Thomas C. Ramseur v. Howard C. Beyer, Superintendent, New Jersey State Prison, Robert Del Tufo, New Jersey Attorney General

ALITO, Circuit Judge,

concurring.

I concur in all but Part II of the opinion of the court. 1 I agree with the conclusion reached in part II — that a writ of habeas corpus should not be issued based on Ramseur’s claim of discrimination in the grand jury selection process — but I arrive at that conclusion by a somewhat different process of reasoning.

1. First, I do not think that it is necessary to reach the question whether Rams-eur’s own equal protection rights would have been violated if the composition of the grand jury had been affected by the assignment judge’s announced policy of taking race into account for the purpose of empaneling a grand jury with the same makeup as the population of the county. I fully agree with the court that the record does not show that any person was excluded on racial grounds from the grand jury that indicted Ramseur, and it seems perfectly clear that Ramseur’s own equal protection rights could not have been violated in the absence of such an effect. I would therefore go no further and would not express any view on the hypothetical question whether Ramseur’s own equal protection rights would have been violated had such exclusion been shown.

The court seems to regard it as well settled that a defendant’s own equal protection rights are violated whenever race is taken into account in the grand jury selection process — even if the purpose and effect is to empanel a grand jury that constitutes a cross-section of the community. While the court may be correct, I am less sure.

I recognize that the Supreme Court has held for more than a century that a defendant’s conviction must be overturned on equal protection grounds if members of the defendant’s race or ethnic group were barred by law from serving on the grand jury, Strauder v. West Virginia, 100 U.S. 303 , 25 L.Ed. 664 (1880), or if discriminatory practices caused members of the defendant’s race or ethnic group to be substantially underrepresented on the grand jury. 2 These decisions appear to have been based in part on the harm caused by such discrimination to those who were denied the opportunity to serve on grand juries or to the community at large. 3 To the extent that these decisions relied on unequal treatment of the defendants themselves, the Court appears to have reasoned that the defendants were treated unequally because, as a *1243 result of discrimination in the grand jury selection process, their cases were presented to grand juries that were less likely to be fair to them than to members of other races or ethnic groups and less likely to be fair to them than would juries selected on a nondiscriminatory basis. 4

This same reasoning does not apply when a grand jury is selected so that its racial and ethnic composition mirrors that of the community as a whole. (For convenience, I will call such a grand jury a “cross-section grand jury.”) Indeed, it is not easy to comprehend how it can be said that a potential defendant is deprived of the equal protection of the laws when his or her case is presented to a cross-section grand jury. Such a grand jury has the same composition as the median grand jury selected by a purely random selection procedure. Since these two grand juries have the same makeup, there is no reason to believe that one will be any fairer or less fair than the other towards potential defendants of any race or ethnic group. And since a potential defendant’s equal protection rights are not violated when his or her case is presented to the median randomly selected grand jury, it is unclear why the same conclusion should not follow when the potential defendant’s case is presented to a cross-section grand jury.

On the contrary, the use of cross-section grand juries seems likely to result in more equal treatment for potential defendants than the use of randomly selected grand juries. The racial and ethnic composition of most randomly grand juries does not mirror that of the community at large. Most contain an over-representation of one group or another. Therefore, these grand juries are, if anything, more likely to treat potential defendants unequally based on racial or ethnic bias than are cross-section grand juries. Furthermore, because a random system tends to produce grand juries that vary in composition, it is more likely under such a system for the treatment of potential defendants of a particular race or ethnic background to vary depending on the particular grand jury to which their cases are presented. It is therefore difficult to understand how it can be thought that the equal protection rights of potential defendants are violated when their cases are presented to crossrsection grand juries but not when their cases are presented to randomly selected grand juries.

To be sure, when the race and ethnic background of potential grand jurors are taken into account in selecting a grand jury, these potential grand jurors are treated differently, and thus it is appropriate to inquire whether their equal protection rights are violated by such a procedure. But the same cannot logically be said about the equal protection rights of potential defendants. For these reasons, if I were writing on a clean slate, I would be inclined to hold that the equal protection rights of defendants are not violated when they are indicted by cross-section grand juries.

We are not, however, writing on a clean slate. While I do not think that the Supreme Court’s decisions concerning peremptory challenges and most of its decisions concerning discrimination in the selection of grand and petit jurors are controlling with respect to the point I am discussing, the plurality and concurring opinions in Cassell v. Texas, 339 U.S. 282 , 70 S.Ct. 629 , 94 L.Ed. 839 (1950), contain strong statements to the effect that a defendant’s equal protection rights are violated by a selection procedure that limits the number of grand jurors of the defendant’s race on each panel based on that race’s representation in the community. Id. at 286 , 70 S.Ct. at 631 (plurality); id. at 295 , 70 S.Ct. at 635 (Frankfurter, J., concurring). The opinion in Swain v. Alabama, 380 U.S. 202, 208 , 85 S.Ct. 824, 829 , 13 L.Ed.2d 759 (1965), contains similar statements. All of these statements are technically dicta, and it seems obvious that the selection system at *1244 issue in Cassell was nothing more than an effort to minimize desegregation and was thus far different from the system that the assignment judge was openly employing here. 5 Still, we might well be required to give these statements controlling weight if we were forced to decide the hypothetical question whether Ramseur’s own equal protection would have been violated if the assignment judge’s system had actually affected the composition of the grand jury. But, as previously noted, we are not required to decide that question. 6

2. This brings me to the question whether the equal protection rights of any of the potential or actual grand jurors were violated. If it were appropriate to reach the merits of this question, 7 we would be required to ask whether the assignment judge’s selection procedure satisfied the strict equal protection standard applicable to all racial classifications, that is, whether the selection procedure served a compelling state interest and was narrowly tailored to serve that purpose. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-94 , 109 S.Ct. 706, 720-21 , 102 L.Ed.2d 854 (1989) (plurality); id. at 520 , 109 S.Ct. at 735 (Scalia, J., concurring in judgment); Wygant v. Jackson Board of Education, 476 U.S. 267, 273-74 , 106 S.Ct. 1842, 1846-47 , 90 L.Ed.2d 260 (1986) (plurality); id. at 284-86 , 106 S.Ct. at 1852-53 (opinion of O’Connor, J.). Furthermore, if we found a violation, we might be required to apply the standards generally used for judging the propriety of equal protection remedies. See, e.g., Board of Education v. Dowell, 498 U.S. 237 , ---, 111 S.Ct. 630, 636-38 , 112 L.Ed.2d 715 (1991); Milliken v. Bradley, 433 U.S. 267, 282 , 97 S.Ct. 2749, 2758 , 53 L.Ed.2d 745 (1977). Before reaching the merits of these matters,^however, it is first necessary to ask whether Ramseur has standing to assert the equal protection rights of potential or actual grand jurors.

The Supreme Court has held that criminal defendants and civil litigants have *1245 third-party standing to assert the rights of prospective petit jurors who are peremptorily challenged because of race. In reaching this conclusion, the Court has reasoned that criminal defendants and civil litigants have a “close relation” to potential trial jurors as a result of voir dire. Powers v. Ohio, — U.S. -, -, 111 S.Ct. 1364, 1372 , 113 L.Ed.2d 411 (1991); Edmonson v. Leesville Concrete Co., Inc., — U.S. -, ----, 111 S.Ct. 2077, 2087-88 , 114 L.Ed.2d 660 (1991). The Court has written that “\v]oir dire permits a party to establish a relation, if not a bond of trust, with the jurors. This relation continues throughout the entire trial and may in some eases extend to the sentencing as well.” Powers, — U.S. at- , 111 S.Ct. at 1372.

I do not think that this reasoning can be applied to a case involving the exclusion of potential grand jurors. An individual whose case is submitted to a grand jury is not present when the members of the grand jury are selected. Thus, this individual generally never even sees any potential grand jurors who are excluded. Moreover, unless this individual testifies before the grand jury, he or she generally never sees the actual grand jury members. And except in very rare circumstances, he or she never learns the grand jurors’ names or anything about them. Consequently, I do not see how a “close relation” of the type found in Powers and Edmonson can be said to exist between a person whose case is presented to a grand jury and potential or actual grand jurors.

Nor do I think that the present case involves the type of “close relation” that the Court found sufficient to sustain third-party standing in Georgia v. McCollum, — U.S. -, -, 112 S.Ct. 2348, 2357 , 120 L.Ed.2d 33 (1992). There, the Court held that a prosecutor had third-party standing to assert the equal protection rights of potential petit jurors peremptorily struck by a criminal defendant. The Court reasoned that the prosecutor had a close relation with the struck jurors because the state is “the representative of all its citizens.” Ibid. Obviously, the same is not true for a person like Ramseur. Thus, I do not think that Ramseur has third-party standing under any theory to assert the rights of potential or actual grand jurors.

This conclusion seems to me entirely consistent with basic principles regarding third-party standing. One of the reasons why the law generally does not allow A to assert B’s rights is that A may not think that his or her rights were violated, may not want B to obtain any advantage as a result of the violation of A’s rights, or may not agree with the relief that B is trying to obtain. See Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 80 , 98 S.Ct. 2620, 2633 , 57 L.Ed.2d 595 (1978); Singleton v. Wulff, 428 U.S. 106, 113-14 , 96 S.Ct. 2868, 2873-74 , 49 L.Ed.2d 826 (1976) (plurality opinion). Under any of these circumstances, a court would not be helping A by allowing B to assert A’s rights.

These precise considerations may well apply in the present case. Ramseur wants us to vacate his first-degree murder conviction as a remedy for, among other things, the insult that he claims several black grand jurors suffered when the assignment judge asked them to sit temporarily in the body of the courtroom rather than immediately taking a seat on the panel. But before considering such a remedy, should we not have some indication that the recipients of this treatment actually feel that they were wronged and feel that vacating Rams-eur’s conviction is an appropriate remedy? We would have such an indication if they had brought suit — as they certainly could have under Carter v. Jury Commission of Greene County, 396 U.S. 320 , 90 S.Ct. 518 , 24 L.Ed.2d 549 (1970)—and if they had asked for such relief, but we have no such indication here.

For all we know, these grand jurors may not feel that the assignment judge did anything wrong. After all, the assignment judge was simply attempting to implement in the context of grand jury selection the view that it is permissible and preferable in certain circumstances to abandon strictly “color blind” selection criteria in favor of race-conscious criteria designed to achieve diversity. See, e.g., Metro Broadcasting *1246 Inc. v. FCC, 497 U.S. 547, 567-68 , 110 S.Ct. 2997, 3010-11 , 111 L.Ed.2d 445 (1990). Many public officials in New Jersey contend that race-conscious criteria should be used in selecting other participants in the criminal justice system, including judges 8 and prosecutors. 9 Thus, the grand jurors supposedly wronged in this case may well see nothing unusual or improper in what the assignment judge did. They may think that it is a good thing for every grand jury in Essex County to reflect the racial and ethnic diversity of the community. They may feel that this will lead to fairer, more uniform decisions. They may also feel that this will lead to greater community acceptance of grand jury decisions in racially sensitive cases. And even if these grand jurors feel that the assignment judge should not have treated them as he did, they may not want Ramseur to benefit from the wrong done to them. Or they might feel that the relief Ramseur is seeking — the overturning of his conviction — is a misdirected or disproportionate remedy for the wrong they suffered.

Why should we assume that these grand jurors want Ramseur to assert and benefit from their rights? Any such assumption must be based solely on the grand jurors’ race, and I believe it is wrong in principle to make such racially based assumptions. It is also empirically inaccurate — as I believe the facts of this case plainly show. Ramseur brutally killed a former female friend on a public street while her young grandchildren and other witnesses looked on. 10 He was indicted by a grand jury 39% of whose members were black, and he was convicted and sentenced to death by a petit jury 58% of whose members were black. 11

In sum, I would hold that Ramseur’s own equal protection rights were not violated in this case and that he lacks standing to assert the rights of actual or potential grand jurors. On this basis, I concur in the result reached in Part II of the court’s opinion.

. I also agree with the logic of Judge Green-berg’s concurring opinion.

. Neal v. Delaware, 103 U.S. 370 , 26 L.Ed. 567 (1881); Bush v. Kentucky, 107 U.S. 110 , 1 S.Ct. 625 , 27 L.Ed. 354 (1883); Carter v. Texas, 177 U.S. 442 , 20 S.Ct. 687 , 44 L.Ed. 839 (1900); Rogers v. Alabama, 192 U.S. 226 , 24 S.Ct. 257 , 48 L.Ed. 417 (1904); Pierre v. Louisiana, 306 U.S. 354 , 59 S.Ct. 536 , 83 L.Ed. 757 (1939); Smith v. Texas, 311 U.S. 128 , 61 S.Ct. 164 , 85 L.Ed. 84 (1941); Hill v. Texas, 316 U.S. 400 , 62 S.Ct. 1159 , 86 L.Ed. 1559 (1942); Akins v. Texas, 325 U.S. 398 , 65 S.Ct. 1276 , 89 L.Ed. 1692 (1945); Patton v. Mississippi, 332 U.S. 463 , 68 S.Ct. 184 , 92 L.Ed. 76 (1947); Hernandez v. Texas, 347 U.S. 475 , 74 S.Ct. 667 , 98 L.Ed. 866 (1954); Reece v. Georgia, 350 U.S. 85 , 76 S.Ct. 167 , 100 L.Ed. 77 (1955); Eubanks v. Louisiana, 356 U.S. 584 , 78 S.Ct. 970 , 2 L.Ed.2d 991 (1958); Arnold v. North Carolina, 376 U.S. 773 , 84 S.Ct. 1032 , 12 L.Ed.2d 77 (1964); Alexander v. Louisiana, 405 U.S. 625 , 92 S.Ct. 1221 ; Castaneda v. Partida, 430 U.S. 482 , 97 S.Ct. 1272 , 51 L.Ed.2d 498 (1977); Vasquez v. Hillery, 474 U.S. 254 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986).

. See, e.g., Rose v. Mitchell, 443 U.S. 545, 555-56 , 99 S.Ct. 2993, 2999-3000 , 61 L.Ed.2d 739 (1979); Strauder, 100 U.S. at 308 .

. See, e.g., Rose, 443 U.S. at 555-56 , 99 S.Ct. at 2999-3000 ; Fay v. New York, 332 U.S. 261, 285 , 67 S.Ct. 1613 -16, 91 L.Ed. 2043 (1947); Strauder, 100 U.S. at 309 . For an analysis of the conceptual problems presented by this reasoning, see Barbara D. Underwood, Ending Race Discrimination in Jury Selection: Whose Right Is It, Anyway?, 92 Colum.L.Rev. 725, 728-36 (1992).

. Cassell had been indicted for murder in Dallas County, Texas. Prior to Hill v. Texas, 316 U.S. 400 , 62 S.Ct. 1159 , 86 L.Ed. 1559 (1942), apparently no black had ever served on a grand jury in Dallas County, which led the Court to reverse Hill's rape conviction. Id. at 403-04 , 62 S.Ct. at 1161 . The grand jury system in place at the time involved the selection by the jury commissioners of an initial list of 16, from which a judge would select a panel of 12. Cassell, 339 U.S. at 283-84 , 70 S.Ct. at 629-30 . Following the Hill decision, almost every list of 16 potential grand jurors, and most panels of 12 actual grand jurors, contained one black. Apparently, none ever contained more than one. Id. at 286, 70 S.Ct. at 631 . One in sixteen approximated the proportion of blacks in the county eligible for jury service (i.e., those who had paid poll tax) — 6.5%, but not the proportion of blacks in the county population as a whole, which was 15.5% at the previous census. Id. at 284-85 , 70 S.Ct. at 630 .

. Since Ramseur has not invoked 18 U.S.C. § 243 , we are likewise not required to decide whether he could assert rights under this statute, which Congress enacted pursuant to Section Five of the Fourteenth Amendment and which criminalizes racial discrimination in the selection of state and federal grand and petit juries. Criminal statutes rarely confer private rights (see, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 316 , 99 S.Ct. 1705, 1725 , 60 L.Ed.2d 208 (1979)), but in Peters v. Kiff, 407 U.S. 493, 505-07 , 92 S.Ct. 2163, 2169-71 , 33 L.Ed.2d 83 (1972) (White, J., concurring in the judgment), three Justices concluded that a criminal defendant may assert rights under 18 U.S.C. § 243 . But while the Supreme Court has frequently discussed this statute in cases in which defendants challenged their convictions based on discrimination in the jury selection process, it is unclear that the Court has ever held that a criminal defendant can assert rights under the statute as opposed to the Equal Protection Clause itself. See, e.g., Edmonson v. Leesville Concrete Co., Inc., — U.S. -, -, 111 S.Ct. 2077, 2087 , 114 L.Ed.2d 660 (1991); Powers v. Ohio, — U.S. -, -, 111 S.Ct. 1364, 1369-70 , 113 L.Ed.2d 411 (1991); Neal v. Delaware, 103 U.S. 370, 394 , 26 L.Ed. 567 (1881).

This could be of some significance in another case, since 'the Supreme Court has held that Section Five of the Fourteenth Amendment gives Congress authority to enact statutes proscribing certain state practices as violative of the right to equal protection of the laws although the courts would not adjudge the same practices violative of the Equal Protection Clause standing alone. Katzenbach v. Morgan, 384 U.S. 641, 648-49 , 86 S.Ct. 1717, 1722 , 16 L.Ed.2d 828 (1966).

.If a person excluded from a grand jury based on the assignment judge’s selection process had commenced a suit challenging that practice, we might be required to decide, before reaching the constitutional question, whether the plaintiff could assert rights under 18 U.S.C. § 243 . See note 6, supra.

. 131 N.J.L.J. 1171 et seq. (Aug. 10, 1992) (portion of report of New Jersey Supreme Court Task Force on Minority Concerns, Committee on Minority Participation in the Judicial Process).

. 132 N.J.L.J. 979 (Dec. 14, 1992) (reporting governor's promises regarding selection of new Essex County prosecutor).

. State v. Ramseur, 106 N.J. 123 , 524 A.2d 188, 206-07 (1987).

. The New Jersey Supreme Court reversed his death sentence on procedural grounds. State v. Ramseur, supra.