Ct. App. N. Y.;

App. Ct. Ill., 1st Dist.; and

Sup. Ct. La. Certiorari denied. Reported below: No. 82-1381, 57 N. Y. 2d 542, 443 N. E. 2d 915; No. 82-5840,104 Ill. App. 3d 1205, 437 N. E. 2d 945; No. 82-5910, 420 So. 2d 139.

Opinion of

My vote to deny certiorari in these cases does not reflect disagreement with Justice Marshall’s appraisal of the importance of the underlying issue — whether the Constitution prohibits the use of peremptory challenges to exclude members of a particular group from the jury, based on the pros[*962] ecutor’s assumption that they will be biased in favor of other members of the same group. I believe that further consideration of the substantive and procedural ramifications of the problem by other courts will enable us to deal with the issue more wisely at a later date. There is presently no conflict of decision within the federal system. During the past five years, two State Supreme Courts have held that a criminal defendant’s rights under state constitutional provisions are violated in some circumstances by the prosecutor’s use of peremptory challenges to exclude members of particular racial, ethnic, religious, or other groups from the jury. People v. Wheeler, 22 Cal. 3d 258, 583 P. 2d 748 (1978); Commonwealth v. Soares, 377 Mass. 461, 387 N. E. 2d 499, cert. denied, 444 U. S. 881 (1979).* That premise, understandably, has given rise to litigation addressing both procedural and substantive problems associated with judicial review of peremptory challenges, which had traditionally been final and unreviewable. See, e. g., People v. Allen, 23 Cal. 3d 286, 292, 590 P. 2d 30, 33 (1979); People v. Fuller, 136 Cal. App. 3d[*963] 403, 186 Cal. Rptr. 283 (1982); People v. Rousseau, 129 Cal. App. 3d 526, 536, 179 Cal. Rptr. 892, 897 (1982); Commonwealth v. Walker, 379 Mass. 297, 397 N. E. 2d 1105 (1979); Commonwealth v. Kelly, 10 Mass. App. 847, 406 N. E. 2d 1327 (1980); Commonwealth v. Brown, 11 Mass. App. 283, 416 N. E. 2d 218 (1981). In my judgment it is a sound exercise of discretion for the Court to allow the various States to serve as laboratories in which the issue receives further study before it is addressed by this Court.

dissenting.

These cases present a significant and recurring question of constitutional law: whether the State’s use of peremptory challenges to exclude all potential Negro jurors because of their race violates a criminal defendant’s right to an impartial jury drawn from a fair cross section of the community.

In No. 82-1381, after a first trial had resulted in a hung jury, an all-white jury convicted a Negro of first- and second-degree robbery of a white victim. The prosecutor exercised his peremptory challenges to exclude all seven Negroes and one Hispanic who had been drawn as prospective trial jurors.. Asserting that the prosecutor’s actions violated the Constitution, petitioner moved for a mistrial, or alternatively, for a hearing to examine the prosecutor’s motives in exercising the challenges. These motions were denied. The New York Court of Appeals subsequently affirmed the conviction by a vote of four to three. 57 N. Y. 2d 542, 443 N. E. 2d 915 (1982). Both the trial court and the Court of Appeals relied heavily on Swain v. Alabama, 380 U. S. 202 (1965), in rejecting petitioner’s constitutional argument.

In No. 82-5840 and in No. 82-5910, all-white juries convicted Negro defendants of murdering white victims. In No. 82-5840, the prosecutor employed his peremptory challenges to exclude all 14 potential Negro jurors. In No. 82-5910, following the removal of three Negroes for cause,[*964] the prosecutor used his peremptory challenges to exclude every remaining Negro venireman. In both cases, counsel for petitioners unsuccessfully objected to the State’s use of peremptory challenges to exclude all Negroes from the jury. The state appellate courts concluded that petitioners had merely shown that Negroes were excluded from the juries in their cases, not that the State had systematically excluded Negroes over a period of time. And in each case, respondents rely heavily upon Swain v. Alabama, supra, to defend the judgments below.

In Swain, a closely divided Court held that the prosecutor’s use of peremptory challenges to strike Negroes from the jury panel in one particular case did not deny the defendant the equal protection of the laws. The majority reasoned: “The presumption in any particular case must .be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes.” Id., at 222. The majority conceded that circumstances might arise where “the purposes of the peremptory challenge are being perverted.” Id., at 224. But the majority stated that an equal protection claim would assume “added significance” only where “the prosecutor in a county, 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 . . . .” Id., at 223.

In the nearly two decades since it was decided, Swain has been the subject of almost universal and often scathing criticism.^[1] Since every defendant is entitled to equal protection[*965] of the laws and should therefore be free from the invidious discrimination of state officials, it is difficult to understand why several must suffer discrimination because of the prosecutor’s use of peremptory challenges before any defendant can object.^[2] Moreover, Swain is inconsistent with the rule established in other jury selection cases that a prima facie violation is established by showing that an all-white jury was selected and that the selection process incorporated a. mechanism susceptible to discriminatory application, irrespective of when in the selection process that opportunity arose.^[3] Finally, the standard of proof for discrimination in Swain imposes a nearly insurmountable burden on defendants.^[4] For[*966] these reasons, some leading state courts have declined to follow Swain in interpreting state constitutional provisions. See State v. Crespin, 94 N. M. 486, 612 P. 2d 716 (App. 1980); Commonwealth v. Soares, 377 Mass. 461, 387 N. E. 2d 499, cert. denied, 444 U. S. 881 (1979); People v. Wheeler, 22 Cal. 3d 258, 583 P. 2d 748 (1978). Cf. People v. Payne, 106 Ill. App. 3d 1034, 436 N. E. 2d 1046 (1982).

I would grant certiorari to reexamine the standard set forth in Swain. In contrast to the defendant in Swain, petitioners have not relied upon the Equal Protection Clause in their challenge to the exclusion of potential Negro jurors. They rely instead on their Sixth Amendment right to be tried[*967] by an impartial jury drawn from a fair cross section of the community. Swain was decided before this Court held that the Sixth Amendment applies to the States through the Fourteenth Amendment, Duncan v. Louisiana, 391 U. S. 145 (1968), and well before this Court identified the contours of that right in Taylor v. Lousiana, 419 U. S. 522 (1975). It should be reconsidered in light of Sixth Amendment principles established by our recent cases.

In Taylor v. Louisiana, this Court explained that “[t]he purpose of a jury is to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community.” Id., at 530. We noted that the effect of excluding “‘any large and identifiable segment of the community ... is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.’” Id., at 532, n. 12, quoting Peters v. Kiff, 407 U. S. 493, 503 (1972) (opinion of Marshall, J.). Accordingly, we accepted the “fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment,” 419 U. S., at 530, and we specifically stated that “the exclusion of Negroes from jury service because of their race ‘contravenes the very idea of a jury — “a body truly representative of the community” ....’” Id., at 528 (quoting Carter v. Jury Comm’n, 396 U. S. 320, 330 (1970)).

The right to a jury drawn from a fair cross section of the community is rendered meaningless if the State is permitted to utilize several peremptory challenges to exclude all Negroes from the jury. This Court has consistently struck down methods of jury selection that produce racially biased jury venires.^[5] The very purpose of refusing to tolerate ra[*968] cial discrimination in the composition of the venire is to prevent the State’s systematic exclusion of any racial group from juries. The desired interaction of a cross section of the community does not take place within the venire; it is only effectuated by the jury that is selected and sworn to try the issues. The systematic exclusion of prospective jurors because of their race is therefore unconstitutional at any stage of the jury selection process. There is no point in taking elaborate steps to ensure that Negroes are included on venires simply so they can then be struck because of their race by a prosecutor’s use of peremptory challenges. Yet, given the normal allowance of such challenges,^[6] a prosecutor who wishes to exclude all Negroes can normally do so. The effect of excluding minorities goes beyond the individual defendant, for such exclusion 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.” Ballard v. United States, 329 U. S. 187, 195 (1946).^[7]

The right to be tried by a jury representative of a cross section of the community does not mean that each jury must[*969] include constituents of every group in the population. The impracticality of such a formulation is obvious. But there is a serious question whether the right to an impartial jury permits the State to exclude members of a racial minority solely because of their race. When a prosecutor uses several peremptory challenges to exclude every potential Negro juror, there is strong circumstantial evidence that the exclusions are racially motivated and therefore in violation of the defendant’s Sixth Amendment right. At the very least, a defendant should be able to state a cognizable claim without proof of absolute exclusion of every Negro in every case'for several years, as required by Swain.

In California, for example, a defendant must make a timely objection and show from all the circumstances a strong likelihood that the prosecution is exercising its peremptory challenges because of race alone. If the trial judge finds a reasonable inference of exclusion based on race, the statutory provision that no reason need be given for a peremptory challenge gives way to the constitutional imperative and the prosecution must show some nonracial basis for the exercise of its challenges. The trial court then makes the ultimate determination as to whether the defendant has successfully demonstrated that the prosecution is using its peremptory challenges in a constitutionally impermissible manner. See People v. Wheeler, supra. Such a procedure is merely illustrative, but it appears to be quite workable. The California courts have indicated no difficulty in applying it. See, e. g., People v. Johnson, 22 Cal. 3d 296, 583 P. 2d 774 (1978); People v. Allen, 23 Cal. 3d 286, 590 P. 2d 30 (1979) (trial court errs in failing to require prosecution to demonstrate nonracial basis for exclusion); People v. Rousseau, 129 Cal. App. 3d 526, 179 Cal. Rptr. 892 (1982) (trial court correctly concluded that defendant failed to establish prima facie case); People v. Fuller, 136 Cal. App. 3d 403, 186 Cal. Rptr. 283 (1982).

Accordingly, I would grant certiorari to consider whether petitioners’ Sixth Amendment rights, as applied to the States[*970] through the Fourteenth Amendment, were violated by the prosecutors’ use of peremptory challenges to exclude all Negroes from the juries in these three cases.^[8] Sixth Amendment principles have evolved significantly since Swain was decided, and it is time to reexamine whether the rule announced in Swain under the Equal Protection Clause can be reconciled with the Sixth Amendment right of every defendant.^[9]

Although these eases present only the question of peremptory challenges on racial grounds, the same constitutional claims may also apply to the exclusion of other identifiable groups. The California Supreme Court has held that the State may not use peremptory challenges solely on the basis of religious, ethnic, or similar group affiliations. See People v. Wheeler, 22 Cal. 3d, at 272, 583 P. 2d, at 758 (relying on both the Sixth Amendment to the United States Constitution and Art. I, § 16, of the California Constitution). Similarly, the Massachusetts Supreme Judicial Court has condemned peremptory challenges based on “sex, race, color, creed or national origin.” Commonwealth v. Soares, 377 Mass., at 487-489, and nn. 29, 33, 387 N. E. 2d, at 515-516, and nn. 29, 33 (relying on Art. 12 of the Massachusetts Declaration of Rights). Cf. State v. Crespin, 94 N. M. 486, 612 P. 2d 716 (App. 1980) (declaring constitutional right, apparently on state grounds, but not specifying whether groups other than racial groups are protected).

Furthermore, although these cases involve peremptory challenges by the prosecutor, the Massachusetts court in Soares held that the Commonwealth as well as the defense could challenge the improper exercise of such challenges. 377 Mass., at 489-490, n. 35, 387 N. E. 2d, at 517, n. 35; see Commonwealth v. Reid, 384 Mass. 247, 424 N. E. 2d 495 (1981).