# United States v. Hamilton > Court of Appeals for the Fourth Circuit · June 29, 1988 · 850 F.2d 1038 URL: https://www.frixlaw.com/law-library/cases/8961640 ## Case - **Full name:** United States v. Henry HAMILTON, Jr., Defendant-Appellant UNITED STATES of America v. Geraldine HAMILTON, Defendant-Appellant UNITED STATES of America v. Ethel HAMILTON, Defendant-Appellant UNITED STATES of America v. Charles BLAKE, Defendant-Appellant UNITED STATES of America v. Thomas BROWN, Defendant-Appellant UNITED STATES of America v. Anthony Jerome WASHINGTON, a/k/a Kojak - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** June 29, 1988 - **Citations:** 850 F.2d 1038 - **Precedential status:** Published - **Opinion:** Dissent by Murnaghan - **Judges:** Hall, Murnaghan, Sprouse - **Cited by:** 41 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8961640 ## How later opinions describe it (automated extraction) - declining to extend Batson when government gave as its race-neutral reason for having struck female jurors at a pre-Batson trial that it wanted men ## Opinion text ' MURNAGHAN, Circuit Judge, dissenting: “Circumstances alter cases.” That is surely an overworked cliche, but it also is a truism and its truth is abundantly present here. The striking of a petit jury is the focal point of the question with which we are presented. The original venire, after the court had struck for cause, consisted of fifty potential jurors, of which only one was a black male. 1 The other venire persons were nineteen white males, nineteen white females and eleven black females. The ordinary, customary way of procedure was commenced with potential jurors being singly considered and either accepted or struck peremptorily. The process continued until six places (one white male, two white females, three black females) were filled, leaving six places remaining to be filled on the jury, as well as two places as alternates thereto. The government had utilized four of its eight peremptory challenges to strike three black women and one black man. The defendants had, in turn, struck six white men and two white women. At that point, there were twelve white men, fifteen white women, and five black women remaining from whom the selection of jurors and alternates still to be selected could be made. The prosecution had left four peremptory challenges, the defense had six. By that time, there were no black men left on the venire. An important new consideration was introduced when the prosecutor, according to his testimony, decided to strike three black women jurors. His reason, as expressed by him, was to minimize or correct an imbalance by which too many women were selected for the jury. The argument, however, is completely wanting in rationality or validity because only black women 2 were struck while no white women 3 were. The sole black man on the venire panel had already been struck. So striking black women could only enhance the number of white men and white women on the petit panel. The announced objective could have been equally as well achieved by strikes of white women as by strikes of black women. The prosecution attempts to argue that it felt entitled at this point to strike only black women because it could count on the defendants to strike white persons. However, such a poor excuse, namely, that you could do wrong on the assumption that the wrong would be eliminated, matched or nullified by a similar wrong on the part of the other party, will not wash. See Batson v. Kentucky, 476 U.S. 79 , 89 n. 12, 106 S.Ct. 1712 , 1718 n. 12, 90 L.Ed.2d 69 (1986) (limiting prosecutor’s exercise of peremptory challenges while expressly refusing to *1044 address the issue of whether the Constitution imposes any limit on the defense counsel’s exercise of peremptory challenges). In short, two wrongs do not make a right. While there was no doubt that there was discrimination as to women, that did not excuse conduct that was also racially as well as sexually discriminatory. The discriminatory behavior was a case of “racially and sexually discriminatory” not of “either racially or sexually discriminatory.” Here, the fact was that the prosecution used seven out of eight peremptory challenges, the only ones it exercised, against black jurors 4 and it struck three black women while not challenging six white women. Indeed, the prosecutor’s own comments regarding some of the venire persons highlight his purposeful discrimination. The government introduced testimony that some of the black women it struck were more favorable for the prosecution than some of the white women it seated. Whatever the reasons advanced by the prosecution, the three black women were struck because they were black. Consequently, I would vacate the judgments of conviction and remand the case for a new trial. The result I would reach renders it unnecessary to consider the question to which the briefs were extensively directed of whether Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), which, on Equal Protection grounds, forbids purposeful exclusion of blacks, extends by analogy to exclusion of women. 5 The prosecution concedes that it exercised gender discrimination in the selection of the petit jury. However, the discrimination here was, if sexual, also indubitably racial. If the question had involved a venire panel made up exclusively of males, and there were three black males among them and all three blacks (admittedly otherwise preferable to the prosecution, aside from the issue of race) were struck by the prosecution while whites were chosen for all open places, it is hard to imagine a court which would not perceive a racial discrimination in such circumstances. “Vive la difference” is a phrase and here is one case where a female is entirely the equal of the male and entitled to equal treatment on racial grounds. I, therefore, dissent. . The one other black male venire member had unaccountably disappeared and could not be located. . Three out of the potential five. . Out of fifteen remaining potential jurors who were white females. . The government expresses pride in pointing out that it did not exercise all of its peremptory challenges. It relies on the fact that it left one peremptory challenge unexercised to support its contention that the government did not exclude from the jury all the blacks that it could have, had the prosecution been motivated by a racially discriminatory purpose. I find such explanation to be unpersuasive. Indeed, when the government exercised its seventh peremptory challenge, there were two black venire persons left who might possibly be picked. The mere fact that it did not use its last challenge meant only that the government was saving the challenge just in case another black venire person came up. In fact the next two choices were white men who were seated, completing the jury selection, making exercise of the last challenge by the government not only unnecessary, but a reason not to strike because striking, by requiring consideration of other potential jurors, including the remaining two black women, might make selection of a black more possible. In short, that eighth challenge, while not exercised, did serve its purpose and was used as an insurance policy to keep blacks off the panel. . The result also renders it unnecessary to consider the question of whether the prosecutor's use of peremptory challenges to excuse women violates the Sixth Amendment right to a jury that represents a fair cross section of the community. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8961640. Public record. Not legal advice.