination of 

whether it will be held retroactive. As the Supreme Court has 

frequently stated: » 

Each constitutional rule of criminal procedure 
has its own distinct functions, its own back- 
ground of precedent, and its own impact on the 
administration of justice, and the way in which 
these factors combine must inevitably vary with 
the dictate involved. Accordingly as Linkletter 
and Tehan suggest, we must determine retro- 
activity "in each case" by looking to the pe- 
culiar traits of the specific "rule in question." 
[citations omitted]. 

  

Johnson v. New Jersey, 384 U.S. 719, 728 (1966). See also, Link- 
  

  

letter v. Walker, 381 U.5. 618, 629 (1965); Tehan Vv. Shott, 2382 
    

U.S. 406, 410 (1966); Stovall v. Denno, 388 0.858.293, 297 (1967). 
  

  

10g¢e e.d., Muniz'v. Procunier, 760 F.24 588, 590 (5th Cir. 
1885), cert, dented, = U.S.  , 58 L.E4.2d4 274 (1985). In 
deciding whether the Supreme Court's decision in Estelle v. 
Smith, 451 U.S. 454 (1981) would be given full retroactive effect 
the court concluded that retroactivity doctrine as articulated in 
Stumes is not applied unless the decision constitutes a "new and 
unforeshadoyed holding" or a new principle of wonstitutional law. 
Taking note of the Sixth Amendment history leading to the Court's 
decision in Estelle, particularly as established in Massiah, the 
court applied Estelle to a habeas petitioner and rejected argu- 
ments about non-retroactivity. See also, Jones v. McCotter, 767 
F.2d 101 (5th Cir. 1985). 

  

  

  

  

22 

  

 



o 

  

The effect of a new constitutional rule depénds on "particu- 

lar relations and particular conduct of rights claimed to have 

become vested, or status, of prior determinations deemed to have 

finality," and other considerations of public policy. Lehon v. 

Kurtzman, 411 U.S. 192, 199 (1973). Consequently, if the Court's 
  

decision in Jackson is deemed to constitute a new rule, its 
  

retroactivity or non-retroactivity cannot be summarily determined 

by automatic resort to an arguably analogous Supreme Cours deci- 

sion. Rather, the retroactivity of Jackson must be determined 

independently. » : 

With a clear appreciation of the presumption of retroacti- 

vity, Stumes, 465 U.S. at 642, see also, Robinson v. Neil, 409 
  

U.S. 505, 507-508 (1973), rumerous decisions have indicated that 

the criteria for determining retroactivity are: (17 the purpose 

to be served by the partieular new rule; (2) the sxtent of 

reliance which had been placed upon the old rule; and (3) the 

effect on the administration of justice of a retroactive applica- 

tion of the new rule, ‘Brown v. Louisiana, 447 U.8. 323 (1980); 
  

Hankerson v., North Carolina, 432 0.8. 233 (19717). A proper con- 
  

sideration of the criteria governing retroactivity demonstrates 

that Jackson differs materially from Edwards, 1 and should be 

  

Hin Stumes, the Supreme Court analyzed the retroactivity 
of Edwards by examining the purposes served by.-sts bright line 
rule in the Fifth Amendment context. Most importantly, the Court 
noted that Edwards established a prophylactic rule whose sole 
purpose is to monitor police conduct. The Court examined the 
history behind Edwards by looking at [footnote continued] 

23 

 



  

held fully retroactive. 

With respect to the first of the three criteria, Jackson's 
  

purpose extends far beyond the articulation of a prophylactic 

: : 2 
rule to be implemented in the setting of custodial interrogation. 

Instead, Jackson deals with the fundamental right to counsel and 

that right's relationghin to judicial proceedings. Jackson, 89 

L.Ed.2d at 639. The Court held that the assertion of the right 

to counsel in a formal proceeding precludes any attempt by the 

prosecution to initiate custodial interrogation or oLherieg 

undermine Sixth Amendment rights. Jackson's purpose is to pro- 
  

tect the integrity of the judicial process and to explicate the 

requirements of the Sixth Amendment, not to control the conduct 

of police officers. As the majority stated in Jackson: 

[Tlhe reasons for prohibiting the interro- 
gation of an uncounseled prisoner who has 

-. asked for the help of a lawyer are even 
stronger after [a criminal defendant] has 
been formally charged with an offense than 4 eo. 
before....The "Sixth Amendment guarantees 
the accused at least after initiation of 
formal charges, the right to rely on counsel 
as a medium between him and the State." 

Jackson, 89 L.Ed.2d at 639, in part cuoting Maine v. Moulton 
  

* 

474 U.S. _, 88 L.EA.2d 481, 496 (1985). After a formal accusa- 
  

{ 

[footnote continued] a long line of Fifth Amendment cases. This 

resulted in the Court's conclusion that Fdwards should not be 
fully retroactive. See Stumes, 465 U.S. at 647, 648. 
However, the Court's conclusion on the retroactivity of Edwards, 
determined by an examination of Edwards' particular purpose and 
its unique Fifth Amendment progeny, can in no way dictate whether 
Jackson--a case based on the relationship between the right to 
counsel, the integrity of judicial proceedings and police 
misconduct--should be fully retroactive. 

  

  

24 

2 

 



  

tion has been made, and a person who was simply a "suspect" 

becomes _ the "accused," the Sixth Amendment right to effective 

assistance of counsel is triggered. This right ensures that the 
: Sek > 

judicial process is fair and just. It 'has an importance far 

beyond prophylactic rules governing investigatory police conduct 

which might violate constitutional rights. 

The Supreme Court has given full retroactive effect to 

other decisions protecting the Sixth Amendment right to counsel 

when deprivation of the right affects the fundamental fairness of 

the judicial process. See, ¢.9., Gideon v, Wainwright, 372 U.s. 
  

335 (963); Hamilton v. Alabama, 368 U.S. 52 (1961); Arsenault 
    

v. Massachusetts, 393 U.S. 5 (1968); McConnell v. Rhay, 393 U.S. 
  

  

2 (1968), 

.Nor does the second. retroactivity er iterton support limiting 

Jackson to prospective relief. The Court's decision in Jackson 

was clearly forashadonad by the long line of cases that held that 

once the Sixth Amendment right to counsel has attached, the 

"police may not employ techniques to elicit information from an 

uncotnzeled defendant that might have been proper at an earlier 

stage of their investigation." Jackson, 89 L.Ed.2d at 639-640. 

See, e.g, Massiah v. United States, 377 U.S. 201 (1964); McLeod 
  

v. Ohio, 381 U.S. 356 (1965); Kirby v. Illinois, 406 U.3. 682 
  

(1972); Beatty v. United States, 389 U.S. 45 (1967); Brewer Vv. 
  

Williams, 430 U.S.e 387 (1977); United States v. Henry, 447 U.S. 
  

  

264 (1980); Maine v. Moulton, 474 U.S. _, 88 L.Ed.2d 481 (1985). 
  

25 

 



  

Accordingly, in contrast with Edwards, .there simply is no justi- 

fied reliance on prior law and precedent which requires that the 

® decision in Tack on be limited to prospective application. 

> Finally, the retroactive application of Jackson would not 

work any ill-effect on the administration of justice, the third 

consideration to be factored into a retroactivity determination. 

Given the history of restrictions on custodial interrogations 

after Sixth Amendment rights have attached, ziolations of the 

right to counsel through interrogations after arraignment have 

not occurred because of police reliance on pre-existing rules or 

law. As Justice Rehnquist points out in his dissent in Jackson, 

there is no empirical evidence to suggest that police commonly 

deny defendants' their Sixth Amendment right to counsel .through 

improper interrogations. Jackson, 89 L.Ed.2d4 at 644-45. As a 

result, the fully retroactiwe @application of Jackson would not 

jeopardize the states' legitimate interest in finality or 

"seriously disrupt" the administration of justice by recognizing 

an almost universal claim resulving relitigation of issues on the 

basis of stale evidence. See Allen v. Hardy, No. 84-6593, 
  

  

slip op. at 5-6 (S. Cts June 30, 1986), 

Roger Collins has consistently argued that his convictions 

and sentence of death are unconstitutional because of the 

admission.of an improperly obtained statement. :.I® would be 

a gross miscarriage of justice to permit his convictions and 

death sentence to stand simply because his arguments were made 

26 

 



  

before Jackson held that they were constitutionally sound and 

correct. Accordingly,.Jackson should be held applicable to the 
» 

. - Fi 3 / 

case at bar and the appropriate relief should follow. 

Nx 

IIT. THE LOWER COURT'S FINDING THAT A SECOND PETITION WAS NOT AN 
ABUSE OF THE WRIT AND THAT THE "ENDS OF JUSTICE" COMPEL RE- 
EXAMINATION OF CLAIMS SHOULD NOT BE DISTURBED WHERE THE 
CLAIMS WERE PRESENTED AND ADVERSELY DECIDED, BUT * 
INTERVENING DECISIONS DEMONSTRATE THAT THE CASE WAS 
WRONGLY-DECIDED. 

The court below specifically found that the issues presented 

by Mr. Collins’ petition did not constitute an abuse of the writ, 

and ruled on the merits of Mr. Collins' Sandstrom claim and the 
  

statements issue. District Court Order, June 6, 1986, at2. 

Tabervening decisions clearly indicate that claims presented in 

Mr. Collins' original habeas petition were wrongly-decided and 

should be reconsidered. Under Rule 9(b) of the Rules Governing 

Section 2254 Cases in the United States District Courts, claims 9 » 

in a successive federal habeas petition should be entertained 

unless they could have been raised previously and were not, and 

the failure to raise the claims amounts to an abuse of the writ, 

or, secondly, the claims were presented in an earlier petition 

where there was an adjtidication on the merits and it would not be 

in the interests of justice to redetermine the merits. See 

Sanders v. United States, 373 U.S. 1 (1963). 
  

In determining whether a court is required .to readdress the 

merits of issues previously decided, a petitioner is entitled to 

a redetermination where purely legal questions are involved in 

27 

 



  

the original determination, where there has been an intervening 

change in the law, or some other justification for having failed 

to raise a crogial point or argument is established. Sanders, 373 2 

8.5. at 16-1712 : | > 

The Supreme Court's decisions in Franklin and Rose v. Clark 
    

- and this Court's decision in Drake have altered the way Sandstrom 
  

violations are analyzed and demonstrate that the unconstitutional 

instruction given at Mr. Collins' trial was not Rermicss error. 

Similarly, the Supreme Court's decision in Jackson, which was not 

decided uhtil aril 1, 1986, makes clear and explicit that Mr. 

Collins' right to counsel was violated. The court below 

correctly concluded that when these kinds of intervening 

ae decisions have occurred the ends of justice and Rule 9(b) permit 

i
 

. a successive petition. THere is no abuse of the-writ. 

H—0 
  

120he "abuse of writ doctrine is considered of rare and ex- 
traordinary application." Vaughn v. Fstelle, 671 P.24 152, 153 
{5th Cir. 1982); - Prapskar v. Estelle, 612 P.24 1003, 1007 (5th 
Cir. 1983). This Court has additionally ruled that the ends of 
justice "cannot be too finely particularized" in determining 
whether there can be reconsideration of a claim on federal habeas 

review where there has been a prior adjudication. Johnson wv. 
Wainwright, 702 F.24 909, 91) (llth Cir. 1983); Smith v, Kemp, 
715 Fr, 2d 1459 (11th Cir. 1983); Potts Vv. Zant, 638 F.2d 121, 14° 
{5th Cir. Unit B 1981). 

  

    

  

    

  

28 

 



   
Southern Prisoners’ Defense Committee 
  

185 Walton Street, N.W. 

Atlanta, Georgia 30303 

(404) 688-1202 

May 11, 1987 

Jack Bogur 
NAACP Legal Defense Fund 
99 Hudson Street 
New York, New York 

Dear Jack: 

Enclosed is a copy of the retroactivity section from our 

11th Circuit brief in Collins. The Eleventh Circuit issued an 

order in Collins yesterday which stated that the opinion in 

Collins would be witheld until Billy Moore's case is decided by 

the en banc court. 

It was good seeing you the week before last. I'll be in 

touch. 

Sincerely, 

   
yan A. Stevenson 

Attorney at Law 

 



  

     

     
    

  

REPORTS 93 L Ed 24 

8 apportionment n 
through the politica] nt be 
E] 

‘fment of th 
rat. Je Cours of Ap. 

   
   

    

       

RANDALL LAMONT GRIFFITH, Petitioner 

v 

KENTUCKY 

  

WILLIE DAVIS BROWN, aka WILL BROWN, Petitioner 

v 

UNITED STATES 

479 US —, 93 L Ed 2d 649, 107 S Ct — 

[Nos. 85-5221 and 85-5731] 

Argued October 14, 1986. Decided January 13, 1987. 

Decision: Rule of Batson v Kentucky, that prosecutor’s use of peremptory 
challenges to exclude blacks from jury trying black defendant may violate 
equal protection, held retroactively applicable to cases pending on direct 
review or not yet final. 

SUMMARY 

In one case below, a black man indicted in the Circuit Court of Jefferson 
County, Kentucky, for first-degree robbery was tried and convicted before an 
all-white jury after the prosecution used four of its five peremptory chal- 
lenges to strike four of the five prospective black jurors and the fifth was 
removed by a random draw, and after the defense had unsuccessfully moved 
to discharge the panel on the ground that the prosecution’s action violated 
the accused’s rights under the Sixth and Fourteenth Amendments. The 
conviction was affirmed by the Supreme Court of Kentucky, which relied on 
Swain v Alabama (1965) 380 US 202, 13 L Ed 2d 759, 85 S Ct 824, in 
rejecting claims that the prosecution’s use of peremptory challenges had 
deprived the accused of equal protection. In another case, a black man was 
convicted on narcotics charges in the United States District Court for the 
Western District of Oklahoma after the court excused four of the six 
potential black jurors for cause, the prosecutor used peremptory challenges 
to remove the other two, and the prosecutor expressed to the jury clerk a 
desire to have as few blacks as possible on a second venire panel. The 
United States Court of Appeals for the Tenth Circuit, similarly relying on 

649 

  
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U.S. SUPREME COURT REPORTS 93 L Ed 2d 

Swain v Alabama, rejected the accused’s claim that the prosecutor’s actions 
had violated his right to an impartial jury, and affirmed his conviction (770 
F2d 912). While petitions for certiorari were pending in both cases, the 
United States Supreme Court handed down its decision in Batson v Ken- 
tucky (1986) 476 US, 90 L Ed 2d 69, 106 S Ct 1712, which overruled Swain 
v Alabama in pertinent part to hold that a prosecutor’s use of peremptory 
challenges to strike members of a defendant’s race from the venire could 
make out a prima facie case of racial discrimination violative of the equal 
protection clause of the Fourteenth Amendment. 

On certiorari, the United States Supreme Court reversed both of the 
decisions below and remanded the cases for further proceedings. In an 
opinion by BLACKMUN, J., joined by BRENNAN, MARSHALL, POWELL, STEVENS, 
and SCALIA, JJ., it was held that the rule of Batson v Kentucky is applicable 
to litigation that was pending on direct state or federal review, or not yet 
final, when Batson was decided, since (1) a new rule for the conduct of 
criminal prosecutions is to be applied retroactively to all cases, state or 
federal, which are then pending on direct review or not yet final; and (2) the 
fact that the Batson rule may have constituted a “clean break” with past 
precedent did not warrant an exception from such retroactive application. 

PowELL, J., concurred, expressing the view that habeas corpus petitions 
generally should be judged according to the constitutional standards exist- 
ing at the time of conviction. 

Rennquisr, Ch. J., dissented, expressing the view that the majority of the 
court had erred in rejecting the reasons cited in Allen v Hardy (1986) 478 
US, 92 L Ed 2d 199, 106 S Ct 2878, for making Batson v Kentucky 
nonretroactive. ; 

WHITE, J., joined by Rennquist, Ch. J., and O’CoNNOR, J., dissented, 
expressing the view (1) that the retroactivity of a new rule of criminal 
procedure should be determined by weighing (a) the purpose to be served by 
the new standards, (b) the extent of reliance by law enforcement authorities 
on the old standards, and (c) the effect on the administration of justice of a 
retroactive application of the new standards; (2) that no distinction should 
be recognized for retroactivity purposes between cases on direct and collat- 
eral review; and (3) that even if new rules should generally be applied 
retroactively to cases pending on direct review, an exception should be made 
for rules which constitute an explicit and substantial break with prior 
precedent. 

  

Unite: 
decision 

Grou;   
   



93 L Ed 2d . GRIFFITH v KENTUCKY 
{ 93 L Ed 2d 649 
  

aeoutor’s actions | 8 wonviction (770 TOTAL CLIENT-SERVICE LIBRARY® REFERENCES 
h cases, 

= Ratson v ss 16A Am Jur 2d, Constitutional Law § 820; 20 Am Jur 2d, 
4 overruled Swain Courts §§ 233, 236; 47 Am Jur 2d, Jury 88 173-176, 183, 184, 

"a of peremptory 235-238, 265, 284 

& the venire could 9 Federal Procedure, L Ed, Criminal Procedure § 22:799; 33 
» of the equal Federal Procedure, L Ed, Trial §§ 77:127, 77:136, 77:177- 

77:179 

BE both of the 7 Federal Procedural Forms, L Ed, Criminal Procedure 
fproceedings. In an § 20:833 
5 POWELL, STEVENS, 8 Am Jur Pl & Pr Forms (Rev), Criminal Procedure, Form 
giucky is applicable 334 

i REVI: > net et yl 9 Am Jur Proof of Facts 2d 407, Discrimination in Jury 
1 e conduct. of : Selection—Systematic Exclusion or Underrepresentation of 

y final; and (2) the Identifiable Group 

break” with past 30 Am Jur Trials 561, Jury Selection and Voir Dire in 
itive application. : Criminal Cases 
4 USCS, Constitution, 14th Amendment 

corpus Petitions US L Ed Digest, Civil Rights § 8; Courts § 777.5 standards exist- ; adn i 
Index to Annotations, Discrimination; Equal Protection of 

Ee Law; Jury and Jury Trial; Overruled Decisions; Retrospec- he majority of the - tive Operation and Laws : 

*% Hardy (1986) 478 VERALEX™: Cases and annotations referred to herein can 
Batson v Kentucky be further researched through the VERALEX electronic 

retrieval system’s two services, Auto-Cite® and 
SHOWME™, Use Auto-Cite to check citations for form, 

ghoR. J., dissented, parallel references, prior and later history, and annotation 
t rule of criminal references. Use SHOWME to display the full text of cases 
|e to be served by and annotations. 
ge) =} authorities J 
pen of justice of a > Binction oad ANNOTATION REFERENCES 

and collat- 

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17 

bally be appli od United States Supreme Court’s views as to retroactive effect of its own 
k should Vishay, decisions announcing new rules. 65 L Ed 2d 1219. 

with prior | Group or class discrimination in selection of grand or petit jury as 
prohibited by Federal Constitution. 33 L Ed 2d 783. 

Retroactive or merely prospective operation of new rule adopted by 
court in overruling precedent—federal cases. 14 L Ed 2d 992. 

Use of peremptory challenge to exclude from jury persons belonging to 
a class or race. 79 ALR3d 14. 

Prospective or retroactive operation of overruling decision. 10 ALR3d 
1371.     
     



U.S. SUPREME COURT REPORTS 

HEADNOTES 

Classified to U.S. Supreme Court Digest, Lawyers’ Edition 

Civil Rights § 8; Courts § 777.5; Ev- 
idence § 252 — retroactivity — 
racial exclusion from jury — 
burden of proof 

1. The decision in Batson v Ken- 
tucky (1986) 476 US , 90 L Ed 2d 69, 
106 S Ct 1712—holding that a defen- 
dant in a state criminal trial can 
establish a prima facie case of racial 

. discrimination violative of the equal 
protection clause of the Fourteenth 
Amendment, based on the prose- 
cutor’s use of peremptory challenges 
to strike members of the defendant’s 
race from the jury venire, and that 
once the defendant makes such a 
prima facie showing the burden 
shifts to the prosecution to come 
forward with a neutral explanation 
for those challenges—is applicable to 
litigation that was pending on direct 
state or federal review or was not 
yet final when Batson was decided. 
(Rehnquist, Ch. J., and White and 
O’Connor, JJ., dissented from this 
holding.) 

Courts § 777.5 — retroactivity —. 
direct review 

2a-2d. A new constitutional rule 
established by the United States Su- 
preme Court for the conduct of crim- 
inal prosecutions is to be applied 
retroactively to all cases, state or 
federal, which were pending on di- 
rect review or not yet final at the 

time the new rule was announced, 
with no exception for cases in which 
the new rule represents a “clear 
break” with the past, that is, where 
the new rule explicitly overrules 
past precedent of the Supreme 
Court, disapproves a practice which 
the Supreme Court has arguably 
sanctioned in prior cases, or over- 
turns a longstanding practice that 
lower courts have uniformly ap- 
proved; “final” means a case in 
which a judgment of conviction has 
been rendered, the availability of 
appeal exhausted, and the time for a 
petition for certiorari elapsed or a 
petition for certiorari finally denied. 
(Rehnquist, Ch. J., and White and 
O’Connor, JJ., dissented from this 
holding.) 

Supreme Court of the United 
States §§ 3, 14 — case and con- 
troversy — new constitu- 
tional rules 

3. The United States Supreme 
Court adjudicates only “cases” and 
“controversies”; unlike a legislature, 
the court does not promulgate new 
rules of constitutional criminal pro- 
cedure on a broad basis, but rather, 
the nature of judicial review re- 
quires that the court adjudicate spe- 
cific cases, each of which usually 
becomes the vehicle for announce- 
ment of a new rule. 

SYLLABUS BY REPORTER OF DECISIONS 

In Batson v Kentucky, 476 US 
——, 90 L Ed 2d 69, 106 S Ct 1712, 
the Court ruled that a state criminal 
defendant could establish a prima 
facie case of racial discrimination 
violative of the Fourteenth Amend- 
ment, based on the prosecution’s use 

652 

of peremptory challenges to strike 
members of the defendant’s race 
from the jury venire, and that, once 
the defendant had made the prima 
facie showing, the burden shifted to 
the prosecution to come forward 
with a neutral explanation for those   

tioner’s ©« 
trict Court 
affirmed 1 
which re 

that the | 
tory chal! 

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jury cler 
tioner, 8 
tial jury. 
in both ¢ 
before B: 

Held: 
of crimir 
ruling 
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93 L Ed 2d 

announced, 
28 in which 

™ a “clear 
“wat is, where 
MY overrules 

§ Ww Supreme 
% pwtice which 

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. games, Or over- 

ha practice that 
§ uniformly ap- 
ns & case in 

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t availability of 

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ari elapsed or a 

n finally denied. 
and White and 
gnted from this 

the United 
» case and con- 
pew constitu- 

gates Supreme 
ly “cases” and 
p a legislature, 
pmulgate new 
feriminal pro- 

B, but rather, 
' review re- 
judicate spe- 
lich usually 

* announce- 

  

GRIFFITH v KENTUCKY 
93 L Ed 2d 649 

challenges. These cases concern the 
question whether that ruling applies 
to cases pending on direct review or 
not yet final when Batson was de- 
cided. In No. 85-5221, petitioner's 
robbery conviction in a Kentucky 
state court was affirmed by the Ken- 
tucky Supreme Court, which re- 
jected petitioner’s claim that the 
prosecutor’s use of peremptory chal- 
lenges to strike prospective black 
jurors deprived petitioner, a black 
person, of guaranteed equal protec- 
tion. Similarly, in No. 85-5731, peti- 
tioner’s conviction in Federal Dis- 
trict Court on narcotics charges was 
affirmed by the Court of Appeals, 
which rejected petitioner's claim 
that the prosecutor’s use of peremp- 
tory challenges to exclude black ju- 
rors, combined with his call to the 
jury clerk, violated the right of peti- 
tioner, a black person, to an impar- 
tial jury. The petitions for certiorari 
in both cases were filed in this Court 
before Batson was decided. 

Held: A new rule for the conduct 
of criminal prosecutions, such as the 
ruling in Batson, applies retroac- 
tively to all cases, state or federal, 
pending on direct review or not yet 
final, with no exception for cases in 
which the new rule constitutes a 
“clear break” with the past. 

(@) Failure to apply a newly de- 
clared constitutional rule to criminal 
cases pending on direct review vio- 
lates basic norms of constitutional 
adjudication. After this Court has 
announced a new rule in the case 
selected for review, the integrity of 

judicial review requires the Court to 
apply that rule to all similar cases 
pending on direct review. In addi- 
tion, selective application of a new 
rule violates the principle of treating 
similarly situated defendants the 
same. 

(b) An exception to the general 
principle that a new rule governing 
criminal procedure should be retro- 
active to cases pending on direct 
review, based solely on the fact that 
the new rule is a “clear break” with 
the past, is inappropriate. The prin- 
ciple that this Court does not disre- 
gard current law when it adjudicates 
a case pending before it on direct 
review applies regardless of the spe- 
cific characteristics of the new rule 
announced by the Court. Further, 
the use of a “clear break” exception 
creates the same problem of not 
treating similarly situated defen- 
dants the same. The fact that the 
new rule may constitute a clear 
break with the past has no bearing 
on the “actual inequity that results” 
when only one of many similarly 
situated defendants receives the ben- 
efit of the new rule. 

No. 85-5221, and No. 85-5731, 770. 
F2d 912, reversed and remanded. 

Blackmun, J., delivered the opin- 
ion of the Court, in which Brennan, 
Marshall, Powell, Stevens, and 
Scalla, JJ., joined. Powell, J., filed a 
concurring opinion. Rehnquist, C. J., 
filed a dissenting opinion. White, J., 
filed a dissenting opinion, in which 
Rehnquist, C. J., and O’Connor, J., 
joined. 

APPEARANCES OF COUNSEL 

J. Vincent Aprile II argued the cause for petitioner. 
Paul W. Richwalsky, Jr. argued the cause for respondent.  



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U.S. SUPREME COURT REPORTS 93 L Ed 24 

OPINION OF THE COURT 

Justice Blackmun delivered the sistent felony offender in the second 
opinion of the Court. degree. App 2. On the first day of 

trial, the prosecution and defense 
These cases, one state and one attorneys conducted voir dire exami- 

federal, concern the retrospective 8p- ation of the jury venire and exer- 
plication of Batson v Kentucky, 476 cised their peremptory challenges. 

US 2 (198 9 L Ed 2d 69, 106 S Ct The prosecution used four of its five 
17112 1986). allotted challenges to strike four of 

id ata. the five prospective black jurors. The 
L Pir 2, a Ct 1712, 3» défense used eight of its allotted 
Court ruled that a defendant in a nine challenges to strike prospective 

state criminal trial could establish a White jurors. There were two dupli- 
prima facie case of racial discrimina- cate strikes. The two extra jurors 
tion violative of the Fourteenth Who remained because of the dupli- 
Amendment, based on the prosecu- cate strikes, one of whom was a 
tion’s use of peremptory challenges black person, then were removed by 
to strike members of the defendant’s random draw.? Thus, no black per- 
race from the jury venire, and that, son remained on the jury. Id., at 5, 
once the defendant had made the 12-13. 
prima facie showing, the burden 
shifted to the prosecution to come Defense counsel expressed concern 
forward with a neutral explanation that Griflith was to be tried by an 
for those challenges. In the present all-white jury. He asked the court to 
cases we consider whether that rul- request the prosecutor to state his 
ing is applicable to litigation pend- reasons for exercising peremptory 
ing on direct state or federal review challenges against the four prosec- 
or not yet final when Batson was tive black jurors. The request was 
decided. We answer that question in refused. Id, at 13. Counsel then 
the affirmative. moved for discharge of the panel, 

alleging that the prosecutor's use of 
I peremptory challenges to remove all 

but one of the prospective black ju- 

A. No. 85-5221. Petitioner Randall rors constituted a violation of Grif- 
Lamont Griffith, a black person, was fith’s Sixth and Fourteenth Amend- 

indicted in 1982 in the Circuit Court ment rights. Id., at 15. The court 
of Jefferson County, Ky. (the same denied the motion. The jury re 
court where Batson was tried), on turned a verdict of guilty on the 
charges of first degree robbery, theft charge of first degree robbery and 
by unlawful taking, and being a per- fixed petitioner’s punishment at 10 

  
1. In Kentucky, upon the completion of voir 

dire, the parties simultaneously exercise their 
respective peremptory challenges. Each side 
strikes names from the list of jurors who have 
been qualified and presents the strikes to the 
court. Ky. Rule Crim Proc 9.36(2). 

2. “If the number of prospective jurors re- 

654 

maining on the list [after peremptory chal- 

lenges] exceeds the number of jurors to be 

seated, the cards bearing numbers identifying 

the prospective jurors [are] placed in a box” 

and the clerk of the court draws at random 

the number of cards necessary “to reduce the 

jury to the number required by law.” Ibid   

’ imprison: 
on! petitione 

persistent felon 

(1985), enhance 
years’ imprison 

The Suprems 
with an unpul 

opinion, affirm 
conviction. Ap 
jected petition 
prosecutor's us 

lenges deprive 
equal protectic 

v Alabama, 38 
759, 85 S Ct 
Court ruled tb 
did not establ 
Equal Protect 

proof of the P 

remptory chal 
jurors at the 

1d., at 221-222 
Ct 824. The ! 
that an infere 
crimination © 

prosecutor ha 
of challengini 
ries of cases. « 
Ed 2d 759, & 

tucky Sa 
dis 0 
“declineld] & 
Swain court. 

Griffith tim 

for a writ © 
petition was 
cided Batsor i SPS ANT 

3. Before sub 
the trial court g 

directed verdict 

theft by unlawfu 
4. The numb 

first venire Wh 
sulted in a rem 
constitute a full 

5. There 1s 80  



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93 L Ed 24 

gender in the second 
Vn the first day of 
pution and defense 
¥ed voir dire examj. 
fy venire and exer- 

tuptory challenges.! 
ised four of its five 

vs to strike four of 
#\« black jurors. The 

Fla ht of its allotted 
A strike prospective 
hiv were two dupli- 

hh WO extra jurors 
| wuse of the dupli- 

» of whom was ga 
w were removed by 

us, no black per- 
in Wee jury. Id, at 5, 

Lael wxpressed concern 
gs W be tried by an 
fo asked the court to 
gacuicr to state his 
fhivsing peremptory 
ist the four prosec- 
% The request was 
i \. Counsel then 
jase of the panel, 
i prosecutor’s use of 
gages to remove al] 
gespective black ju- 
} violation of Grif. 
urteenth Amend- 

Et % 15. The court 
gp The jury re 
f® guilty on the 
gee robbery and 
moishment at 10 

peremptory chal- 
#er of jurors to be 
ssmbers identifyi 
bplaced in a bons 
“raws at random 
®Y “to reduce the 

9 law.” hig.   

GRIFFITH v KENTUCKY 
93 L Ed 2d 649 

years’ imprisonment.® The jury then 
found petitioner guilty of being a 
persistent felony offender, and, pur- 
suant to 16A Ky Rev Stat § 532.080 
(1985), enhanced his sentence to 20 
years’ imprisonment. 

The Supreme Court of Kentucky, 
with an unpublished memorandum 
opinion, affirmed the judgment of 
conviction. App 17. The court re- 
jected petitioner’s claim that the 
prosecutor’s use of peremptory chal- 
lenges deprived him of guaranteed 
equal protection. It relied on Swain 
v Alabama, 380 US 202, 13 L Ed 2d 
759, 85 S Ct 824 (1965), where this 
Court ruled that a black defendant 
did not establish a violation of the 
Equal Protection Clause solely on 
proof of the prosecutor’s use of pe- 
remptory challenges to strike black 
jurors at the defendant’s own trial. 
Id., at 221-222, 13 L Ed 2d 759, 85 S 
Ct 824. The Court noted, however, 
that an inference of purposeful dis- 
crimination could be raised where a 
prosecutor had engaged in a pattern 
of challenging black jurors in a se- 
ries of cases. See id., at 223-224, 13 L 
Ed 2d 759, 85 S Ct 824. The Ken- 
tucky court concluded that Swain 
disposed of petitioner’s claim and it 
“decline[d] to go further than the 
Swain court.” App 18. 

Griffith timely filed here a petition 
for a writ of certiorari. While his 
petition was pending, this Court de- 
cided Batson v Kentucky, supra, 

where it rejected a portion of the 
reasoning of Swain v Alabama on 
which the Kentucky court had re- 
lied. 476 US, at ——-—, 90 L Ed 
2d 69, 106 S Ct 1712. Two months 
later, in Allen v Hardy, 478 US Nl 
92 L Ed 2d 199, 106 S Ct 2878 (1986) 
(per curiam), we held that the ruling 
in Batson was not to be applied 
retroactively to a case on federal 
habeas review. We granted certiorari 
in Griffith's case, 476 US —, 90 L 
Ed 2d 717, 106 S Ct 2274 (1986), 
limited to the question whether the 
ruling in Batson applies retroac- 
tively to a state conviction pending 
on direct review at the time of the 
Batson decision. 

B. No. 85-5731. In 1984, petitioner 
Willie Davis Brown, a black person, 
was convicted by a= jury in the 
United States District Court for the 

excused by fhe prosecutor's use of 
peremptory challenges. Id., at 20.5 
Defense counsel objected to the pros- 
eCutor’s use of peremptory chal- 
lenges to strike the black persons 
from the jury, claiming that peti- 
tioner was thereby denied a jury 
representative of the community. Id., 
at 20-21. No action was taken in 
response to that objection. 

  

3. Before submitting the case to the jury, 
the trial court granted Griffith’s request for a 
directed verdict of acquittal on the charge of 
theft by unlawful taking. See Tr 204-206. 

4. The number of prospective jurors in the 
first venire who were excused for cause re- 
sulted in a remaining number insufficient to 
constitute a full petit jury. 6 Record 9-10. 

5. There is some confusion as to the number 

of prospective black jurors in the total venire. 
According to a statement in the record, there 
were six in the two panels. Id., at 20. At oral 
argument, counsel for petitioner Brown stated 
that five had been called. Tr of Oral Arg 3. 
There appears to be agreement, however, that 
two black jurors were excused by the prose- 
cutor’s use of peremptory challenges. See 
ibid.; 6 Record 20; App 14. 

655  



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U.S. SUPREME COURT REPORTS 93 L Ed 24 

As prospective jurors were being 
assembled for the second venire 
panel, the prosecutor called the jury 
clerk to inquire about the racial 
composition of the additional venire. 

dence that the prosecutor said to the 
clerk: “We would Tike to have as few 
black jurors as possible.” App 51. 
The clerk testified, however, that she 
remembered the prosecutor’s com- 
ment to be: “Don’t get any blacks on 
this jury.” Id, at 3839. The clerk 
went on to say that she did not alter 
the jury selection in any way in 
response to the prosecutor’s com- 
ment. Id, at 44-45. The District 
Court concluded that the prose- 
cutor’s contact with the jury clerk 
“would have to be looked at and 
dealt with by someone,” id., at 44, 
inasmuch as it fell “into the cate- 
gory of possible prosecutorial mis- 
conduct,” id., at 46, but that it did 
not affect the integrity of the selec- 
tion of the jury. Id., at 45. The court 
therefore concluded that a new trial 
would not be necessary if the jury 
convicted petitioner. Id., at 46. 

The United States Court of Ap- 
peals for the Tenth Circuit affirmed 
the judgment of conviction. 770 F2d 
912 (1985). It rejected Brown’s claim 
that the prosecutor’s use of peremp- 
tory challenges to exclude prospec- 
tive black jurors, combined with his 
call to the jury clerk, violated peti- 
tioner’s right to an impartial jury. 
The court concluded that Brown had 
not met Swain’s threshold require 
ment that petitioner must show a 
systematic and intentional course of 
conduct by the prosecutor calculated 
to exclude black jurors in “case after 
case.” 770 F2d, at 914. It further 
concluded that the communication 
by the prosecutor to the jury clerk 

656 

did not suggest a pattern of system. 
atic exclusion of black jurors. Al. 
though the court observed that the 
prosecutor’s action was “improper” 
and “must be condemned,” ibid., it 
concluded, as had the District Court, 
that the prosecutor’s request had no 
effect on the selection of Brown's 
jury. 

Prior to our Batson decision, peti- 
tioner timely filed with this Court a 
petition for a writ of certiorari. We 
granted certiorari, 476 US —, 90 LL 
Ed 2d 718, 106 S Ct 2275 (1986), 
again limited to the question 
whether the ruling in Batson applies 
retroactively to a federal conviction 
then pending on direct review. The 
case was set for argument in tandem 
with Griffith’s case. 

II 

Twenty-one years ago, this Court 
adopted a three-pronged analysis for 
claims of retroactivity of new consti- 
tutional rules of criminal procedure. 
See Linkletter v Walker, 381 US 
618, 13 L'Ed 2d 601, 85 5 Ct 1731, 5 
Ohio Misc 49, 33 Ohio Ops 2d 118 
(1965). In Linkletter, the Court held 
that Mapp v Ohio, 367 US 643, 6 L. 
Ed 2d TOBT, BTS Ct 1684, 16 Ohio 
Ops 2d 384, 86 Ohio L Abs 513, 84 
ALR2d 933 (1961), which extended 
the Fourth Amendment exclusionary 
rule to the States, would (not) be 
applied retroactively to a state con- 
viction that had become final before 
Mapp was decided. The Court ex- 
plained that “the Constitution nei- 
ther prohibits nor requires retro- 
spective effect” of a new constitu- 
tional rule, and that a determination 
of retroactivity must depend on 
“weigh[ing] the merits and demerits 
in each case.” 381 US, at 629, 14 L 
Ed 2d 601, 85 S Ct 1731, 5 Ohio Misc 
49, 33 Ohio Ops 2d 118. The Court’s 

  

ity depends © 
gerved by the 

extent of th 

forcement 2 
standards, & 
administrati 
active applic 
dar ds”). 

[2a] Short 

Linkletter, 1 

three-prong 
to convictio 
convictions 

See Johnso: 

719, 732, 1 
1772, 8 Oh 
od 439 (19 
US, at 300, 
1967. In t 

concluded 

plying the 
sis, “no ¢ 
tween con 
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and direc 
SR LR 

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petition fo 
United Ste 
8,73 L Ed 
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GRIFFITH v KENTUCKY 
93 L Ed 2d 649 

decision not to apply Mapp retroac- 
tively was based on “the purpose of 
the Mapp rule; the reliance placed 
upon the [previous] doctrine; and the 
effect on the administration of jus- 
tice of a retrospective application of 
Mapp.” 381 US, at 636, 14 L Ed 2d 
601, 85 S Ct 1731, 5 Ohio Misc 49, 33 
Ohio Ops 2d 118. See also Stovall v 
Denno, 388 US 293729718 Ed 2d 
IT99,787 S Ct 1967 (1967) (retroactiv- 
ity depends on *(a) the purpose to be 
served by the new standards, (b) the 
extent of the reliance by law en- 
forcement authorities on the old 
standards, and (c) the effect on the 
administration of justice of a retro- 
active application of the new stan- 
dards”). 

[2a] Shortly after the decision in 
Linkletter, the Court held that the 
three-pronged analysis applied both 
to convictions that were final® and to 
convictions pending on direct review. 
See Johnson v New Jersey, 384 US 
719, 732, 16 L Ed 2d 882, 86 S Ct 
1772, 8 Ohio Misc 324, 36 Ohio Ops 
2d 439 (1966); Stovall v Denno, 388 
US, at 300, 18 L Ed 2d 1199, 87 S Ct 
1967. In the latter case, the Court 
concluded that, for purposes of ap- 
plying the three factors of the analy- 
sis, “no distinction is justified be- 
tween convictions now final . . . and 
convictions at various stages of trial 
and direct review.” Ibid. Thus, a 

EE 

number of new rules_of criminal 
procedure were held (not Jto_apply 
retroactively either to Hnal cases or 
to cases pending on direct review. 
See, e.g, Stovall v Denno, supra; 
DeStefano v Woods, 392 US 631, 635, 
n 2,20 L Ed 2d 1308, 88 S Ct 2093 
(1968); Desist v United States, 394 
US 244, 253-254, 22 L Ed 2d 248, 89 
S Ct 1030 (1969); Daniel v Louisiana, 
420 US 31, 42 L Ed 2d 790, 95 S Ct 
704 (1975) (per curiam). 

In United States v_Johnson, 457 
US B37, 73 L Ed 2d 202, 102 S Ct 
2579 (1982), however, the Court 
shifted course.” In that case, we re- 
Viewed at some length the history of 
the Court’s decisions in the area of 
retroactivity and concluded, in the 
words of Justice Harlan: 
“‘[Rletroactivity’ must be -re- 
thought.” 1d., at 548, 73 L Ed 2d 202, 
102 S Ct 2579 (quoting Desist v 
United States, 394 US, at 258, 22 L 
Ed 2d 248, 89 S Ct 1030 (dissenting 
opinion)). Lpecifically, we concluded) 
that the retroactivity analysis for | 
lconvictions that have become final | 
must be different from the analysis { 
ifor convictions that are not final at | 
ike time the new decision is issued.® J 

€ observed that, In a number of 
separate opinions since Linkletter, 
various Members of the Court “have 
asserted that, at a minimum, all 
defendants whose cases were still 

  

6. [2b] By “final,” we mean a case in which 
a judgment of conviction has been rendered, 
the availability of appeal exhausted, and the 
time for a petition for certiorari elapsed or a 
petition for certiorari finally denied. See 
United States v Johnson, 457 US 537, 542, n 
8, 73 L Ed 2d 202, 102 S Ct 2579 (1982) (citing 
Linkletter v Walker, 381 US 618, 622, n 5, 14 
L Ed 2d 601, 85 S Ct 1731, 5 Ohio Misc 49, 33 
Ohio Ops 2d 118 (1965)). 

7. In United States v Johnson, the Court 
held that the Fourth Amendment ruling an- 
nounced in Payton v New York, 445 US 573, 

63 L Ed 2d 639, 100 S Ct 1371 (1980), prohibit- 
ing police from making a warrantless, non- 
consensual entry into a suspect's home for the 
purpose of making a routine felony arrest, 
applied retroactively to a case pending on 
direct appeal. 

8. We noted in Johnson that our review did 
not address the area of civil retroactivity. See 
447 US, at 563, 65 L Ed 2d 341, 100 S Ct 
2343. That area continues to be governed by 
the standard announced in Chevron Oil Co. v 
Huson, 404 US 97, 106-107, 30 L Ed 2d 296, 
92 S Ct 349 (1971). 

657 

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  U.S. SUPREME COURT REPORTS 

pending on direct appeal at the time 
of the law-changing decision should 
be entitled to invoke the new rule.” 
457 US, at 545, and n 9, 73 L Ed 2d 
202, 102 S Ct 2579 (collecting opin- 
ions)’ The rationale for distinguish- 
ing between cases that have become 
final and those that have not, and 
for applying new rules retroactively 
to cases in the latter category, was 
explained at 1 r- 
lan 1n ] i s, 394 

, at 256, 22 L Ed 2d 248, 89 S Ct 
1030 (dissenting opinion), and in 
Mackey v United States, 401 US 

, , Ed 2d 404, 91 S Ct 
1160 (1971) (opinion concurring in 
judgments). In United States v John- 
son, we embraced to a significant 
extent the comprehensive analysis 
presented by Justice Harlan in those 
opinions. 

ales 

ion judication. First, it is a set- 
tled principle that this Court adjudi- 
cates only “cases” and “controver- 
sies.” See US Const, Art III, §2. 
Unlike a legislature, we do not pro- 
mulgate new rules of constitutional 
criminal procedure on a broad basis. 
Rather, the nature of judicial review 
requires that we adjudicate specific 
Cases, and each case usually becomes 
the vehicle for announcement of a 
new rule. But after we have decided 
a new rule in the case selected, the 
integrity of judicial review requires 
that we apply that rule to all similar 

93 L Ed 24 

cases pending on direct review. Jus- 
tice Harlan observed: 

“If we do not resolve all cases 
before us on direct review in light 
of our best understanding of gov- 
erning constitutional principles, it 
is difficult to see why we should so 
adjudicate any case at all. . . . In 
truth, the Court’s assertion of 
power to disregard current law in 
adjudicating cases before us that 
have not already run the full 
course of appellate review, is quite 
simply an assertion that our con- 
stitutional function is not one of 
adjudication but in effect of legis- 
lation.” Mackey v United States, 
401 US, at 679, 23 L Ed 2d 404, 91 
S Ct 1160 (opinion concurring in 
judgments). 

As a practical matter, of course, 
we cannot hear each case nding 
on direct review and apply the new 
fale. But we lulfill our judicial re- 
sponsibilit instructing the lower 
courts to apply the new rule retroac- TT Ea Ta La rr ar 
is the nature of 5 al revies is of judicial review that 
precludes us from “[slimply fishing 
one case from the stream of appel- 
late review, using it as a vehicle for 
pronouncing new constitutional 
standards, and then permitting a 
stream of similar cases subsequently 
to flow by unaffected by that new 
rule” Ibid. See United States v 
Johnson, 457 US, at 546-547, 555, 73 
L Ed 2d 202, 102 S Ct 2579. 

selective application of 
neéw—ruleS violates the principle of 
treating similarly sftuated defer 
dants the same. See Desist v United eee ——————————————————eeaer esse pe—————— ee 

8. See, among others, Brown v Louisiana, 
447 US 323, 337, 65 L Ed 2d 159, 100 S Ct 
2214 (1980) (Powell, J., with whom Stevens, J. 
joined, concurring in judgment); Harlin v Mis- 
souri, 439 US 459, 460, 58 L Ed 2d 733, 99 S 
Ct 709 (1979) (Powell, J., concurring in judg- 

658 

ments) Hankerson v North Carolina, 432 US 
233, 245, 53 L Ed 2d 306, 97 S Ct 2339 (1977) 
(Marshall, J., concurring in judgment): id., at 
246, 53 L Ed 2d 306, 97 S Ct 2339 (Powell, J. 
concurring in judgment).   

 



A NTS 93 L Ed 24 

3 

“observed: 

§ do not resolve all cages an direct review in light Saat understanding of gov- 
Sanstitutional principles, jt 
Ul to wee why we should 80 Me any case at all. . , Ip Fhe Court’s assertion of 4 disregard current law in A cases before us that "uo already run the fy] sof appellate review, is quite 

assertion that our con- Baal function is not one of gation but in effect of legis- 'S Mackey v United States, 8 at 679, 23 L Ed 2d 404, 91 1160 (opinion concurring in 
pots) 

tical matter, of course, 
jot hear each case pending 
review and apply the new 

kt we fulfill our judicial re 
ity by instructing the lower 
apply the new rule retroac- 
gases not yet final. Thus, ijt 

» of judicial review that 
us from “[s]limply fishing 

from the stream of appel- 
W, using it as a vehicle for 
ping new constitutional 
, and then permitting ga 
similar cases subsequently 
unaffected by that new 
#. See United States v 
7 US, at 546-547, 555 73 
= 102 S Ct 2579. 

ve application of 

ates the principle of 
ly situated defen- 
See Desist v United 

Mv North Caroling 432 US 8.306, 97 S Ct 2339 (1977, - In judgment): id, at ww 8 Ct 2339 (Powell, J., 
pro 
af 

on direct review. Jus. 

  

GRIFFITH v KENTUCKY 
93 L Ed 2d 649 

States, 394 US, at 258-259, 22 L Ed 
2d 248, 89 S Ct 1030 (Harlan, J., 
dissenting). As we pointed out in 
United States v Johnson, the prob- 
lem with not applying new rules to 
cases pending on direct review is 
“the actual inequity that results 
when the Court chooses which of 
many similarly situated defendants 
should be the chance beneficiary” of 
a new rule. 457 US, at 555, n 16, 73 
L Ed 2d 202, 102 S Ct 2579 (empha- 
sis in original). Although the Court 
had tolerated this inequity for a 
time by not applying new rules ret- 
roactively to cases on direct review, 
we noted: “The time for toleration 
has come to an end.” Ibid. 

In United States v Johnson, our 
acceptance of Justice Harlan’s views 
led to the holding that “subject to 
[certain exceptions], a decision of 
this Court construing the Fourth 
Amendment is to be applied retroac- 
tively to all convictions that were 
not yet final at the time the decision 
was rendered.” Id., at 562, 73 L Ed 
2d 202, 102 S Ct 2579. The excep- 
tions to which we referred related to 
three categories in which we con- 
cluded that existing precedent estab- 
lished threshold tests for the retroac- 
tivity analysis. In two of these cate- 
gories, the new rule already was 
retroactively applied: (1) when a de- 
cision of this Court did nothing more 

y than apply settled precedent to dif- 
ferent factual situations, see 1d. at 
539, 7T8"E"Fd 237202102 S Ct 2579, 
and (2) when the new ruling was 
that a trial-eeurt-tacked atGthority to 
éonvict a criminal defendant in the 

. first place. See 1d., at 5o0, 73 L Ed 
247202, 102 S Ct 2579.10 

The third category—where a new 

rule is a ‘clear break” with past 
precedent—is the one at issue jn 
these cases. We described it in 
United States v Johnson, 457 US, at 
549-550, 73 L Ed 2d 202, 102 S Ct 
2579: 

“[WJhere the Court has expressly 
declared a rule of criminal proce- 
dure to be ‘a clear break with the 
past,” Desist v United States, 394 
US, at 248 [22 L Ed 2d 248, 89 S 
Ct 1030], it almost invariably has 
gone on to find such a newly 
minted principle nonretroactive. 
See United States v Peltier, 422 
US 531, 547, n 5 [45 L Ed 2d 374, 
95 S Ct 2313] (1975) (Brennan, J., 
dissenting) (collecting cases). In 
this . . . type of case, the traits of 
the particular constitutional rule 
have been less critical than the 
Court’s express threshold determi- 
nation that the “new” constitu- 
tional interpretation] ... so 
change[s] the law that prospectiv- 
ity is arguably the proper course,’ 
Williams v United States, 401 US, 
at 659 [28 L Ed 2d 388, 91 S Ct 
1148] (plurality opinion). Once the 
Court has found that the new rule 
was unanticipated, the second and 
third Stovall factors—reliance by 
law enforcement authorities on 
the old standards and effect on the 
administration of justice of a ret- 
roactive application of the new 
rule—have virtually compelled a 
finding of nonretroactivity. See, 
e.g., Gosa v Mayden, 413 US, at 
672-673, 682-685 [37 L Ed 2d 873, 
93 S Ct 2926] (plurality opinion); 
Michigan v Payne, 412 US, at 55- 
57 [36 L Ed 2d 736, 93 S Ct 1916].” 

[2c] Thus, we recognized what 
may be termed a “clear break excep- 

  

/10. These two categories, in which new 
rules are automatically applied retroactively, 

are not affected in any way by our decision 

today. 4 

659  



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U.S. SUPREME COURT REPORTS 93 L Ed 24 

tion.” Under this exception, a new did not fall within the “clear break” constitutional rule was not applied exception. The previous Term, in retroactively, even to cases on direct Solem v Stumes, 465 US 638, 647, 79 review, if the new rule explicitly L Ed 2d 579, 104 S Ct 1338 (1984), overruled a past precedent of this the Court had explicitly recognized Court, or disapproved a practice this that Edwards was “not the sort of Court had arguably sanctioned in ‘clear break’ case that is almost au- prior cases, or overturned a long- tomatically nonretroactive.” A]. standing practice that lower courts though, in Shea, we expressed some had uniformly approved. Id., at 551, doubt as to “the merits of a different 73 L Ed 2d 202, 102 S Ct 2579. The retroactivity rule for cases” in which Fourth Amendment ruling in Pay- a new rule is a clear break with the ton v New York, with which United past, we explained that “we have no States v Johnson was concerned, was need to be concerned with the ques- not a clear break in any of these tion here.” 470 US, at 59, n 5, 84 LL senses, and thus its retroactivity sta- Ed 2d 38, 105 S Ct 1065. 
tus was not “effectively preordained” 
by falling within the “clear break” III 
exception. 457 US, at 553-554, 73 L 
Ed 2d 202, 102 S Ct 2579. 

In Shea v Louisiana, 470 US 51, 
84 L Ed 2d 38, 105 S Ct 1065 (1985), 
we applied United States v Johnson 
and held that the Fifth Amendment 
rule announced in Edwards v Ari- 
zona, 451 US 477, 68 L Ed 2d 378 
101 S Ct 1880 (1981), which prohib- 

The question whether a different 
retroactivity rule should apply when _ 
a new rule is a ‘clear break” with 
‘the past, however, is squarely before 
us in the present cases. In Allen v 
Hardy, a case which was here on 
federal habeas(we said that the rule | 
in Batson “is an explicit and sub- 
stantial break with prior precedent” } 

ited the use, after a suspect had [because it “overruled [a] portion of requested counsel, of a confession | Swain.” 476 US, at —, 92 L Ed 2d, obtained by police-instigated interro- “199, 106 § Ct ORB E We therefore gation without the suspect’s attor- now reexamine the rationale for | ney’s being present, was retroactive maintaining a “clear break” excep- | to cases on direct review when Ed- tion to the general proposition that | wards was decided. Using Johnson’s new rules governing criminal proce- | rationale, we concluded there was dure should be retroactive to cases | nothing about a Fourth Amendment pendi ng on direct review. For the | rule that suggested it should be same reasons that persuaded us in | given greater retroactive effect than United States v Johnson to adopt | a Fifth Amendment rule. 470 US, at different conclusions as to convic- 59, 84 L Ed 2d 38, 105 S Ct 1065. In tions on direct review from those addition, as in United States v John- that already had become final, we son, we concluded that the new rule cgpclude that an engrafted exception 
  

11. In Solem v Stumes the Court concluded past because it did not announce a new prin- that the rule announced in Edwards was not ciple of constitutional law under the Equal retroactive to a conviction that had become Protection Clause. Whatever the merits of final. that argument might be, it is foreclosed by 12. Petitioner Griffith argues that the Bat- Allen v Hardy, 476 US —, 92 L Ed 2d 199, son ruling was not a “clear break” with the 106 S Ct 2878 (1986). 
660   

solely fv 
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adopted by the 

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regardless of t! 

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App in Bats 
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93 L Ed 24 

@ » “clear break” 

Al- 
R s\wressed some 
Sie of a different 

§ wes” in which 
Bb Weak with the 
Wh ‘we have no 
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hk We therefore 

L mbionale for 
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Bewaition that 

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ve to cases 

. For the 
d us in 

  

GRIFFITH v KENTUCKY 
93 L Ed 2d 649 

based solely upon the particular 
characteristics of the new rule 
adopted by the Court is inappropri- 
ate. 

An 

First, the principle that this Court 
dog not disregard current law, 
when it adjudicates a case pending 
before it on direct review, applies 
regardless of the specific characteris- 
tics of the particular new Tule &n- 
nounced. The Court recognized in 
United States v Johnson that the 
fact that a new rule is a clear break 
with the past is relevant primarily 
because it implicates the second and 
third Stovall factors of reliance by 
law enforcement officials and the 
burden on the administration of jus- 
tice imposed by retroactive applica- 
tion. But even if these factors may 
be useful in deciding whether convic- 
tions that already have become final 
should receive the benefit of a new 
rule, the “clear break” exception, 
derived from the Stovall factors, 
reintroduces precisely the type of 
case-specific analysis that Justice 
Harlan rejected as inappropriate for 
cases pending on direct review. 

— : 
(Second, the use of a “clear break” 

exteption creates the same problem 
of not treating similarly situated de- 
fendants the same. James Kirkland 
Batson, the petitioner in Batson v 
Kentucky, and Randall Lamont 
Griffith, the petitioner in the present 
Kentucky case, were tried in Jeffer- 
son Circuit Court approximately 
three months apart.” The same pros- 
ecutor exercised peremptory chal- 
lenges at the trials. It was solely the 
fortuities of the judicial process that 
determined the case this Court chose 

initially to hear on plenary review. 
Justice Powell has pointed out that 
it “hardly comports with the ideal of 
‘administration of justice with an 
even hand,’ ” when “one chance ben- 
eficiary—the lucky individual whose 
case was chosen as the occasion for 
announcing the new principle—en- 
joys retroactive application, while 
others similarly situated have their 
claims adjudicated under the old 
doctrine.” Hankerson v North Caro- 
lina, 432 US 233, 247, 53 L Ed 2d 
306, 97 S Ct 2339 (1977) (opinion 
concurring in judgment), quoting De- 
sist v United States, 394 US, at 255, 
22 L Ed 2d 248, 89 S Ct 1030 (Doug- 
las, J., dissenting). See also Michigan 
v Payne, 412 US 47, 60, 36 L. Ed 2d 
736, 93 S Ct 1966 (1973) (Marshall, 
J., dissenting) (“Different treatment 
of two cases is justified under our 
Constitution only when the cases 
differ in some respect relevant to the 
different treatment”). The fact that 
the new rule may constitute a clear 
break with the past has no bearing 
on the “actual inequity that results” 
when only one of many similarly 
situated defendants receives the ben- 
efit of the new rule. United States v 
Johnson, 457 US, at 556, n 16, 73 L 
Ed 2d 202, 102 S Ct 2579 (emphasis 
omitted). 

Id [2d] We therefore hold that a new \ 
rule for the conduct of criminal pros- 
fecutions is to be applied retroac- 
[tively to all cases, state or federal, 
{pending on direct review or not yet 
ffinal, with no exception for cases in 
which the new rule constitutes a 
[ ‘clear break” with the past] Accord- 
mgty;-imrNo85-5221, the judgment 
of the Supreme Court of Kentucky is 

  

13. Batson was tried in February 1984. See 
App in Batson v Kentucky, O T 1984, No. 84- 
6263, p 1. Petitioner Griffith was tried in May 
of that year. App in No. 85-5521, p 1. And, for 

what it may be worth, petitioner Brown was 
tried in Oklahoma in June 1984. App in No. 
85-5731, p 2. 

661   

  

 



& 

E 

4 

U.S. SUPREME COURT REPORTS 93 L Ed 2d 

reversed, and the case is remanded 
to that court for further proceedings 
not inconsistent with this opinion. In 
No. 85-5731, the judgment of the 
United States Court of Appeals for 
the Tenth Circuit is reversed, and 

the case is remanded to that court 
for further proceedings consistent 
with this opinion. 

It is so ordered. 

SEPARATE OPINIONS 

Justice Powell, concurring. 

I join the Court’s opinion, and 
consider it an important step toward | 

ending the confusion that has re- 
sulted from applying Linkletter v 
Walker, 381 US 618, 14 L Ed 24d 601, 
85 S Ct 1731, 5 Ohio Misc 49, 33 
Ohio Ops 2d 118 (1965), on a case-by- 
case basis. I concluded in 1977 that 
the Court would be well advised to 
adopt Justice Harlan’s view as to the 
retroactive application of our deci- 
sions both with respect to cases 
pending at the time on direct appeal 
and with respect to cases pending on 
habeas corpus petitions. See Hanker- 
son v North Carolina, 432 US 233, 
246, 53 L Ed 2d 306, 97 S Ct 2339 | 
(1977) (Powell, J., concurring). The 
Harlan view is stated in Mackey v 
United States, 401 US 667, 675, 28 L 
Ed 2d 404, 91 S Ct 1160 (1971) (opin- 
ion concurring in the judgment in 
Mackey and dissenting from the 
judgment in Williams v United 
States, 401 US 646, 28 L Ed 2d 388, 
91 S Ct 1148 (1971); and Desist v 
United States, 394 US 244, 256, 22 L 
Ed 2d 248, 89 S Ct 1030 (1969) (dis- 
senting opinion). I was persuaded by 
Justice Harlan’s reasoning then, and 
have followed it since. See Hanker- 
son v North Carolina, supra; Harlin 
v Missouri, 439 US 459, 460, 58 L Ed 
2d 733, 99 S Ct 709 (1979) (Powell, 
J., concurring); Brown v Louisiana, 
447 US 323, 337, 65 L Ed 24 159, 100 
S Ct 2214 (1980) (Powell, J., concur- 
ring); Solem v Stumes, 465 US 638, 

662 

651, 79 L Ed 2d 579, 104 S Ct 1338 
(1984) (Powell, J., concurring). 

volve only the retroactivity of deci- 
sions pending on direct review, it 

| Was not necessary for the Court to 
a an OpImion WIth respect to 
ha as corpus petitions. As I read | 
the Courts opinion, this question is 
carefully left open until it is 
squarely presented. It is to be hoped 
that the Court then will adopt the 
Harlan view of retroactivity in cases 
seeking relief on habeas petitions. 
See Mackey v United States, supra, 
at 681-695, 28 L Ed 2d 404, 91 S Ct 
1160. Under that view, habeas peti- 
tions generally should be judged ac- 
cording to the constitutional stan- 

| dards existing at the time of convic- 
tion. 

Chief Justice Rehnquist, dissent- 
ing. 

As I stated in my dissenting opin- 
ion in Shea v Louisiana, 470 US 51, 
61, 84 L Ed 2d 38, 105 S Ct 1065 
(1985), I am willing to adopt both 
aspects of the approach to retroactiv- 
ity propounded by Justice Harlan in 
his opinion in Mackey v United 
States, 401 US 667, 675, 28 L Ed 2d 
404, 91 S Ct 1160 (1971). In Justice 
Harlan’s view, new constitutional 
rules governing criminal prosecu- 
tions should apply retroactively for 
cases pending on direct appeal when 
the rule is announced, and, with 
narrow exceptions, should not apply 
in collateral proceedings challenging 

As the cases we decide today in- | 

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EPORTS 

p is remanded to that court ther Proceedings consistent 
S opinion. 

b ordered. 

Ed 2d 579, 104 8 Ct 1338 pwell, J., concurring). 
Cases we decide today in- the retroactivity of deci- iding on direct review, it ecessary for the Court to opinion with respect to ITPUS petitions. As I read § opinion, this question ig left open until it jg resented. It is to be hoped Jourt then will adopt the w of retroactivity in cases lief on habeas petitions. yY v United States, supra, 28 L Ed 24 404, 91 S Ct T that view, habeas peti- ally should be judged ac- the constitutiona] stan- 
g at the time of convic- 

    
     

   

  

   

  

tice Rehnquist, dissent- 

d in my dissenting opin- 
v Louisiana, 470 US 51, 
2d 38, 105 S Ct 1065 

p willing to adopt both 
° approach to retroactjy- 
ed by Justice Harlan in 
In Mackey v United 
S 667, 675, 28 L Ed 24 
1160 (1971). In Justice 

W, New constitutional 
Ing criminal prosecy- 
apply retroactively for 
on direct appeal when 
Announced, and, with 
ions, should not apply 
roceedings challenging 

  

93 L Ed 24d 

  
  

GRIFFITH v KENTUCKY 
93 L Ed 2d 649 

convictions that become final before 
the rule is announced. The majority 
today adopts only a portion of this 
approach. I therefore join Justice 
White’s dissent, agreeing with him 
that, under the present state of our 
retroactivity jurisprudence, the ma- 
jority erred in rejecting the reasons 
cited in Allen v Hardy, 478 US —, 
92 L Ed 2d 199, 106 S Ct 2878 (1986), 
for making Batson v Kentucky, 476 
US — 90 L Ed 2d 69, 106 S Ct 
1712 (1986), nonretroactive. 

Justice White, with whom The 
Chief Justice and Justice O’Con- 
nor join, dissenting. 

Last Term this Court decided that 
the rule announced in Batson v Ken- 
tucky, 476 US ——, 90 L Ed 2d 69, 
106 S Ct 1712 (1986), should not 
apply on collateral review of convic- 
tions that became final before the 
decision in Batson was announced. 
Allen v Hardy, 478 US —— 92 LL Ed 
2d 199, 106 S Ct 2878 (1986). In 
reaching this judgment, the Court 
weighed the three factors that it has 
traditionally considered in deciding 
the retroactivity of a new rule of 
criminal procedure: “‘(a) the pur- 
pose to be served by the new stan- 
dards, (b) the extent of the reliance 
by law enforcement authorities on 
the old standards, and (c) the effect 
on the administration of justice of a 
retroactive application of the new 
standards.’ ” Id., at —, 92 L Ed 2d 
199, 106 S Ct 2878 (citing Stovall v 
Denno, 388 US 293, 297, 18 LL Ed 2d 
1199, 87 S Ct 1967 (1967). No Jus- 
tice suggested that this test is un- 
workable. The question, then, is why 
the Court feels constrained to fash- 
ion a different rule for cases on di- 
rect review. The reasons the Court 
offers are not new, and I find them 
as unpersuasive today as I have in 
the past: 

“Two concerns purportedly un- 
derlie the majority’s decision. The 
first is that retroactivity is some- 
how an essential attribute of judi- 
cial decisionmaking, and that 
when the Court announces a new 
rule and declines to give it retro- 
active effect, it has abandoned the 
judicial role and assumed the 
function of a legislature—or, to 
use the term Justice Harlan em- 
ployed in describing the problem, 
a ‘super-legislature.’ Desist v 
United States, 394 US 244, 259 [22 
L Ed 2d 248, 89 S Ct 1030] (1969) 
(Harlan, J., dissenting). The sec- 
ond (and not completely unrelated) 
concern is fairness. It is the busi- 
ness of a court, the majority rea- 
sons, to treat like cases alike; ac- 
cordingly, it is unfair for one liti- 
gant to receive the benefit of a 
new decision when another, identi- 
cally situated, is denied the same 
benefit. The majority’s concerns 
are no doubt laudable, but I can- 
not escape the conclusion that the 
rule they have spawned makes no 
sense. 

“As a means of avoiding what 
has come to be known as the su- 
per-legislature problem, the rule 
announced by the majority is 
wholly inadequate. True, the 
Court is not and cannot be a legis- 
lature, super or otherwise. But I 
should think that concerns about 
the supposed usurpation of legisla- 
tive authority by this Court gener- 
ally go more to the substance of 
the Court’s decisions than to 
whether or not they are retroac- 
tive. Surely those who believe that 
the Court has overstepped the 
bounds of its legitimate authority 
in announcing a new rule of con- 
stitutional law will find little so- 
lace in a decision holding the new 
rule retroactive. If a decision is in 

663 

  

     

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U.S. SUPREME COURT REPORTS 93 L Ed 24 

some sense illegitimate, making it 
retroactive is a useless gesture 
that will fool no one. If, on the 
other hand, the decision is a salu- 
tary one, but one whose purposes 
are ill-served by retroactive appli- 
cation, retroactivity may be worse 
than useless, imposing costs on the 
criminal justice system that will 
likely be uncompensated for by 
any perceptible gains in ‘judicial 
legitimacy.’ 

“The claim that the majority’s 
rule serves the interest of fairness 
is equally hollow. Although the 
majority finds it intolerable to ap- 
ply a new rule to one case on 
direct appeal but not to another, it 
is perfectly willing to tolerate dis- 
parate treatment of defendants 
seeking direct review of their con- 
victions and prisoners attacking 
their convictions in collateral pro- 
ceedings. As I have stated before, 
see [United States v] Johnson, [457 
US 537, 566-568 [73 L Ed 2d 202, 
102 S Ct 2579] (1982)] (White, J., 
dissenting); Williams v United 

1. The Court does not in this case address 
the differential treatment of cases on direct 
and collateral review. I adhere to my view 
that the Court’s decisions in United States v 
Johnson, 457 US 537, 73 L Ed 2d 202, 102 S 
Ct 2579 (1982), and Shea v Louisiana, 470 US 
51, 84 L Ed 2d 38, 105 S Ct 1065 (1985), 
provide no satisfactory justification for distin- 
guishing between the two classes of cases. As 
I stated in Shea, 

“The majority recognizes that the distinc- 
tion between direct review and habeas is 
problematic, but justifies its differential treat- 
ment by appealing to the need to draw ‘the 
curtain of finality,’ [470 US,] at 60 [84 L Ed 2d 
38, 105 S Ct 1065] on those who were unfortu- 
nate enough to have exhausted their last 
direct appeal at the time Edwards [v Arizona, 
451 US 477 [68 L Ed 2d 378, 101 S Ct 1880] 
(1981)] was decided. Yet the majority offers no 
reasons for its conclusion that finality should 
be the decisive factor. When a conviction is 

664 

States, 401 US 646, 656-659 [28 L 
Ed 2d 388, 91 S Ct 1148] (1971) 
(plurality opinion), it seems to me 
that the attempt to distinguish 
between direct and collateral chal- 
lenges for purposes of retroactivity 
is misguided. Under the majority’s 
rule, otherwise identically situated 
defendants may be subject to dif- 
ferent constitutional rules, de- 
pending on just how long ago now- 
unconstitutional conduct occurred 
and how quickly cases proceed 
through the criminal justice sys- 
tem. The disparity is no different 
in kind from that which occurs 
when the benefit of a new consti- 
tutional rule is retroactively af- 
forded to the defendant in whose 
case it is announced but to no 
others; the Court’s new approach 
equalizes nothing except the num- 
bers of defendants within the dis- 
parately treated classes.” Shea v 
Louisiana, 470 US 51, 62-64, 84 L 
Ed 2d 38, 105 S Ct 1065 (1985) 
(White, J., dissenting).! 

The Court’s invocation of fairness 
also overlooks the fact that it is a 
fortuity that we overruled Swain v 

overturned on direct appeal on the basis of an 
Edwards violation, the remedy offered the 

defendant is a new trial at which any inculpa- 

tory statements obtained in violation of Ed- 

wards will be excluded. It is not clear to me 

why the majority finds such a burdensome 

remedy more acceptable when it is imposed 

on the State on direct review than when it is 
the result of a collateral attack. The disrup- 

tion attendant upon the remedy does not vary 

depending on whether it is imposed on direct 

review or habeas; accordingly, if the remedy 

must be granted to defendants on direct ap- 

peal, there is no strong reason to deny it to 

prisoners attacking their convictions collater- 
ally. Conversely, if it serves no worthwhile 

purpose to grant the remedy to a defendant 

whose conviction was final before Edwards, it 
is hard to see why the remedy should be 

available on direct review.” Id., at 64-65, 84 L 
Ed 2d 38, 105 S Ct 1065 (footnote omitted).  



REPORTS 

‘e% 401 US 646, 656659 [23 388, 91 S Ct 1148 sk rality opinion), jt a jon 
distinguish 

otherwise identi 
ts may be 8 

constitution 

he bene of a new constji- : ule 1s retroactive] - to the defendant in a 18 announced byt to no the Court's new g 
eS nothin 

na, 470 US 51 62-64, 84 ; » 84 L 38, 105 S Ct 1065 (1985) J, dissenting)! 
rt’s invocation of fai 00ks the fact that dug at we overruled Swain vy 

acceptable when jt 
direct review than 

t collateral attack. 

a8; accordingly, j 
pd to defendants 

0 worthwhile 

to a defendant 

93 L Ed 24 

  

GRIFFITH v KENTUCKY 
93 L Ed 2d 649 

Alabama, 380 US 202, 13 L Ed 2d 
7569, 85 S Ct 824 (1965), in a case 
that came to us on direct review. We 
could as easily have granted certio- 
rari and decided the matter in a 
case on collateral review, such as 
Allen v Hardy. In that case, the 
principle of treating like cases alike 
would dictate that all cases on col- 
lateral review receive the benefit of 
the new rule. I trust that the Court 
would not go that far in letting the 
tail wag the dog; good judgment 
would—I hope—win out over blind 
adherence to the principle of treat- 
ing like cases alike. Yet today the 
Court acts as if it has no choice but 
to follow a mechanical notion of fair- 
ness without pausing to consider 
“sound principles of decision-mak- 
ing,” Stovall v Denno, 388 US, at 
301, 18 L Ed 2d 1199, 87 S Ct 1967. 

For the foregoing reasons, I would 
adhere to the approach set out in 
Stovall v Denno, supra, at 300, 18 L 
Ed 2d 1199, 87 S Ct 1967, and recog- 
nize no distinction for retroactivity 
purposes between cases on direct 
and collateral review. But even if I 
saw some merit in applying the Har- 
lan approach to cases on direct ap- 
peal, I would nonetheless preserve 
the exception for “clear breaks” rec- 
ognized in United States v Johnson, 
457 US 537, 73 L Ed 2d 202, 102 S 
Ct 2579 (1982). Under our precedent, 
“a decision announcing a new stan- 
dard ‘is almost automatically nonre- 
troactive’ where the decision ‘has 

explicitly overruled past 
precedent.’ ” Allen v Hardy, 478 US, 
at —, 92 L Ed 2d 199, 106 S Ct 
2878 (quoting Solem v Stumes, 465 
US 638, 646, 647, 79 L Ed 2d 579, 
104 S Ct 2145 (1984)). As the major- 
ity in Johnson explained: 

“Once the Court has found that [a] 
new rule was unanticipated, the 
second and third Stovall factors— 
reliance by law enforcement au- 
thorities on the old standards and 
effect on the administration of jus- 
tice of a retroactive application of 
the new rule—have virtually com- 
pelled a finding of non-retroactiv- 
ity.” 457 US, at 549-550, 73 L Ed 
2d 202, 102 S Ct 2579 (citations 
omitted). 

The Court has already recognized 
that Batson constitutes “an explicit 
and substantial break with prior 
precedent,” and that “prosecutors, 
trial judges, and appellate courts 
throughout our state and federal sys- 
tems justifiably have relied on the 
standard of Swain.” Allen v Hardy, 
supra, at —, ——, 92 L Ed 2d 199, 
106 S Ct 2878. The reasons that the 
Court gave in Allen v Hardy for 
concluding that “retroactive applica- 
tion of the Batson rule on collateral 
review of final convictions would se- 
riously disrupt the administration of 
justice,” 478 US, at —, 92 L Ed 2d 
199, 106 S Ct 2878 apply equally to 
retroactive application of the Batson 
rule on direct review.? 

  

2. “The distinction between direct review 
and collateral attack may bear some relation- 
ship to the recency of the crime; thus, to the 
extent that the difficulties presented by a new 

trial may be more severe when the underly- 
ing offense is more remote in time, it may be 
that new trials would tend to be somewhat 
more burdensome in habeas cases than in 
cases involving reversals on direct appeal. 
However, this relationship is by no means 

direct, for the speed with which cases prog- 
ress through the criminal justice system may 
vary widely. Thus, if the Court is truly con- 
cerned with treating like cases alike, it could 
accomplish its purpose far more precisely by 
applying new constitutional rules only to con- 
duct of appropriately recent vintage. I as- 
sume, however, that no one would argue for 
an explicit ‘5-year-rule,” for example. 

665   

  

 



U.S. SUPREME COURT REPORTS 

The majority knows that it is pe- 
nalizing justifiable reliance on 
Swain, and in doing so causing sub- 
stantial disruption in the adminis- 
tration of justice; yet the majority 
acts as if it has no principled alter- 

native. This is not true; it would be 
a far sounder rule, and no less prin- 
cipled, to apply the Stovall test to 
determine retroactivity on both di- 
rect and collateral review. I respect- 
fully dissent. 

  

“Of course, it will be less burdensome in 
the aggregate to apply [Batson] only to cases 
pending when [Batson] was decided than to 
give it full retroactive effect; by the same 
token, it would be less burdensome to apply 
[Batson] retroactively to all cases involving 
defendants whose last names begin with the 
letter ‘S’ than to make the decision fully 

retroactive. The majority obviously would not 
countenance the latter course, but its failure 
to identify any truly relevant distinction be- 
tween cases on direct appeal and cases raising 
collateral challenges makes the rule it an. 
nounces equally indefensible.” Shea v Louisi- 
ana, supra, at 64, n 1, 84 L Ed 2d 38, 105 S Ct 
1065 (White, J., dissenting). 

93 LEd2d- 

OQ» 

   



13 Led 2d 

, but we can 
r vacating the 
rnia Supreme 
our mandate 
iving leave to 

petition for 

g by refer- 
iriefs now on 
plemented by 
Ss as may be 
te, if on fur- 
alifornia Su- 
its judgment 
Hequate inde- 
bund. 

he Supreme 
vacated and 
hat court for 
2s as may be 
fe law. The 
of this Court 

pd. 

believing it 
Court of Cal- , 
olely on the 
of the Con- 

btates, would 

  

Court, either 
certiorari or 

the merits. 

ble ; 

Lod 5 

  

*[380 US 202] 
*ROBERT SWAIN, Petitioner, 

v 

STATE OF ALABAMA 

380 US 202, 13 L ed 2d 759, 85 S Ct 824 

[No. 64] 

Argued December 8, 1964. Decided March 8, 1965. 

SUMMARY 

A Negro convicted of rape by an all-white jury in the Circuit Court of 
Talladega County, Alabama, appealed from his conviction, asserting that 
he was denied equal protection of the laws by discriminatory jury selection 
in three respects: (1) discrimination in the selection of venires, demon- 
strated by the fact that while 26 percent of the persons eligible for jury 
duty were Negroes, the venires contained only 10 to 15 percent Negroes; 
(2) discrimination in the selection of jurors from the veniremen, demon- 
strated by the fact that the prosecutor used his peremptory strikes in the 
present case to remove all Negro veniremen; and (3) discrimination in 
the use of the peremptory strike system in Talladega County through the 
years, perverting its purpose in a scheme to exclude all Negroes from ever 
serving on petit juries there by the prosecutors’ striking all Negro venire- 
men, demonstrated by the fact that no Negro had ever served on a petit 
jury in Talladega County. The Alabama Supreme Court affirmed the con- 
viction. (275 Ala 508, 156 So 2d 368.) 

On certiorari, the Supreme Court of the United States affirmed. In an 
opinion by WHITE, J., expressing the views of five members of the Court, 
it was held that MY ar acon 1s not constitutionally entitled to a pro- 
portionate number of his race on the jury which tries him, and the under- 
representation of his race by 10 percent does not show purposeful dis- 
crimination; (2) in a particular case, a prosecutor may constitutionally 
use his peremptory strikes to eliminate all of the accused’s race from the 
jury; and (3) the fact that no Negroes had ever served on a petit jury 
in Talladega County did not show a perversion of a peremptory strike 
system by the prosecution where the record failed to show when, how 
often, and under what circumstances the prosecutor alone had been re- 
sponsible for striking Negro veniremen. 

HARLAN, J., joined in the Court’s opinion but emphasized that the Court 
did not decide the constitutionality of the alleged practice discussed in 
(3). 

BLACK, J., concurred in the result. 

GOLDBERG, J., joined by WARREN, Ch. J., and DOUGLAS, J., dissented 
from (3) on the ground that the evidence made out a prima facie case of   

  

  

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760 U. S. SUPREME COURT REPORTS 13 L ed 2d 

unlawful jury exclusion, placing on the state the burden of proving that 
the exclusion resulted from reasons other than racial discrimination. 

HEADNOTES 

Classified to U. S. Supreme Court Digest, Annotated 

Civil Rights § 8 — jury — exclusion 
of Negroes 

1. Although a Negro defendant is 
not entitled to a jury containing mem- 
bers of his race, a state’s purposeful 
or deliberate denial to Negroes on ac- 
count of race of participation as 
jurors in the administration of justice 
violates the equal protection clause. 

Civil Rights § 8 — jury — exclusion 
of Negroes 

2. The exclusion of all persons of 
the African race from a grand jury 
which finds an indictment against a 

Negro in a state court, when they are 
excluded solely because of their race 
or color, denies him the equal protec- 
tion of the laws in violation of the 
Fourteenth Amendment, whether such 

exclusion is done through the action 
of the, legislature, through the courts, 
or through the executive or adminis- 
trative officers of the state. 

Civil Rights § 8 — exclusions — iden- 
tifiable group 

3. The Federal Constitution forbids 

the intentional exclusion from juries 
of any identifiable group in the com- 
munity which may be the subject of 

prejudice, whether or not the group 
is composed of Negroes. 

Evidence § 252; Courts §§ 627, 628 
— selection of jury — discrimina- 
tion — proof 

4. A purposeful discrimination 
against a certain group in selecting 

juries may not be assumed or merely 

asserted, but must be proved, the 
quantum of proof necessary being a 

matter of federal law. 

Evidence § 904.5 — sufficiency — dis- 
crimination in jury selection 

5. The evidence does not show 

either forbidden token inclusion of 

Negroes on jury panels in a county or 

a prima facie case of invidious dis- 

crimination under the Fourteenth 

Amendment where it appears that 

while Negro males over 21 constitute 

26 percent of all males in the county 

in that age group, only 10 to 15 per- 

cent of the grand and petit jury panels 

are Negroes; Negroes serve on 80 

percent of the grand juries selected, 

the number ranging from 1 to 3; and 

although there is an average of 6 to 

7 Negroes on petit jury venires in 

criminal cases, no Negro has actually 

served on a petit jury for about 13 

years. 

Jury § 36.5 — jury roll — omission of 
qualified persons 

6. While Alabama law requires that 
jury commissioners place on the jury 
roll all male citizens over 21 who are 
reputed to be honest, intelligent men 
and who are esteemed for their in- 
tegrity, good character, and sound 
judgment, failure to include the name 
of every qualified person on the jury 
roll is not a ground to quash an in- 

  

ANNOTATION REFERENCES 
Group or class discrimination in selee- 

tion of grand or petit jury as prohibited 
by Federal Constitution. 94 L ed 856, 2 
L ed 2d 2040. 

Violation of constitutional rights of de-. 
fendant in criminal case by unfair prac- 
tices in selection of grand or petit jury. 
82 L ed 1053. 

Racial, religious, economic, social, or 
political prejudice of proposed juror as 
proper subject of inquiry or ground of 

challenge on voir dire in criminal case. 
54. ALR2d 1204. 

Use of peremptory challenge to exclude 
from jury persons belonging to a race or 
class. 4 ALR2d 1200. 

Proof as to exclusion of or discrimina- 
tion against eligible class or race in re- 
spect to jury in criminal case. 1 ALR2d 
1291. 

Effect of, and remedies for, exclusion of 
eligible class or classes of persons on jury 
list in criminal case. 52 ALR 916.   

 



nL i a I EE TESTS ES Ra SO SS a SR TT J SE TT TB TT ST TT TT Te De SN Er 

0 

SWAIN v ALABAMA 761 
380 US 202, 13 L ed 2d 759, 85 S Ct 824 

  

  

dictment or venire, absent fraud or 

purposeful discrimination. 

Civil Rights § 9 — jury — right to 
members of same race 

7. A defendant in a criminal case 
is not constitutionally entitled to de- 
mand 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. 

Civil Rights 8§§ 8, 9 — juries — pro- 
portional representation 

8. The Federal Constitution does 

not require proportional representa- 
tion of races and nationalities on 
juries, and does not permit propor- 

tional limitation of races and nation- 

alities on juries. 

Evidence § 904.5 — discrimination in 
jury selection — under represen- 

tation 

9. Purposeful discrimination based 
on race alone in the selection of juries 
is not satisfactorily proved by show- 

ing that an identifiable group in a 
community is underrepresented by 

as much as 10 percent. 

Civil Rights § 8 — selection of juries 

— imperfect system 

10. An imperfect system for the 

selection of juries is not equivalent 
to purposeful discrimination based on 

race. 

Jury § 36.5 — exclusions from panel 
— struck jury system 

11. Under the Alabama struck jury 
system, applicable in all criminal 

cases and available in civil cases, the 
petit jury venire is first reduced by 
excuses and removals for cause, and 

then the defense strikes two venire- 
men and the prosecution one, in al- 

ternating turns, until only 12 jurors 
remain. 

Jury § 34 — criminal cases — jurors 
sitting or concurring 

12. In providing for jury trial in 

criminal cases, Alabama adheres to 

the common-law system, followed in 
the federal courts by virtue of the 
Sixth Amendment, of trial by an im- 

partial jury of 12 men, who must 
unanimously agree on a verdict. 

Jury § 17; Venue § 5 — criminal cases 

13. Under Alabama law, the ac- 

cused in all prosecutions by indict- 
ment has a right to a speedy public 

trial by an impartial jury in the 

county in which the offense is com- 

mitted. 

Civil Rights § 8; Jury § 36.5 — struck 
jury system — arbitrary exclu- 
sions 

14. The Alabama struck jury sys- 

tem, which provides for challenges for 

cause and substitutes a system of 

striking veniremen for the common- 

law method of peremptory challenge, 

constitutionally permits striking any 

group of otherwise qualified jurors in 

any given case, whether they be 

Negroes, Catholics, accountants, or 

those with blue eyes. 

Appeal and Error § 1628; Jury § 33 — 

peremptory challenges — denial 

15. Although there is nothing in the 

Constitution which requires Congress 

or the states to grant peremptory 

challenges, the peremptory challenge 

is one of the most important of the 

rights secured to the accused, and the 

denial or impairment of the right is 

reversible error without a showing of 

prejudice. 

Jury § 44 — challenge — function 

16. The function of the peremptory 

challenge is not only to eliminate ex- 

tremes of partiality on both sides, but 

to assure the parties that the jurors 

before whom they try the case will 

decide on the basis of the evidence 

placed before them, and not other- 

wise. 

Jury § 44 — peremptory challenge — 

purpose 

17. The peremptory challenge sat- 
isfies the rule that to perform its high 
function in the best way justice must 

satisfy the appearance of justice. 

  

    

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762 U. S. SUPREME COURT REPORTS 

Jury § 44 — peremptory challenge — 
nature 

18. The essential nature of the per- 
emptory challenge is that it is one 
exercised without a reason stated, 
without inquiry, and without being 
subject to the court’s control. 

Civil Rights § 8 — equal protection of 
the laws — jury — striking 
Negroes 

19. A state prosecutor’s use of his 
peremptory strikes to eliminate Ne- 
groes from the petit jury venire in a 
capital case with a Negro defendant 
is not a denial of equal protection of 
the laws. 

Jury § 44 — peremptory challenges — 
reasons for use 

20. The Federal Constitution does 
not require an examination of a prose- 
cutor’s reasons for the exercise of his 
peremptory challenges in any given 
case. 

Evidence § 252 — presumption — jury 
‘— use of peremptory challenges 

21. The presumption is that a pros- 
ecutor is using the state’s peremptory 
challenges to obtain a fair and im- 
partial jury to try the case before the 
court. 

Evidence § 904.5 — weight — jury 

selection — discrimination in use 
of challenges 

22. The presumption that a prose- 
cutor used the state’s peremptory 
challenges to obtain a fair and im- 

partial jury is not overcome by alle- 
gations that in the case at hand all 

Negroes were removed from the jury 
or that they were removed because 
they were Negroes. 

Evidence § 904.5 — sufficiency — ex- 
clusion of Negroes from juries 

23. A Negro accused who asserts 
that he was denied equal protection 
of the laws by the striking of Ne- 
groes from all petit jury venires in 
the county does not sustain his burden 

13 L ed 2d 

of proving this allegation where he 
shows that there never has been a 
Negro on a petit jury in either a civil 
or a criminal case in the county, but 
fails to show how often, and under 
what circumstances, the prosecutor 
alone has been responsible for strik- 
ing those Negroes who have appeared 
on petit jury panels in the county. 

Evidence § 252 — inference — jury 
selection 

24. Total exclusion of Negroes by 
state officers responsible for selecting 
the names of jurors gives rise to a 
fair inference of discrimination on 
their part, an inference which is de- 
terminative absent sufficient rebuttal 
evidence. 

Evidence § 904.5 — selection of juries 
— use of peremptory challenges 

25. A showing that Negroes have 
not served on petit juries during a 
specified period of time does not, 
absent a sufficient showing of the 
prosecutor’s participation in striking 
them, give rise to the inference of 
systematic discrimination by the state 
during the process of peremptory 
challenge of veniremen; the accused 
must show the prosecutor’s system- 
atic use of peremptory challenges 
against Negroes over a period of time. 

Evidence § 904.5 — selecting jurors — 
discrimination 

26. Absent a showing of purposeful 
exclusion of Negroes in the selection 
of veniremen, a prima facie case of 
discrimination against Negroes in the 
selection of juries is not established 
by proof of somewhat haphazard 
methods of selecting veniremen, with 
only 10 to 15 percent of the veniremen 
being Negroes, although eligible Ne- 
groes constitute about 26 percent of 
the eligible population, together with 
proof that no Negro has ever served 
on a petit civil or criminal jury in 
the county. 

APPEARANCES OF COUNSEL 

Constance B. Motley argued the cause for petitioner. 
Leslie Hall argued the cause for respondent. 
Briefs of Counsel, p 1204, infra.   

 



  
  

SWAIN v ALABAMA 
380 US 202, 13 L ed 2d 769, 85 S Ct 824 

OPINION OF THE COURT 

*[380 US 203] 

*Mr. Justice White delivered the S5aiel to Negro as. Jurors in the ad- 
opinion of the Court. Lar 1), ; 

The petitioner, Robert Swain, a 
Negro, was indicted and convicted 
of rape in the Circuit Court of Tal- 
ladega County, Alabama, and sen- 
tenced to death. His motions to 
quash the indictment, to strike the 
trial jury venire and to declare void 
the petit jury chosen in the case, all 
based on alleged invidious discrim- 
ination in the selection of jurors, 
were denied. The Alabama Supreme 
Court affirmed the conviction, 275 
Ala 508, 156 So 2d 368, and we 
granted certiorari, 377 US 915, 12 
L ed 2d 185, 84 S Ct 1183. 

[1-3] In support of his claims, 
petitioner invokes the constitutional 
principle announced in 1880 in 
Strauder v West Virginia, 100 US 
303, 25 L ed 664, where the Court 
struck down a state statute qualify- 
ing only white people for jury duty. 
Such a statute was held to contra- 
vene the central purposes of the 
Fourteenth Amendment: “exemp- 
tion from unfriendly legislation 
against [Negroes] distinctly as 
colored,—exemption from legal dis- 
criminations, implying inferiority in 
civil society, lessening the security 

of their enjoyment of the rights 
which others enjoy . . . .” 100 US, 
at 308, 25 L ed at 665. Although a 

Negro defendant is not entitled to a 
jury containing members of his race, 

*[380 US 204] 

a State’s purposeful *or deliberate 
  

  

jal to Negroes on account of race 

ministration of justice violates the 
Equal Protection Clause. —EXx parte 
“Virginia, 100 US 339, 25 L ed 676; 
Gibson v Mississippi, 162 US 565, 
40 L ed 1075, 16 S Ct 904. This 
principle was further elaborated in 
Carter v Texas, 177 US 442, 447, 
44 L ed 839, 841, 20 S Ct 687, where, 
in respect to exclusion from grand 
juries, the Court said: 

“Whenever by any action of a 
State, whether through its legisla- 
ture, through its courts, or through 
its executive or administrative offi- 
cers, all persons of the African race 
are excluded, solely because of their 
race or color, from serving as grand 
jurors in the criminal prosecution 
of a person of the African race, the 
equal protection of the laws is de- 

nied. oo. 

And it has been consistently and 
repeatedly applied in many cases 
coming before this Court.! The prin- 
ciple of these cases is broadly based. 
  

“For racial discrimination to result 
in the exclusion from jury service 
of otherwise qualified groups not 
only violates our Constitution and 
the laws enacted under it but is at 
war with our basic concepts of a 
democratic society and a representa- 
tive government.” Smith v Texas, 
311 US 128, 130, 85 L ed 84, 86, 61 

S Ct 164. 

Further, “[j]urymen should be se- 
lected as individuals, on the basis of 

  

1. Neal v Delaware, 103 US 370, 26 L ed 

567; Norris v Alabama, 294 US 587, 79 

L ed 1074, 55 S Ct 579; Hale v Kentucky, 
303 US 613, 82 L ed 1050, 58 S Ct 753; 
Pierre v Louisiana, 306 US 354, 83 L ed 

757, 59 S Ct 536; Smith v Texas, 311 US 

128, 85 L ed 84, 61 S Ct 164; Hill v Texas, 
816 US 400, 86 L ed 1559, 62 S Ct 1159; 
Akins v Texas, 325 US 398, 89 L ed 1692, 

66 S Ct 1276; Patton v Mississippi, 332 

US 463, 92 L ed 76, 68 S Ct 184, 1 ALR2d 
1286; Cassell v Texas, 839 US 282, 94 L ed 
839, 70 S Ct 629; Avery v Georgia, 345 

US 559, 97 L ed 1244, 73 S Ct 891; Her- 
nandez v Texas, 347 US 475, 98 L ed 866, 

74 S Ct 667; Reece v Georgia, 350 US 85, 
100 L ed 77, 76 S Ct 167; Eubanks v 
Louisiana, 356 US 584, 2 L ed 2d 991, 78 
S Ct 970; Arnold v North Carolina, 376 
US 778, 12 L ed 2d 77, 84 S Ct 1032. 

  

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764 

individual qualifications, and not as 
members of a race.” Cassell v Texas, 
339 US 282, 286, 94 L ed 839, 847, 
70 S Ct 629 (opinion of Mr. Justice 
Reed, announcing judgment). Nor 

*[380 US 205] 

is the *constitutional command for- 
bidding intentional exclusion limited 
to Negroes. It applies to any iden- 
tifiable group 1n_ “the community 
which may be the subject of prej- 
udice. Hernandez v Texas, 347 US 
475, 98 L ed 866, 74 S Ct 667. 

[4] But purposeful discrimination 
may 10t be assumed or merely as- 
serted. Brownfield v ‘South Caro- 
lina, 189 US 426, 47 L ed 882, 23 
S Ct 510; Tarrance v Florida, 188 
US 519, 47 L ed 572, 23 S Ct 402; 
Smith v Mississippi, 162 US 592, 40 
L ed 1082, 16 S Ct 900; Bush v Ken- 
tucky, 107 US 110, 27 L ed 354, 1 
S Ct 625. It must be proven, Tar- 
rance v Florida, supra; Martin v 
Texas, 200 US 316, 50 L ed 497, 26 
S Ct 838, the quantum of proof nec- 
essary being a matter of federal law. 
Norris v Alabama, 294 US 587, 79 
L ed 1074, 55 S Ct 579; Smith v 
Texas, 311 US 128, 85 L ed 84, 61 
S Ct 164. 1t is not the soundness of 
these principles, which is unques- 
tioned, but their scope and applica- 
tion to the issues in this case that 
concern us here. 

I 

We consider first petitioner’s 
claims concerning the selection of 
grand jurors and the petit jury 
venire. The evidence was that while 
Negro males over 21 constitute 26 % 
of all males in the county in this age 
group, only 10 to 15% of the grand 
and petit jury panels drawn from 
the jury box since 1953 have been 
Negroes, there having been only one 
case in which the percentage was as 
high as 23%. In this period of time, 
Negroes served on 80% of the grand 
juries selected, the number ranging 

U. S. SUPREME COURT REPORTS 13 Led 2d 

from one to three. There were four 
or five Negroes on the grand jury 
panel of about 33 in this case, out 
of which two served on the grand 
jury which indicted petitioner. Al- 
though there has been an average 
of six to seven Negroes on petit jury 
venires in criminal cases, Jo Negro 

has.actually served on. a petit Jury 
since about 1950. In this case there 
were eIgnt Negroes on the petit jury 
venire but none actually served, two 
being exempt and six being struck 
by the prosecutor in the process of 
selecting the jury. 

*[380 US 206] 

[5] *It is wholly obvious that Ala- 
bama has not totally excluded a ra- 
cial group from either grand or petit 
jury panels, as was the case in Nor- 
ris v Alabama, 294 US 587, 79 L ed 
1074, 55 S Ct 579; Hill v Texas, 316 
US 400, 86 L ed 1559, 62 S Ct 1159; 
Patton v Mississippi, 332 US 463, 
92 L ed 76, 68 S Ct 184, 1 ALR2d 
1286; Hernandez v Texas, 347 US 
475, 98 L ed 866, 74 S Ct 667; and 
Reece v Georgia, 350 US 85, 100 LL 
ed 77, 76 S Ct 167. Moreover, we 
do not consider an average of six 
to eight Negroes on these panels as 
constituting forbidden token inclu- 
sion within the meaning of the cases 
in this Court. Thomas v Texas, 212 

US 278, 53 L. ed 512, 20 8S Ct 393; 
Akins v Texas, 325 US 398, 89 L ed 
1692, 65 S Ct 1276; Avery v Geor- 
gia, 345 US 559, 97 L ed 1244, 73 
S Ct 891. Nor do we consider the 
evidence in this case to make out a 
prima facie case of invidious dis- 
crimination under the Fourteenth 
Amendment. 

[6] Alabama law requires that 
the three jury commissioners in 
Talladega County place on the jury 
roll all male citizens in the commu- 
nity over 21 who are reputed to be 
honest, intelligent men and are es- 
teemed for their integrity, good 
character and sound judgment. Ala   

 



  

SWAIN v ALABAMA 765 
380 US 202, 13 L ed 2d 759, 85 S Ct 824 

Code, Tit 80, §§ 20, 21 (1958).2 In 
*[380 US 207] 

practice, however, the *commission- 
ers do not place on the roll all such 
citizens, either white or colored.® A 
typical jury roll at best contains 
about 2,500 names, out of a total 
male population over 21, according 
to the latest census, of 16,406 per- 
sons. Each commissioner, with the 

clerk’s assistance, produces for the 

jury list names of persons who in 

his judgment are qualified. The 
sources are city directories, registra- 

tion lists, club and church lists, con- 

versations with other persons in the 

community, both white and colored, 

and personal and business acquaint- 

ances.! 

  

2. There is a special statute governing 
jury selection in Talladega County. Ala 
Acts, 1955 Sess, Act No. 475, vol 2, at 

1081. The provisions pertinent to this case 
follow the general state statute and thus 

all references will be to the latter. 
Ala Code, Tit 30, § 21 (1958) provides: 
“Qualifications of persons on jury roll. 

—The jury commission shall place on the 
jury roll and in the jury box the names 
of all male citizens of the county who are 
generally reputed to be honest and in- 

telligent men and are esteemed in the 

community for their integrity, good char- 
acter and sound judgment; but no person 
rhust be selected who is under twenty-one 
or who is an habitual drunkard, or who, 

being afflicted with a permanent disease 
or physical weakness is unfitte discharge 
the duties of a juror; or cannot read Eng- 
lish or who has ever been convicted of’ 

and asked persons he knew for suggestions 
and information. He also secured names 
from customers of his paint store. He 
averred that he was familiar with Negro 

and white members of the community, 
talked with both, and used the same 
method for determining the qualifications 
of both Negro and white citizens. Another 

commissioner, working a predominantly 

rural area, testified that membership lists 
of Farm Bureau Cooperatives in the area 
and the Rural Electric Cooperative were 
his main sources of names, both organiza- 
tions having a substantial number of 

"Negro and white persons. He also relied 
on the city directory for Talladega City 
and on the people he knew through his 
40 years of residence and farming in the 
area. He noted that he did not rely on 

redominantly white social clubs or on 

egro churches, adding that he was not 

any offense involving moral turpitude. If familiar 7g the relative percentage of 

a person cannot read English and has all 
the other qualifications prescribed herein 
and is a freeholder or householder his 
name may be placed on the jury roll and 
in the jury box. No person over the age 
of sixty-five years shall be required to 
serve on a jury or to remain on the panel 
of jurors unless he is willing to do so.” 

[6] 3. Although the statute aims at an 
exhaustive jury list, failure to include the 
name of every qualified person on the jury 

roll is not a ground to quash an indictment 
or venire, absent fraud or purposeful dis- 
crimination. Fikes v Alabama, 263 Ala 

89, 81 So 2d 303 (1955), revd on other 

grounds, 3562 US 191, 1 L ed 2d 246, 77 
S Ct 281. 

4. The commissioners testified that since 
1959 they have met once or twice yearly, 

for about an hour each meeting, at which 
time each commissioner presented a list 
of persons he deemed qualified for jury 
service. Their names were obtained from 
disparate sources, each commissioner go- 
ing about his task in his area of the county 
in his own way. The chief commissioner 
testified that with the assistance of city 

directories, and registration lists, he went 

out into the beats to which he was assigned 

Negroes 6: r whites in his beats and could 
not i ify the persons on the jury list 
by race? i WR stated that the jury list 

did not x. “the. names of all qualified 
citizens and ®pat compilation of an all- 
inclusive list would be impossible. The 
third commissioner testified that he used 
the telephone directory and went out 
into the various beats to gather names 
through local merchants and citizens, both 
Negro and white. He also relied on the 

customers of his business. He too was un- 

able to identify the persons on the jury 
list by race. The clerk stated that she as- 
sisted by supplying some additional names 

to the commissioners; she compiled these 

names from various directories, church 

rolls, club rolls and from lists sent by the 
managers of local plants and industries. 
She testified that she was acquainted with 
more white persons than Negroes but that 

she did not visit the beats or talk with 
persons in the beats to gather names for 

the commission’s approval. All the com- 
missioners averred that they did not watch 

the color line in obtaining names, did not 

know the number of Negroes in their beats, 

and, accordingly, did not count the number 
of whites and colored people in preparing 

  

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“3 ed 

ER TR ETRE TS RE iam sid Tp Red SR Fh iA CR a SE ITER Rg Ts Ser re Tre 
Tn TE ere A a Ss EET 

766 U. S. SUPREME COURT REPORTS 13 L ed 2d 

  

    

  

*[380 US 208] 

[7-10] *Venires drawn from the 
jury box made up in this manner 
unquestionably contained a smaller 
proportion of the Negro community 
than of the white community. But 
a defendant in a criminal case is 
YO constitutionally entitled to de- 
“mand 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. Virginia v 
RIVES, 100 US 313, 822-323, 25 L 
ed 667, 670-671; Gibson v Missis- 
sippi, 162 US 565, 40%L ed 1075, 16 
S Ct 904; Thomas v.Texas, 212 US 
278, 282, 63 L ed 512, 513, 29 S Ct 
393; Cassell v Texas, 339 US 282, 
94 L ed 839, 70 S Ct 629. Neither 
the jury roll nor the venire need 
be a perfect mirror of the commu- 
nity or accurately reflect the propor- 
tionate strength of every identifiable 
group. “Obviously the number of 
races and nationalities appearing in 
the ancestry of our citizens would 
make it impossible to meet a require- 

* . . 
ment of proportional representation. 

Similarly, since there can be no ex- 

clusion of Negroes as a race and 
no discrimination because of color, 

proportional limitation is not per- 
missible.” Cassell v Texas, 339 US 

282, 286-287, 94 L ed 839, 847, 70 
S Ct 629 (opinion of Mr. Justice 

Reed, announcing judgment). We 
cannot say that purposeful discrim- 
matiol Ton based On race alone 1s satis- 
ET i — ST 
factorily *proved by showing that an 

Tdentihiable group in a community 
is_underrepresented by as much as 
10%. See Thomas v Texas, 212 US 
278, 283, 53 L ed 512, 514, 29 S Ct 

393; Akins v Texas, 325 US 398, 89 
L ed 1692, 656 S Ct 1276; Cassell v 
Texas, 339 US 282, 94 L ed 839, 70 
S Ct 629. Here the commissioners 
denied that racial considerations en- 
tered into their selections of either 
their contacts in the community or 
the names of prospective jurors. 
There is no evidence that the com- 
missioners applied different stand- 
ards of qualifications to the Negro 
community than they did to the 
white community. Nor was there 
any meaningful attempt to demon- 
strate that the same proportion of 
Negroes qualified under the stand- 
ards being administered by the com- 
missioners. It is not clear from the 
record that the commissioners even 
knew how many Negroes were in 
their respective areas, or on the jury 
roll or on the venires drawn from 
the jury box. The overall percent- 
age disparity has been small, and 
reflects no studied attempt to in- 
clude or exclude a specified number 
of Negroes. Undoubtedly the selec- 
tion of prospective jurors was some- 
what haphazard and little effort was 
made to ensure that all groups in 
the community were fully repre- 
sented. But an imperfect system is 
not equivalent to purposeful discrim- 
ination based on race! We do not 
think that the burden of proof ‘was 
carried by petitioner in this case. 

1I 

Petitioner makes a further clain 
relating to the exercise of peremp- 
tory challenges to exclude Negroes 
from serving on petit juries. 

*[380 US 210] 
[11] *In Talladega County the pet- 

  

the lists. The record contains no admission 
by the commissioners that they had rela- 
tively few Negro acquaintances or that 
they tended primarily to use white church 
lists or white club lists. 

5. “‘It may be that the jury commis- 
sioners did not give the negro race a full 
pro rata with the white race in the selec- 

='tion of the grand and petit jurors in this 

case, still this would not be evidence of 
discrimination. If they fairly and honest- 
ly endeavored to discharge their duty, and 
did not in fact discriminate against the 
negro race in the selection of the jury 
lists, then the Constitution of the United 
States has not been violated.” Thomas v 
Texas, 212 US 278, 283, 53 L ed 512, 514, 
28 S Ct 393.    



  

SWAIN v ALABAMA 767 
380 US 202, 13 L ed 

it jury venire drawn in a criminal 
case numbers about 35 unless a cap- 
ital offense is involved, in which case 
it numbers about 100. Ala Code, 
Tit 30, §§ 60, 62, 63 (1958). After 
excuses and removals for cause, the 
venire in a capital case is reduced 
to about 75. The jury is then 
“struck” —the defense striking two 
veniremen and the prosecution one 
in alternating turns, until only 12 
jurors remain. Ala Code, Tit 30, § 64 
(1958). This essentially is the Ala- 
bama struck-jury system, applicable 
in all criminal cases and available 
in civil cases. Ala Code, Tit 30, 
§§ 54, 60 (1958). In this case, the 
six Negroes available for jury serv- 
«MT 
ice were "Struck py the prosecutor 1 In 
the process of selecting the jury 
which was to try petitioner. 

In the trial court after the jury 
was selected, petitioner moved to 
have the jury declared void on Four- 
teenth Amendment grounds. Among 
other things the motion alleged: 

“(4) That because of the system- 
atic and arbitrary method of select- 
ing the names of qualified male citi- 
zens, negro male citizens, by the 
Jury Commission of Talladega Coun- 
ty, Alabama, the State can, and did 
in this case, readily strike members 

2d 759, 85 S Ct 824 

of the negro race and that there were 
only six negroes remaining on the 
final venire in this cause, in viola- 
tion of the Fourteenth Amendment 
of the Constitution of the United 
States and also the Constitution of 
the State of Alabama . ., 

The main thrust of the motion ac- 
cording to its terms was the striking 
of the six Negroes from the petit 
jury venire.®! Ng evidence was tak- 

*[380 US 211] 

en, petitioner apparently being *con- 
tent to rely on the record which had 
bEEN MAE. 1 connection with the 
motion to quash the indictment. We 
think the motion, seeking as it did 
to invalidate the alleged purposeful 
striking of Negroes from the jury 
which was to try petitioner, was 
properly denied. 

[12-14] In providing for jury 
trial in criminal cases, Alabama ad- 
heres to the common-law system of 
trial by an impartial jury of 12 men 
who must unanimously agree on a 
verdict,” the system followed in the 
federal courts by virtue of the Sixth 
Amendment. As part of this system 
it provides for challenges for cause 
and substitutes a system of strikes 
for the common-law method of per- 
emptory challenge! Alabama con- 
tends that its system of peremptory 

  

6. The issue in regard to striking 
Negroes was raised in a different form 
in the motion to quash the venire. It read 
in pertinent part: 

“4. Defendant avers the existence of a 
system or practice in the drawing or or- 
ganization of juries to serve in Talladega 

County, Alabama, deliberately designed to 

discriminate against members of the Negro 
race in order to prevent them from serving 
on juries by either excluding them from 
the venire altogether or by keeping the 
number included so small that they can 

be systematically and uniformly struck 
from the venire and prevented from serv- 
ing in the trial of any case.” 

This claim was repeated in the motion 
to declare void the petit jury selected. 

“(3) That because of the systematic 

and arbitrary method of selecting the 

names of qualified male citizens by the 
jury commission of Talladega County, 

Alabama, it is impossible for qualified 
members of the negro race to serve as 

jurors in this cause or any cause . . . .” 
The above claim as well as the objection 

to the prosecutor’s exercise of his strikes 
against the six Negroes in this case was 
repeated in the motion for a new trial 
No further claims were made and no fur- 
ther evidence was taken on any of these 
motions. 

[13] 7. In all prosecutions by indict- 
ment the accused has a right to a speedy 
public trial by an impartial jury in the 

county in which the offense was commit- 
ted. Ala Const of 1901, § 6. See also Ala 
Const of 1901, §§ 11, 12; Collins v State, 
88 Ala 212, 7 So 260 (1890). 

8. Alabama had long provided both the 

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768 U. S. SUPREME COURT REPORTS 13 Led 2d 

- *[380 US 212] 

*strikes—challenges without cause, 
without explanation and without 
judicial scrutiny—affords a suitable 
and necessary method of securing 
juries which in fact and in the opin- 
ion of the parties are fair and impar- 
tial. This system, it is said, in and 
of itself, provides justification for 
striking any group of otherwise 
qualified jurors in any given case, 
whether they be Negroes, Catholics, 
accountants or those with blue eyes. 
Based on the history of this system 
and its actual use and operation in 
this country, we think there is merit 

in this position. 
The peremptory challenge has 

very old credentials. In all trials for 
felontesat-tommon law, the defend- 
ant was allowed to challenge per- 

*[380 US 213] 

emptorily 35 jurors,® and the *pros- 
ecutor originally had a right to 

challenge any number of jurors 
without cause, a right which was 
said to tend to “infinite delayes and 
danger.” Coke on Littleton 156 
(14th ed 1791). Thus The Ordi- 
nance for Inquests, 33 Edw 1, Stat 
4 (1305), provided that if “they 
that sue for the King will challenge 
any . . . Jurors, they shall assign 
. . . a Cause certain.” So persistent 
was the view that a proper jury trial 

required peremptories on both sides, 

however, that the statute was con- 

strued to allow the prosecution to 

direct any juror after examination 

to “stand aside” until the entire 

panel was gone over and the defend- 

ant had exercised his challenges; 

only if there was a deficiency of 

jurors in the box at that point did 

the Crown have to show cause in re- 

spect to jurors recalled to make up 

the required number.}® Perempto- 
  

defendant and prosecutor with a substan- 
tial number of peremptory challenges. 
Under the 1867 Code, the defendant was 
entitled to 21 peremptories in capital cases 
and 15 in noncapital felony cases; cor- 

respondingly the State had 14 peremptories 
in capital trials and 10 in other felony 
trials. 1867 Ala Rev Code §§ 4178, 4179. 
These numbers were altered in the 1907 
Act, the defendant having eight peremp- 
tories in a noncapital felony case and the 
State four. The numbers in capital cases 
remained the same. 1907 Ala Code § 7275. 
The struck-jury system was introduced in 

1909 as a part of a comprehensive amend- 
ment of the statutes governing the selec- 
tion and impaneling of juries in the State. 
1909 Leg Acts, Spec Sess, p. 319. The 
history and purposes of this legislation, as 
set out by the sponsor of the Act, may 
be found in John, The Jury Law, 1910- 
1911 Alabama Bar Assn Rep 198: 

“The provision for struck juries in crim- 
inal cases, is found to be much fairer to 
the Solicitor and the Attorneys for defend- 
ants, and under it a jury can be more 
easily and quickly obtained, and it would 
be a decided step backward to restore the 

challenge system, with its delay and 

chances for errors.” Id, at 205. 

8. It was thought that peremptory chal- 
lenges were allowed at common law in 

capital felonies only. Thus Blackstone 

states: “[I]n criminal cases, or at least in 
capital ones, there is, in favorem vitae, 
allowed to the prisoner an arbitrary and 
capricious species of challenge to a certain 
number of jurors, without showing any 
cause at all; which is called a peremptory 
challenge: a provision full of that tender- 
ness and humanity to prisoners, for which 
our English laws are justly famous.” 4 
Blackstone Commentaries 353 (15th ed 
1809) (hereafter Bl Comm). 

This statement was not far amiss, since 

most felonies were generally punishable 
by death. 4 Bl Comm 98. But peremp- 
tories were allowable in trials of felonies 
that were not capital. Gray v Reg. 11 Cl 
& Fin 427 (HL 1844). See I Thompson, 
Trials § 42 (2d ed 1912) (hereafter Thomp- 
son); I Stephen, History of Criminal Law 
of England 302 (1883) (hereafter 
Stephen). 

10. The defendant’s right remained un- 
altered until 22 Hen 8, ¢ 14, § 6 (1530); 
25 Hen 8, ¢ 3 (1533), when the number 
was limited to 20 in all cases except high 
treason. See generally Proffatt, Trial By 
Jury § 1566 (1877) (hereafter Proffatt). 

11. Lord Grey's Case, 9 How St Tr 128 
{1682); Rez. v Frost, 9 Car & P 120 
(1839); Mansell v Reg.,, 8 El & Bl 54 

(1857); 4 Bl Comm 353. The number of 

jurors called was in the discretion of 

the court and it is reported that the right 

  

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SWAIN v ALABAMA 769 
380 US 202, 13 L ed 

ries on both sides became the settled 
law of England, continuing in the 
above form until after the separa- 
tion of the Colonies.!* 

*[380 US 214] 
*This common law provided the 

starting point for peremptories in 
this country. In the federal system, 
Congress early took a part of the 
subject in hand in establishing that 
the defendant was entitled to 35 per- 
emptories in trials for treason and 
20 in trials for other felonies speci- 
fied in the 1790 Act as punishable by 
death, 1 Stat 119 (1790). In re- 
gard to trials for other offenses with- 
out the 1790 statute, both the de- 
fendant and the Government were 
thought to have a right of peremp- 
tory challenge, although the source 

2d 759, 85 S Ct 824 

of this right was not wholly clear.!® 
In 1865, the Government was given 

by statute five peremptory chal- 

lenges in capital and treason cases, 
the defendant being entitled to 20, 

and two in other cases where the 

right of the defendant to challenge 
*[380 US 215] 

then existed, *he being entitled to 
10, 13 Stat 500 (1865).* Subsequent 

enactments increased the number of 
challenges the Government could ex- 

ercise, the Government now having 

an equal number with the defendant, 
in capital cases, and six in cases 

where the crime is punishable by 

more than one year’s imprisonment, 
the defendant or defendants having 

ten.1® 
  

to stand aside was exercised liberally. 
Proffatt § 160. All at‘empts to limit or 
abolish the Crown’s right were rejected. 
Reg. v Frost, supra; O’Coigly’s Case, 26 
How St Tr 1191, 1231; I Thompson § 49; 
Busch, Law And Tactics in Jury Trials 
§ 69 (1949) (hereafter Busch). 

12. It remains the law of England today, 
except the number the defendant may now 
exercise is seven. See 6 Geo 4, ¢ 50, § 29 
(1825); 11 & 12 Geo 6, ¢ 58, § 35 (Crimi- 
nal Justice Act of 1948). The actual use 
of challenges by either side has been rare, 
for at least a century, but the continued 
availability of the right is considered im- 
portant. I Stephen 303; Devlin, Trial By 
Jury 29-37 (1956) (hereafter Devlin); 
Howard, Criminal Justice In England 362- 
364 (1931) (hereafter Howard). 

13. United States v Richard Johns, 4 
Dall 412, 414, 1 L ed 888, 889, F Cas No 
15481 (Cir Ct Pa 1806). Mr. Justice Wash- 
ington, sitting on circuit, stated: 

“The right of challenge was a privilege 
highly esteemed, and anxiously guarded, 
at the common law; and it cannot be 
doubted, but that at the common law, a 
prisoner is entitled, on a capital charge, to 
challenge peremptorily, thirty-five jurors. 
If, therefore, the act of congress has sub- 
stituted no other rule . . . the common- 
law rule must be pursued.” See also 
United States v Wilson & Porter, 1 Bald 
78, 82 (Cir Ct Pa 1830); United States v 
Douglass, Fed Cas No. 14989, 2 Blatch CC 
207 (Cir Ct SD NY 1851). But see United 
States v Cottingham, 2 Blatch 470, F Cas 

No 14872 (Cir Ct ND NY 1852). 

[13 L ed 2d] —49 

In United States v Marchant, 12 Wheat 
480, 6 L ed 700, this Court indicated that 
the Crown’s power to stand aside was a 
part of the common law inherited from 
the English. Federal courts allowed the 
Government to stand aside on the basis of 
this decision. United States v Wilson & 
Porter, supra; United States v Douglass, 
supra. In 1856, the Court held in United 
States v Shackleford, 18 How 588, 15 L ed 
495, that federal statutes affording the de- 
fendant a right of challenge did not in- 
corporate the Government’s right to stand 
aside. The Government could do this only 
by virtue of the 1840 Act, 5 Stat 394, 
empowering the federal courts to adopt 
the state practice in regard to selection 
and impaneling of juries. 

14. A few years later Congress extended 
the defendant’s right to 10 challenges in 
all noncapital felony cases and the Govern- 
ment was entitled to three in such cases; 
it also extended the right to misdemeanors 
and civil cases, each party being entitled 
to three. 17 Stat 282 (1872). 

15. See 36 Stat 1166, § 287 (1911) pro- 
viding that where the offense is a capital 
offense or treason, the defendant is en- 
titled to 20 peremptory challenges and the 
United States to six; in all other felony 
trials, the defendant has 10, the United 
States six. 

Rule 24(b) of the Federal Rules of 
Criminal Procedure provides: 

“(b) Peremptory Challenges. If the of- 
fense charged is punishable by death, each 
side is entitled to 20 peremptory chal- 
lenges. If the offense charged is punish-   

  

  

   



  

    

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770 U. S. SUPREME COURT REPORTS 

The course in the States appar- 
ently paralleled that in the federal 
system. The defendant’s right of 
challenge was early conferred by 
statute, the number often corre- 
sponding to the English practice,® 

*[380 US 216] 
the prosecution was *thought to have 
retained the Crown’s common-law 
right to stand aside,}” and by 1870, 
most, if not all, States had enacted 
statutes conferring on the prosecu- 
tion a substantial number of peremp- 
tory challenges, the number gener- 
ally being at least half, but often 

13 Led 2d 

equal to, the number had by the de- 
fendant.!’®* Although there has been 
some criticism in the twentieth 
century leveled at peremptory chal- 
lenges, on the basis of the delays, ex- 
pense and elimination of qualified 
jurors incident to their use,’® the 

*[380 US 217] 
system *has survived these attacks. 
In every State, except where per- 
emptory strikes are a substitute, per- 
emptory challenges are given by 
statute to both sides in both crim- 
inal and civil cases, the number in 
criminal cases still being consider- 

  

able by imprisonment for more than one 
year, the government is entitled to 6 per- 
emptory challenges and the defendant or 
defendants jointly to 10 peremptory chal- 
lenges. If the offense charged is punish- 
able by imprisonment for not more than 
one year or by fine or both, each side is 
entitled to 3 peremptory challenges. If 
there is more than one defendant, the court 
may allow the defendants additional per- 
emptory challenges and permit them to be 
exercised separately or jointly.” 

The Government's right to stand aside 
was deemed to survive early statutes giv- 
ing the Government peremptory challenges. 
Sawyer v United States, 202 US 150, 50 
L ed 972, 26 S Ct 575. 

16. See Waterford & Whitehall Turn- 
pike Co. v People, 9 Barb 161 (Sup Ct NY 
1850); People v McQuade, 110 NY 284, 

293 (1888); State v Humphreys, 1 Tenn 
306 (1808); Brown v State, 62 NJL 666, 

678-688 (1898), affd 1756 US 172, 44 L ed 

119, 20 S Ct 77; Hendrick v Common- 

wealth, 5 Leigh 707, 715 (Va Gen Ct 1834); 

Robinson v State, 1 Ga 563, 571 (1846); 

State v Arthur, 13 NC 217 (1829); State 

v Benton, 19 NC 196 (1836). But cf. State 

v George, 1 Del Cas 161 (Ct Q Sess 1797). 

See also II Bishop, Criminal Procedure 

§ 941 (1913) (hereafter Bishop); I Thomp- 

son § 42. 

17. Waterford & Whitehall Turnpike 

Co., supra; Commonwealth v Eisenhower, 

181 Pa 470 (1897); Jewell v Common- 

wealth, 22 Pa 94 (1853); State v Arthur, 

13 NC 217 (1829); Proffatt §162; I 

Thompson § 49; II Bishop §§ 938, 939. 

18. E. g., 1873 NY Laws, c. 427; 1874 111 

Rev Stat, p. 411; Maton v People, 15 Ill 

536 (1854); Brown v State, 62 NJL 666, 

684-685 (1899), affd 175 US 172, 44 L ed 

© 119, 20 S Ct 77; 1869 Mass Acts, ¢ 151; 

1860 Pa Laws 427, Act No. 375 §§ 36, 37; 
Warren v Commonwealth, 37 Pa 45 (1860); 
State v Briggs, 27 SC 80, 2 SE 854 (1887); 
Boon v State, 1 Ga 618 (1846); Cal Laws 

1850-1853, ¢ 121, § 343; 1863-1864 Cal 
Stats, ¢ 348, p. 394, § 1; Proffatt § 161. 

The State’s right to stand aside was 
deemed to survive these statutes, Warren 

v Commonwealth, 37 Pa 45 (1860); Haines 

v Commonwealth, 100 Pa 317, 322 (1882); 
State v McNinch, 12 SC 89 (1879); State 

v Benton, 19 NC 196, 203 (1836); I Thomp- 

son § 49, although opinion was divided, 
Sealy v State, 1 Ga 213 (1846); Mathis v 

State, 31 Fla 291, 315 (1893). In many 
States this right has been expressly barred 
by statute. E. g., NC Gen Stat §§ 15-163, 
15-164 (1953); Pa Stat Ann Tit 19, § 811 
(1964); SC Code § 38-211 (1962). 

19. The charges leveled at peremptory 
challenges have been that they required 
summoning a large number of veniremen, 
that they were used by defendants to 
eliminate intelligent and highly qualified 
jurors, that the imbalance in number in 
favor of defendants was unfair, that the 
void dire as a predicate for their exercise 
was too extensive and that they generally 
protracted the selection process. See Pro- 
posed Legislation For Jury Reform in New 
York, 30 Col L Rev 721, 726 (1930); Mis- 
souri Crime Survey 356-357 (1926); 

Evans, Recommendations For Reforms In 

Criminal Procedure, 24 Ill L. Rev 112, 113- 

114 (1929); Challenges and the Powers of 
Judges, 23 Green Bag 84 (1911); 3 Proc 

Am Law Inst 501 (1925); Report of Illinois 

Judicial Advisory Council 17-18 (1931); 
Extracts from Rep of Comm. to Third Ann 
Meeting of ALI, Defects in Criminal 
Justice, 11 ABAJ 297, 298 (1925); Smith, 

Criminal Justice in America: A Reply, 11 

ABAJ 797-798 (1925). 
[13 L ed 2d]   

 



  

SWAIN v ALABAMA 

- w= BL mae co dt PR 

771 
880 US 202, 13 L ed 2d 7569, 85 S Ct 824 

ably greater. Under these statutes 
the prosecution generally possesses 
a substantial number of challenges.® 

The system of struck juries also 
has its roots in ancient common-law 
heritage.” Since striking a jury al- 

*[380 US 218] 

lowed *both sides a greater number 
of challenges and an opportunity to 
become familiar with the entire 
venire list, it was deemed an effec- 
tive means of obtaining more impar- 
tial and better qualified jurors. Ac- 
cordingly, it was used in causes of 
“great nicety” or “where the sheriff 
[responsible for the jury list] was 
suspected of partiality.” 3 BI 
Comm 357. It is available in many 
States for both civil and criminal 

cases.” The Alabama system ad- 
heres to the common-law form, ex- 
cept that the veniremen are drawn 
from the regular jury list, are sum- 
moned to court before striking be- 
gins and the striking continues un- 

til 12 rather than 24 remain. It 
was adopted as a fairer system to 
the defendant and prosecutor and a 
more efficacious, quicker way to ob- 
tain an impartial jury satisfactory 
to the parties.®® 

[15] In contrast to the course in 
England, where both peremptory 
challenge and challenge for cause 
have fallen into disuse, peremptories 
were and are freely used and relied 
upon in this country, perhaps be- 
cause juries here are drawn from 
a greater cross-section of a hetero- 
geneous society.#® The voir dire in 

*[380 US 219] 

American trials tend -to be *exten- 

sive and probing, operating as a 
predicate for the exercise .of  per- 
emptories, and the process of select- 
ing a jury protracted.?® The per- 
sistence of peremptories and their 
extensive use demonstrate the long 
and widely held belief that peremp- 
tory challenge is a necessary part of 

  

  

20. Classification of offenses and punish- 
ment on which the number exercisable de- 

pends varies among the States, as does the 
number of challenges within these cate- 
gories, and hence meaningful generaliza- 
tion in regard to current statutes is not 

feasible. For an example of these varia- 
tions, see Ariz Rev Stat, Rules Crim Proc 
225 (1956); Conn Gen Stat § 51-242 
(1958); Del Code Ann, Super Ct Rules 
Crim Proc 24(b) (1953); Cal Penal Code 

§ 1070 (1956); Fla Stat § 913.08 (1963); 
Ga Code Ann § 59-805 (1937); Ill Ann 
Stat, ¢ 38, § 115-4(e) (1964); Mass Gen 

Laws Ann, ¢ 234, §29 (1959); Md Ann 

Code, Rules Proc 746 (1963); Mo Ann Stat 

§ 546.180 (1953); NJ Stat Ann 2A:78-7 
¢ and d (1952); NY Crim Code and Penal 

Law §§370, 373 (1964); NC Gen Stat 
§§ 15-163, 15-164 (1953); Ohio Rev Code 

Ann, Tit 29, §§ 2945.21, 2945.22 (1954); 
Pa Stat Ann, Tit 19, § 811 (1964); SC Code 
§ 88-211 (1962); Tenn Code Ann § 40-2510 

(1955); Tex Code Crim Proc, Tit 8, Arts 

615, 634 (1941); Utah Code Ann § 77-30- 
15 (1953). 

For a listing of the state statutes in ef- 

fect in 1930 and the variations in number 

and classifications among the States, see 
ALI Code of Criminal Procedure, Com- 

mentary to § 282, at 8565-862 (1930). 

21. Historically 48 names would be se- 
lected from a special jury list and each 
side would alternately strike 12 names, 
the remaining 24 being summoned for the 
case. Brown v State, 62 NJL 666, 688-690 
(1899), affd 1756 US 172, 44 L ed 119, 20 
S Ct 77; 8 Bl Comm 357; Forsyth, History 
of Trial by Jury 173. Use of the struck 
jury system was not confined to criminal 
cases at common law, as the peremptory ° 
challenge was. Busch _ 62; Proffatt § 72. 

22. See NJ Stat Ann 2A:75-1, 2A:75-2, 
2A:75-3; Md Ann Code, Rules Proc 543 

(1963); Busch § 62; 31 Am Jur §90. Cf. 
28 USC § 1866 (1958 ed). 

23. John, The Jury Law, 1910-1911 Ala- 
bama Bar Assn Rep 198, 205. 

24. Devlin, supra, at 20-36. Another 

reason suggested for the difference lies 
in the greater control in England over 
pretrial publicity. “[O]ne of the salient 
reasons why both court and counsel have 
confidence in the impartiality and integrity 
of trial jurors is the authority the courts 
exercise in preventing the newspapers 
from prejudging a pending case.” Howard, 
363 (1931). 

25. See Devlin, supra, at 32-34; Busch 

§§ 145-154; Bodin, Selecting a Jury 44-72 
(PLI 1954) (hereafter Bodin) 

RE, FS EDS 

  
  

  
  

 



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772 U. S. SUPREME COURT REPORTS 

trial by jury. See Lewis v United 
States, 146 US 370, 376, 36 L ed 
1011, 1014, 13 S Ct 136. Although 
“[t]here is nothing in the Consti- 
tution of the United States which re- 
quires the Congress [or the States] 
grant peremptory challenges,” 
Stilson v United States, 250 US 583, 
586, 63 L ed 1154, 1156, 40 S Ct 28, 
nonetheless the challenge is “one of 
the most important of the rights se- 
cured to the accused,” Pointer v 
United States, 151 US 396, 408, 38 
L ed 208, 214, 14 S Ct 410. The 
denial or impairment of the right is 
reversible error without a showing 
of prejudice, Lewis v United States, 
146 US 370, 36 L ed 1011, 13 S Ct 
136; Harrison v United States, 163 
US 140, 41 L ed 104, 16 S Ct 961; 
cf. Gulf, Colorado & Santa Fe R. Co. 
v Shane, 157 US 348, 39 L ed 727, 
15 S Ct 641. “For it is, as Black- 
stone says, an arbitrary and capri- 

cious right; and it must be exercised 
with full freedom, or it fails of its 
full purpose.” Lewis v United 

States, 146 US 370, 378, 36 L ed 
1011, 1014, 13 S Ct 136. 

[16, 17] The function of the chal- 

lenge is not only to eliminate ex- 

tremes of partiality on both sides, 
but to assure the parties that the 

jurors before whom they try the 
case will decide on the basis of the 
evidence placed before them, and 
not otherwise. In this way the per- 

emptory satisfies the rule that “to 

perform its high function in the 

best way ‘justice must satisfy the 
appearance of justice.”” In re Mur- 

chison, 349 US 133, 136, 99 L ed 
942, 946, 75 S Ct 623. Indeed the 

very availability of peremptories al- 

lows counsel to ascertain the possi- 
bility of bias through probing ques- 
tions on the voir dire and facilitates 

the exercise of challenges for cause 
by removing the fear of incurring a 

*[380 US 220} 

juror’s hostility *through examina- 

13 Led 2d 

tion and challenge for cause. Al- 
though historically the incidence of 

the prosecutor’s challenge has dif- 
fered from that of the accused, the 
view in this country has been that 

the system should guarantee “not 
only freedom from any bias against 

the accused, but also from any prej- 

udice against his prosecution. Be- 

tween him and the state the scales 
are to be evenly held.” Hayes v 
Missouri, 120 US 68, 70, 30 L ed 

578, 580, 7 S Ct 350. 

[18] The ggsential nature of the 

peremptory challenge is that it is 

ope exercised Without &_ Yeason 

stated, without inquiry and without 

being subject to the court's control. 

State v Thompson, 68 Ariz 386, 206 
P2d 1037 (1949); Lewis v United 

States, 146 US 370, 378, 36 L ed 
1011, 1014, 13 S Ct 136. While 

challenges for cause permit rejection 

of jurors on a narrowly specified, 

provable and legally cognizable basis 
of partiality, the peremptory per- 
mits rejection for a real or imagined 
partiality that is less easily desig- 

nated or demonstrable. Hayes Vv 
Missouri, 120 US 68, 70, 30 L ed 578, 

579, 7 S Ct 350. It is often exer- 

cised upon the “sudden impressions 

and unaccountable prejudices we are 

apt to conceive upon the bare looks 

and gestures of another,” Lewis, 

supra, 146 US at 376, 36 L ed at 

1014, upon a juror’s “habits and as- 

sociations,” Hayes v Missouri, 120 

US 68, 70, 30 L ed 578, 580, 7 S Ct 

350, supra, or upon the feeling that 

“the bare question [a juror’s] indif- 

ference may sometimes provoke a 

resentment,” Lewis, 146 US at 376, 

36 L ed at 1014, supra. It is no 

less frequently exercised on Cronnds 

normally thought irrelevant to legal 

proceedings or official action, namely, 

the race, religion, nationality, occu- 

pation or affiliations of people sum-    



  

SWAIN v ALABAMA 773 
380 US 202, 13 L ed 

moned for jury duty.*® For the 
question a prosecutor or defense 

*[380 US 221] 

counsel *must decide is not whether 
a juror of a particular race or na- 
tionality is in fact partial, but 

whether one from a different group 
is Tess likely to be.*” It is well known 
that these lactors are widely ex- 
plored during the voir aire; by both 
prosecutor and accused, Miles v 
United States, 103 US 304, 26 L ed 
481; Aldridge v United States, 283 
US 308, 75 L ed 1054, 51 S Ct 470, 
73 ALR 1203.22 This Court has held 
that the fairness of trial by jury re- 
quires no less. Aldridge, supra.® 
Hence veniremen are not always 
judged solely as individuals for the 
purpose or eXercismg peremptory 
challenges. Rather they are chal- 
lenged in light of the limited knowl- 
edge counsel has of them, which may 
include their group affiliations, in the 
context of the case to be tried. 

[19] With these considerations in 
mind, we cannot hold that the strik- 
ing of NEETOeS IN XL PArLICUIAT Case 
13_a_denial of equal protection of 
the laws. In the quest for an im- 
partial and qualified jury, Negro 
and white, Protestant and Catholic, 
are alike subject to being challenged 
without cause. To subject the pres. 
ecutor’s challenge in{any) pérticulap 

( case)tg the demands and traartional 

2d 759, 85 S Ct 824 

standards..of the. Equal Protection 
Clause would entail a radical change 

*[380 US 222] 
*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 after- 
ward. The prosecutor’s judgment 
underlying each challenge would be 
subject to scrutiny for reasonable- 
ness and sincerity. And a great 
many uses of the challenge would be 
banned. 

[20-22] In the light of the pur- 
pose of the peremptory system and 
the function it serves in a plural- 
istic 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 chal- 
lenges in any given case. The pre- 
sumption in any particular case 

must be that the prosecutor 1s using 
the. State’s challenges to obtain a 
fair and impartial jury to try the 
case before the court. The presump- 
tion is not overcome and the proSe- 
CUTOT therefore Subjected to exam- 
ination by_allegations that in_the 
case at hand all Negrees were re- 
moved from the jury\gp) that they 
were _removed( because) they were 
Negroes. Any other result, we 

  

26. See, e. g., Aldridge v United States, 
283 US 308, 75 L ed 1054, 51 S Ct 470, 
73 ALR 1203; Hall v United States, 83 App 
DC 166, 168 F2d 161, 4 ALR2d 1193, cert 
denied 334 US 853, 92 L ed 1775, 68 S Ct 
1509; State v Higgs, 143 Conn 138, 120 
A2d 152 (1956); Gurley v State, 164 Ark 
397, 262 SW 636 (1924); People v Car Soy, 
57 Cal 102 (1880); People v Reyes, 5 Cal 
347 (1855); Fendrick v State, 39 Tex Crim 

147, 45 SW 589 (1898); State v Carson, 

131 SC 42, 126 SE 757 (1925); Wasy v 
State, 234 Ind 52, 123 NE2d 462 (1955); 
People v Roxborough, 307 Mich 575, 12 
NW2d 466 (1943), cert denied 323 US 749, 
89 L ed 600, 65 S Ct 80. See generally 
Busch § 146; 54 ALR2d 1204; Bodin 61-67. 

27. This is especially so under the Ala- 
bama strike system, where all the venire- 

men are known to the parties before strik- § 
ing begins. 

28. See cases cited in n. 26, supra. 
29. Race or religion and beliefs stem- 

ming therefrom have at times constituted 
grounds of challenge for cause. State v 
Sanders, 103 SC 216, 88 SE 10 (1916); 
Potter v State, 86 Tex Crim 380, 216 SW 
886 (1919); McFadden v Commonwealth, 

23 Pa 12 (1853). But cf. Johnson v State, 
88 Neb 565, 130 NW 282 (1911); State 

v Giudice, 170 Iowa 731, 153 NW 336 

(1915); Commonwealth v De Palma, 268 

Pa 25, 110 A 756 (1920); Romero v State, 
107 Tex Crim 70, 294 SW 857 (1927). See 
generally 54 ALR2d 1204. 

    

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774 ° U.S. SUPREME COURT REPORTS 

think, would establish a rule wholly 
at odds with the peremptory chal- 
lenge system as we know it. Hence 
the motion to strike the trial jury 
was properly denied in this case. 

III 

Petitioner, however, presses a 
broader claim in this Court.® His 
argument is that not only were the 

*[380 US 223] 
Negroes *removed by the prosecutor 
in this case but that there never has 
been _a Negro on a petit LULy in 
either a civil or criminal case in Tal- 
Tadega County and that in criminal 
cases prosecutors have consistently 
and systematically exercised their 
strikes to prevent any and all Ne- 
groes on petit jury venires from 
serving on the petit jury itself. 
This systematic practice, it is 
claimed, is invidious discrimination 
for which the peremptory system is 
in8ufficient justification. 

We agree that this claim raises. .a. 
different 1 1ssue and it may well re- 
quire a different answer. We have 
decided that it is permissible to in- 
sulate from inquiry the removal of 
Negroes from a particular jury on 
the assumption that the prosecutor 
is acting on acceptable considera- 
tions related to the case he is try- 
ing, the particular defendant in- 
volved and the particular crime 
charged. But when the prosecutor 

—— 

13 Led 2d 

in a county, in case after case, what- 
ever the circumstances, whatever 

the crime and whoever the defend- 
ant or the victim may be, is responsi- 
ble for the removal of Negroes who 
have been selected as qualified jurors 
by the jury commissioners and who 
have survived challenges for cause, 
with the result that no Negroes ever 
serve on petit juries, the Fourteenth 
Amendment claim takes on added 
significgnce. Cf. Yick Wo v Hopkins, 

T18 US 356, 30 L ed 220, 6 S Ct 
1064. In these circumstances, giv- 

rr yum ay 
ing even the *widest leeway to the 

operation of irrational but trial-re- 

lated suspicions and antagonisms, jt. 

would appear that the purposes.of 

the peremptory challenge are being 
perverted. If the State has not seen 

fit to leave a single Negro on any 

jury in a criminal case, the presump- 

tion protecting the prosecutor may 

well be overcome. Such proof might 

support a reasonable inference that 

Negroes are excluded from juries for 

reasons wholly unrelated to the out- 

come of the particular case on trial 

and that the peremptory system is 

being used to deny the Negro the 

same right and opportunity to par- 

ticipate in the administration of 

justice enjoyed by the white popu- 

lation. These ends the peremptory 

challenge is not designed to facili- 

tate or justify. 
  

30. This claim was not set forth in the 
motion to quash the venire or the motion 
to declare void the petit jury selected, the 

only motions in which the Alabama strike 

system was challenged in the trial court. 
However, the decision of the Alabama Su- 

preme Court may be read to have ruled on 
the challenge to the exercise of strikes 

against Negroes in its broadest form. 

“As to the contention that Negroes are 

systematically excluded from trial juries, 
the evidence discloses that Negroes are 

commonly on trial venires but are always 
“struck by attorneys in selecting the trial 

jury. It has long been held that, where 
allowed by statute, peremptory challenges 

may be used without any assigned or 

stated cause. Both the federal and Ala- 
bama jurisdictions have statutes providing 
for peremptory challenges. The fact that 
the prosecution peremptorily strikes every 
Negro from the jury panel in a case where 
the defendant is a Negro does not con- 
stitute a violation of the defendant’s con- 
stitutional rights. . . .” 275 Ala 508, 
515, 156 So 2d 368, 375 (citations omitted). 

Cf. Saltonstall v Saltonstall, 276 US 260, 

267-268, 72 L ed 565, 566, 567, 48 S Ct 225; 
Charleston Federal Savings & Loan Assn. 
v Alderson, 324 US 182, 185-186, 89 L ed 
857, 860, 861, 606 S Ct 624.    



  

SWAIN v ALABAMA 775 
380 US 202, 13 L ed 2d 7569, 85 S Ct 824 

We need pursue this matter no 
further, however, for even if a 
State’s systematic striking of Ne- 
groes in the selection of petit juries 
raises a prima facie case under the 
Fourteenth Amendment, we think it 
is readily apparent that The" record 
ff This case is not sufficient to dem- 
OTSTIAtE that the rule Nas been Vio- 
Tated by the peremptory system as 
it operates in Talladega County. Cf. 
Glasser v United States, 315 US 60, 
87, 86 L ed 680, 708, 62 S Ct 457. 

[23] The difficulty with the rec- 
ord before us, perhaps flowing from 
the fact that it was made in connec- 
tion with the motion to quash the 
indictment, is that it does not with 

show when, how often, and under 
what circumstances the prosecutor 
alone has been responsible for strik- 
ing those Negroes who have ap- 
peared on petit jury panels in Tal- 
ladega County. The record is abso- 
lutely silent as to those instances in 
which the prosecution participated 
in striking Negroes, except for the 
indication that the prosecutor struck 
the Negroes in this case and except 
for those occasions when the defend- 
ant himself indicated that he did not 
want Negroes on the jury. Ap- 

parently in some cases, the prosecu- 
*[380 US 225] 

tion *agreed with the defense to 
remove Negroes. There is no evi- 

dence, however, of what the prose- 

cution did or did not do on its own 
account in any cases other than the 
one at bar.®® In one instance the 
prosecution offered the defendant an 
all-Negro jury but the defendant in 
that case did not want a jury with 
any Negro members. There was 
other testimony that in many cases 
the_Negro defendant preferred an 
all- white to a mixed jury. One 
lawyer, who had represented both 
white and Negro defendants in crim- 
inal cases, could recall no Negro 
client who wanted Negroes on the 
jury which was to try him. The 
prosecutor himself, who had served 
since 1953, said that if the Negro de- 
fendant wanted Negroes on the jury 

it would depend “upon the circum- 

stances and the conditions and the 

case and what I thought justice de- 

manded and what [it] was in that 

particular case,” and that striking 

is done differently depending on the 
race of the defendant and the vic- 

tim of the crime. These statements 

*[380 US 226] 

*do not support an inference that 

the. _prosecutor was bent on striking 
Negroes, regardless of trial-related 
considerations. The fact remains, 

of course, that there has not been 

a Negro on a jury in Talladega 

County since about 1950. But the 

responsibility of the prosecutor is 

not illuminated in this record. 
There is no allegation or explana- 

tion, and hence no opportunity for 
  

31. The prosecutor testified that on oec- 
casion he would ask defense counsel if 

he wanted Negroes on the jury; if the de- 
fense did not, and the prosecutor agreed, 
“what we do then is just to take them off. 
Strike them first.” The record makes 
clear that this was not a general practice 

and the matter was not explored further: 

“Q. Let me ask you this. You stated 
that the defendants generally do not want 
a negro to serve on a jury that is sworn 
to try him? 

“A. 1 didn’t say that. I didn’t—they 
generally didn’t want it. I said in the past 

there has been occasion here where that 

has happened. 

“Q. Have there been any cases where 
they did want negroes to serve on juries 
in their behalf? 

“A. I wouldn’t know if there has been. 
Not to my knowledge, because I am not 
representing defendants. I am represent- 

ing the State. Do you see what I mean? 
“Q. Yes. 

“A. In other words, that would be be- 

tween attorney and client, privileged, and 
I wouldn’t know what they wanted. You 

would have to ask these defense attorneys 
about that.”     

   



  
    

776 

the State to rebut, as to when, why 
and under what circumstances in 
cases previous to this one the prose- 
cutor used his strikes to remove 
Negroes. In short, petitioner has 
not laid the proper predicate for at- 
tacking the peremptory strikes as 
they were used in this case. Peti- 
tioner has the burden of proof and 
he has failed to carry it. 

[24-26] A dissent asserts that a 
showing that there are qualified Ne 
groes and that none have served 
makes out a prima facie case ol pur- 
posetul discrimination on the part of 
the State and that the continued vi- 
tality of Strauder v West Virginia, 
100 US 303, 25 L ed 664, as well as 
“a practical accommodation” be- 
tween the constitutional right of 
equal protection and the statutory 
right of peremptory challenge, re- 
quires application of such a rule 
here. Where discrimination is said 
to occur in the selection of venire- 
men by state jury commissioners, 
“proof that Negroes constituted a 
substantial segment of the popula- 

tion . . . , that some Negroes were 

qualified to serve as jurors, and that 

none had been called for jury service 
over an extended period of time . . . 
constitute[s] prima facie proof of 
the systematic exclusion of Negroes 
from jury service,” Hernandez v 

Texas, 347 US 475, 480, 98 L ed 

8€6, 871, 74 S Ct 667, as does proof 
“that no Negro had served on a erim- 
inal court grand or petit jury for 
a period of thirty years,” Patton v 
Mississippi, 251 Miss 699, 171 So 2d 

ed 76, 79, 68 S Ct 184, 1 ALR24 
1286. (Emphasis added.) See also 

Norris v Alabama, 294 US 587, 79 
L ed 1074, 55 S Ct 579; Harper v 
Mississippi, 251 Miss 699, 171 So 2d 

129 (1965). Total exclusion of Ne- 
*[380 US 227] 

groes by the state officers *responsi- 

ble for selecting names of jurors 
gives rise to a fair inference of dis- 

* U. S. SUPREME COURT REPORTS 18 L ed 2d 

crimination on their part, an infer- 
ence which is determinative absent 
sufficient rebuttal evidence. But 
this rule of proof cannot be wood- 
enly applied to cases where the dis- 
crimination is said to occur during 
the process of peremptory challenge 
of persons called for jury service. 
Unlike the selection process, which 
is wholly in the hands of state of- 
ficers, defense counsel participate jn 
the peremptory challenge system, 

and indeed generally have a far 
greater role than any officers of the 

State. It is for this reason that 

a showin¥ that Negroes have not 
served during a specified period of 
filme does not, absent a sufficient 
showing of the prosecutor’s partici- 
pation, give rise to the inference of 

systematic discrimination on the 
part of the State. The ordinary ex- 
ercise of challenges by defense coun- 

sel does not, of course, imply pur- 

poseful discrimination by state of- 

ficials. This is not to say that a 

defendant attacking the Prosecutor's 
use of peremptory challenges over a 

period of time need ell Cli an admTs- 
sion from the prosecutor that dis- 
crimination accounted for his re- 
jection of Negroes, any more than a 

defendant attacking jury selection 

need obtain such an admission from 

the jury commissioners. But the de- 

fendant must, to pose the issue, 
show the prosecutor’s systematic 

use of peremptory challenges against 

Negroes over a period of time. 

This is the teaching of Hernandez v 

Texas, 347 US 475, 98 L ed 866, 74 

S Ct 667; Norris v Alabama, 294 US 

587, 79 L ed 1074, 55 S Ct 579; 

Patton v Mississippi, 332 US 463, 

92 L ed 76, 68 S Ct 184, 1 ALR2d 

1286. We see no reason, except for 

blind application of a proof standard 

developed in a context where there 

is no question of state responsibility 

for the alleged exclusion, why the   
 



  

~ SWAIN v ALABAMA 
380 US 202, 13 L ed 2d 759, 85 S Ct 824 

Mr. Justice Harlan, concurring. defendant attacking the prosecutor’s 
systematic use of challenges against 
Negroes should not be required to 
establish on the record the prose- 
cutor’s conduct in this regard, espe- 
cially where the same prosecutor 

*[380 US 228] 
*for many years is said to be respon- 
gible for this practice and is quite 
available for questioning on this 
ter.3* Accordingly the judgment is 

Affirmed. 

777 

In joining the opinion of the 
Court, I deem it appropriate to em- 
phasize my understanding that the 
Court reserves, and does not decide, 

the question which in Part III of its 

opinion it finds not presented by the 

record in this case. 

Mr. Justice Black concurs in the 

result. 

SEPARATE OPINION 

Mr. Justice Goldberg, with whom 
The Chief Justice and Mr. Justice 
Douglas join, dissenting. 

In 1880 this Court, in Strauder v 
West Virginia, 100 US 303, 25 L ed 
664, one of the first cases applying 
the Fourteenth Amendment to racial 
discrimination, held that under the 
Equal Protection Clause, a State 
cannot systematically exclude per- 
sons from juries solely because of 
their race or color. Since Strauder 
and until today this Court has con- 
sistently applied this constitutional 
principle. See Ex parte Virginia, 
100 US 339, 25 L ed 676; Neal v 
Delaware, 103 US 370, 26 L ed 567; 
Gibson v Mississippi, 162 US 565, 40 

L ed 1075, 16 S Ct 904; Carter v 
Texas, 177 US 442, 44 L ed 839, 20 
S Ct 687; Rogers v Alabama, 192 
US 226,43 1. ed 417, 24 S Ct 257: 
Martin v Texas, 200 US 316, 50 L 
ed 497, 26 S Ct 338; Norris v Ala- 
bama, 294 US 587, 79 L ed 1074, 

*[380 US 229] 

55 S Ct 579; *Hale v Kentucky, 303 
US 613, 82 L ed 1050, 58 S Ct 753; 
Pierre v Louisiana, 306 US 354, 83 

L ed 757, 59 S Ct 536; Smith v 
Texas, 311 US 128, 85 L ed 84, 61 
S Ct 164; Hill v Texas, 316 US 400, 
86 L ed 1559, 62 S Ct 1159; Akins 
v Texas, 8325 US 398, 89 L ed 1692, 
65 S Ct 1276; Patton v Mississippi, 
332 US 463, 92 L ed 76, 68 S Ct 
184, 1 ALR2d 1286; Cassell v Texas, 
339 US 282, 94 L ed 839, 70 S Ct 
629 ; Hernandez v Texas, 347 US 475, 
98 L ed 866, 74 S Ct 667; Reece v 
Georgia, 850 US 85, 100 L ed 77, 
76 S Ct 167; Eubanks v Louisiana, 
356 US 584, 2 L ed 2d 991, 78 S Ct 

970; Arnold v North Carolina, 376 

US 773, 12 L ed 2d 77, 84 S Ct 1032. 

The rationale upon which these 
decisions rest was clearly stated in 

Norris v Alabama, supra 294 US at 

589, 79 L ed at 10176: 

“There is no controversy as to 

the constitutional principle involved. 
. Summing up precisely the 

effect of earlier decisions, this Court 

thus stated the principle in Carter 
v Texas, 177 US 442, 447 [44 L ed 

839, 841, 20 S Ct 687], in relation 
  

[26] 32. We also reject the assertion 
that the method of selecting veniremen in 

Talladega County, with its lower propor- 
tion of Negroes on the venire list, when 
considered with the system of peremptory 
strikes establishes a prima facie case of 
discrimination. Absent a showing of pur- 
poseful exclusion of Negroes in the selec- 
tion of wveniremen, which has not been 

made, the lower proportion of Negroes on 

the venire list sheds no light whatsoever on 
the validity of the peremptory strike sys- 
tem or on whether the prosecutor sys- 
tematically strikes Negroes in the county. 
Moreover, the constitutional issue in re- 
gard to the prosecutor’s systematic use of 
strikes against Negroes remains much the 
same whatever the number of Negroes on 
the venire list.    



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778 U. S. SUPREME COURT REPORTS 

to exclusion from service on grand 
juries: ‘Whenever by any action of 
a State, whether through its legisla- 
ture, through its courts, or through 
its executive or administrative of- 
ficers, all persons of the African race 
are excluded, solely because of their 
race or color, from serving as grand 
jurors in the criminal prosecution 
of a person of the African race, the 
equal protection of the laws is de- 
nied to him, contrary to the Four- 
teenth Amendment of the Constitu- 
tion of the United States. Strau- 
der v West Virginia, 100 US 303 
[25 L ed 664] ; Neal v Delaware, 103 
US 370, 397 [26 L ed 567, 574]; 
Gibson v Mississippi, 162 US 565 [40 
L ed 1075, 16 S Ct 904]. This state- 
ment was repeated in the same 
terms in Rogers v Alabama, 192 US 
226, 231 [48 L ed 417, 419,24 S Ct 
257], and again in Martin v Texas, 
200 US 316, 319 [50 L ed 497, 498, 
26 S Ct 338]. The principle is 
equally applicable to a similar exclu- 
sion of negroes from service on petit 
juries. Strauder v West Virginia, 
supra; Martin v Texas, supra. And 
although the state statute defining 
the qualifications of jurors may be 
fair on its face, the constitutional 
provision affords protection against 
action of the State through its ad- 
ministrative officers in effecting the 

*[380 US 230] 

prohibited *discrimination. Neal v 
Delaware, supra; Carter v Texas, 
supra. Compare Virginia v Rives, 
100 US 313, 322, 323 [25 L ed 667, 
670, 671]; In re Wood [(Wood v 
Brush)] 140 US 278, 285 [35 L ed 
505, 508, 11 S Ct 738]; Thomas v 
Texas, 212 US 278, 282, 288 {53 
L ed 512, 513, 514, 29 S Ct 393}.” 

This set of principles was recently 
and explicitly reaffirmed by this 
Court in Eubanks v Louisiana, su- 
pra, and Arnold v North Carolina, 
supra. 

The reasons underlying the 

13 L ed 2d 

Court’s decisions in these cases were 
well expressed in Strauder: 

“The very idea of a jury is a body 
of men composed of the peers or 
equals of the person whose rights it 
is selected or summoned to deter- 
mine; that is, of his neighbors, fel- 
lows, associates, persons having the 
same legal status in society as that 
which he holds. Blackstone, in his 
Commentaries, says, ‘The right of 
trial by jury, or the country, is a 
trial by the peers of every English- 
man, and is the grand bulwark of his 
liberties, and is secured to him by the 
Great Charter.” It is also guarded 
by statutory enactments intended to 
make impossible what Mr. Bentham 
called ‘packing juries.” It is well 
known that prejudices often exist 
against particular classes in the com- 
munity, which sway the judgment of 
jurors, and which, therefore, operate 
in some cases to deny to persons of 
those classes the full enjoyment of 
that protection which others enjoy.” 
100 US at 308, 309, 25 L ed at 665, 
666. 

Moreover, “[t]he very fact that 
colored people are singled out and ex- 
pressly denied by a statute all right 
to participate in the administration 
of the law, as jurors, because of their 
color, though they are citizens, and 
may be in other respects fully quali- 
fied, is practically a brand upon them, 
affixed by the law, an assertion of 
their inferiority, and a stimulant to 

*[380 US 231] 
that race *prejudice which is an im- 

pediment to securing to individuals 
of the race that equal justice which 

the law aims to secure to all others.” 

100 US, at 308, 25 L ed at 666. 

The principles and reasoning upon 
which this long line of decisions 

rests are sound. The need for their 
reaffirmation is present. The United 

States Commission on Civil Rights 

in its 1961 Report Justice, 103, after   
 



  

SWAIN v ALABAMA 779 
380 US 202, 13 L ed 2d 759, 856 S Ct 824 

exhaustive study of the practice of 
discrimination in jury selection, con- 
cluded that “[t]he practice of racial 
exclusion from juries persists today 
even though it has long stood in- 
dicted as a serious violation of the 
14th amendment.” It is unthink- 
able, therefore, that the principles 
of Strauder and the cases fol- 
lowing should be in any way weak- 
ened or undermined at this late date 
particularly when this Court has 
made it clear in other areas, where 
the course of decision has not been 
so uniform, that the States may not 
discriminate on the basis of race. 
Compare Plessy v Ferguson, 163 US 
537, 41 L ed 256, 16 S Ct 1138, with 
Brown v Board of Education, 347 
US 483, 98 L ed 873, 74 S Ct 686, 
38 ALR2d 1180; compare Pace v 
Alabama, 106 US 583, 27 L ed 207, 
1 S Ct 637, with McLaughlin v Flor- 
ida, 379 US 184, 13 L ed 2d 222, 
85 S Ct 283. 

Regrettably, however, the Court 
today while referring with approval 
to Strauder and the cases which have 

followed, seriously impairs their au- 

thority and creates additional bar- 

riers to the elimination of jury dis- 
crimination practices which have 

operated in many communities to 
nullify the command of the Equal 

Protection Clause. This is evident 

from an analysis of the Court’s hold- 

ing as applied to the facts which are 
virtually undisputed. 

Petitioner, a 19-year-old Negro, 

was indicted in Talladega County for 

the rape of a 17-year-old white girl, 
found guilty, and sentenced to death 

by an all-white jury. The petitioner 

established by competent evidence 

and without contradiction that not 

only was there no Negro on the jury 
that convicted and sentenced him, 

but also that no Negro within the 

*[380 US 232] 
memory of persons now living *has 

ever served on any petit jury in any 
civil or criminal case tried in Talla- 
dega County, Alabama. Yet, of the 
group designated by Alabama as 
generally eligible for jury service in 
that county, 74% (12,125) were 
white and 26% (4,281) were Negro. 

Under well-established principles 
this evidence clearly makes out “a 
prima facie case of the denial of the 
equal protection which the Constitu- 
tion guarantees.” Norris v Ala- 
bama, supra, 294 US at 591, 79 L 
ed at 1078. The case here is at 
least as strong as that in Norris 
where “proof that Negroes consti- 
tuted a substantial segment of the 
population of the jurisdiction, that 
some Negroes were qualified to serve 
as jurors, and that none had been 
called for jury service over an ex- 
tended period of time, was held to 
constitute prima facie proof of the 
systematic exclusion of Negroes 
from jury service. This holding, 
sometimes called the ‘rule of exclu- 
sion,” has been applied in other cases, 
and it is available in supplying proof 
of discrimination against any de- 
lineated class.” Hernandez v Texas, 
supra 347 US at 480, 98 L ed at 
871. 

It is also at least as strong as 
the case in Patton v Mississippi, su- 
pra, where the Court stated: 

“It is to be noted at once that 
the indisputable fact that no Negro 
had served on a criminal court grand 
or petit jury for a period of thirty 
years created a very strong showing 
that during that period Negroes 
were systematically excluded from 
jury service because of race. When 
such a showing was made, it became 
a duty of the State to try to justify 

such an exclusion as having been 
brought about for some reason other 

than racial discrimination.” 3832 US 

at 460, 92 1. ed at 79, 1 ALR24d 

1286. :   
  

    

 



    

      
    

780 

It is clear that, unless the State 
here can “justify such an exclusion 
as having been brought about for 

*[380 US 233] 
some reason *other than racial dis- 
crimination,” Patton v Mississippi, 
supra, 332 US at 466, 92 L ed at 79, 
1 ALR2d 1286, this conviction “can- 
not stand.” Id., at 469, 92 L ed at 
80, 1 ALR2d 1286. Norris v Ala- 
bama, supra, 294 US at 596-598, 79 
L ed at 1080, 1081; Arnold v North 
Carolina, supra, 376 US at 774, 12 
L ed 2d at 78. “Long continued 
omission of Negroes from jury serv- 
ice establishes a prima facie case 
of systematic discrimination. The 
burden of proof is then upon the 
State to refute it.” Harper v Mis- 
sissippi, 251 Miss 699, 707, 171 So 2d 
129, 132-133.1 

Alabama here does not deny that 
Negroes as a race are excluded from 
serving on juries in Talladega 
County. The State seeks to justify 
this admitted exclusion of Negroes 
from jury service by contending that 
the fact that no Negro has ever 
served on a petit jury in Talladega 
County has resulted from use of the 
jury-striking system, which is a 
form of peremptory challenge. 
While recognizing that no Negro has 
ever served on any petit jury in Tal- 
ladega County, that the method of 
venire selection was inadequate, 
that the prosecutor in this case used 
the peremptory challenge system to 
exclude all Negroes as a class, and 
that the systematic misuse by the 
State of a peremptory challenge sys- 
tem to exclude all Negroes from all 
juries is prohibited by the Four- 
teenth Amendment, the Court af- 
firms petitioner’s conviction on the 
ground that petitioner has “failed to 
carry” his burden of proof. The 
Court holds this because it believes 
the record is silent as to whether 
  

1. See also State v Lowry, 263 NC 536, 
139 SE2d 870. 

U. S. SUPREME COURT REPORTS 13 Led 2d 

the State participated in this total 
exclusion of all Negroes in previous 
cases; it would require petitioner 
specifically to negative the possibil- 
ity that total exclusion of Negroes 
from jury service in all other cases 
was produced solely by the action of 
defense attorneys. 

I cannot agree that the record is 
silent as to the State’s involvement 
in the total exclusion of Negroes 
from jury service in Talladega Coun- 

*[380 US 234] 

ty. The Alabama Supreme *Court 
found that “Negroes are commonly 
on trial venires but are always 
struck by attorneys in selecting the 
trial jury.” 275 Ala 508, 515, 156 
So 2d 368, 375. In response to a 
question concerning the operation of 
the jury-striking system, the Circuit 
Solicitor, the state prosecuting at- 
torney, stated: 

“Sometimes, it depends on who is 
involved in a case. We have been 
very fortunate in this county, we 
have not had any white against black 
or black against white. If we have 
—where we have a situation arising 
in a case such as that, in the cases 
that we have had—we have had no 
capital felonies, but, we strike a jury 
different from what if it was two 
white men involved or two colored 
men.” 

This statement, it seems to me, 
plainly indicates that, at the very 
least, the State—‘“we”—partici- 
pates, in Talladega County, in em- 
ploying the striking or peremptory 
challenge system to exclude Negroes 
from jury service in cases where 
white men are involved. 

Also, the state prosecuting attor- 
ney testified as follows: 

“Many times 1 have asked, Mr. 
Love for instance, I would say there 
are so many colored men on this jury 
venire, do you want to use any of 
them, and he would say, my client   

 



  

SWAIN v ALABAMA 781 
380 US 202, 18 L ed 2d 759, 85 S Ct 824 

doesn’t want them, or we don’t see 
fit to use them. And then if I didn’t 
see fit to use them, then we would 
take them off. We would strike 
them first, or take them off. 

“If I am trying a case for the State, 
I will ask them what is their wish, 
do they want them [Negro jurors], 
and they will as a rule discuss it 
with their client, and then they will 
say, we don’t want them. If we are 
not going to want them, if he doesn’t 
want them, and if I don’t want them, 
what we do then is just take them 
off. Strike them first.” 

*[380 US 235] 

*These quotations show either 
that the State “many times” aban- 
dons even the facade of the jury- 
striking system and agrees with the 
defense to remove all Negroes as a 
class from the jury lists even before 
the striking begins, or that pursuant 
to an agreement the State directly 
participates in the striking system 
to remove Negroes from the venire. 
Irdeed the Court recognizes that 
“[a]pparently in some cases, the 
prosecution agreed with the defense 
to remove Negroes.” Ante, at 775. 
The court, however, goes on to state 

that “[t]he record makes clear 

that this was not a general practice 

oiaan Ante, at Ti5, n. 31. With 
all deference, it seems clear to me 

that the record statement quoted by 
the Court to support this conclusion, 

cuts against rather than in favor 

of the Court’s statement and infer- 

ence that the general practice was 

not to exclude Negroes by agreement 

between the prosecution and defense 

or by the State acting alone. The 
prosecutor, in the statement quoted 

by the Court, denied that he had stat- 
ed that Negro defendants “generally 

do not want” Negroes to serve on 
juries and stated that there had only 

“been occasion here where that has 

happened.” Ante, at 775, n. 31. 

Since it is undisputed that no Negro 
has ever served on a jury in the his- 

tory of the county, and a great num- 
ber of cases have involved Negroes, 

the only logical conclusion from the 
record statement that only on occa- 
sion have Negro defendants desired 

to exclude Negroes from jury serv- 
ice, is that in a good many cases 
Negroes have been excluded by the 
state prosecutor, either acting alone 
or as a participant in arranging 

agreements with the defense.? 
  

2. I believe that the record shows that 
agreement between the State and the de- 
fense to exclude Negroes has occurred 
“many times.” The Court itself admits 
that at least “in some cases, the prosecu- 
tion agreed with the defense to remove 

Negroes.” Ante, at 775. It concludes, 
however, that this is not sufficient on the 

ground that “[t]here is no evidence, how- 
ever, of what the prosecution did or did not 
do on its own account in any cases other 

than the one at bar.” Ibid. (Emphasis 
added.) This Court, however, has never 

held in any case involving racial discrimi- 
nation under the Fourteenth Amendment 
that such discrimination is unconstitu- 
tional only if it is brought about by the 
State acting alone. The test which has 
been applied is whether the State “to some 
significant extent has been . . 
involved.” Burton v Wilmington Parking 
Authority, 365 US 715, 722, 6 L ed 2d 45, 
50, 81 S Ct 856. See Peterson v Green- 

ville, 373 US 244, 10 L ed 2d 323, 83 S Ct 
1119; Lombard v Louisiana, 373 US 
267, 10 L ed 2d 338, 83 S Ct 1122. 
“The vital requirement is State responsi- 
bility—that somewhere, somehow, to some 

extent, there be an infusion of conduct by 
officials, panoplied with State power, into 

any scheme by which colored citizens are 
denied . . . rights merely because they 
are colored.” Terry v Adams, 345 US 461, 

473,97 L ed 1152, 1162, 73 S Ct 809 (sepa- 
rate opinion of Mr. Justice Frankfurter). 

The State’s agreement with the defense, 
which the record establishes, to remove 
Negroes from jury venires, under the 
Court’s settled decisions meets the “state 
action” requirement of the Fourteenth 
Amendment. Under the principles of 
Strauder and the cases following, it consti- 
tutes “action of a State . . . through 
its . . . administrative officers” exclud- 
ing persons “solely because of their race 
or color” from serving on juries. Carter 

  

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782 

*[380 US 236] 

*Moreover, the record shows that 
in one case, the only one apparently 
in the history of the county where 
the State offered Negroes an oppor- 
tunity to sit on a petit jury, the state 
prosecutor offered a Negro accused 
an all-Negro jury where the case 
involved an alleged crime against 
another Negro. The offer was re- 
fused but it tends to confirm the 
conclusion that the State joins in 
systematically excluding Negroes 
from jury service because it objects 
to any mixing of Negro and white 
jurors and to a Negro sitting in a 
case in which a white man is in any 

way involved. 

Furthermore, the State conceded- 
ly is responsible for the selection of 
the jury venire. As the Court rec- 
ognizes, ante, at 764, the evidence 
showed that while Negroes represent 
26% of the population generally 
available to be called for jury service 
in Talladega County, Negroes con- 
stituted a lesser proportion, gener- 
ally estimated from 10% to 15%, of 
the average venire. The Alabama 

*[380 US 237] 

Supreme *Court noted that under 
state law “the jury commission is 
required to keep a roll containing 
the names of all male citizens living 
in the county who possess the qual- 
ifications prescribed by law and who 
are not exempted by law from serv- 
ing on juries,” 275 Ala, at 514, 156 

So 2d, at 374, and, in fact, this had 
not been done in Talladega County. 
The Alabama Supreme Court con- 
cluded that the method of jury selec- 
tion in Talladega County was ‘not 
exhaustive enough to insure the in- 

clusion of all qualified persons,” 
ibid., and this Court admits it is 

“imperfect,” ante, at 766, and that 

“[v]enires drawn from the jury box 
made up in this manner unquestion- 
  

v Texas, supra 177 US at 447, 44 L ed at 
841. .- 

U. S. SUPREME COURT REPORTS 13 Led 2d 

ably contained a smaller proportion 
of the Negro community than of the 
white community.” Ante, at 766. 
It may be, for the reasons stated by 
the Court, that this “haphazard” 
method of jury selection standing 
alone as an alleged constitutional 
violation does not show unlawful 
jury discrimination. However, this 
method of venire selection cannot be 
viewed in isolation and must be con- 
sidered in connection with the 
peremptory challenge system with 
which it is inextricably bound. 
When this is done it is evident that 
the maintenance by the State of the 
disproportionately low number of 
Negroes on jury panels enables the 
prosecutor, alone or in agreement 
with defense attorneys, to strike all 
Negroes from panels without mate- 
rially impairing the number of per- 
emptory challenges available for 
trial strategy purposes. 

Finally, it is clear that Negroes 
were removed from the venire and 
excluded from service by the pros- 
ecutor’s use of the peremptory chal- 
lenge system in this case and that 
they have never served on the jury 
in any case in the history of the 
county. On these facts, and the in- 
ferences reasonably drawn from 
them, it seems clear that petitioner 
has affirmatively proved a pattern 

of racial discrimination in which 
the State is significantly involved, 

cf. Burton v Wilmington Parking 

Authority, 865 US 715, 722, 6 L ed 

*[380 US 238] 

2d 45, 50, 81 S Ct 856; *Lombard 
v Louisiana, 873 US 267, 10 L ed 

2d 338, 83 S Ct 1122; Peterson v 

Greenville, 373 US 244, 10 L ed 2d 
323, 83 S Ct 1119, or for which the 

State is responsible, cf. Terry v 

Adams, 345 US 461, 473, 97 L ed 

1152, 1162, 73 S Ct 809. As this 

Court held in Strauder, systematic 

exclusion of Negroes from jury serv- 

ice constitutes a brand of inferiority   
 



  

SWAIN v ALABAMA 
380 US 202, 13 L ed 

affixed upon them and state involve- 
ment in affixing such a brand is for- 
bidden by the Fourteenth Amend- 
ment. 

There is, however, a more funda- 
mental defect in the Court’s holding. 
Even if the Court were correct that 
the record is silent as to state in- 
volvement in previous cases in which 
Negroes have been systematically 
excluded from jury service, never- 
theless, it is undisputed that no 
Negro has ever served on any petit 
jury in the history of Talladega 
County. Under Norris, Patton and 
the other cases discussed above, it 
is clear that petitioner by proving 
this made out a prima facie case of 
unlawful jury exclusion. The bur- 
den of proof then shifted to the 
State to prove, if it could, that this 
exclusion was brought about for 
some reason other than racial dis- 
crimination in which the State par- 
ticipated. 

This established principle is well 
illustrated by the recent decision of 
the Mississippi Supreme Court, 
Harper v Mississippi, supra, in 
which that court rejected an argu- 

ment of the State of Mississippi 

strikingly similar to the one ad- 
vanced here by the State of Alabama 

and accepted by this Court. In the 
Mississippi case a Negro defendant 

made out a prima facie case of jury 

exclusion by showing that only a 
token number of Negroes had 

served on juries in the county in 

question. The State attempted to re- 
but this prima facie case by contend- 

ing that the exclusion resulted from 

a perfectly neutral system of em- 

ploying voting registration lists to 

select prospective jurors and the fact 
“ that the number of Negroes selected 

was in proportion to their number on 

the voting registration lists. The 

Mississippi Supreme Court held, 

however, that this did not rebut the 

783 
2d 759, 85 S Ct 824 

prima facie case of jury exclusion 
*[380 US 239] 

unless *the State could additionally 
prove that the disproportionately 
low number of Negroes on the vot- 
ing registration list was caused by 
factors other than state-involved ra- 
cial discrimination. Similarly, in 
the instant case, it seems to me in- 
disputable that Alabama did not 
rebut petitioner’s prima facie case, 
which here is based on a showing 
of total exclusion, by the contention 
that it is the result of a neutral 
peremptory challenge system unless 
the State additionally proved that 
the peremptory challenge system is 
not being used in a way constitut- 
ing state-involved discrimination. 
That it did not do so is uncontested. 

Despite the fact that the petitioner 
therefore has made out what is, un- 
der the settled decisions of this 
Court, a prima facie case of jury 
exclusion which the State has not 
rebutted, the Court today affirms 
petitioner’s conviction because, ac- 
cording to the Court, petitioner has 
“failed to carry” his burden of 
proof. Ante, at 776. The Court con- 
cedes that if this case involved ex- 
clusion of Negroes from jury panels, 
under Norris and Patton a prima 
facie case of unconstitutional jury 
exclusion would be made out. How- 
ever, the Court argues that because 
this case involves exclusion from the 
jury itself and not from the jury 
venire, the burden of proof on a 
defendant should be greater. This 
distinction is novel to say the least. 

The Court’s jury decisions, read 
together, have never distinguished 
between exclusion from the jury 
panel and exclusion from the jury 
itself. Indeed, no such distinction 
can be drawn. The very point of 
all these cases is to prevent that 
deliberate and systematic .discrimi- 
nation against Negroes or any other 
racial group that would prevent   

  

  

   



  

  

      

84 

them, not merely from being placed 
upon the panel, but from serving on 
the jury. The Court quotes from 
Hernandez v Texas, supra, to show 

that the prima facie rule applies 
only where no Negro “had been 
called for jury service,” ante, at 776, 

*[380 US 240] 

but such a view is rejected by *Pat- 
ton’s statement of the rule, for Pat- 
ton held that a prima facie case 
was made out when it was shown 
that “no Negro had served on a crim- 
inal court grand or petit jury for a 
period of thirty years.” 332 US 
at 466, 92 Li ed at 79, 1 ALR2d 1286 
(Emphasis added.) And, Patton is 
confirmed by our very recent cases, 
Eubanks v Louisiana, supra, and 
Arnold v North Carolina, supra, 
which also speak only in terms of 
jury “service” and jury “duty.” 
“The exclusion of otherwise eligible 
persons from jury service solely be- 
cause of their ancestry or national 
origin is discrimination prohibited 
by the Fourteenth Amendment.” 
Hernandez v Texas, supra, 347 US 
at 479, 98 L ed at 870 (Emphasis 
added.) 

The rule of exclusion set forth in 
these cases is a highly pragmatic 
one. It is designed to operate in 
jury cases so that once the defend- 
ant has made a showing of total 
exclusion, the burden of going for- 
ward with the evidence is placed 
upon the State, the party in the bet- 

ter position to develop the facts as 
to how the exclusion came about. 
The defendant is a party to one pro- 
ceeding only, and his access to rele- 
vant evidence is obviously limited. 
The State is a party to all criminal 

cases and has greater access to the 
evidence, if any, which would tend 
to negative the State’s involvement 

in discriminatory jury selection. 
The burden of proof rule developed 

in Norris, Patton, and other cases, 

which until today the Court has 

U. S. SUPREME COURT REPORTS 13 Led 2d 

uniformly applied, is a simple and 
workable one designed to effectuate 
the Constitution’s command. This 
is demonstrated by our past cases, 
as well as state cases.? Because the 
same factors—availability of evi- 
dence, simplicity, and workability— 
exist whether exclusion from the 
jury panel or exclusion from the 
jury itself is involved, to apply the 
prima facie rule of Norris and Pat- 
ton to this case is neither “blind” nor 
“wooden,” but is realistic and sen- 
sible. 

*[380 US 241] 

*I agree with the Court that it is 
a reasonable inference that the State 
is involved in unconstitutional dis- 
crimination where total exclusion of 
Negroes from all venires is estab- 
lished. I believe that it is also a 
reasonable inference that the State 
is involved where, although some 
Negroes are on venires, none has 
ever served on a jury, cf. Eubanks v 
Louisiana, supra; Arnold v North 
Carolina, supra, and the State in the 
case at bar has excluded from jury 
service the Negroes on the venire 
by exercise of its peremptory chal- 
lenges. The Court in Patton and in 
other cases rejected the State’s argu- 
ment, and held that it would be un- 

reasonable to assume where Negroes 
were totally excluded from venires 
that this came about because all 
Negroes were unqualified, unwilling, 
or unable to serve. It would be sim- 
ilarly unreasonable to assume where 

total exclusion from service has been 
established and the prosecutor has 

used peremptory challenges to ex- 

clude all Negroes from the jury in 
the given case that in all previous 

cases Negroes were excluded solely 

by defense attorneys without any 

state involvement. If the instant 

case is really a unique case, as the 
Court implies, surely the burden of 
  

3. See Harper v Mississippi, supra; 
State v Lowry, supra.   

 



  
  

SWAIN v ALABAMA 785 
380 US 202, 13 L ed 2d 759, 85 S Ct 824 

proof should be on the State to show 
it. : 

Finally, the Court’s reasoning on 
this point completely overlooks the 
fact that the total exclusion of Ne- 
groes from juries in Talladega 
County results from the interlocking 
of an inadequate venire selection 
system, for which the State con- 
cededly is responsible, and the use 
of peremptory challenges. All of 
these factors confirm my view that 
no good reason exists to fashion a 
new rule of burden of proof, which 
will make it more difficult to put an 
end to discriminatory selection of 
juries on racial grounds and will 
thereby impair the constitutional 
promise of “Equal Protection of the 
Laws,” made effective by Strauder 
and the cases which follow it. By 
undermining the doctrine of the 

vprima facie case while paying lip 

*[380 US 242] 

service to *Strauder the Court today 
allies itself with those “that keep the 
word of promise to our ear and break 

it to our hope.” 

The Court departs from the long- 
established burden of proof rule in 
this area, and imposes substantial 
additional burdens upon Negro de- 
fendants such as petitioner, because 
of its view of the importance of re- 
taining inviolate the right of the 
State to use peremptory challenges. 
I believe, however, that the prefer- 
ence granted by the Court to the 
State’s use of the peremptory chal- 
lenge is both unwarranted and un- 

necessary. 

To begin with, the peremptory 
challenge has long been recognized 
primarily as a device to protect de- 
fendants. As stated by Blackstone 
in a passage quoted with approval 

by this Court: 

“[I]n criminal cases, or at least in 
capital ones, there is, in favorem 

[13 L ed2d}]—50 

vitae, allowed to the prisoner an 
arbitrary and capricious species of 
challenge to a certain number of 
jurors, without showing any cause 
at all; which is called a peremptory 
challenge: a provision full of that 
tenderness and humanity to prison- 
ers, for which our English laws are 
justly famous. This is grounded 
on two reasons. 

“1. As every one must be sensible, 
what sudden impressions and un- 
accountable prejudices we are apt 
to conceive upon the bare looks and 
gestures of another; and how nec- 
essary it is, that a prisoner (when 
put to defend his life) should have 
a good opinion of his jury, the want 
of which might totally disconcert 
him ; the law wills not that he should 
be tried by any one man against 
whom he has conceived a prejudice, 
even without being able to assign a 
reason for such his dislike. 

“2. Because, upon challenges for 
cause shown, if the reason assigned 
prove insufficient to set aside the 
juror, perhaps the bare questioning 

*[380 US 243] 

his indifference *may sometimes 
provoke a resentment; to prevent all 
ill consequences from which, the 
prisoner is still at liberty, if he 
pleases, peremptorily to set him 
aside.” 4 Bl Comm 353.. Quoted 
with approval in Lewis v United 
States, 146 US 370, 376, 36 L ed 
1011, 1014, 13 S Ct 136; see also 

United States v Marchant, 12 Wheat 

480, 482, 6 L ed 700. 

Indeed in England, as the Court 

points out, ante, at 768, 769, although 

the Crown at early common law had 

an unlimited number of peremptory 

challenges, as early as 1305 that 

right was taken away, and since that 
time in England peremptories may 
be exercised only by the defendant. 

Orfield, Criminal Procedure From 

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786 

Arrest to Appeal 355 (1947). Har- 
ris, Criminal Law 443 (20th ed 
1960).¢ It appears that in modern 
times peremptories are rarely used 
in England, even by defendants. 

Ibid. 

While peremptory challenges are 
commonly used in this country both 
by the prosecution and by the de- 
fense, we have long recognized that 
the right to challenge peremptorily 
is not a fundamental right, constitu- 
tionally guaranteed, even as applied 
to a defendant, much less to the 
State. Stilson v United ‘States, 250 
US 583, 63 L ed 1154, 40 S Ct 28. 
This Court has sanctioned numer- 
ous incursions upon the right to 
challenge peremptorily. Defendants 
may be tried together even though 
the exercise by one of his right to 

*[380 US 244] 

*challenge peremptorily may deprive 

his codefendant of a juror he desires 
onmay require that codefendant to 
use his challenges in a way other 
than he wishes. United States v 
Marchant, supra. A defendant may 

be required to exercise his challenges 

prior to the State, so that some 
may be wasted on jurors whom 

the State would have challenged. 

Pointer v United States, 151 US 
396, 38 L ed 208, 14 S Ct 410. Con- 

gress may regulate the number of 
peremptory challenges available to 
defendants by statute and may re- 

quire codefendants to be treated as 

a single defendant so that each has 
only a small portion of the number 
of peremptories he would have if 

U. S. SUPREME COURT REPORTS 13 Led 2d 

tried separately. Stilson v United 
States, supra. In Stilscn this Court 

stated, “There is nothing in the Con- 

stitution of the United States which 
requires the Congress to grant 
peremptory challenges to defendants 

in criminal cases; trial by an impar- 

tial jury is all that is secured.” 250 

US, at 586, 63 L ed at 1156. The 
Fourteenth Amendment would im- 

pose no greater obligation upon the 

States. Today this Court reverses 
Stilson’s maxim, in effect holding 

that “There is nothing in the Con- 
stitution of the United States which 

requires the State to grant trial by 
an impartial jury so long as the in- 

violability of the peremptory chal- 
lenge is secured.” 

Were it necessary to make an ab- 

solute 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. Marbury v Madison, 

1 Cranch 137, 2 L ed 60, settled 
beyond doubt that when a constitu- 

tional claim is opposed by a non- 
constitutional one, the former must 
prevail. But no such choice is com- 

pelled in this situation. The holding 
called for by this case, is that where, 

as here, a Negro defendant proves 
that Negroes constitute a substan- 
tial segment of the population, that 
Negroes are qualified to serve as 

*[380 US 245] 

jurors, and *that none or only a 
  

4. The Crown’s right to challenge per- 
emptorily was removed in that year by 33 
Edw 1, Stat 4, because the King’s right to 

challenge without showing cause “was 
mischievous to the subject, teading to in- 

finite delayes and danger.” Coke on Little- 
ton 156 (14th ed 1791). Since 33 Edw 1, 
Stat 4, the Crown can only require jurors 
whom it wishes to challenge to stand aside 

from the panel until the defendant has ex- 

ercised all his challenges. Then, if a jury 
has not been selected, the jurors, who have 
been “stood aside” will be used unless the 
Crown can challenge them for cause. 

Orfield, supra, at 356, Harris, supra, at 443, 
III Bacon’s Abridgment 764 (5th ed 1798). 
Even this limited procedure as the Court 
notes, ante, at 769, n 12, however, is rarely 

used today. Orfield, supra, at 355; Harris, 

supra, at 443. 

[13 L ed2d]   
 



  

ET a ET TT EE TE 

SWAIN v ALABAMA 787 
380 US 202, 13 L ed 2d 759, 856 S Ct 824 

token number® has served on juries 
over an extended period of time, a 
prima facie case of the exclusion of 
Negroes from juries is then made 
out; that the State, under our settled 
decisions, is then called upon to show 
that such exclusion has been brought 
about “for some reason other than 
racial discrimination,” Patton Vv 
Mississippi, supra, 332 US at 466, 
92 L ed at 79, 1 ALR2d 1286; and 
that the State wholly fails to meet 
the prima facie case of systematic 
and purposeful racial discrimination 
by showing that it has been accom- 
plished by the use of a peremptory 
challenge system unless the State 
also shows that it is not involved in 
the misuse of such a system to pre- 
vent all Negroes from ever sitting 
on any jury. Such a holding would 
not interfere with the rights of de- 
fendants to use peremptories, nor 
ithe right of the State to use peremp- 
tories as they normally and tradi- 
tionally have been used. 

It would not mean, as the Court’s 
prior decisions, to which I would 
adhere, make clear, that Negroes are 
entitled to proportionate representa- 
tion on a jury. Cassell v Texas, 
supra, 339 US at 286-287, 94 L ed 

at 846, 847 (opinion of Mr. Justice 

Reed). Nor would it mean that 
where systematic exclusion of Ne- 

groes from jury service has not been 
shown, a prosecutor’s motives are 
subject to question or judicial in- 

quiry when he excludes Negroes or 

any other group from sitting on a 
jury in a particular case. Only 
where systematic exclusion has 
been shown, would the State be 

called upon to justify its use of per- 

emptories or to negative the State's 

involvement in discriminatory jury 

selection. 

This holding would mean, how-- 
  

5. See Cassell v Texas, supra; Harper v 

Mississippi, supra. 

ever, that a conviction cannot stand 
where, as here, a Negro defendant, 
by showing widespread systematic 
exclusion, makes out a prima facie 
case of unconstitutional discrimina- 

*[380 US 246] 

tion which the *State does not rebut. 
Drawing the line in this fashion, 
in my view, achieves a practical ac- 
commodation of the constitutional 
right and the operation of the per- 
emptory challenge system without 
doing violence to either. 

I deplore the Court’s departure 
from its holdings in Strauder and 
Norris. By affirming petitioner’s 
conviction on this clear record of 
jury exclusion because of race, the 
Court condones the highly discrim- 
inatory procedures used in Talladega 
County under which Negroes never 
have served on any petit jury in that 
county. By adding to the present 
heavy burden of proof required of 
defendants in these cases, the Court 
creates additional barriers to the 
elimination of practices which have 
operated in many communities 
throughout the Nation to nullify the 
command of the Equal Protection 
Clause in this important area in the 
administration of justice. See 1961 
United States Commission on Civil 
Rights Report, Justice 81-103. 

I would be faithful to the teach- 
ings of this Court in its prior jury 
exclusion cases and the view, repeat- 
edly expressed by this Court, that 
“distinctions between citizens solely 
because of their race, religion, or 
ancestry, are odious to the Four- 
teenth Amendment. I would reaf- 
firm and apply here what this Court 
said in Smith v Texas, supra 311 
US at 130, 85 L ed at 86: 

“It is part of the established tradi- 

tion in the use of juries as instru- 
ments of public justice that the jury 
be a body truly representative of 
the community. For racial discrim- 

  

  

  

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788 U. S. SUPREME COURT REPORTS 

ination to result in the exclusion 
from jury service of otherwise qual- 
ified groups not only violates our 
Constitution and the laws enacted 
under it but is at war with our basic 
concepts of a democratic society and 
a representative government. . . 
The fact that the written words of 
a state’s laws hold out a promise that 

*[380 US 247] 
no such discrimination *will be prac- 
ticed is not enough. The Fourteenth 
Amendment requires that equal pro- 
tection to all must be given—not 
merely promised.” 

13 Led 2d 

Applying these principles, I would 
reverse. This, of course, would “not 
mean that a guilty defendant must 
go free.” Patton v Mississippi, su- 
pra, 332 US at 469, 92 L ed at 80, 
1 ALR2d 1286; see Hill v Texas, 
supra, 316 US at 406, 86 L ed at 
1563. For, as the Court pointed 
out in Patton v Mississippi, supra, 
332 US at 469, 92 Led at 80,1 ALR 
2d 1286, the State, if it so desired, 
could retry petitioner by a jury 
“selected as the Constitution com- 
mands.” 

   



      
  

RIES 

      

court, whether First Pep is 
pstitution of the $469,425 63 

, interest on those Sums, 
proceeds of the sale of the 

Id that recovery of the pay. 
Penn made is necessary tg 
it enrichment, as the FDIC 
bp admitted. See Restatemeny 
n § 1 comment a, § 15 
ard v. Pierson, 418 F.24 785 
1969) (repayment n 
rescission); Sarber v. Hap 

p3, 95 (Okla.1962) (action for 
and received” appropriate 

e has the money of another 
equity and good conscience 

0 retain”). The bankruptey 
hctor that debt of the bank tg 

0 its calculation of the com. 
of the parties. 

            

  

                  

  

  

  

                

  

  

  

  

  

  

  

          

    

          

ect of restitution is to return 
the position that existed be- 

saction occurred. See EH. 

¢. v. Schneider, 525 F.2d 20, 

975). This usually means 

est on money that is to be 

e legal rate, from the date of 
l.; Restatement of Restitu- 

157 comment a (awarding 
pf benefit only way to fully 

r party to initial position). 

statute provides that when 

to be recovered are certain 

om which the right to recov- 

hble, the party is entitled to 

Stat. Ann. tit. 23, § 6 (West 

pal rate is six percent. Jd. 

(West 1985 Supp.). First 

tled to restitution from the 

e cash consideration and the 

e interest at the legal rate 

should be added to those 

nts from the time of their 

ote, Prejudgment Interest 

34 Okla.L.Rev. 643, 645-47 
se 12 U.S.C. § 194 requires 

pution, meaning that the 

should be paid by the re 

5 proportionate to the value 

at the time of insolvency, 

ayments would stop at July 

  

    

  

                            

  

  

  

      

  

          

  

  

  

        

  

  

  

              

  

    

  

  

  

                

  

    

  

    

  

      

  

  

   

          

5, 1982, if we find First Penn to be an 

unsecured creditor. See Kershaw v. Jen- 

kins, 71 F.2d 647, 650 (10th Cir.1934). 

First Penn raises several arguments in 

gavor of dollar-for-dollar recovery from the 

escrowed fund, i.e., secured status, rather 

than the issuance of a receiver's certificate 

for payment. We do not find that the 

money First Penn surrendered to the bank 

in consideration of the anticipated purchase 

of the real estate was a special deposit or a 

deposit for a specific purpose against which 

there can be no set-off. See Glenn Justice 

Mortgage Co. v. First National Bank, 592 

F.2d 567, 569-70 (10th Cir.1979). First 
Penn placed no restrictions on Penn 

Square’s use of the money. See Northern 

Sugar Corp. v. Thompson, 13 F.2d 829, 

832 (8th Cir.1926) (depositor retains title 

only if agreement makes clear that money 

is for specific purpose). First Penn also 

cannot impress a trust on the FDIC with 

regard to the money because it cannot 

trace its payments into a specific fund in 

the receiver's possession. See Hibernia 

National Bank v. Federal Deposit Insur- 

ance Corp., 733 F.2d 1403, 1407 (10th Cir. 

1984); Kershaw, 71 F.2d at 649. 

Nevertheless, under Okla.Stat.Ann. tit. 

42 § 30 (West 1979), a purchaser of real 

property receives a lien upon the land itself 

in at least some circumstances when the 

transaction is unenforceable. 

“One who pays to the owner any part 

of the price of real property, under an 

agreement for the sale thereof, has a 

special lien upon the property, indepen- 

dent of possession, for such part of the 

amount paid as he may be entitled to 

recover back in case of a failure of con- 

sideration.” 

See also Palmer v. Crews Lumber Co., 

Inc, 510 P.2d 269, 273 (Okla.1973). Of 
course, we do not have an enforceable 

“agreement” for the sale of real property 

here. But in at least one other Oklahoma 
case a lien has been extended on equitable 

grounds beyond the express terms of the 

statute: 

“[TThe lien is not based solely upon the 
contract of purchase, for it has been al- 

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BOWDEN v. KEMP 
Cite as 793 F.2d 273 (11th Cir. 1986) 

0 . he Atl [7 IA 
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273 

lowed where the contract was wholly 

unenforceable on account of the statute 

of frauds. Clough v. Clough, 1842, 3 

B.Mon. 64, 42 Ky. 64. The real basis of 

the vendee’s claim is essentially quasi 

contractual, and the lien is merely a re- 

medial device to guarantee, so far as 

possible, a restoration of the status quo.” 

Schuman v. Board of Commissioners, 184 

Okla. 339, 87 P.2d 151, 154 (1939). 

We believe the Oklahoma courts would 

treat First Penn as a secured creditor hav- 

ing a lien upon the real property that was 

the subject of the aborted sale in the cir- 
cumstances of this case. The lien would 

transfer to the fund resulting from the sale 

agreed to by the parties to this controver- 

sy. We do not simply award the money to 

First Penn, however, because First Penn’s 

claim may be subject to set-off or perhaps 

other defenses. Whether it will prevail 

over the FDIC depends on the outcome of 

the litigation in bankruptcy court involving 

the FDIC's other claims and defenses, and 

application of the rules set forth in 11 

U.S.C. § 506(a). 

Accordingly, the district court is AF- 

FIRMED in part and REVERSED in part, 

and the case is REMANDED for further 

proceedings consistent herewith. 

W 
° £ key NUMBER SYSTEM 

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Jerome BOWDEN, Petitioner-Appellant, 

V. 

Ralph KEMP, Warden, Georgia 

Diagnostic and Classification 

Center, Respondent-Appellee. 

No. 86-8456. 

United States Court of Appeals, 
Eleventh Circuit. 

June 17, 1986. 

State prisoner sought certificate of 

probable cause to appeal from decision of 

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274 

the United States District Court for the 

District of Georgia, No. 86-106-COL, J. 

Robert Elliott, J., which dismissed petition 

for writ of habeas corpus. The Court of 

Appeals held that the application was an 

abuse of the writ. 

Application denied. 

Habeas Corpus &=7 

Petitioner's failure to raise issue of ra- 

cially discriminatory use of peremptory 

challenges until his third application for ha- 

beas corpus was not excused on basis that 

constitutional claim did not exist at time of 

trial and first federal habeas proceeding 
where the claim could have been presented 

at second proceeding because Supreme [ 

Court case on that issue was pending and 
petitioner made no showing that he could 
not have raised issue at trial and obtained al 

continuance to prove his claim of discrimina| 

tion, and hence defendant abused the writ. | 

Bruce S. Harvey, Atlanta, Ga., C. Nelson 

Jarnagin, 

William B. Hill, Jr., Sr. Asst. Atty. Gen., 

Susan V. Boleyn, Asst. Atty. Gen., Atlanta, 

Ga., for respondent-appellee. 

Appeal from the United States District 

Court for the Middle District of Georgia. 

Before TJOFLAT, HILL and FAY, Cir- 

cuit Judges. 

PER CURIAM: 

The petitioner, Jerome Bowden, is a 

Georgia prisoner, having been convicted of 

murder and sentenced to death. His execu- 

tion is scheduled for 7:00 p.m. today.! He 

seeks a certificate of probable cause to 

appeal from the district court’s decision, 
handed down yesterday, denying his appli- 

cation for a writ of habeas corpus and a 

stay of his execution. Petitioner presented 

1. The court has been advised that the Georgia 
Board of Pardons and Paroles today stayed peti- 
tioner’s execution for 90 days or until the Board 
announces its decision on petitioner's applica- 
tion for commutation of his death sentence, 
“whichever is earlier.” This action has no bear- 
ing on our decision herein. 

\_ relief 

793 FEDERAL REPORTER, 2d SERIES 

one claim to the district court: that the 
prosecutor, during the selection of petition- 
er’s jury, denied him rights guaranteed by 
the sixth, eighth, and fourteenth amend- 
ments by using his peremptory challenges 
to strike every black person on the pro- 
posed panel and the sole black person ten- 
dered as an alternate juror, thus leaving an 
all-white jury to try petitioner, who is 
black. 

The district court dismissed this claim 
and hence petitioner's petition, on the 
ground that petitioner had abused the writ. 
See Rule 9(b), Successive Petitions, Rules 
Governing Section 2254 Cases, 28 U.S.C. 
fol. § 2254 (1982%" The district court _held™ 

rthat it_petitioner * ‘could Fave raised his con- 

| Tention that there was allegedly an uncon- 
stitutionally discriminatory use of peremp- 
tory strikes on the part of the prosecutor in 
this case at the time Petitioner filed the | 

| 

  
| 

Cald 
first application Tor federal habeas corpus, rn oc 

‘ember of 1982. ” (The court 
Turther concluded that, assuming arguen- 
do that petitioner’s failure to raise the in- 
at can TE Tirst Tederal habeas pro- 
ceeding was excusable, petitioner could not 

be excused Tor Tailing to raise 3 in the 
second habeas corpus petition he ‘presented 
to the district court on October 11, 1985, 
because the case he cites in support of his 

claim, Batson v. Kentucky, — U.S. —, 
106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), was 
then pending before the Supreme Court. 
We affirmed the district court’s dismissal 

of both of petitioner's previous petitions. 
See Bowden v. Francis, 733 F.2d 740 (11th 
Cir.), vacated and remanded, — U.S. 
——, 105 S.Ct. 1834, 85 L.Ed.2d 135 (1984), 
affd on remand sub mom. Bowden wv. 
Kemp, 767 F.2d 761 (11th Cir.1985), and 

Bowden v. Kemp, 774 F.2d 1494 (11th Cir. 
1089) (per curiam). 

“We agree with the district court that the ) 
( petitioner’s present application for habeas 

2. Petitioner presented the instant claim to the 
Georgia courts for the first time five days ago, 
in his habeas petition to the Superior Court of 
Butts County. That court refused to consider 
the claim on its merits, concluding that the 
petition was successive. The Georgia Supreme 
Court granted petitioner leave to appeal and 
affirmed the Superior Court's denial of relief 
because the petition was successive. 

| 

wluit ght 
24 4 
Mal) - 

(98 5 

  

   



HAND v. BOWEN 275 
Cite as 793 F.2d 275 (11th Cir. 1986) 

ict court: that the relief constitutes an abuse of the writ. We niremen, petitioner, if he thought the proge- 

selection of petition- i ote that, at tal, peatoner did not object cutor was guilty of racial discrimination, 

ghts guaranteed by a to the manner mm which the prosecutor exer- §hould have objected and, if he needed time 

fourteenth amend- E | cised the State’s peremptory challenges. and resources to prove his claim of discrim- 

emptory challenges = Nor did petitioner question the prosecutor’s ination, should have moved the court for a 

person on the pro- iy Txercise of such challenges on direct appeal continuance and the necessary resources.’ 

le black person ten- = (or)in any of the collateral attack proceed- Other similarly situated defendants.haxe— 

ror, thus leaving an E | These DrOUgNt Im state court until the one made such objection, see, e.g., Batson and 1) 

petitioner, who is - he instituted five days ago in the Superior Willis 0. Zant, 120 F.2d 1212 (11th Cir.—S@ WA 

. Court of Butts County. 1983), and petitioner has made no showing 

ismissed this claim, 3 Petitioner contends that he cannot be that-he could not have done likewise./Nor 

s petition, on the viewed as having abused the writ because fas petitioner adequately explained why he 

ad abused the writ. 4 he had lacked the resources to raise his [could not have raised his claim in any of his 

ive Petitions, Rules ] cam at trial or, until the Supreme Court { previous state and federal collateral at- | 

54 Cases, 28 U.S.C. decided Batson, in any of his previous col- | tacks—especially the one he commenced | 

e district court held ] lateral attacks on his conviction. He ob- | after the Supreme Court granted certiorari | 

ave raised his con- 3 serves that Swain v._Alabamg, 380 U.S. | in Batson—prior to his most recent effort.! 

allegedly an uncon- 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), For the foregoing reasons, petitioner's 

tory use of peremp- which Batson partially overruled, required applications for a certificate of probable 

of the prosecutor in that he show that the prosecutor cause and a stay of his execution are DE- 

Petitioner filed the = case alter case, whatever the circum- NIED. 

deral habeas corpus stances, whatever the crime and whoever 

1982.7 The court the defendant or the victim may be, is 

, assuming arguen- responsible for the removal of Negroes 

lure to raise the in- who have been selected as qualified ju- 

federal habeas pro- rors ... and who have survived chal- 

| petitioner could not lenges for cause, with the result that no 

p80 vaispel 1 he Negroes ever serve on petit juries. 

hetition he presented Id. at 223, 85 S.Ct. at 837. Petitioner r 

h October 2 ie resents that, as an indigent ii. : 

es In at ny Tete =TONaE OF personnel to AThaSS Otis R. BOWEN, Secretary of Health 

pon 60 { 1986) ae | such prool. Now that Batson, which pre- and Human Services, 

or Court? scribes a lesser burden of proof, has been Defendant-Appellee. 

ot court's dismissal decided, he should be given an opportunity No. 84-8630. 

5 previous petitions. VEE | to present his claim. We are not per- United States Court of Appeals, 

733 F.2d 740 (11th § VOR suaded by petitioner 5 argument. : Eleventh Circuit. 

emanded, — US, 1a Petitioner's claim did not arise until the July 9, 1986. 

L.Ed.2d 185 (1984), {/ prosecutor actually exercised his perempto- 

b nom. Bowden v. ry challenges; up to that point, no purpose- 

(11th Cir.1985), and ful discrimination could have occurred. On appeal of decision of the United 

F.2d 1494 (11th Cir. Once the prosecutor struck the black ve- States District Courtfor the Northern Dis- 

  

  

© ¢ KEY NUMBER SYSTEM 

  Autry R. HAND, Plaintiff-Appellant, 

Vv. 

3. Had petitioner objected and the court indi- [ L.Ed.2d 1322 (1983). In addition, on December 

istrict court that the 2 cated that it would grant him a brief continu- | 4, 1984, the Court of Appeals for ‘the second 

plication for habeas : ance to gather the proof for his claim, the prose- Circuit declined to apply (he Swain standard to 

cutor may have reconsidered his decision to | a sixth amendment claim. McCray v. Abrams, 

: : trike all of the black veniremen from the ten- 750 F.2d 1113 (2d Cir.1984). The S 
tant claim to the S £ 4 a ] . ir. . e Supreme 

jie Inher five days ago, : : dered jury panel, especially if he had exercised | Court granted certiorari in Batson on April 22, 

o the Superior Court of his peremptory challenges out of the hearing of J 1985, to resolve similar issues. Batson v. Ken- 

urt refused to consider E | the jury. tucky, — U.S. —, 105 S.Ct. 2111, 85 L.Ed.2d 

s, concluding that the oo «x \ 4. As long ago as May 31, 1983, five ST ooires of 476 (1985). Despite these events, petitioner 

The Georgia Supreme = J the Supreme Court, writing in the context of the filed his second federal habeas petition in Octo- 

r leave to appeal and denial of certiorari, expressed some doubt as to ber 1985 and failed to raise a Swain or Batson 

Court's denial of relief the continuing vitality of Swain. See McCray v. claim. 

successive. New York, 461 US. 961, 103 S.Ct. 2438 77 

§ 
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1478 794 FEDERAL REPORTER, 2d SERIES 

its agents ... to restrain or coerce ... 
employees in the exercise of [their right to 
organize].” Based on the facts agreed to 
by the parties, the Board determined that 
the Union's unposted call-back policy tend- 

ed to have such a coercive effect. 

The Union argues that this conclusion 
was improper in light of the stipulation 
that there was no evidence of Union ani- 
mus against the charging parties. We dis- 
agree. “[N]Jo specific intent to discriminate 
on the basis of union membership need be 
shown” in order to prevail on a claim under 

29 U.S.C. § 158(b)1XA). See NLRB v. In- 
ternational Association of Bridge, Struc- 
tural and Ornamental Iron Workers, Lo- 

cal 433, 600 F.2d 770, 777 (9th Cir.1979), 
cert. denied, 445 U.S. 915, 100 S.Ct. 1275, 

63 L.Ed.2d 599 (1980). A union violates 

that provision if it wields its power invid- 

iously or arbitrarily, for such conduct 
“gives notice that its favor must be cur- 

ried, thereby encouraging membership and 

unquestioned adherence to its policies.” 
Id.; accord NLRB v. International Broth- 
erhood of Electrical Workers, Local 11, 

772 F.2d 571, 576 (9th Cir.1985); Carpen- 
ters Union Local No. 25 v. NLRB, 769 

F.2d 574, 580 (9th Cir.1985). 

This court has indicated that when the 
hiring hall deviates from written rules 
without adequate justification, even pursu- 
ant to longstanding exceptions routinely 
applied, the Board may rationally conclude 

that the union is wielding its power arbi- 
trarily. See NLRB v. International 

Brotherhood of Electrical Workers, Local 

11, 772 F.2d at 576.! The Union responds 
that the call-back policy is not a deviation 

from the written rules, but rather is a 

supplement to them. The distinction is 
subtle and not patently frivolous. Al 
though the ALJ accepted the distinction, 

the Board rejected it. We defer to the 

Board's interpretation of the Union's writ- 

1. The Sixth Circuit took a somewhat different 
approach in NLRB v. Construction and General 
Laborers’ Union Local No. 534, 778 F.2d 284 (6th 
Cir.1985). Noting the importance of the com- 
mon law of the shop in interpreting labor agree- 
ments, the court approved a 30-year-old unwrit- 
ten exception to hiring hall rules in the case of 
union stewards. Two factors distinguish that 

ten rules, because we cannot say it is yp. 
reasonable and inconsistent with the 
NLRA'’s policies. See id. at 575. a 

Like the Board, we are also unpersuadeg 
by the Union’s stated justification for the 
call-back policy—namely that physical pres. 
ence in the hiring hall is a reasonable meth. 
od of separating interested from uninter 

ested job applicants. Continuing interest is 
adequately demonstrated by the applicants’ 
re-registering on the first of each month, 
Moreover, as the Board noted, physical 
presence would not be a helpful criterion 
whenever there were more applicants 
present in the hiring hall at a given time 
than there were available jobs. See E.R. at 
5. In view of these considerations, the 

Board was warranted in following its stat- 
ed position in United Association of 
Plumbers and Pipefitters, Local 619 
(Bechtel Power Corp.) 268 N.L.R.B. 766, 
767 (1984), that physical presence in the 
hiring hall is an arbitrary basis for job 
referrals. 

ENFORCEMENT GRANTED. 

Ww 
() Exe NUMBER SYSTEM 

Y 

Son H. FLEMING, Petitioner-Appellant, 

Vv. 

Ralph KEMP, Warden, Georgia 

Diagnostic and Classification 

Center, Respondent-Appellee. 

No. 86-8476. 

United States Court of Appeals, 
Eleventh Circuit. 

June 27, 1986. 

Defendant was convicted of murder 

and the death penalty was imposed in the 

case from this one: (1) the exception involved 

union stewards, who arguably occupy a special 
position in our scheme of collective bargaining; 
(2) the 30-year-old exception predated the col- 
lective bargaining agreement containing the hir- 
ing hall rules. Id at 290. Neither of those 
conditions are present here.   

 



| phy % 38 un- 
1} with the 
5, 

i npersuaded 
pi thon for the 

physical pres. 
;unnnble meth- 
from uninter- 
jing Interest is 
ihe applicants’ 
| pach month, 
ated, physical 
|ptul criterion 
jv applicants 
i» glven time 
» See ER. at 
 Jerations, the 

MW ng its stat 

gation of 
L Local 619 
N.1.R.B. 766, 
osence in the 
pass for job 

eh 

      

FLEMING v. KEMP 1479 
Cite as 794 F.2d 1478 (11th Cir. 1986) 

Superior Court, Lanier County, H.W. Lott, 

J., and he appealed. The Supreme Court, 

240 Ga. 142, 240 S.E.2d 87, affirmed as to 

conviction, but vacated as to sentence, and 

ordered new trial on punishment. On re- 

mand, defendant was again sentenced to 

death in the Superior Court, Cook County, 

and he appealed. The Supreme Court, 243 

Ga. 120, 252 S.E.2d 609, affirmed. Defend- 

ant who had been scheduled for execution, 

filed second federal habeas corpus applica- 

tion. The United States District Court for 

the Middle District of Georgia, No. 86- 

0050-VAL, Wilbur D. Owens, Jr., J., denied 

the petition and application for stay of exe- 

cution, and defendant appealed. The Court 

of Appeals held that: (1) defendant ade- 

quately raised claim of improper juror ex- 

clusion based on race in his first federal 

habeas petition, so as to entitle him to raise 

it in successive proceeding if he demon- 

strated that ends of justice would be 

served by reconsideration of the merits; (2) 

defendant's failure to reargue that ground 

for relief on appeal of first petition did not 

constitute intentional abandonment of the 

claim, so as to preclude raising it in subse- 

quent federal habeas petition; and (3) de- 

fendant made out a colorable claim, pursu- 

ant to United States Supreme Court deci- 

sion, and, thus, his execution would be 

stayed pending Supreme Court's decisions 

on whether its relevant decision would ap- 

ply retroactively in postconviction proceed- 

ings. 

Execution stayed pending further or- 

der. 

Clark, Circuit Judge, filed specially 

concurring opinion. 

Fay, Circuit Judge, filed dissenting 

opinion. 

1. Habeas Corpus 113(8) 

Court of Appeals will grant stay of 

execution on sentenced petitioner’s habeas 

petition only if the Court finds that issue 

presented in petition for habeas corpus is 

properly before the Court, and the issue 

presents substantial grounds upon which 

relief might be granted and cannot be res- 

ponsibly reviewed by the Court prior to 

scheduled time for execution. 

2. Habeas Corpus &=7 

To determine whether any ground for 

relief was properly before the Court of 

Appeals on habeas corpus petitioner’s sec- 

ond federal petition, the Court had to con- 

sider whether petitioner had abused the 

writ in bringing successive petition. Rules 

Governing § 2254 Cases, Rule 9(b), 28 U.S. 

C.A. foll. § 2254. 

3. Habeas Corpus &7 

Claim of improper juror exclusion 

based on race by prosecutor’s alleged exer- 

cise of his peremptory strikes at guilt-inno- 

cence trial of black petitioner so as to inten- 

tionally exclude otherwise qualified blacks 

from jury solely on basis of their race was 

adequately raised in petitioner’s initial fed- 

eral habeas petition by petitioner's claim 

that he was indicted, convicted, and sen- 

tenced by grand and traverse juries from 

which blacks and young persons were Sys- 

tematically excluded in violation of the 

United States Constitution, so as to permit 

review of the issue in subsequent federal 

habeas proceeding if petitioner demonstrat- 

ed the decision was not on the merits or the 

ends of justice would be served by recon- 

sideration of the merits. Rules Governing 

§ 2254 Cases, Rule 9(b), 28 U.S.C.A. foll. 

§ 2254. 

4. Habeas Corpus &7 

Federal habeas petitioner's failure to 

reargue claim of improper juror exclusion 

based on race on appeal of initial habeas 

petition did not demonstrate intentional 

abandonment of claim sufficient to pre- 

clude review of the claim in subsequent 

habeas petition; the claim was presented in 

district court and the district court con- 

sidered and rejected petitioner's argu- 

ments, and failure to appeal that issue con- 

ceded defeat on the merits but did not 

    
  

    

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1480 

remove the claim from the petition. Rules 
Governing § 2254 Cases, Rule 9(b), 28 U.S. 

C.A. foll. § 2254. 

5. Jury €=33(5.1) 

Fact that not all black jurors were 
excluded from black defendant’s guilt-inno- 
cence jury did not compel conclusion that 

constitutional guarantees were not 

abridged by prosecutor’s alleged exercise 

of peremptory strikes at guilt-innocence tri- 

al so as to intentionally exclude otherwise 

qualified blacks from jury solely on the 

basis of their race. U.S.C.A. Const. 
Amends. 6, 14. 

6. Habeas Corpus ¢=45.2(3), 113(8) 

Black federal habeas petitioner's claim 

that prosecutor exercised his peremptory 

strikes at guilt-innocence trial so as to in- 

tentionally exclude otherwise qualified 

blacks from jury solely on basis of their 

race made out a colorable claim that peti- 

tioner’s constitutional rights had been in- 

fringed, pursuant to Supreme Court deci- 

sion, where prosecutor had used eight of 

ten peremptory challenges to strike blacks 

from jury and venire, after challenges for 
cause, consisted of only ten blacks and 45 

whites, and, thus, petitioner's scheduled ex- 

ecution would be stayed pending Supreme 
Court’s decision on whether relevant Su- 

preme Court decision would apply retroac- 
tively in postconviction proceedings. U.S. 

C.A. Const. Amends. 6, 14. 

Kenneth Shapiro, Powell, Goldstein, 

Frazer & Murphy, Atlanta, Ga., for peti- 
tioner-appellant. 

William B. Hill, Jr., Asst. Atty. Gen., 
State of Ga., Mary Beth Westmoreland, 

Asst. Atty. Gen., Atlanta, Ga., for respon- 
dent-appellee. 

Appeal from the United States District 

Court for the Middle District of Georgia. 

Before FAY, JOHNSON and CLARK, 
Circuit Judges. 

794 FEDERAL REPORTER, 2d SERIES 

PER CURIAM: 

Son H. Fleming, who is scheduled to be 
executed on June 27, 1986, petitions this 
Court for a certificate of probable cause to 
appeal (CPC), for permission to present his 

application in forma pauperis (IFP), for a 

stay of execution and for relief on his sec- 

ond habeas corpus application. We deter 
mine that Fleming's habeas petition 

presents issues that “are debatable among 
jurists of reason,” Barefoot v. Estelle, 463 
U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 
77 L.Ed.2d 1090 (1983), and that are taken 

in good faith, 28 U.S.C.A. § 1915(a); thus, 

we GRANT petitioner's request for certifi- 

cate of probable cause to appeal and mo- 

tion to proceed in forma pauperis. We 

conclude further that petitioner presents at 

least one substantial ground properly be- 

fore this Court upon which he may be 
entitled to relief. Without deciding the 

merits of the habeas petition, we therefore 

STAY Fleming’s execution pending further 
order of this Court. 

I 

Son H. Fleming was convicted of murder- 

ing the police chief of a small South Geor- 

gia town and sentenced to death in 1977. 
On direct appeal, the Georgia Supreme 

Court reversed the death sentence because 

the trial judge erred in instructing the jury 

in the sentencing phase. In a second sen- 

tencing trial a jury again recommended the 

death penalty and the court sentenced peti- 

tioner accordingly. 

After petitioner failed to win further re- 

lief on direct appeal and in state post-con- 

viction proceedings, he filed his first feder- 
al habeas application with the United 

States district court for the Middle District 

of Georgia. That court denied the writ, 

Fleming v. Zant, 560 F.Supp. 525 (M.D.Ga. 

1983), and on appeal a divided panel of this 

Court affirmed, Fleming v. Kemp, 748 

F.2d 1435 (11th Cir.1984). The United 
States Supreme Court denied certiorari. 
Fleming v. Kemp, — U.S. —, 106 S.Ct. 
1286, 89 L.Ed.2d 593 (1986).   

 



eduled to be 

betitions this 

able cause to 

0 present his 

(IFP), for a 
bf on his sec- 

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pas petition 

itable among 

Estelle, 463 

83, 3394 n. 4, 

at are taken 

915(a); thus, 
st for certifi- 

peal and mo- 

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r presents at 

properly be- 

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deciding the 
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ding further 

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South Geor- 

path in 1977. 

Zia Supreme 
ence because 

ting the jury 
h second sen- 

mended the 

bntenced peti- 

further re- 

ate post-con- 

is first feder- 

the United 

iddle District 

ied the writ, 

525 (M.D.Ga. 

panel of this 

Kemp, T48 

The United 

pd certiorari. 

, 106 S.Ct. 

  

FLEMING v. KEMP 1481 
Cite as 794 F.2d 1478 (11th Cir. 1986) 

The Superior Court of Butts County, 

Georgia, thereafter denied petitioner's sec- 

ond state habeas application, and the Geor- 

gia Supreme Court refused to grant a cer- 

tificate of probable cause to appeal. The 

United States District Court for the Middle 

District of Georgia denied Fleming's sec- 

ond federal habeas petition and application 

for stay of execution on June 25, 1986. 

This petition, stay application, and motions 

for CPC and IFP now come before this 

Court for review. Apart from the CPC and 

IFP orders, our decision here implicates 

only the stay application; we do not reach 

the merits of the habeas petition except to 

determine that the latter presents a sub- 

stantial ground upon which relief might be 

granted. 

II 

Petitioner presents five claims on appeal: 

(1) that the prosecutor's exercise of per- 

emptory challenges to exclude blacks from 

the trial jury violated Fleming's sixth and 

fourteenth amendment rights under the Su- 

preme Court’s recent ruling in Batson v. 

Kentucky, — U.S. —, 106 S.Ct. 1712, 90 

S.Ct. 69 (1986); (2) that Fleming's death 

sentence violated the sixth and fourteenth 

amendments under the Supreme Court's 

ruling in Michigan v. Jackson, — U.S. 

—, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), 

because it was based in part upon state- 

ments obtained in police interrogations af- 

ter petitioner was formally charged and 

after he requested the assistance of coun- 

sel; (3) that petitioner was convicted and 

sentenced to death in violation of the sixth 

and fourteenth amendments because he did 

not have the assistance of counsel at his 

commital hearing; (4) that certain improper 

prosecutorial remarks made in closing ar- 

gument at trial require reversal under 

Caldwell v. Mississippi, — U.S. —, 105 

S.Ct. 2633, 86 L.Ed.2d 231 (1985); and (5) 

that Fleming's death sentence is unconsti- 

tutional because Georgia's capital sentenc- 

ing process is arbitrary and discriminatory. 

Without expressing any opinion on the mer- 

its of Fleming’s claims, we stay Fleming's 

execution based on the first ground 

presented. 

[1] This Court will grant a stay of exe- 
cution only if we find that: (1) an issue 

presented in the petition for habeas corpus 

is properly before this Court, (2) this issue 

presents substantial grounds upon which 

relief might be granted and cannot be res- 
ponsibly reviewed by this Court prior to the 
scheduled time for execution of sentence. 

See Witt v. Wainwright, 755 F.2d 1396, 

1398 (11th Cir.1985), rev'd on other 

grounds, 469 U.S. 412, 105 S.Ct. 844, 83 

L.Ed.2d 841 (1985); Dobbert v. Strickland, 

670 F.2d 938, 940 (11th Cir.1982); Barefoot 

v. Estelle, supra, 463 U.S. at 895, 103 S.Ct. 

at 3395 (1983). 

[2] To determine whether any ground 

for relief is properly before this Court we 

must consider whether Fleming has abused 

the writ in bringing a successive petition. 

We hold that petitioner did not abuse the 

writ in raising his Batson (juror exclusion 

based on race) claim on second habeas. 

Successive petitions for habeas corpus 

are governed by Rule 9(b) of the Rules 

Governing 28 U.S.C.A. § 2254. Rule 9(b) 

provides: 

(b) Successive petitions. A second or 

successive petition may be dismissed if 

the judge finds that it fails to allege new 

or different grounds for relief and the 

prior determination was on the merits or, 

if new and different grounds are alleged, 

the judge finds that the failure of the 

petitioner to assert those grounds in a 

prior petition constituted an abuse of the 

writ. 

The petitioner may rebut the state’s con- 

tention that he abused the writ in a succes- 

sive petition in one of several ways: 

“(a) If the ground was previously ad- 

dressed in a federal habeas corpus proceed- 

ing, the petitioner must demonstrate that 

the decision was not on the merits or the 

ends of justice would be served by recon- 

          

  
  

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1482 794 FEDERAL REPORTER, 2d SERIES 

sideration of the merits. The ‘ends of jus- 

tice’ are defined by objective factors, such 
as whether there was a full and fair hear- 

ing on the original petition or whether 

there was an intervening change in the 

facts of- the case or the applicable law. 

(b) If the ground was not previously 

presented in a federal habeas corpus pro- 
ceeding, petitioner must demonstrate the 

failure to present the ground in the prior 

proceeding was neither the result of an 

intentional abandonment or withholding 
nor the product of inexcusable neglect.” 
Witt v. Wainwright, supra, at 1397. See 
also Sanders v. United States, 373 U.S. 1, 

83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). 

[8] In the case at bar, we must first 

determine whether petitioner properly 

raised his claim of unconstitutional exclu- 
sion of jurors based on race in his first 

habeas petition. The district court held 
that this was not the case. It perceived a 

crucial distinction between Fleming's origi- 

nal claim, that “[pletitioner was indicted, 

convicted and sentenced by grand and tra- 
verse juries from which blacks and young 
persons were systematically excluded, in 

violation of the United States Constitu- 

tion,” and his allegation on successive ha- 

beas that he was convicted and sentenced 
in violation of the Constitution because 

the prosecutor exercised his peremptory 

strikes at the guilt-innocence trial of peti- 

tioner, a black man, in a racially discrimi- 

natory manner so as to intentionally ex- 

clude otherwise qualified blacks from the 

jury solely on the basis of their race. 

We cannot agree with the district court 

that the difference between these state- 

ments is critical. In Sanders, the Supreme 
Court made it clear that a “ground” for 
relief is a relatively broad term for abuse 

of the writ purposes. Sanders, supra, at 

16, 83 S.Ct. at 1077. The Court indicated 

that identical grounds may often, on suc- 

ceeding petitions, be proved by different 

factual allegations or supported by differ- 

ent legal arguments. Id. “Should doubts 

arise in particular cases as to whether two 
grounds are different or the same,” the 

Court said, “they should be resolved in 
Savor of the applicant.” Id. (emphasis 
added). Resolving any doubts in favor of 
the petitioner in this case, we are satisfied 
that Fleming adequately raised his claim of 
improper juror exclusion based on race in 

his first habeas petition. 

[4] A second and distinct problem 
arises from the unusual posture of this 

case. As we hold above, petitioner did 
state the Batson ground for relief in his 
initial federal habeas petition—but it is also 
clear that he did not renew this argument 

on appeal. Respondent's charge of inten- 
tional abandonment could be construed to 
apply to petitioner’s silence on this claim at 

the appellate stage. However, we reject 

such a conclusion. 

The “intentional abandonment or with- 

holding” doctrine. “obtains on a second habe- 
as only where petitioner has not, in the 

words of Witt, supra, “previously present- 

ed [the ground for relief] in a federal habe- 
as corpus proceeding.” Cf. Sanders, su- 
pra, at 15, 83 S.Ct. at 1077 (ground must 

be presented in “prior [habeas] applica- 
tion”). But petitioner here did present.the 
Batson ground in precisely such a proceed- 

ing, and the district court considered and 

rejected petitioner's arguments. Fleming 

v. Zant, supra, at 541-42. Once this 

ground was raised in the first habeas. peti 
“tion—all that is required under Witt and 
"Sanders, supra,—no__abapdonment for 

abuse of the writ purposes could | logically 

occur; what was done could not be undone. 

Petitioner's Jailure to reargue this ground 
for relief on the appeal of his first habeas 

petition did not remove the claim from his 

petition. He e Simply ¢ conceded defeat on the 

merits. 

This approach is counseled by previous 

decisions of this and our predecessor Cir- 

cuit acknowledging that “{tlhe ‘abuse of 
the Writ’ doctrine is of rare and extraordi- 
nary application,” Paprskar v. Estelle, 612   

 



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FLEMING v. KEMP 1483 
Cite as 794 F.2d 1478 (11th Cir. 1986) 

F.2d 1003, 1007 (5th Cir.), cert. denied, 449 

U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 111 
(1980), a doctrine that should not be rigidly 

applied, Potts v. Zant, 638 F.2d 727, 746 
(11th Cir.1981), cert. denied, 454 U.S. 877, 

102 S.Ct. 357, 70 L.Ed.2d 187 (1981). This 
Court has consistently held that the ques- 
tion of whether intentional abandonment 

has occurred “must be tested under eq- 
uitable principles, id. at 743; that is to say, 

“the equities of the situation and the con- 

duct of the petitioner are relevant to the 

determination of whether an abuse has oc- 

curred,” id. at 741. Here the lower court 
made no finding that the purpose of Flem- 
ing’s failure to brief the Batson ground.on 
appeal was cto vex, harass, or delay,” 
Sanders, supra, 373 U.S. at 18, 83 S.Ct. at 

1078, and in our view no such finding can 
be supported by the record. The "aban- 
donment” presented here was simply not 

the sort of calculated and vexatious aban- 

donment that the abuse of the writ doctrine 

was designed to forestall! 

This Court's recent decision in Bowden v. 

| Kemp, 793 F.2d 278 (11th Cir.1986), does 
not command a different conclusion on the 

abuse of the writ issue. In Bowden, the 

Court determined that the petitioner 

abused the writ by raising a Batson claim 
for the first time on his third habeas peti- 

tion, well after the Court’s decision to 

grant certiorari in Batson. Fleming, how- 

ever, raised the issue of racially-based ex- 

clusion of jurors at the appropriate time, in 

his first state and federal habeas peti 

tions—and he did so some years before 

Batson was scheduled to be heard by the 

United States Supreme Court. 

Since we determine that Fleming's Bat- 

son claim is a successive claim that has 
been decided on the merits in federal habe- 
as proceedings—not a new claim intention- 

ally withheld or inexcusably neglected until 

now—we must now decide whether the 

1. Judge Fay’s dissent simply misses the mark on 
this point. His observation that five members 
of the Supreme Court had questioned the con- 
tinued vitality of Swain a month before appel- 
lant’s brief in the first appeal was filed ignores 

“ends of justice” would be served by a 
second review of this claim. Petitioner 
urges that an intervening change in the 
law applicable to juror exclusion mandates 

reconsideration. We agree. 

In April, 1986, the Supreme Court decid- 
ed Batson, supra, which substantially al- 
tered the evidentiary burden, formerly pre- 

scribed by Swain v. Alabama, 380 U.S. 
202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), 
that a criminal defendant must meet to 
make out an equal protection claim based 
on a prosecutor's racially discriminatory 

use of peremptory challenges. If Batson 

applies to Fleming's case, then the law has 

clearly changed sufficiently to require a 

reconsideration of petitioner’ s juror exclu- 

sion claim. 

[5] The district court held.that.Baseon 
is not relevant to Fleming's situation for 

fwo reasons. (First, the court found that 
because all black Jurors were not excluded 
from Fleming’ s jury as they were in Bat- 

son, the latter case did not apply. But 

nothing in Batson compels the district 
court’s conclusion that constitutional guar- 

antees are never abridged if all black ju- 

rors but one or two are struck because of 

their race. On the contrary, Batson re- 

states the principle that “ ‘[a] single invid- 

iously discriminatory governmental act’ is 

not ‘immunized by the absence of such 

discrimination in the making of other com- 

parable decisions.’” Batson, supra, 106 
S.Ct. at 1722, quoting Arlington Heights v. 

Metropolitan Housing Corp., 429 U.S. 
252, 266 n. 14, 97 S.Ct. 555, 564 n. 14, 50 
L.Ed.2d 450 (1977). We cannot agree that 

Batson may be rendered a priori inapplica- 

ble by a prosecutorial game of numbers. 

[6] (Second, the district court held that 

Batson by its own terms is not retroactive 
and, thus, that this decision cannot aid 

one critical fact. As recently as April of this 
year, this Court made it clear that this Circuit 
still adhered “strictly” to Swain. United States 
v. Dennis, 786 F.2d 1029, 1049 (11th Cir.1986). 

  
  

  

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1484 794 FEDERAL REPORTER, 2d SERIES 

Fleming. Again, we disagree. Neither the 

Supreme Court nor this Court has in fact 
decided whether Batson will apply retroac- 
tively on direct appeal or in post-conviction 
proceedings. Indeed, the Supreme Court 
has granted certiorari to determine the for- 
mer question in Griffith v. Kentucky, — 
US. —, 106 S.Ct. 2274, 90 L.Ed.2d 717, 
and Brown v. United States, 770 F.2d 912, 

cert. granted, — U.S. —, 106 S.Ct. 2275, 

90 L.Ed.2d 718 (1986). Prudence dictates 

that the rush to execution should await the 

Supreme Court’s guidance on this critical 
issue. 

We find that Fleming does make out, at 

a minimum, a colorable Batson claim: At 

his trial, the prosecutor used eight of ten 

peremptory challenges to strike blacks 

from the jury, where the venire (after chal 

lenges for cause) consisted of only ten 
blacks and some 45 whites. Therefore, we 

STAY Fleming’s execution pending the Su- 
preme Court's decisions in Griffith and 
Brown and further order by this Court. 

We retain jurisdiction of these proceed- 

ings for purposes of further review. The 
parties are directed to file briefs relating to 
all issues presented in the habeas corpus 
petition according to the schedule set by 

the Clerk of this Court. 

CLARK, Circuit Judge, specially concur- 
ring: 

I write additionally to express my belief 

that appellant’s issue with respect to waiv- 

er of right to counsel—the Michigan wv. 
Jackson claim—has sufficient merit to war- 

rant stay of the execution to permit brief- 
ing and full appellate review. A panel of 

this court in Collins v. Kemp, 792 F.2d 987 
(1986), stayed execution of Collins on this 

issue. 

The district court makes a distinction be- 

tween Fleming's statement made at ar- 
raignment and Jackson's statement in the 

Michigan v. Jackson case. Jackson re- 

quested counsel at arraignment. Fleming 

instead stated that his mother was trying 

to obtain counsel for him. As I read Jack- 
son, the Supreme Court decision is based 
upon the Sixth Amendment right to coun- 
sel. Surely Fleming expressed his desire 
to have counsel in his statement that his 

mother was trying to obtain one. (But she 

was delayed in doing so—the district court 

notes that eventually counsel was ob- 

tained—which makes Fleming's case very 
similar to that of Bladel, whose case was 

included with Jackson’s in the Jackson 
case, 106 S.Ct. at 1406.) 

The Supreme Court in Jackson, 106 S.Ct. 

1404, 1409 & n. 6 (1986) made note that 

“doubts must be resolved in favor of pro- 

tecting the constitutional claim. This set- 

tled approach to questions of waiver re- 

quires us to give a broad, rather than a 

narrow, interpretation to a defendant's re- 

quest for counsel....” The Court then in 

n. 6 states “in construing respondent’s re- 

quest for counsel, we do not, of course, 

suggest that the right to counsel turns on 

such a request.” 

Consequently, it is my view that the fore- 
going issue as well as the Batson issue 

warrants stay of execution. 

FAY, Circuit Judge, dissenting: 

With the greatest regard for the majori- 

ty position, I am simply unable to find 

anything erroneous about the finding of 

the district judge that Claim 32 of the 
original federal habeas petition did not 

raise any claim concerning the use of per- 

emptory challenges during the selection of 

the petit jury. The language used speaks 
in clear terms and deals with an area of the 

law well known to all in the profession. 

There is nothing related between the com- 

position of master wheels or pools for ju- 

ries (grand or petit) and the use of chal- 

lenges during voir dire. The Batson issue, 

as it is now labeled, was not raised until it 

was included in this successive petition. 

As such it is subject to the traditional scru- 
tiny encompassed in the abuse of the writ 
doctrine. 

In addition, it is my opinion that we do 

the petitioner no favor by stretching the   
 



im. As I read Jack. 
irt decision is based 
ment right to coun- 
expressed his desire 

statement that hig 
btain one. (But she 
p—the district court 

counsel was ob- 
eming’s case very 

el, whose case was 
8 in the Jackson 

Jackson, 106 S.Ct. 

6) made note that 

ed in favor of pro- 
kl claim. This set 
ons of waiver re- 

ad, rather than a 

b a defendant’s re- 

The Court then in 

ig respondent’s re- 

0 not, of course, 

counsel turns on 

riew that the fore- 

e Batson issue 
n. 

senting: 

d for the majori- 
unable to find 

the finding of 
laim 32 of the 

petition did not 

the use of per- 
the selection of 

hge used speaks 
an area of the 

the profession. 
tween the com- 

pr pools for ju- 

e use of chal- 

e Batson issue, 

raised until it 

pssive petition. 

raditional scru- 

ise of the writ 

bn that we do 

stretching the 

  

ALAMO RENT-A-CAR v. SARASOTA-MANATEE AIRPORT AUTH. 1485 
Cite as 794 F.2d 1485 (11th Cir. 1986) 

words of Claim 82 to include a Batson 

issue. Counsel candidly admits that this 

claim (whatever it included) was deliberate- 

ly, knowingly and for tactical reasons aban- 

doned on the appeal taken in that matter. 

The majority’s approach totally ignores the 

abandonment of this issue when the case 

was appealed to this court. To conclude 
that a simple presentation to the district 

court is sufficient will surely lead to much 

tactical game playing. The balancing of 
equitable factors under the “ends of jus- 
tice” analysis might overcome such aban- 
donment in some instances, but it should 

not be ignored. As we stated in Bowden, 
after May 81, 1983 there could be little 
doubt that five members of the Supreme 
Court questioned the continued vitality of 
Swain. The appellant’s brief in the first 
appeal was filed on June 20, 1983. The 
reply brief was filed August 25, 1983. 
There is no question that counsel had 
presented the issue to the state court and 
was familiar with both the factual records 
and the state of the law. In sum, based 

upon what has been presented to us, I 
would not excuse the deliberate waiver. 

Agreeing with the district court’s analy- 

sis of the other issues, I would deny the 
requested relief. 

w 
( € ey NUMBER SYSTEM 

s 

Theodore Robert BUNDY, 

Petitioner-Appellant, 

Vv. 

Louis L. WAINWRIGHT, as Secretary, 

Department of Corrections, State of 

Florida, Respondent-Appellee. 

No. 86-5509. 

United States Court of Appeals, 
Eleventh Circuit. 

July 2, 1986. 

James E. Coleman, Jr., Polly Nelson, Wil- 

mer, Curlter & Pickering, Washington, 

D.C., John F. Evans, Coral Gables, Fla., for 

petitioner-appellant. 

Gregory Costas, Andrea Smith Hillyer, 
Asst. Attys. Gen., Tallahassee, Fla., for 

respondent-appellee. 

Appeal from the United States District 
Court from the Southern District of Flor- 

ida. 

Before GODBOLD, Chief Judge, 
VANCE and CLARK, Circuit Judges. 

BY THE COURT: 

The motion of the appellant for a stay of 
execution is GRANTED pending further 
order of this court. The appeal is expedit- 
ed. 

ALAMO RENT-A-CAR, INC, a Florida 

corporation, Plaintiff-Appellee, 

Vv. 

SARASOTA-MANATEE AIRPORT AU- 

THORITY, a political subdivision of 

the State of Florida, Defendant-Appel- 

lant. 

No. 86-3037. 

United States Court of Appeals, 

Eleventh Circuit. : 

July 9, 1986. 

Plaintiff moved to reinstate judgment 
or for supplemental findings in the United   

 



1212 

sumption. The jury could have interpret- 

ed the two sets of instructions as indicat- 

ing that the presumption was a means by 

which proof beyond a reasonable doubt as 
to intent could be satisfied. 

442 US. at 518 n. 7, 99 S.Ct. at 2456 n. 7. 
The same is true of the general burden 

allocation instructions here. 

Neither did the instruction that criminal 

intent should not be presumed eliminate the 

vice Sandstrom condemns. This instruction 

at best conflicted with the challenged pre- 

sumption; it did not explain it. At worst, 

the jury could have made the instructions 

consistent, interpreting the burden to be on 

the defendant to rebut the presumption 

that he intended to kill Mr. Collie, and on 

the State to show that the killing itself was 

criminal. Even if the jury believed that the 

two presumptions conflicted, it would be 

impossible for us to tell which one they 

decided to apply, or whether they applied 

something in between. The only way the 

charge as a whole could have cured the 

instruction would have been to explain by 

what quantum of evidence the defendant 

must rebut the presumption. If no instrue- 

tion is given expressly to explain or limit an 

instruction that otherwise impermissibly 

shifts the burden of persuasion under Sand- 

strom, we inevitably face a situation where 

the reasonable juror could conclude from 

either one impermissible shift or several 

conflicting presumptions, some of which are 

impermissible, that the burden has shifted. 

IIL 

[4] Our inquiry does not end with a 
finding that an instruction unconstitution- 

ally shifts the burden of persuasion. Be- 

fore reversing a conviction on the basis of a 

Sandstrom error, we must evaluate whether 

the error was harmless. See, e.g., Lamb; 

Brooks v. Francis, 716 F.2d 780 at 793-794 

(11th Cir.1983). Here, Franklin admitted 

that he fired the gun and killed Mr. Collie. 

His only defense was that he did not have 

the requisite intent to kill. The facts did 
not overwhelmingly preclude that defense. 

The coincidence of the first shot with the 

slamming of the door, the second shot’s 

720 FEDERAL REPORTER, 2d SERIES 

failure to hit anyone, or take a path op 
which it would have hit anyone, and the 
lack of injury to anyone else all supported 

the lack of intent defense. A presumption 
that Franklin intended to kill completely 
eliminated his defense of “no intent.” Be. 

cause intent was plainly at issue in this 

case, and was not overwhelmingly proved 
by the evidence (thus constituting harmless 
error under Lamb), we cannot find this 

error to be harmless. Accordingly, the dis- 

trict court’s order denying the writ of habe- 

as corpus must be reversed. On receipt of 

the mandate, the district court shall issue 

the writ, commanding the State to try 

Franklin within such reasonable time as the 

district court shall determine or to release 
him from any further restraint resulting 
from this conviction. 

REVERSED, with instructions. 

Ww 
o £ KEY NUMBER SYSTEM 

Y 

Henry WILLIS, III, Plaintiff-Appellant, 

V. 

Walter B. ZANT, Warden, Georgia 

Diagnostic and Classification 

Center, Defendant-Appellee. 

No. 82-8677. 

United States Court of Appeals, 

Eleventh Circuit. 

Nov. 17, 1983. . 

Petitioner, whose conviction of malice 

murder had been affirmed on appeal in 

state court, sought writ of habeas corpus. 

The United States District Court for the 

Middle District of Georgia, Wilbur D. Ow- 
ens, Jr., Chief Judge, denied petition, and 

petitioner appealed. The Court of Appeals, 

Tjoflat, Circuit Judge, held that: (1) peti- 

tioner was entitled to evidentiary hearing 

on question whether group of young adults 

in South Georgia during late 1970s, rang-  



WILLIS v. ZANT 1213 
Cite as 720 F.2d 1212 (1983) 

, sge from 18 to 30, constituted such 

sable or distinct group that their ex- 
.,; from jury venire violated Sixth 

_4ment fair cross-section requirement, 
14) petitioner was also entitled to evi- 

11»ry hearing on question whether pros- 

.,, historically, systematically, and in- 

.nully employed peremptory challenges 

(,..nfranchise blacks and exclude them 

.,, Lruverse juries in criminal trials. 

Affirmed in part, vacated in part, and 

nied. 

jhuhens Corpus &=45.2(4) 

J'uilure of state to provide financial 

.,junce for preparation of trial tran- 

MEAL be used in connection with habeas 

(iin proceedings stated no constitutional 

ie 

( timinal Law &=641.5 
\tepresentation of defendant and coin- 

. at separate trials presented no con- 

of interest in defense counsel. U.S. 

(\onst.Amend. 6. 

is 

\ 

{ timinal Law &=519(1) 
\xfendant’s confession to murder was 

atary. U.S.C.A. Const. Amend. 5. 

\ ciminal Law 700 

yrosecutorial misconduct did not ren- 

guilt phase of trial fundamentally un- 

wn &33(L1) 

w aether or not class of persons is suffi- 

_» dstinct and cognizable for Sixth 

~aument fair cross-section analysis is 
woe of fact. U.S.C.A. Const.Amend. 6. 

NR &33(1.1) 

aunctiveness and homogeneity of 

eu; @epends, for purposes of Sixth 

awovrent fair cross-section analysis, 

geo =me and location of trial. U.S.C.A. 
us Amend. 6. 

ars =33(11) 

Ta show that group is distinct or cogni- 

=== under Sixth Amendment, defendant 

mss show that group is defined and limited 

w= same factor, that is, that group has 

definite compositions such as by race or sex, 

that common thread or basic similarity in 

attitude, ideas, or experience runs through 

group, and that there is community of in- 

terest among members of group such that 

group’s interests cannot be adequately rep- 

resented if group is excluded from jury 

selection process. U.S.C.A. Const.Amend. 6. 

8. Jury &33(1.1) 

To make out prima facie case of uncon- 

stitutional exclusion of cognizable group 

from jury selection process, defendant must 

show more than mere exclusion of distinct 

group; he must show that group alleged to 

have been excluded was distinctive group in 

community, that representation of group on 

jury venire was not fair and reasonable in 

relation to number of such persons in com- 

munity, and that underrepresentation was 

due to state's systematic exclusion of group 

from venire. U.S.C.A. Const.Amend. 6. 

9. Jury &=33(1.1) 

In determining whether defendant has 

established prima facie case of exclusion of 

cognizable group from jury venire, district 

court must bear in mind that states are free 

to prescribe relevant qualifications for jury 

service and reasonable exemptions there- 

from; however, if qualifications and ex- 

emptions result in disproportionate exclu- 

sion of distinct group, state must show that 

they manifestly and primarily advance sig- 

nificant state interest. U.S.C.A. Const. 

Amend. 6. 

10. Jury &=33(1.4) 

Defendant was entitled to evidentiary 

hearing on question whether group of 

young adults in South Georgia during late 

1970's, ranging in age from 18 to 30, was 

cognizable or distinct, so that their system- 

atic exclusion from jury venire violated 

Sixth Amendment fair cross-section re- 

quirements. U.S.C.A. Const.Amend. 6. 

11. Jury &=33(5.1) 

Presumption of propriety of prosecu- 

tor’s exercise of peremptory challenges in- 

sulates from inquiry the removal of blacks 

from any individual traverse jury; thus, 

defendant has no constitutional right to tra- 

  

          
  

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1214 

verse jury that includes member of his race. 
U.S.C.A. Const. Amend. 6. 

12. Jury &=33(5.1) 

Defendant was entitled to evidentiary 
hearing on question whether prosecutor his- 

torically, systematically, and intentionally 

employed peremptory challenges to disen- 

franchise blacks and exclude them from 

traverse juries in criminal trials. U.S.C.A. 

Const.Amends. 6, 14. 

Joseph M. Nursey, Millard C. Farmer, 

Atlanta, Ga., for plaintiff-appellant. 

Virginia H. Jeffries, Staff Asst. Atty. 

Gen., Atlanta, Ga., for defendant-appellee. 

Appeal from the United States District 

Court for the Middle District of Georgia. 

Before TJOFLAT, FAY and ANDER- 

SON, Circuit Judges. 

TJOFLAT, Circuit Judge: 

The petitioner, Henry Willis III, was con- 

victed in the Superior Court of Bleckley 

County, Georgia, of malice murder. He 
was sentenced to death. The Georgia Su- 

preme Court affirmed his conviction and 

sentence. Willis v. State, 243 Ga. 185, 253 

S.E.2d 70 (1979). He then petitioned the 
Superior Court of Tatnall County, Georgia, 

for a writ of habeas corpus. The court 

denied his petition, and the Georgia Su- 
preme Court declined to entertain an appeal 

therefrom. The United States Supreme 
Court has denied petitions for writs of cer- 

tiorari to review both decisions of the Geor- 

gia Supreme Court. Willis v. Georgia, 444 
U.S. 885, 100 S.Ct. 178, 62 L.Ed.2d 116 
(1979); Willis v. Balkcom, 451 U.S. 926, 101 

S.Ct. 2003, 68 L.Ed.2d 315, reh’g denied, 452 
U.S. 932, 101 S.Ct. 3070, 69 L.Ed.2d 433 
(1981). Willis then petitioned the district 

court for a writ of habeas corpus, alleging 
thirty-three constitutional infirmities in his 

1. In his oral argument to this court, petitioner's 
attorney stated that petitioner has abandoned 
the other 25 claims which he brought before 

the district court but did not argue before this 
court on appeal. 

720 FEDERAL REPORTER, 2d SERIES 

conviction and sentence. The district court 

denied his petition without an evidentiary 
hearing. Petitioner presents eight of these 

claims to us on appeal.! We hold that four 
of these claims are without merit. Two of 

the remaining claims require an evidentiary 

hearing, and that hearing must be held 
before we dispose of the final claims. 

I 

Petitioner, Son Fleming, and Larry Flem- 

ing were indicted in Lanier County, Geor- 
gia, for the murder of James Giddens, Po- 

lice Chief of Ray City, Georgia, on the 

evening of February 11, 1976. They al- 
legedly abducted Chief Giddens following 

an armed robbery, shot him several times 

with a .357 magnum and a .22 caliber pistol, 

and left him to die in a South Georgia 
swamp. 

Petitioner obtained the disqualification of 

the Superior Court judge who was assigned" 

to try his case and, in succession, four other 

judges as well. His motion to disqualify 
the prosecutor was denied? Petitioner's 

case finally went to trial on January 23, 

1978. (The trials of his two co-indictees 

were held later, in other counties.) Peti- 

tioner, who is black and was twenty-three 

years old at the time of his trial, challenged 

the composition of the jury venire, or pool, 

prior to commencement of voir dire, on the 

ground that it did not represent a fair cross 

section of the community as required by the 

sixth and fourteenth amendments to the 

Constitution. The court rejected his chal- 

lenge. Next, petitioner moved in limine for 

an order precluding the prosecutor from 

peremptorily challenging any black venire- 

men who were qualified to serve on the 

traverse, or petit, jury. The court denied 

this motion also. Jury selection proceeded, 

and an all-white jury was empaneled, the 

prosecutor having utilized, over petitioner's 

objection, his ten peremptory challenges to 

strike all ten of the qualified black venire- 

2. Petitioner also moved, unsuccessfully, to dis- 

qualify the judges and the special assistant 

prosecutor. The motions to disqualify the 

prosecutors are not in issue in this appeal.  



WILLIS v. ZANT 1215 
Cite as 720 F.2d 1212 (1983) 

men. The trial ensued. The jury found 
petitioner guilty of malice murder, and af- 
ter considering the evidence relevant to the 
sentence to be imposed—death or life im- 
prisonment—recommended the death sen- 
tence. The trial judge, being bound under 
Georgia law by the jury’s recommendation, 
imposed that sentence. 

Petitioner presents eight discrete federal 
constitutional claims in this appeal: (1) he 
was denied an opportunity to present evi- 
dence at his state and federal habeas corpus 
proceedings, in violation of the due process 
clause of the fourteenth amendment, be- 
cause the State of Georgia failed to provide 
him financial assistance to obtain the evi- 

dence necessary to prove his constitutional 
claims and failed to transcribe, for his use, 
several thousand pages of pretrial proceed- 
ings; (2) his trial counsel possessed a con- 
flict of interest, in that counsel represented 

both petitioner and co-indictee Larry Flem- 
ing at their separate trials, thereby denying 
petitioner effective assistance of counsel in 

violation of his sixth, and fourteenth, 

amendment right; (3) his confession was 
involuntary, and its admission into evidence 

against him violated due process; (4) prose- 
cutorial misconduct rendered the guilt 

phase of petitioner's trial fundamentally 
unfair and denied petitioner due process; 3 
(6) a “cognizable group”—young adults 
from age 18-30—was systematically exclud- 

ed from petitioner's jury venire, thereby 
denying his sixth, and fourteenth, amend- 
ment right to a venire made of a fair cross- 

3. Petitioner alleged as one issue on appeal that 

prosecutorial misconduct rendered both the 

guilt and sentencing phases of his trial unfair. 
Georgia death penalty trials are divided into 

these two distinct and separate stages, how- 
ever, and this circuit's handling of prosecutori- 
al misconduct cases reflects this division. 
Hance v. Zant, 696 F.2d 940 (11th Cir.1983). 
Accordingly, we read petitioner's claim as stat- 
ing two separate issues on appeal. 

4. Petitioner also claimed that this systematic 

exclusion denied his rights under the sixth and 
eighth amendments as made applicable to the 

states by the fourteenth amendment. We re- 
ject these contentions infra note 14, and ana- 
lyze this claim only under the equal protection 
clause of the fourteenth amendment. 

5. These four claims have no merit. Petitioner 

had full opportunity to put forth evidence, and 

section of the community; (6) the prosecu- 
tor had a history of intentionally and sys- 

tematically excluding blacks from traverse 
juries through the use of peremptory chal- 

lenges, in violation of the equal protection 
clause of the fourteenth amendment;* (7) 

the trial court’s jury charge concerning ag- 
gravating circumstances was constitutional- 

ly defective, under the eighth, and four- 
teenth, amendments; and (8) prosecutorial 
misconduct rendered the sentencing phase 
of petitioner's trial fundamentally unfair 
and thus denied petitioner due process. 

[1-4] The first six of these claims per- 
tain only to the guilt phase of petitioner's 
trial; the last two relate solely to the sen- 

tencing phase. We presently entertain only 

the claims arising out of the guilt phase, 

affirming summarily the district court’s re- 

jection of the first four’ We vacate the 
district court’s order as to the fifth and 

sixth claims and remand those two claims 

for an evidentiary hearing. We retain jur- 

isdiction of the case, noting that a decision 

on petitioner's final two claims, which stem 

from the sentencing phase of his trial, will 

be unnecessary if petitioner eventually pre- 

vails on either of the two claims remanded. 

We turn now to the fifth and sixth claims 

stated above. 

IL. 

A 

Willis alleges that young adults, aged 18— 
30, were unconstitutionally underrepresent- 

the failure of the State to provide financial 
assistance for habeas proceedings states no 

constitutional issue. Petitioner has at no time 

shown a conflict of interest on the part of his 
attorney under Cuyler v. Sullivan, 446 U.S. 335, 

100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), and Baty 
v. Balkcom, 661 F.2d 391 (5th Cir. Unit B 1981). 
The record is replete with evidence that peti- 
tioner confessed voluntarily, Milton v. Wain- 

wright, 306 F.Supp. 929 (S.D.Fla.1969), aff'd, 
428 F.2d 463 (5th Cir.1970), aff'd, 407 U.S. 371, 
92 S.Ct. 2174, 33 L.Ed.2d 1 (1972), and was 
given a fair and full hearing under Jackson v. 
Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 
908 (1964). Our study of the trial transcript 

shows that prosecutorial misconduct did not 
render the guilt phase of petitioner's trial fun- 

damentally unfair.   

  
        

 



1216 

ed in the jury venire that was summoned 
for his trial in Bleckley County. Willis 
claims that young adults are a “cognizable 
group” and that this group’s underrepresen- 

tation violated his sixth amendment right, 

as made applicable to the states through the 

fourteenth amendment, to a jury venire 
that represents a fair cross-section of the 

community. See Taylor v. Louisiana, 419 

US. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 
(1975); see also Duren v. Missouri, 439 U.S. 
357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979); 
Gibson v. Zant, 705 F.2d 1543 (11th Cir. 

1983); United States v. De Alba-Conrado, 

481 F.2d 1266, 1270, 1271 (5th Cir.1973); 
Daughtery, Cross Sectionalism in Jury-Se- 

lection Procedures after Taylor v. Louisi- 
ana, 43 Tenn.L.Rev. 1 (1975). 

The state trial judge heard this challenge 

to the jury venire prior to the commence- 

ment of traverse jury selection. The prose- 

cutor stipulated that young adults, aged 

18-30, constituted only 10.1% of the venire 

even though they constituted 35.1% of the 

eligible jury population in Bleckley County. 

The judge, citing Georgia Supreme Court 

cases,’ held as a matter of law that young 

people did not constitute a constitutionally 

cognizable group, said he would not con- 

sider any evidence Willis proffered on the 
point, and denied Willis’ motion to strike 

the entire venire. The Georgia Supreme 

Court, in affirming Willis’ conviction, held 

that the trial judge had handled this issue 

correctly. The magistrate to whom the dis- 

trict court referred Willis’ petition for habe- 

as corpus relief held likewise. In his recom- 

mendation to the district court, the magis- 

trate concluded that young adults do not 

constitute a “cognizable group” under the 

sixth amendment’s fair cross-section stan- 

dard. He did permit Willis to submit sur- 
veys and a lengthy article on the issue, but 

did not receive them until after he had 

made his recommendation, to which Willis 

objected, to the district court. The district 

court, in its one paragraph review and 

adoption of the magistrate’s recommenda- 

6. State v. Gould, 232 Ga. 844, 209 S.E.2d 312 

(1974); White v. State, 230 Ga. 327, 196 S.E.2d 
849 (1973). 

720 FEDERAL REPORTER, 2d SERIES 

tion, gave no indication that it accorded 

these submissions any consideration. Pet;- 

tioner states, quite correctly, that he hag 
yet to receive an evidentiary hearing on this 
claim. The three courts that have passed 
on it have summarily concluded that people 

aged 18-30 cannot constitute a cognizable 

group under the sixth amendment. 

[5-7] Whether or not a class of persons 

is a sufficiently distinct and cognizable for 

sixth amendment fair cross-section analysis 

is a question of fact. Hernandez v. Texas, 

347 U.S. 475, 478, 74 S.Ct. 667, 670, 98 L.Ed. 
866 (1954) (“whether such a group exists 

within the community is a question of 

fact”). See also, United States v. De Alba- 

Conrado, 481 F.2d 1266, 1270, 1271 (5th Cir. 

1973) (remanding case for determination of 

cognizable group). The distinctiveness and 

homogeneity of a group under the sixth 

amendment depends upon the time and lo- 

cation of the trial. For example, Latins 

have been held to be a cognizable group in 
Miami, Florida.” In another community, 
they might not be. To show that a group is 

distinct or cognizable under the sixth 

amendment, a defendant must show: (1) 
that the group is defined and limited by 

some factor (i.e., that the group has a defi- 

nite composition such as by race or sex); (2) 

that a common thread or basic similarity in 

attitude, ideas, or experience runs through 

the group; and (3) that there is a communi- 

ty of interest among members of the group 

such that the group’s interests cannot be 

adequately represented if the group is ex- 

cluded from the jury selection process. 

United States v. Gruberg, 493 F.Supp. 234 

(S.D.N.Y.1979); see also United States v. 

Test, 550 F.2d 577, 584 (10th Cir.1976); 

United States v. Guzman, 337 F.Supp. 140, 

14344 (S.D.N.Y.1972), aff'd, 468 F.2d 1245 

(2d Cir.1972), cert. denied, 410 U.S. 937, 93 

S.Ct. 1397, 35 L.Ed.2d 602 (1973). 

[8] Petitioner claims that young adults 
constituted a distinct group, within the 

above test, in Bleckley County, Georgia, at 

7. See United States v. Cabrera-Sarmiento, 533 

F.Supp. 799, 804 (S.D.Fla.1982) (Circuit Judge 

Hatchett, sitting by designation).  



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WILLIS v. ZANT 1217 
Cite as 720 F.2d 1212 (1983) 

the time of his trial. He states that this 
group contained the only South Georgians 
who were reared and educated in a desegre- 
gated society. Thus, the white members of 
this group could more easily understand 
and relate to petitioner, a twenty-three 
year old black man, than could older whites. 
We do not comment on the merits of peti- 
tioner’s contention; ® rather, we vacate the 

denial of relief on this issue and remand it 
to the district court for an evidentiary hear- 
ing? Petitioner is entitled to a chance to 
prove his claim; the court should, if neces- 

sary, allow discovery under 28 U.S.C.A. fol. 

§ 2254 Rule 6 (1977). 

To make out a prima facie case, petition- 

er must show more than mere exclusion of 
a distinct group. He must show: (1) that 

the group alleged to have been excluded 

was a distinctive group in the community, 

as defined, supra; (2) that the representa- 

tion of this group on his jury venire was not 

fair and reasonable in relation to the num- 

ber of such persons in the community; 

and (3) that this underrepresentation was 
due to the State's systematic exclusion of 
the group from the venire. Duren, 439 U.S. 
at 364, 99 S.Ct. at 668. 

[9] In determining whether petitioner 
has established a prima facie case of exclu- 

sion, the district court must bear in mind 

that, as the Supreme Court has cautioned, 

states are free to prescribe relevant qualifi- 

cations for jury service and reasonable ex- 

emptions therefrom. Duren, 439 U.S. at 
367, 99 S.Ct. at 670; Taylor, 419 U.S. at 538, 

95 S.Ct. at 701. If these qualifications and 
exemptions result in a disproportionate ex- 

8. We do note that the Southern District of 
Florida has found that adults under the age of 
30 in that district do not constitute a separate 

cognizable group within the meaning of the 
fifth amendment. Id. But see LaRoche v. Per- 

rin, 718 F.2d 500 (1st Cir.1983) (unexplained 

“shortfall of youth” in jury venire states valid 
sixth amendment claim under Duren). But see 

also Cuadadanos Unidos de San Juan v. Hidal- 

go, 622 F.2d 807, 818 (5th Cir.1980) cert. de- 
nied, 450 U.S. 964, 101 S.Ct. 1479, 67 L.Ed.2d 
613 (1980). 

9. This case differs from Cox v. Montgomery, 
718 F.2d 1036 (11th Cir.1983). In that case we 

held that the trial court did not err by declining 

clusion of a distinct group, however, the 

state must show that they manifestly and 

primarily advance a significant state inter- 

est. Duren, 439 U.S. at 367-68, 99 S.Ct. at 

670. 

[10] Although the distinctiveness of a 

group for sixth amendment purposes is a 

question of fact, we must add a caveat. 

Certainly, a court can determine as a mat- 

ter of law that a group is not cognizable or 

distinct. For example, no evidentiary hear- 

ing would be needed to determine that red- 

heads or vegetarians are not distinctive 

classes within sixth amendment fair cross- 

section analysis. We only hold that the 

group distinctiveness of young adults in 

South Georgia during the late 1970's does 

not lend itself to such an easy determina- 

tion. 

B. 

Petitioner alleges that he was denied his 

sixth, eighth, and fourteenth amendment 
rights because he was a victim of the prose- 

cutor 'fistorical and systematic useyof per- 
emptory challenges. TO TeIOVE DIACR Persons 

from traverse juries. In empaneling the 

jury to try this case, the court summoned 

449 veniremen. Three hundred twenty 

were excused for various reasons, none of 

which are germane to this appeal, apd 129 

(ninety-eight white and thirty-one black) 

were re subjected to complete voir dire by the 

parties. — O01 these 129, the court excluded 
twenty “because of their attitudes against 
the_death penalty (three white and seven- 

teen black), forty-eight for prejudice, and 

to provide funds to enable the defendant to hire 

a sociologist to prove that young adults are a 

cognizable group. The record in Cox makes 

clear that whether young adults were a cogni- 

zable group was not a material issue in the 

case. The trial court found that even if young 

adults were cognizable, there was no systemat- 
ic exclusion. 

10. See, e.g, Alexander v. Louisiana, 405 U.S. 

625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Whi- 

tus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 

L.Ed.2d 599 (1967); Hernandez v. Texas, 347 

U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); 

Preston v. Mandeville, 428 F.2d 1392, 1393-94 

(5th Cir.1970). 

  

  

    

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1218 720 FEDERAL REPORTER, 2d SERIES 

five fc for other reasons. None of these excu- 
sals 1s questioned Here. This left fifty-six 
veniremen, all competent to serve as tra- 

verse jurors. 

The prosecutor, Vickers Neugent, District 
Attorney or-the—Atapairr—€iremiT, possessed 
ten peremptory strikes; the defense had 
twenty. Operating under Georgia's “struck 

jury” system, (former) Ga.Code Ann. 
§§ 59-805, 808, the court presented one by 

one the fifty-six veniremen to the parties. 

The court presented each venireman to the 

prosecutor first; he accepted or peremptori- 

ly struck the venireman. If the venireman 
was accepted, the court presented him to 

defense counsel, who would accept or strike. 

The traverse jury consisted of the first 

twelve veniremen who were accepted by 

both sides. The selection of two alternate 

jurors was accomplished in the same man- 

ner, the prosecution having two peremptory 

challenges and the defense four.!! Follow- 
ing this procedure, the traverse jury, not 

including the alternates, was selected from 

the first forty of the fifty-six competent 

veniremen.!? 

Of the forty potential jurors, thirty were 
white and ten were black. The PrOSCCULOT 
{ised all ten of his peremptories to strike all 
the blacks Who were presented as regular 
jurors. Additionally, the one alternate per- 
emptory challenge the prosecutor exercised 
was used to strike the one black presented 

as a potential alternate juror. Willis thus 

went to trial with an all-white jury, with 

white alternates. 

[ "Petitioner claims that the jury selection 
tactic the prosecutor employed in his case 

was merely the prosecutor's application of 
his historic, systematic pracjice of excluding 
blacks from traverse juries through the use 

11. Georgia law granted the defense four chal- 

lenges, but, as the case turned out, Willis actu- 
ally had six peremptory challenges to alter- 
nates because he only used 18 of his 20 availa- 

ble challenges in seating the regular jury. The 

two unused challenges carried over. In all, he 
exercised five peremptory challenges to alter- 

nates and 18 to potential members of the regu- 

lar panel. 

12. The two alternates were selected from a 

group of eight veniremen presented, one by 

one, to the State and then to Willis. In seating 

of the peremptory challenge. Petitioner 
has been steadfast in his assertion of this 
complaint. He presented it initially to his 
trial judge before jury selection began, con- 

tending that the prosecutor would peremp- 

torily strike blacks as part of a historic, 

systematic pattern and seeking an order 

admonishing the prosecutor not to follow 
the practice in Willis’ case.®® Willis sought 
leave to present a speaking proffer in sup- 
port of his claim, but the trial judge denied 
his request, ruling that Wills had no claim 

regardless of what the acts MIgNt Show as 
to the prosecutor's past practice and his 
subsequent conduct in striking the jury in 
Willis’ case. Willis presented his claim to 

the trial judge again, after the prosecutor 

had peremptorily challenged every black 

submitted by the Court and the jury was 

ready to be sworn. The trial judge, adher- 

ing to his earlier ruling, again rejected Wil- 

lis’ claim. 

Willis presented his claim a third time, in 

the direct appeal of his conviction and sen- 

tence to the Georgia Supreme Court. That 

court stated that Willis had foreclosed his 

claim by not asking the trial court to over- 

turn the Georgia statute authorizing per- 

emptory challenges; the court held that 

“[s]o long as the statute is valid the District 

Attorney may use such challenges in his 

discretion.” Willis v. State, 243 Ga. 185, 
253 S.E.2d 70, 73, cert. denied, 444 U.S. 885, 

100 S.Ct. 178, 62 L.Ed.2d 116 (1979). Final- 
ly, Willis presented his claim to the district 

court in his petition for habeas corpus re- 

lief. The district court, adopting the magis- 

trate’s recommendation, concluded that the 

claim was meritless. The court based its. 

conclusion on a case from the-formes—Fifth 
Circuit, United States v. Carlton, 456 F.2d 

the alternates, the prosecutor exercised one 

peremptory challenge, against the only black, 

and Willis exercised five. See supra note 11. 

13. We do not address whether a defendant 

could ever properly seek an order limiting pros- 

ecutorial discretion in this matter before the 

prosecutor has exercised his peremptory chal- 

lenges. It is clear, however, that a defendant 

may object to the panel after it has been select- 

ed, and that Willis did. 

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WILLIS v. ZANT      1219 
Cite as 720 F.2d 1212 (1983) 

207, 208 (5th Cir.1972) (per curiam), which 

held that a defendant may not inquire into 
the prosecutor’s reasons for exercising a 
peremptory challenge. That proposition is 

true, but the court ignored the caveat we 
added in Carlton: “We hasten to add that 
where regular practice.or custom Involving 

¢ the use of peremptory challenges results i in 
’ ™ an elective disenfranchisement of a partic- 

ular class of persons from serving on petit 

juries . .. the Constitution may well dictate 
a different result.” Id., citing Swain v. 

Alabama, 380 U.S. 202, 224, 85 S.Ct 824 
838, 13 L.Ed 2d 750 (1960). ¢ {The very gist of 
petitioner’ s claim is that the prosecutor had | 
historically and systematically employed his 

peremptory challenges to disenfranchise 

blacks, and did so in petitioner’s case. Thig 
is squarely within the exception we noted iy 
Carlton, 

[11] This appeal arises solely under the 
equal protection clause of the fourteenth 

amendment. The Supreme Court was 
faced with a very similar claim in Swain, 
supral® Swain teaches that a prosecutor's 
use of peremptory challenges "10 Strike all 
the | blacks on a traverse jury 1s not improp- 
er since the © presumption in any case must 

be_ that the prosecutor is using the State's 
challenges to obtain a fair and impartia) 

jury to try the case before the court.” 330 
U.S. at 222, 85 S.Ct. at 837. Carlton, 456 
F.2d at 208; United States v. Pearson, 448 

F.2d 1207, 1216-18 (5th Cir.1971); United 

14. On appeal, petitioner states that the prose- 
cutor’s historical use of peremptory challenges 
violated his sixth amendment right, which, ac- 
cording to petitioner, guaranteed a traverse 

jury representing a fair cross-section of the 

community. Although this sixth amendment 
claim is colorable, see United States v. Chil- 

dress, 715 F.2d 1313 (8th Cir.1983) (en banc); 
People v. Payne, 103 Ill. App.3d 1034, 62 Ill.Dec. 
744, 436 N.E.2d 1046 (1982), appeal docketed, 

No. 56709 (111.1983), we decline petitioner’s in- 

vitation to extend the sixth amendment’s cross- 
section analysis under Taylor, supra, to the 

traverse jury itself. Taylor remains limited to 

venires. The United States Court of Appeals 
for the Eighth Circuit recently considered the 

issue in depth and was unwilling to read the 

sixth amendment so broadly. Childress. Peti- 

tioner cites no countervailing authority of any 

weight. Petitioner also contends that the pros- 
ecutor’s exclusion of blacks through perempto- 

ry challenges violated his eighth amendment 

  

States v. Williams, 446 F.2d 486, 488 (5th 

Cir.1971). This presumption of propriety 

insulates from inquiry the removal of 

blacks from any individual traverse jury. 
Thus petitioner has no constitutional right 

to a traverse jury that includes a member 

of his race. United States v. Calhoun, 542 

F.2d 1094, 1103 (1976), cert. denied sub nom 

Stephenson v. United States, 429 U.S. 1064, 

97 S.Ct. 792, 50 L.Ed.2d 781 (1977); see also 

United States v. Boykin, 679 F.2d 1240, 

1245 (8th Cir.1982); United States v. Gonza- 

lez, 456 F.2d 1067, 1068 (9th Cir.1972); 
Pearson, 448 F.2d at 1213-15. 

[12]__Petitioner, however, has alleged a 

systematic practice of exclusion. As the 

Swain Court stated, “this claim raises a 

different issue and it may well require a 

different answer. ...” 380 U.S. at 223, 85 

S.Ct. at 837. “[This practice] is invidious 
discrimination for which the peremptory 

system is an insufficient justification.” Id. 

The Court went on to hold: 

[Wlhen the prosecutor in a county, in case 

after case, whatever the circumstances, 

whatever the crime and whoever the de- 

fendant or the victim may be, is responsi- 

ble for the removal of Negroes who have 

been selected as qualified jurors by the 

jury commissioners and who have sur- 

vived challenges for cause, with the re- 

sult that no Negroes ever serve on petit 

juries, the Fourteenth Amendment claim 

right to be free from cruel or unusual punish- 

ment. This contention is meritless. 

15. In Swain the defendant attacked the under- 

representation of blacks on grand juries and 

petit jury venires, and the exclusion through 

peremptory challenges of blacks from petit ju- 

ries in Talladega County, Alabama. In the in- 

stant case, petitioner has alleged that the Dis- 

trict Attorney of the Alapaha Judicial Circuit of 

Georgia systematically excluded blacks from 

traverse (petit) juries, including petitioner’s. 
Although Swain did not involve a challenge to 
the practices of a single prosecutor, this claim 

falls squarely under Swain as interpreted by 

this circuit, United States v. Pearson, 448 F.2d 

1207 (5th Cir.1971), accord Carlton, supra, and 

other courts. See, e.g., United States v. Chil- 

dress, 715 F.2d 1313 (8th Cir.1983) (en banc), 
citing State v. Brown, 371 So.2d 751 (La.1979); 

State v. Washington, 375 So.2d 1162 (La.1979). 

      

   
   
   
   

  

   

    
    
       

  

   

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takes on an added significance.... In 

these circumstances ... it would appear 
that the purpose of the peremptory chal- 

lenge are [sic] being perverted. If the 
State has not seen fit to leave a single 
Negro on any jury in a criminal case, the 

presumption protecting the prosecution 

may well be overcome. 

Id. at 223-24, 85 S.Ct. at 837-38 (citations 
omitted). Petitioner has never been afford- 

ed an opportunity To present HIS case Umer 

this NOIdINE. He 1S entitietto one, and we 
vacate the district court’s ruling on this 

issue and remand for an evidentiary hear- 

ing. 

The Supreme Court has never stated the 

eléfients of a prima Jacie case under Swain. 
Winning Swain claims are exceedingly rare. 
We are unable to find any case from this 
circuit where the defendant has prevailed 
under Swain. In its recent decision on this 

issue,!® the Eighth Circuit, en banc, stated 

that it could find only two winning Swain 

claims anywhere. State v. Brown, 371 

So.2d 751 (La.1979); State v. Washington, 

375 So.2d 1162 (La.1979). Commentators 

have criticized Swain severely because of 

the difficulty defendants have had in prov- 

ing systematic exclusion through the use of 

peremptory challenges. 

We provide the following elucidation to 

aid the district court in its handling of this 

claim. At his evidentiary hearing, petition- 

er must prove on specific facts !® that Vick- 
ers Neugent had a systematic and inten- 

tional practice of excluding blacks from tra- 

verse juries in criminal trials through the 

16. United States v. Childress, 715 F.2d 1313 

(8th Cir.1983) (en banc). 

17. See, e.g, Brown, McGuire & Winters, The 

Peremptory Challenge as a Manipulative De- 

vice in Criminal Trials: Traditional Use or 

Abuse, 14 New Eng.L.Rev. 192, 196-202 (1978); 

Kuhn, Jury Discrimination: The Next Phase, 41 

S.Calif.L.Rev. 235, 302 (1968); Winick, Prose- 

cutorial Peremptory Challenge Practices in 

Capital Cases: An Empirical Study and A Con- 
stitutional Analysis, 81 Mich.L.Rev. 1, 10-11 

(1982); The Supreme Court, 1964 Term, 79 

Harv.L.Rev. 56, 135-39 (1965); Comment, The 

Prosecutor’s Exercise of the Peremptory Chal- 
lenge to Exclude Nonwhite Jurors: A Valued 

Common Law Privilege in Conflict with the 

    

720 FEDERAL REPORTER, 2d SERIES 

exercise of peremptory challenges, and that 
this practice continued unabated in petition- 
er’s trial. The exclusion must have oc- 

curred “in case after case, whatever he 

circumstances, whatever The crime “and 
whoever the defendant may be.” Swain, 
380 U.S. at 223, 85 S.Ct. at 837. Petitioner 
is not required to show that the prosecutor 

always Struck every black Venireman of- 

fered to him, Pearson, 44%8 F.2d at 1217, but 

the facts must manifestly sho an intent pn 

the part of the prosecutor to disenfranchise 
blacks from traverse juries in criminal trials 
in his circuit, “to deny the Negro the same 

right and opportunity to participate in the 

administration of justice enjoyed by the 

white population.” Swain, 380 U.S. at 224, 
83 S.Ct. at 838. The prosecutor's use of 

peremptory challenges in only a few tals 

is clearly insuilicient to state a prima facie 
case,’ ag would be a pattern of exclusion 
which occurred for only a few weeks. In 

torical proof to overcome the presumption 

of propriety in which Swain clothes peremp- 

tory challenges, and thereby show Neu- 

gent’s intent to discriminate invidiously. 

If petitioner can prove his prima facie 

case, the veil insulating prosecutorial discre- 

tion will be rent. The prosecutor, however, 

may rebut petitioner’s prima facie case in 
two ways{ First hig-may make “a showing 

that _raciallV{ Pheutral) selection procedures 
haye produced The Thistorical and Systemat- 

ic] disparity.” United States v. Perez-Her- 
nandez, 672 F.2d 1380, 1387 (11th Cir.1982), 

citing Alexander v. Louisiana, 405 U.S. 625, 

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. 1151, 1160- 

63 (1966); Note, Limiting the Peremptory Chal- 

lenge: Representation of Groups on Petit Ju- 

ries, 86 Yale L.J. 1715, 1723 & n. 36 (1977). 

18. This proof could be direct evidence, such as 

testimony, or indirect evidence such as statisti- 

cal proof. Mere allegations are insufficient. 

See, United States v. Ward, 610 F.2d 294, 295 
(5th Cir.1980); Pearson, 448 F.2d at 1215-17. 

19. Id at 1213-15 (“clearly such a claim cannot 

be established by proof of the Government's 
striking of Negroes in any one case”).  



ZYGADLO v. WAINWRIGHT 1221 
Cite as 720 F.2d 1221 (1983) 

631-32, 92 S.Ct. 1221, 1226, 31 L.Ed.2d 536 
(1972). In equal protection cases such as 
this, however, mere “affirmations of good 

faith ... are insufficient to dispel a prima 
facie case of systematic exclusion,” id. at 

632, 92 S.Ct. at 1226, and “a mere denial of 

discriminatory intent will not suffice.” 
Perez-Hernandez, 672 F.2d at 1387, citing 

Turner v. Fouche, 396 U.S. 346, 361, 90 S.Ct. 

532, 540, 24 L.Ed.2d 532 (1970). This is not 
to say that testimony alone is per se insuffi- 
cient. We believe, however, that if peti- 

tioner can show a prima facie case, “testi- 
mony from the alleged discriminators 
should be viewed with a great deal of judi- 
cial scrutiny.” Perez-Hernandez, 672 F.2d 
at 1387. 

A_second way in_which the prosecutor 
may y rebut a prima facie case under Swain 

is not to show racially neutral reasons for 
the systematic disparity, but rather to show 

neutral reasons for the striking of all the 
blacks i in petitioner's trial itself. The prose- 
cutor may have had strategic reasons unre- 

lated to race for striking the eleven blacks 

in Willis’ case. If so, he may bring them to 

the district court’s attention and—subject 
to the caveat above concerning testimony of 

alleged discriminators after a prima facie 

case is shown—the district court could cred- 

it this testimony as adequate rebuttal. We 
realize that this lays bare the prosecutor’s 
thought processes and requires judicial in- 

spection of the prosecutor’s trial strategy 

concerning the selection of a single jury. 

Swain teaches, however, that the presump- 
tion of correctness and the insulation sur- 
rounding the prosecutor’s discretion cannot 
survive the presentation of a prima facie 
case of systematic exclusion. 380 U.S. at 
221-24, 85 S.Ct. at 836-38. If a prosecutor 

wishes not to disclose his methods of strate- 

gy, he can forego this avenue of rebuttal. 

III. 

We remand the case to the district court 

for an evidentiary hearing on the two 

claims we have discussed above, but retain 

jurisdiction of this appeal. We direct the 
district court to certify its findings and 

conclusions on these two claims to us within 

120 days. 

Accordingly, this case is 

AFFIRMED in part, VACATED in part, 
and REMANDED. 

Ww 
o £ KEY NUMBER SYSTEM 

T 

Dale Albert ZYGADLO, Petitioner, 

VY. 

Louie L. WAINWRIGHT, Etc., 

Respondent. 

No. 82-3087. 

United States Court of Appeals, 

Eleventh Circuit. 

Dec. 2, 1983. 

Convicted defendant brought petition 

for writ of habeas corpus, contending that 

trial court’s order that defendant wear leg 

shackles at trial denied him fair trial. The 

United States District Court for the Middle 
District of Florida, Howell W. Melton, J., 

denied petition, and defendant appealed. 

The Court of Appeals, James C. Hill, Circuit 
Judge, held that trial court did not abuse its 

discretion in ordering that defendant's legs 
be shackled, in light of fact that defendant 

had made previous escape attempt while 

awaiting appearance before court. 

Affirmed. 

1. Criminal Law &=637 

Due to constitutional presumption of 
innocence and right to fair trial, use of 
shackles to restrain defendant at trial 
should rarely be employed as security de- 
vice; nevertheless, shackles may properly 

be employed in some cases in order to en- 

sure safe, reasonable, and orderly progress 
of trial. U.S.C.A. Const. Amend. 6. 

  

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lity to provide ae. 

ance of nonoccyp. 

any given indivig. 
that these condi. 
constitute a defi. 

n flight. 

1959). 

ty in the statute 
he regulations of 
ining whether the 
myocardial infare- 
establish that the 
whether an appli. 
medical history or 
cardial infarction 

an a medical judg- 
fion will necessar- 
fact that the ulti- 
br this particular 
itted to fly. In 

hpplying the medi- 
e instant case will 

pservative manner 
antial safety risk. 
pfety in deciding 
5 an “established 
1s” of myocardial 
icates the policy 
p680(a). 

be of the medical 

e regulations ex- 

0 consider safety, 
porate policy con- 

. §§ 67.13(d)1Xii), 

p(d)(1Xii), .15(dX2) 

A7(dN2)), .17() 

pgnize that other 

standard at issue 

ished medical his- 

of myocardial in- 

ncorporate safety 
for the reasons 

de that the FAA's 

Heller had an 

ry or clinical di 

arction necessar- 

erns. Thus, we 

5 application of 

nt case is a dis- 

» 

  

  

UNITED STATES v. DAVID 

Badson applicsio tases pending 

on ded appeal od ITAL { 

Was ann oan pA 

Cite as 803 F.2d 1567 (11th Cir. 1986) 

cretionary decision within the meaning of 

§ 2680(a). 

III. CONCLUSION 

For the foregoing reasons, the judgment 

of the district court is 

AFFIRMED. 

KEY NUMBER SYSTEM 

UNITED STATES of America, 

Plaintiff-Appellee, 

Vv. 

Lowden DAVID, Defendant-Appellant. 

No. 85-8956 

Non-Argument Calendar. 

United States Court of Appeals, 
[Eleventh Circuit. 

Nov. 13, 1986. 

Defendant was convicted in the United 

States District Court for the Northern Dis- 

trict of Georgia, No. CR85-03-7A, Orinda 

D. Evans, J., of conspiracy to possess co- 

caine with intent to distribute, and he ap- 

pealed. The Court of Appeals, Hatchett, 

Circuit Judge, held that: (1) rule of Batson 

v. Kentucky, setting forth new evidentiary 
standard for establishing when prosecu- 

tor’s use of peremptory challenges violates 
equal protection, would be applied retroac- 

tively to cases that were pending on direct 
appeal at time decision was announced, and 

(2) remand was required to determine 

whether Government's use of its perempto- 

ry challenges to strike three black jurors 

established prima facie showing of racial 

discrimination and, if so, whether prosecu- 

tion had rebutted it. 

Vacated and remanded. 

        

  

9. Because we affirm the district court's diemis- 
sal of the case on the discretionary function 
ground, we do not reach the issue of whether or 

803 F.2d—35 

1. Criminal Law €=1036.2 

Defendant waived review of ruling de- 

nying his motion in limine requesting re- 

striction on Government's right to impeach 

him with prior conviction by failing to testi- 

fy. Fed Rules Evid.Rule 609, 28 U.S.C.A. 

2. Criminal Law ¢=1036.2 

Defendant must testify in order to 

raise and preserve for review claim of im- 

proper impeachment with a prior convie- 

tion. Fed.Rules Evid.Rule 609, 28 U.S.C.A. 

3. Courts &=100(1) 

Rule of Batson v. Kentucky, setting 

forth new evidentiary standard for estab- 

lishing when prosecutor’s use of perempto- 

ry challenges violates equal protection, 

would be applied retroactively to cases that 

were pending on direct appeal at time deci- 

sion was announced. U.S.C.A. Const. 

Amend. 14. 

4. Criminal Law &1181.5(3) 

Remand was required to determine 

whether Government's use of its perempto- 

ry challenges to strike three black jurors 

established prima facie showing of racial 

discrimination and, if so, whether prosecu- 

tion had rebutted it. U.S.C.A. Const. 

Amend. 14. 

5. Constitutional Law ¢&221(4) 

Striking of one black juror for racial 

reason violates equal protection even 

where other black jurors are seated, and 

even when valid reasons for the striking of 

some black jurors are shown. U.S.C.A. 

Const.Amend. 14. 

6. Jury &=33(5.1) 

Although statistics showing discrimi 

natory impact caused by Government's use 

of peremptory challenges to strike black 

jurors may themselves constitute showing 

of intentional discrimination, statistical 

showing is not sole means for establishing 

prima facie case of discrimination; focus of 

court’s inquiry is to determine whether in- 

not Heller's claim is also barred by the statute 
of limitations. 

1567 

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1568 803 FEDERAL REPORTER, 2d SERIES 

tentional discrimination has taken place. 

U.S.C.A. Const. Amend. 14. 

7. Jury &=121 

Trial judge is responsible to make crit- 

jcal determinations of whether defendant 

has established prima facie showing of race 

discrimination through prosecutor’s use of 

peremptory strikes of black jurors, and, if 

so, whether prosecution has rebutted it. 

U.S.C.A. Const. Amend. 14. 

8. Jury 120 

Failure by prosecutor to explain every 

peremptory strike of black jurors is not 

necessarily fatal to prosecutor’s ability to 

rebut prima facie case of race discrimina- 

tion; likewise, explanation of most of the 

strikes on nonracial grounds does not nec- 

essarily rebut inference that peremptory 

challenges constitute improper jury selec- 

tion practice. U.S.C.A. Const. Amend. 14. 

Ray H. Ledford (Court-appointed), Atlan- 

ta, Ga., for defendant-appellant. 

H. Allen Moye, Drug Task Force, Atlan- 

ta, Ga., for plaintiff-appellee. 

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

Before RONEY, Chief Judge, HATCH- 

ETT, Circuit Judge, and HENDERSON *, 

Senior Circuit Judge. 

HATCHETT, Circuit Judge: 

A grand jury indicted appellant, Lowden 

David, for violations of 21 U.S.C. § 846 

(conspiracy to possess cocaine with intent 

to distribute it in violation of 21 U.S.C. 

§ 841(a)1)) and 18 U.S.C. § 1952(a)3) (use 

of the United States mails in aid of racke- 

teering). A jury convicted him of violating 

21 U.S.C. § 846, but acquitted him of vio- 

lating 18 U.S.C. § 1952(a)(3). He raises 

two issues on appeal. We vacate the judg- 

ment and remand. 

* See Rule 3(b), Rules of the U.S. Court of Appeals 

Issue 1: Rule 609, Federal Rules 
of Evidence 

[1] David contends that the district 
court improperly denied a motion in limine 
which requested a restriction on the 
government's right to impeach him with a 
prior conviction if he took the witness 
stand. David did not testify. He argues 
that he was denied a defense to the 
charges by the court’s ruling. 

[2] Because David never testified, he 

has waived review of the court's ruling. A 
defendant must testify in order to raise and 
preserve for review the claim of improper 

impeachment with a prior conviction. Luce 

v. United States, 469 U.S. 38, 105 S.Ct. 
460, 83 L.Ed.2d 443 (1984); United States 

v. Wolfe, 766 F.2d 1525 (11th Cir.1985). 

Issue 2: Peremptory Challenges 

During the trial, David objected to the 

government’s use of its peremptory chal- 

lenges to strike three black J jurors: two of 

the three black jurors on the panel and a 

black juror from the pool of alternate ju- 
rors. One black juror and a black alternate 
were seated. The district Court conc Tuded 

that David had not made a showing that 
would entitle him to any relief under 

Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 

824, 13 L.Ed.2d 759, reh’g denied, 381 U.S. 

921, 85 S.Ct. 1528, 14 L.Ed:2d 442 (1965). 

David filed his brief before the Supreme 

Curt Surt announced Batson v. Kentucky, 
— Sg B.C. 1/12, 90 L.Ed.2d 69 
(1986), a new evidentiary standard for es- 

tablishing when a prosecutor's use of per- 

emptory challenges violates the Equal Pro- 

tection Clause. 

  
  

The government briefed the effect of 

Batson. The government urges that Bat- 

son should not be applied to this case, 

because this case was tried before Batson 

was announced. The government also ar- 

gues that the district court acted properly 

in finding that no prima facie case of dis- 
crimination was shown. The government 

also argues that merely showing that 

David is black and that blacks were per 

for the Eleventh Circuit. 

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pderal Ruleg 

e 

at the district 

motion in limine 
riction on the 

each him with a 
ok the witness 
ify. He argues 
defense to the 
ng. 

rer testified, he 

ourt’s ruling. A 
rder to raise and 
aim of improper * 
onviction. Luce 

S. 38, 105 S.Ct 

: United States 
(11th Cir.1985). 

Challenges 

objected to the 
peremptory chal- 

{ jurors: two of 

the panel and a 

of alternate ju- 

a black alternate 

court concluded 

a showing that 

y relief under 

S. 202, 85 S.Ct. 

denied, 381 U.S. 

d.2d 442 (1965). 

ore the Supreme 

bn v. Kentucky, 

2, 90 L.Ed.2d 69 

standard for es- 

tor's use of per- 

s the Equal Pro- 

d the effect of 

urges that Bat- 
bd to this case, 

d before Batson 

rnment also ar- 

acted properly 
acie case of dis- 
he government 

showing that 

blacks were per 

  

UNITED STATES v. DAVID 1569 
Cite as 803 F.2d 1567 (11th Cir. 1986) 

emptorily challenged does not establish a 

prima facie case. Rather, the government 

argues that David should have articulated 

“other relevant circumstances” which 

“raise an inference” of discriminatory in- 

tent. Batson wv. Bentucky) at —, 106 

S.Ct. at 1723. 

The government also argues that the 

record reflects that the black veniremen 

were not discharged because of race. This 

fact is shown because the he prosecutor did 
not strike the third black. Juror from the 

panel, though he had a peremptory chal- 

lénge available 0 do So. Second, the Strik- 
ifg of the black male venireman was con- 

sistent with the striking of four other ve- 

niremen who were _present or former em- 

ployees of the federal government or the 

postal service. (Three were struck by the 

appellant and two by the government.) Fi- 

nally, the government points out that the 

black female venireperson who was struck 

by-the=gOf¥ernment was pregnant and two 

months into maternity leave from her job. 

The government argues that this record is 

sufficient to entitle the district court’s con- 

clusions to a presumption of correctness. 

See Wainwright v. Witt, 469 U.S. 412, 105 

S.Ct. 844, 83 L.Ed.2d 841 (1985). 

The government cites United States v. 

Dennis, 786 F.2d 1029, 1048-49 (11th Cir. 
1986), in which we held that a showing that 

the prosecutor had used two of his three 

peremptory challenges to strike blacks 

from a jury venire did not establish a prima 

facie case of discrimination. The govern- 

ment points out that though the court was 

bound by Swain, we also stated we would 

find no prima facie case of discrimination 

merely because the prosecutor used two of 

his three regular strikes to challenge 

blacks and used his only alternate chal 

lenge to strike a black. 786 F.2d at 1049 n. 

24. 

A. Applicability of Batson 

[3] The legal environment has suffi 

ciently changed as a result of Batson. 

This is a direct appeal of a criminal convic- 
tion in the United States Courts. The Su- 

preme Court recently held that the decision 
* 

in Batson should not be applied retroac- 

tively on collateral review of convictions 

that became final before the Batson opin- 

ion was announced. Allen v. Hardy, — 

U.S. —, 106 S.Ct. 2878, 92 L.Ed.2d 199 

(1986). The Court expressed no view on 

whether the decision in Batson should be 

applied to cases that were pending on di- 

rect appeal at the time the decision was 

announced. Allen v. Hardy, at —, n. 1, 

106 S.Ct. at 2880, n. 1. The Supreme Court 

has granted certiorari on the issue of appli- 

cation of Batson to cases pending on direct 

appeal. See Griffith v. Kentucky, — U.S. 

——, 106 S.Ct. 2274, 90 L.Ed.2d 717 (cert. 

granted June 2, 1986) and Brown v. United 

States, — U.S. ——, 106 S.Ct. 2275, 90 

L.Ed.2d 718 (cert. granted June 2, 1986). 

The misuse of peremptories issue was 

raised at trial. When the law changes 

while cases are Pending on_appeal, Unis 

_Court has commonly remanded to the lower 

court for consideration of the new princi: 

ple. See Stewart v. Bailey, 561 F.2d 1195, 
reh g denied, 565 F.2d 163 (5th Cir.1977); 

Thurston v. Dekle, 578 F.2d 1167 (5th Cir. 

1978). This would not be necessary if the 

appellate court decided that the change 

should not be applied retroactively. 

The government cites Solem v. Stumes, 

465 U.S. 638, 104 S.Ct. 1338, 1341, 79 

L.Ed.2d 579 (1984) as setting forth three 

factors to be used in evaluating whether a 

particular case should be applied retroac- 

tively: (1) the purpose to be served by the 

new standard; (2) the extent or reliance on 

the old standards by law enforcement offi- 

cers; and (3) the effect on the administra- 

tion of justice of a retroactive application 

of the new standards. Shea v. Louisiana, 

470 U.S. 51, 105 S.Ct. 1065, 84 L.Ed.2d 38 

(1985) is the governing authority for appli- 

cation of a new decision to cases pending 

on direct appeal. In Shea, the Court 
adopted the distinction urged by Justice 

Harlan in Desist v. United States, 394 U.S. 

244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) 

(dissenting opinion) between direct appeal 

and collateral review. See also United 

States v. Johnson, 457 U.S. 537, 102 S.Ct. 

2579, 73 L.Ed.2d 202 (1982). Skea specifi-    



  

1570 

cally distinguishes Stumes as involving a 

federal collateral attack upon a state con- 

viction which has become final, in contrast 

with a pending and undecided direct review 

of a judgment of conviction. See Shea, 470 

U.S. at 57, 105 S.Ct. at 1069, 84 L.Ed.24d at 
46. 

Even if Solem v. Stumes were applica- 

ble, the three factors would favor applica- 

tion of Batson to this case. The purpose 

of the new standard is to vindicate the 

guarantee of equal protection; this purpose 

is served by remand, where a more careful 

factual inquiry can be made by the district 

court.! The command of equal protection 
was present before the decision in Batson, 

Smt should have warned prosecutors 
that using peremptories to exclude blacks 

on the assumption that no black juror could 

fairly judge a black defendant would vio- 

late the Equal Protection Clause” But- 
son, — 11S, at. ——, 106 SCt. at 1725 
(White, J., concurring). Prosecutors’ re- 

liance on the old evidentiary standard was 

misplaced if the reliance led to acts of 

discrimination. In Allen v. Hardy, the Su- 

preme Court linked the justifiableness of 

reliance on Swain to the burden of proof, 

Allen v. Hardy, — U.S. at —, 106 S.Ct. 

at 2881; prosecutors reasonably omitted to 

articulate reasons for striking minorities or 

to make a record demonstrating neutral 

reasons. But, in an appeal from the dis- 

trict court, any reliance in the form of 

failure to keep careful records is of little 

significance because the time from trial to 

appeal and remand is short. 

Finally, unlike collateral review of final 

convictions, which Allen holds would be 

unduly disruptive to the administration of 

justice, application of Batson to cases 

effect on the administration of justice. It 
provides an early opportunity for the feder- 

al courts to work out “the contours of the 

Court’s Equal Protection holding.” Bat- 
son v. Kentucky, — U.S. at —, 106 

1. In addition, “the rule in Batson may have 
some impact on the truthfinding function of a 
criminal trial.” Allen v. Hardy, — U.S. at —, 

106 S.Ct. at 2881. Because the rule does not go 

803 FEDERAL REPORTER, 2d SERIES 

S.Ct. at 1725 (White, J., concurring). More. 
over, it is particularly appropriate for the 
federal courts, which have had a reservoir 
of supervisory authority available ag g 
safeguard against misuse of peremptories 
in individual cases, to apply the mandate of 
the Equal Protection Clause to cases now 
pending on appeal. But see U.S. ». Leslie, 
783 F.2d 541 (5th Cir.1986) (en banc) (pre- 
Batson rejection of use of supervisory ay. 
thority to monitor prosecutor’s use of per- 

emptory challenges). 

B. The Batson Prima Facie Showing 

[4] In In_Batson, _the Supreme Court did 
not specify the showing necessary to estab- 
lish a prima facie case of discrimination, 
The Court stated: “We have confidence 

that trial judges, experienced in supervis- 
ing voir dire, will be able to decide if the 
circumstances concerning the prosecutor's 
use of peremptory challenges creates a pri- 

ma facie case of discrimination against 
black jurors.” — U.S. at —— 106 S.Ct. 
at 1723. In making this determination, tri- 
al judges must be guided by the principles 
enunciated in Batson. 

Despite diligent efforts, the district court 

was not in a position to apply the rationale 

that the Supreme Court has now explained 

for enforcing the Equal Protection Clause 

in the context of peremptory challenges to 

venire members who belong to a cognizable 

racial group. We therefore remand to the 

district court to determine whether a prima 

facie case has been established, and, if so, 

whether the prosecution has rebutted it. 

[5,6] In making the determination, the 

district court should bear in mind the core 

> teachings of Batson, anchored by the prin- 
_ ciple that a “defendant [has] the right to be 

tried by a jury whose members are selected 

pursuant to nondiscriminatory criteria.” 

Batson v. Kentucky, at —, 106 S.Ct. at 
1717. “Purposeful racial discrimination in 

selection of the venire violates a defend- 

to the heart of the truthfinding function, how- 
ever, its connection with accuracy does not 
compel its retroactive application in collateral 
proceedings. At ——, 106 S.Ct. at 2881.   

    

 



   
   

neurring). More. 
propriate for the 
E had a reservoip 

available ag 5 

of peremptories 
y the mandate of 

  

    

   
   

    

   

  

   
   

    

   

  

    
   
    

  

   
   

  

    

          

    

ee US. v. Leslie, 
6) (en banc) (pre- 
I supervisory au- 

tor’s use of per- 

acie Showing 

preme Court did 
cessary to estab- 
pf discrimination. 
have confidence 
ced in supervis- 

eto decide if the 

the prosecutor's 
ges creates a pri- 
ination against 

t —, 106 S.Ct. 
etermination, tr- 
by the principles 

the district court 

bply the rationale 

as now explained 

Protection Clause 

pry challenges to 

g to a cognizable 

re remand to the 

whether a prima 

lished, and, if so, 

has rebutted it. 

etermination, the 

in mind the core 

ored by the prin- 

s] the right to be 

bers are selected 

natory criteria.” 

, 106 S.Ct. at 

discrimination in 

iolates a defend- 

    

   

     

    

   
    
   

  

ding function, how- 
accuracy does not 
cation in collateral 
.Ct. at 2881. 

se to cases now 

  

  

     

UNITED STATES v. DAVID 
Cite as 303 F.2d 1567 (11th Cir. 1386) 

ant’s right to equal protection....” at ——, 

106 S.Ct. at 1717. Batson rejects the view 

in Swain that the Equal Protection Clause 

only requires that black citizens not be 

deprived of jury service by being system- 

atically excluded from petit juries; Batson 

rests on a rationale that blacks are entitled 

1571 

peremptory challenges constitute a jury se- 

lection practice that permits “those to dis- 

criminate who are of a mind to discrimi- 

nate.” — U.S. at ——, 106 S.Ct. at 1723 

(citing Avery v. Georgia, 345 U.S. 559, 562, 

73 S.Ct. 891, 892, 97 L.Ed. 1244 (1953)). 

he _guestion is one of fact, the g1sizjones 
  

  nog~to—He Struck for racial reasons, and 
blatk defendants are entitled to be tried in 

a System iree Oi raci 

tices. Thi 

  

  

    

        from participation. yRather, under Batson, 
the striking of one black juror for a racial   reason violates the Equal Protection 

Clause, even where other black jurors are 

seated, and even when valid reasons for the 

striking of some black jurors are shown.   

  

Accord Fleming v. Kemp 

11th Cir.1986),27 Although statistics show- 
ing discriminatory impact may in them- 

selves constitute a showing of intentional 

discrimination, see Batson, — U.S. at 

——, 106 S.Ct. at 1721, a statistical show- 

ing is not the sole means for establishing a 

prima facie case of discrimination. The 

focus of the court’s inquiry is to determine 

whether intentional discrimination has tak- 

en place. Batson, at ——, 106 S.Ct. at 

1721 (citing Washington v. Davis, 426 U.S. 

229, 240, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 

597 (1976)). “[Tlhe totality of the relevant 

facts [may give] rise to an inference of 

discriminatory purpose.” — U.S. at —, 

106 S.Ct. at 1721 (citing Washington wv. 

Davis, 426 US. at 239-42, 96 S.Ct. at 
2047-48). 

[7,8] The trial judge is responsible to 

make the critical determinations of whether 

the defendant has established a prima facie 

showing and, if so, whether the prosecution 

has rebutted it. Failure by a prosecutor to 

explain every perZMptory Strike Or Dlack 
jurers-is-mrot-neTesSarily Tatal to the prose- 
TGtor's ability to rebut a prima facie case; 
likewise, explanation of most of the strikes 

on nonracial grounds does not necessarily 

rebut the inference created by Batson that 

2. Although the court assumed in Fleming that 
Batson may be retroactively applicable in post- 
conviction proceedings, the Fleming analysis of 

   792 F.2d 1478/ 

ro 

court's finding is “entitled.te eppropmate 

deference by a reviewing court.” — U.S. 
TO ST at i: n. 21 (citing 
Anderson v. Bessemer City, 470 U.S. 564, 
105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)). The 

“findings ... will turn on evaluation of 

credibility.” — U.S. at —, 106 S.Ct. at 

  

  

    

1724 n. 21 (citing Anderson 

565, 105 S.Ct. at 15122387 Above all, the 

isl ould bear in mind that the 

command of Batson is iminate, not 
merely to minimize, racial disTrimination in 
jury selection. The government notes that 
David did not point to other relevant cir- 

cumstances except for the pattern of per- 

emptory strikes to establish a prima facie 

showing of racial discrimination. On re- 

mand, David should be allowed to under- 

take to make such a showing, and the 

government should be allowed to supple- 

ment its explanations of the peremptory 

strikes. Each party is entitled to make its 

case based upon the guidance of Batson. 

We vacate the district court's holding 

that David did not establish a prima facie 

showing of racial discrimination in use of 

peremptory strikes and remand for further 

proceedings consistent with this opinion. 

VACATED AND REMANDED. 

  

  

  

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1208 

that bears upon your decision to plead 
guilty? 

THE DEFENDANT: No, sir, I do not 
think so. 

THE COURT: All right. Are you freely 

and voluntarily pleading guilty to 

these four counts? 

THE DEFENDANT: Yes, sir. 

THE COURT: Do you understand the 
charges? (emphasis added). 

THE DEFENDANT: Yes, sir. 

sis added). 

8 Rec. 265-66. 

Under all the circumstances, we believe 

(empha- 

that there is an ample basis for concluding 

that Collins’ plea of guilty was a “knowing, 

intelligent” act. Brady v. United States, 

397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 
L.Ed.2d 747 (1970), and is due to be af- 

firmed. 

It is noteworthy that the trial judge had 

the opportunity to observe the defendant’s 

demeanor, appearance, tone, etc., during 

the plea colloquy. By accepting the guilty 

plea, the court found that the defendant 

understood the charges. Cf Wainwright 

v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 
L.Ed.2d 841 (1985). See also Dayton, 604 

F.2d at 940 (“Where each of Rule 11's core 

inquiries has been reasonably implicated in 

the rule’s required colloquy, we will exam- 

ine its treatment to determine whether it 

has been sufficiently exposed to inquiry 

and determination. If so, we will not dis- 

turb the result.”). We will not disturb the 

acceptance of the plea in Count Six. 

AFFIRMED. 

W 
° £ rey NUMBER SYSTEM 

T 

804 FEDERAL REPORTER, 2d SERIES 

L a MN 

(ase perdi ASC yA CAIN, 
(914 

direct appeal 

UNITED STATES of America, 
Plaintiff- Appellee, 

Vv. 

Bobby Roy DENNIS, Sr., Sharon Denise 
Cohen, Clarence Bobby Jennings, Brep. 
da Jewell Hurley, Defendants-Appe). 

lants. 

No. 85-3089. 

United States Court of Appeals, 

Eleventh Circuit. 

\ ov 24, 1986: 

Defendants were convicted in the Unit. 
ed States District Court for the Middle 
District of Florida, No. 84-127-CR-J-18, 

John H. Moore, II, J., of various narcotics 
related charges, and they appealed. The 

Court of Appeals, Hill, Circuit Judge, 786 
F.2d 1029, affirmed, and defendants peti 

tioned for rehearing. On rehearing, the 

Court of Appeals struck a portion of its 
prior opinion and held that defendants 
failed to establish prima facie case of un- 

constitutional discrimination by prosecutor 

in exercise of his peremptory challenges 

where prosecutor utilized only three of six 
peremptory challenges but accepted jury 

which included two black members. 

Rehearing granted in part and denied 
in part. 

1. Jury €=33(5.1) 
“Black males,” as opposed to blacks 

generally, did not constitute cognizable ra- 

cial group for purpose of making out prima 

facie case of unconstitutional discrimina- 

tion by prosecutor in exercise of his per 

emptory challenges. 

2. Jury &33(5.1) 
Defendants failed to establish prima 

facie case of unconstitutional discrimins- 
tion by prosecutor in exercise of his per 

emptory challenges where prosecutor ut: 

lized only three of six peremptory chal 
lenges but accepted jury which included 
two black members. :  



TES of America, 

ff-Appellee, 

vY. 

1S, Sr., Sharon Denise 

Bobby Jennings, Bren. 

ey, Defendants-Appel. 

85-3089. 

Court of Appeals, 
th Circuit. 

24, 1986. 

e convicted in the Unit 
Court for the Middle 

No. 84-127-CR-J-18, 
., of various narcotics 

d they appealed. The 

ill, Circuit Judge, 786 
, and defendants peti 
pr. On rehearing, the 
ruck a portion of its 

held that defendants 
rima facie case of un 

ination by prosecutor 

heremptory challenges 
lized only three of six 

es but accepted jury 
black members. = 

ed in part and denied 

opposed to blacks 

stitute cognizable rie 

, of making out prims 
titutional discriminde 

exercise of his per 

i to establish prims 
itutional diseri ; 

exercise of his pa 
here prosecutor 
ix peremptory : 

ury which incloded 

UNITED STATES v. DENNIS 1209 
Cite =s 804 F.2d 1208 (11th Cir. 1986) 

william J. Sheppard, Courtney L. John- 

son, Jacksonville, Fla., for Dennis. 

Brent D. Shore, Jacksonville, Fla., for 

Cohen. 

Eugene F. Murphy, Jacksonville Beach, 

Fla., for Jennings. 

Howard W. Skinner, Jacksonville, Fla., 

for Hurley. 

M. Alan Ceballos, Asst. U.S. Atty., Jack- 

sonville, Fla., for the U.S. 

Appeals from the United States District 
Court for the Middle District of Florida. 

Before HILL, Circuit Judge, TUTTLE * 

and HENDERSON,** Senior Circuit 

Judges. 

ON PETITIONS FOR REHEARING 

(Opinion April 14, 1986, 11th Cir.1986, 
786 F.2d 1029) 

PER CURIAM: 

Appellants petition for rehearing with 
suggestion for rehearing en banc. Having 
reconsidered the initial opinion, the panel 

has concluded that the petition for rehear- 

ing should be GRANTED in part and DE- 
NIED in part. The suggestion for rehear- 

ing en banc has not been considered by the 
full court. After filing of this modified 

opinion, the petition for rehearing en banc 

may be properly considered by the full 

court. Accordingly, the petition for rehear- 
ing is denied in every respect but the fol- 
lowing: Part VII of the opinion, 786 F.2d 

1029, 1048-49 (11th Cir.1986), is stricken in 
its entirety and the following is substituted 

in its stead: 

* Judge Tuttle was a member of this panel that 
heard oral argument, but due to illness did not 
participate in this decision. The petition for 
rehearing is being decided by a quorum. 

** See Rule 3(b), Rules of the U.S. Court of Ap- 
peals for the Eleventh Circuit. 

21. Appellants base their claim on the fifth and 
sixth amendments to the Constitution. Al- 
though Batson involved a constitutional chal- 
lenge based on the equal protection clause of 
the fourteenth amendment, it seems clear that 
the holding and rationale of that case should 
also be used to determine similar fifth amend- 

VII. THE GOVERNMENT'S USE OF 

ITS PEREMPTORY CHALLENGES 

The government used peremptory chal- 

lenges to strike TNFEEItrkrmdwe=from the 
jury panel. In each instance, defense coun- 

sel requested that the trial court inquire 
into the government's reasons for striking 

the prospective jurors to determine wheth- 

er the prosecutor was exercising his per- 

emptory challenges on the basis of race, in 

violation of appellants’ constitutional 

rights. Those requests were denied. Two 
black women were-exentually seated on the 
jury that convicted appellants, who are 
black. 

Appellants claim that the record revealed 

no legitimate basis for striking the three 
black males who were removed from the 

jury panel; indeed, according to appellants, 

the responses of two of the three at voir 

dire indicated that they would be less in- 

clined than the average individual to exhib- 

it any particular sympathy toward criminal 

defendants. Appellants argue that they 

have thus made out a prima facie case in 

support of their claim that black males 

were unconstitutionally excluded from the 

jury that convicted them, and that the 

government should now be required to pro- 

vide a nondiscriminatory explanation for 

the exercise of the three peremptory chal- 

lenges it utilized to strike the three black 

males who were on the venire. 

Appellants rely on the recent decision of 

the"StUpreme Court in Batson v. Kentucky, 
— U.S. —, 106 S.Ct. 1712, 90 L.Ed.2d 69 
(1986), in support of their claim.2! In that 
case the Court held that, where a defend- 

ant is able to make out a prima facie case 

ment claims that are raised by defendants who 
have been tried in federal court. See, e.g., Boll- 

ing v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 
L.Ed. 884 (1954). We are constrained by bind- 

ing Eleventh Circuit authority, however, to re- 
ject appellants’ invitation to grant the relief they 
seek on sixth amendment grounds, should equal 
protection prove unavailing. Willis v. Zant, 720 
F.2d 1212, 1219 n. 14 (11th Cir.1983). 

The effect of the Supreme Court decision in | 
Batson v. Kentucky on our decision in this case 
was first raised in a petition for rehearing to 
which we have invited no response. Subse- 

quently, the Supreme Court has held that Batson  



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1210 804 FEDERAL REPORTER, 2d SERIES 

of unconstitutional discrimination by the 
prosecutor in the exercise of his perempto- 
ry challenges in the defendant's case, the 

prosecutor should be required by the trial 

court to offer a neutral explanation for the 
allegedly discriminatory challenges that is 

related to the particular case to be tried. 

The Supreme Court stated that a defendant 
could establish a prima facie case of pur- 

poseful discrimination as follows: 

[T]he defendant first must show that he 

is a member of a cognizable racial group, 

Castaneda v. Partida, [430 U.S. 482, 
494, 97 S.Ct. 1272, 1275, 51 L.Ed.2d 498 
(1977) ], and that the prosecutor has ex- 

ercised peremptory challenges to remove 
from the venire members of the defend- 

ant’s race. Second, the defendant is enti 

tled to rely on the fact, as to which there 

can be no dispute, that peremptory chal- 
lenges constitute a jury selection practice 

that permits “those to discriminate who 

are of a mind to discriminate.” Avery v. 
Georgia, [345 U.S. 559, 562, 73 S.Ct. 891 
(1953) ]. Finally, the defendant must 

show that these facts and any other rele- 
vant circumstances raise an inference 

that the prosecutor used that practice to 

exclude the veniremen from the petit 

jury on account of their race. 

Batson v. Kentucky, — U.S. at ——, 106 

S.Ct. at 1723. In determining whether the 
defendant has made out a prima facie case 

of purposeful discrimination, courts are to 

consider “all relevant circumstances. For 
example, a ‘pattern’ of strikes against 

black jurors included in the particular ve- 
nire might give rise to an inference of 

discrimination. Similarly, the prosecutor’s 

should not be retroactively applied when a con- 

been exhausted. Allen v. Hardy, — U.S. —, 

106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) (per cu- 

riam). The Court has yet to determine whether 
Batson is to be applied retroactively to cases 

| pending on direct appeal. See e.g, Brown v. 
| United States, — U.S. —, 106 S.Ct. 2275, 90 

L.Ed.2d 718 (1986) (granting certiorari). The 

| petitioner's appeal in the case at bar falls into 
that latter category of cases pending on direct 
appeal at the time Batson was rendered. For 
the reasons set forth in this opinion, we may 
dispose of appellants’ Batson claim without 
awaiting the Supreme Court's further resolution | 
of the retroactivity of Batson. 
ee - 

| viction has been entered and direct appeals have | 

questions and statements during voir dire 
examination and in exercising his cha). 
lenges may support or refute an inference 
of discriminatory purpose.” Id. 

[11 In this case, we find it clear that 

defendants failed to make out a prima facie 
caSe Of purposerul discrimination, As an 
mtial matter, the relevant "cognizable. ra- 
cial group,” "for the purposes of our analy- 
sis, 1s the group of blacks generally ang 
not just black males, as appellants urge. 
The test we apply to determine whether 

appellants are members of a cognizable 
racial group under Batson is the test ap- 
plied in Castaneda v. Partida, 430 US, 

482, 97 S.Ct. 1272, 51 L.Ed.2d 498, cited in 
Batson, — U.S. at —, 106 S.Ct. at 1723. 

Such a group is “one that is a recognizable, 
distinct class, singled out for different 
treatment under the laws, as written or as 
applied.” Castaneda, 430 U.S. at 494, 97 
S.Ct. at 1274. The group of blacks genera}- 
ly clearly qualifies under this definition; 
appellants have failed to show, however, 
that black males constitute a distinct, ree- 

ognizable subclass of individuals who have 
been singled out for different treatment 
under the laws not simply as blacks, but as 
black males. It would therefore be inap- 
propriate for us to narrow the “cognizable 
racial group,” for present purposes, to in- 

clude only black males and exclude black 
females. 

[2] The government utilized only three 

of the six_peremptory challenges it was 
allowed during the selection of the twelve 
jurors who decided the case, and one of the 
two_challenges to alternates that it was 
allowed. The government exercised two of 

| 22. The Supreme Court in Batson clearly contem- 
plated that the determination of whether a pri- 
ma facie case under Batson has been made out 
will ordinarily, if not always, be made in the 

first instance by the trial court. A remand to 
the trial court to make such a determination in 
this case, however, is unnecessary, as a finding 

by the trial court on this record that appellant 
has presented evidence sufficient to raise an 
inference of purposeful discrimination would 
constitute reversible error despite the “great def- 
erence” that we must accord the trial court's 
findings in that regard. Batson, — U.S. at — 
n. 21, 106 S.Ct. at 1724 n. 21.  



ng voir dire 

g his cha}. 
an inference 

it clear that 
a prima facie 
ion.2® As an 
gnizable ra. 

of our analy. 

enerally and 
ellants urge, 
ine whether 

a cognizable 
the test ap 

la, 430 US. 

498, cited in 

ecognizable, 
or different 
ritten or as 

S. at 434, 11 

acks general 
is definition; 
bw, however, 
distinct, ree 
hls who have 

t treatment 
blacks, but as 
ore be inap 

b “cognizable 
hoses, to in 

xclude black 

bd only three 
nges it was 
hf the twelve 

hd one of the 
that it was 

reised two of 

learly contem 

whether a pri 

been made out 

. made in the 
A remand © 

Ltermination in 

, as a finding 
that appellant 

nt to raise a8 

ination 
the “great dd: 

e trral court's 

— 11.5. Bt we 

SILVER v. BAGGIANO 1211 
Cite 25 804 F.2d 1211 (11th Cir. 1986) 

the three challenges it exercised when se- 
Jecting regular members to strike potential 
jurors who were black, and used the one 
challenge it chose to exercise when select- 
ing alternate jurors to strike an alternate 
who was black, but eventually accepted a 

jury that included among its regular mem- 
bers two blacks. It is thus obvious that 

the government.did.not attempt to exclude 
all blacks, or as many blacks as it could, 
fromthe Jury. Moreover, the unchallenged 
presence of two blacks on the jury Umder- 
euts—2ny inierence of impermissible dis- 
crimination that might be argued to arise 

from the fact that the prosecutor used 
three of the four peremptory challenges he 

exercised to strike blacks from the panel of 
potential jurors and alternates. Appel- 
lants’ case is not bolstered by the fact that 
two of the stricken black venirepersons had 

previously been victims of burglaries or 
that one of those two had also testified for 
the government in the past. We thus con- 
clude that all of the relevant facts and 
circumstances do not raise an inference of 
purposeful discrimination on the basis of 
race, and that appellants were not entitled 
to any inquiry into the prosecutor’s reasons 

Mor exercising his peremptory challenges ag 

he did. 

© ¢ KEY NUMBER SYSTEM 

Dr. Morgan SILVER, on his own behalf 
and on behalf of all other similarly 

situated podiatrists in the State of Ala- 

bama, Plaintiff-Appellee, 

Vv. 

Faye BAGGIANO, Commissioner of the 

Department of Medicaid, State of 
Alabama, Defendant-Appellant. 

No. 85-7402. 

United States Court of Appeals, 

Eleventh Circuit. 

Nov. 24, 1986. 

Podiatrist brought action against Com- 
missioner of Alabama Medicaid Agency 

and Alabama Attorney General, challeng- 
ing Alabama’s policy of denying medicaid 

reimbursement to licensed podiatrists while 

at the same time reimbursing medical doc- 

tors for identical services. The United 

States District Court for the Middle Dis- 

trict of Alabama, No. 84-V-1375-N, Robert 

E. Varner, J., granted podiatrist relief, and 

Commissioner appealed. The Court of Ap- 

peals, Anderson, Circuit Judge, held that: 
(1) district court was barred by Eleventh 

Amendment from entertaining podiatrist’s 

claims against Commissioner based on con- 

tention that policy violated laws and Consti- 

tution of Alabama; (2) podiatrist did not 

have express or implied right of action 

under “freedom of choice” provision of So- 
cial Security Act to challenge policy; (3) 

issue of whether “freedom of choice” provi- 

sion of Social Security Act created rights 

enforceable by health care providers in civil 
rights action would be remanded; and (4) 

policy did not violate equal protection or 

substantive due process. 

Vacated and remanded with instruc- 

tions. 

1. Federal Courts 269 

District court was barred by Eleventh 

Amendment from entertaining podiatrist’s 

claims against Commissioner of Alabama 

Medicaid Agency, based on contention that 

Agency's policy of denying medicaid reim- 

bursement to podiatrists while reimbursing 

medical doctors for podiatric services vio- 

lated laws and Constitution of Alabama, 

where Alabama was real, substantial party 

in interest, Commissioner was acting within 

scope of her authority in deciding not to 

reimburse podiatrists, and violations of 

state medicaid plan or regulations were not 

alleged. Ala.Code 1975, § 27-1-15; U.S. 

C.A. Const. Amend. 11. 

2. Federal Courts 266 

Removal by state officials of suit con- 
taining state law claims to federal court 

does not amount to waiver of Eleventh