Ct. App. N.Y.; App. Ct. Ill., 1st Dist.; and Sup. Ct. La. 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 JUSTICE STEVENS, with whom JUSTICE BLACKMUN and JUSTICE POWELL join, respecting the denial of the petitions for writs of certiorari.
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 prosecutor'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).*fn* 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
, 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.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, 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 Negross for cause,
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 ...