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

COWEN, Circuit Judge,

dissenting.

I dissent from Part II of the majority’s opinion which holds that the procedure for impaneling the grand jury did not violate Ramseur's equal protection rights. The procedure employed by the assignment judge — of temporarily excluding qualified African-American grand jurors and allowing them to serve only on condition that whites were unavailable — does violence to the principle of equal protection and can only undermine public confidence in the justice system. Ramseur is a very unsympathetic defendant, having murdered his girlfriend in front of six witnesses, but the seriousness of his crime is irrelevant to the resolution of his equal protection claim. I believe that the majority arrives at the result it desires through an excessively narrow reading of Supreme Court precedent and by downplaying the fact that prospective African-American jurors, who were qualified and willing to serve, were treated by the judicial system in a degrading and dehumanizing manner.

For over a century, the Supreme Court has held that a defendant is denied equal protection of the law when he is indicted by a grand jury from which members of a cognizable racial group have been purposefully excluded. Rose v. Mitchell, 443 U.S. 545, 556 , 99 S.Ct. 2993, 3000 , 61 L.Ed.2d 739 (1979); Alexander v. Louisiana, 405 U.S. 625, 628 , 92 S.Ct. 1221, 1224 , 31 L.Ed.2d 536 (1972); Bush v. Kentucky, 107 U.S. 110, 119 , 1 S.Ct. 625, 633 , 27 L.Ed. 354 (1883); Neal v. Delaware, 103 U.S. 370, 394 , 26 L.Ed. 567 (1880). Where sufficient proof of discrimination has been made out, the Supreme Court has uniformly required *1247 that the defendant’s conviction be set aside and the indictment returned by the unconstitutionally selected grand jury be quashed. Rose, 443 U.S. at 556 & n. 3, 99 S.Ct. at 2998 & n. 3.

These principles have been developed because discrimination in the selection of a grand jury panel “strikes at fundamental values of our judicial system and our society as a whole.” Id. Even the earliest cases in which the Court applied the Equal Protection Clause in the context of racial discrimination in grand jury selection reflect a concern with “the fundamental social values the Fourteenth Amendment was adopted to protect, even though it addressed the issue in the context of reviewing an individual criminal conviction.” Id. at 555 , 99 S.Ct. at 2999 ; see Strauder v. West Virginia, 100 U.S. 303, 308 , 25 L.Ed. 664 (1880). Racial discrimination in the selection of a grand jury “impairs the confidence of the public in the administration of justice.” Rose, 443 U.S. at 556 , 99 S.Ct. at 3000 . Just as illegal and unconstitutional jury selection procedures create the appearance of bias in an individual case, so they increase the possibility of actual bias as well. Peters v. Kiff, 407 U.S. 493 , 503, 92 S.Ct. 2163, 2168 , 33 L.Ed.2d 83 (1971).

In a recent series of cases, the Supreme Court has affirmed its commitment to the century-old principle that race cannot be a consideration in jury selection. In Batson v. Kentucky, 476 U.S. 79, 95-96 , 106 S.Ct. 1712, 1722 , 90 L.Ed.2d 69 (1986), the Court concluded that a prima facie case of purposeful discrimination under the Fourteenth Amendment is established if the defendant can show that in his case the prosecutor exercised peremptory challenges to remove members of the defendant’s race from the venire, rather than show systematic exclusion of a cognizable group over a period of time. 1 The holding of Batson has since been extended to prohibit race-based peremptory challenges by criminal defense lawyers, Georgia v. McCollum, — U.S. -, -, 112 S.Ct. 2348, 2356 , 120 L.Ed.2d 33 (1992), by private civil litigants, Edmonson v. Leesville Concrete Co., — U.S. -, -, 111 S.Ct. 2077, 2087 , 114 L.Ed.2d 660 (1991), and in cases where the juror and defendant are of different races, Powers v. Ohio, — U.S. -, -, 111 S.Ct. 1364, 1370 , 113 L.Ed.2d 411 (1991).

Though Batson and its progeny involved the actual exclusion of jurors, the Court’s reasoning in those opinions was not dependent upon the fact of exclusion. Race-based peremptory challenges violate the equal protection clause because defendants have the right to be tried by juries selected through non-discriminatory means. Powers , — U.S. at -, 111 S.Ct. at 1367. “The Constitution prohibits all forms of purposeful racial discrimination in selection of jurors.” Batson, 476 U.S. at 88 , 106 S.Ct. at 1718 . The Court did not outlaw race-based peremptory challenges because an excluded juror might have helped the defendant, but because they cast doubt on the integrity of the judicial process and the fairness of criminal proceedings. Powers , — U.S. at -, 111 S.Ct. at 1371. This position is consistent with precedents describing the harm caused by discrimination in the grand jury selection process:

The harm is not only to the accused, indicted as he is by a jury from which a segment of the community has been excluded. It is to society as a whole. ‘The injury is not limited to the defendant— there is 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.’

Rose, 443 U.S. at 556 , 99 S.Ct. at 3000 (quoting Ballard v. United States, 329 U.S. 187, 195 , 67 S.Ct. 261, 265 , 91 L.Ed. 181 (1946)). Thus, our primary concern in a case like this one is with the harm caused to the justice system itself, a harm that is not cured by the ultimate inclusion of some African-Americans on Ramseur’s grand *1248 jury panel. It is the presence or absence of purposeful discrimination in the selection process, not necessarily the exclusion of jurors, which determines whether Rams-eur’s equal protection rights have been violated.

The majority contends that there was no purposeful discrimination because (1) no juror was excluded and (2) the assignment judge did not have an invidious, discriminatory intent. We question both conclusions. On the record before us, it cannot be said for certain that any prospective grand jurors were actually excluded from service because of their race. The record indicates that the assignment judge asked five prospective grand jurors who were willing to serve to sit aside for possible later selection. In chronological order, they were George Smith, Esther Catagen, Betty Patrick, Francena Hardwick, and Orro Ikena. After asking the third prospective juror, Betty Patrick, to sit aside, the judge announced that he had “asked two of the blacks who have indicated a willingness to serve to sit in the body of the courtroom.” App. at 2449. This statement indicates that at least two prospective grand jurors were temporarily excluded because they were African-American. Shortly thereafter, the judge asked two more prospective grand jurors who were willing to serve, Francena Hardwick and Orro Ikena, to sit aside for possible later selection. Significantly, Ms. Hardwick was never chosen for service. Because the judge announced moments earlier that he was asking African-Americans to sit in the body of the courtroom rather than on the panel, it is reasonable to conclude that Ms. Hardwick, the permanently excluded juror, was African-American and was denied a seat on the panel because of her race. I draw this conclusion not because I believe that exclusion is necessary to establish an equal protection violation, but because the majority relies so heavily on the alleged lack of exclusion to argue that discrimination did not occur. On this record, I think that Ramseur established by a preponderance of the evidence that a juror was permanently excluded because of her race. 2

Furthermore, though we know that at least two African-American grand jurors were temporarily excluded because of their race, we cannot say for certain that only two jurors were treated that way. At a hearing on Ramseur’s allegations, the assignment judge testified that he tried to select a diverse jury based on race, sex, and background. But during his actual impaneling of Ramseur’s grand jury a year and a half earlier, he stated only that he was asking African-Americans to sit aside to achieve his desired mix. On this record, therefore, it is very possible that more than two, and perhaps even all five, of the prospective jurors were forced to sit aside on account of their race.

Because the harm in discriminatory selection procedures is to the jury system as a whole and the public’s confidence therein, and not only to the individual defendant, I believe it is immaterial, for equal protection analysis purposes, that two or more African-American jurors whom the judge asked to sit aside ultimately served as panel members. Regardless of whether any African-American grand juror was actually excluded from serving on the panel that indicted Ramseur, the selection procedures used in this case violated Ramseur’s right to equal protection of the law because the assignment judge engaged in purposeful discrimination.

Clearly there was a deliberate, albeit possibly only temporary, setting aside of a minimum of two prospective grand jurors solely because they were African-American. On this record, it is quite possible that as many as five jurors were discriminated against because they were African-American. They were singled out by the assignment judge before the entire panel *1249 as being ineligible to serve solely because of their race. Moreover, both Essex County assignment judges readily admitted that at the time Ramseur was indicted, African-Americans were routinely excluded from grand jury service if the judge decided that a randomly selected panel contained too many African-Americans or if the judge thought a particular juror was “undesirable.” Finally, even if the two African-American jurors initially asked to sit aside were later asked to serve as panel members, they were asked to serve only at the very last moment, suggesting that they were chosen by the assignment judge as a “last resort,” further sullying the selection process. I believe that this race-based selection procedure constituted purposeful discrimination under the principles announced by the Supreme Court and thus violated the Equal Protection Clause.

The majority argues that the assignment judge did not engage in purposeful discrimination because he was not trying to proportionally limit the number of African-American jurors, but instead was trying to achieve the non-invidious objective of a representative jury. Aside from the fact that his allegedly “non-invidious” objective violated both federal and state law, see Cassell v. Texas, 339 U.S. 282, 286-87 , 70 S.Ct. 629, 631-32 , 94 L.Ed. 839 (1950) (plurality) (proportional racial limitation of grand jurors based on population is unconstitutional); N.J.Stat.Ann. § 2A:73-1 (West 1976) (imposing random procedure), the record indicates that the assignment judge who impaneled Ramseur’s grand jury tried to limit the number of African-American jurors to coincide with his subjective and arbitrary notion of the proportion of African-Americans in the Essex County population. During grand jury selection, he stated at the outset that “[i]t is my purpose to try to pick a cross section of the community,” and afterward stated, “I have asked two of the blacks who have indicated a willingness to serve to sit in the body of the courtroom. I am deliberately trying to get an even mix of people from background and races, and things like that.” App. at 2429, 2449. During the hearing on Rams-eur’s allegations, the judge testified that his idea of a cross-section of Essex County was people of different races and vocations, and therefore he tried to select a “great variety” of people to serve on the grand jury. App. at 3897. Though he did not specify exact numbers, the assignment judge was trying to get a racial cross-section on the jury, even if he also was trying to get cross-sections based on factors other than race. The judge could not obtain what he considered an appropriate racial balance without, at least temporarily, excluding two or more qualified African-American jurors. 3 Even if he was not motivated by malice toward any race, the judge’s attempt to proportionally limit the number of African-Americans on the jury is purposeful discrimination in violation of the Equal Protection Clause.

In Cassell , the Supreme Court found purposeful discrimination where jury commissioners (1) limited the number of African-American grand jurors to one per panel to reflect the proportion of African-Americans in the general population, and (2) testified that no African-Americans appeared on the list from which the defendant’s grand jury was selected because they did not know any qualified African-Americans. 339 U.S. at 286-90 , 70 S.Ct. at 631-33 . Admittedly, the second fact is absent from this case, as the assignment judge did impanel a grand jury containing qualified African-Americans. However, the Court in Cassell clearly stated that the practice of proportional racial limitation, by itself, constitutes unlawful racial discrimination. Id. at 286-87 , 70 S.Ct. at 631-32 . The assignment judge violated Ramseur’s equal protection rights by engaging in that practice.

*1250 The majority draws comfort from the fact that the judge excused a juror who admitted that she was prejudiced against certain races. Unfortunately, the judge’s intolerance of racism in its crudest and most obvious form did not prevent him from engaging in a more subtle form of racism by treating African-Americans less favorably than whites during jury selection.

This sort of constitutional error cannot be cured by the mere assertion of good intentions or “harmless error.” The Supreme Court consistently has rejected arguments that a conviction may be affirmed regardless of racial discrimination in the selection of the grand jury. Vasquez v. Hillery, 474 U.S. 254, 261 , 106 S.Ct. 617, 622 , 88 L.Ed.2d 598 (1986); Rose, 443 U.S. at 559 , 99 S.Ct. at 3001 ; Cassell, 339 U.S. at 290 , 70 S.Ct. at 633 ; see also Charles A. Wright, Federal Practice and Procedure § 855 (1982) (harmless error analysis cannot be used “if there has been purposeful discrimination in the selection of grand and petit jurors”). Indeed, the Court has called such discrimination “a grave constitutional trespass” and has stated that requiring a state to retry a defendant, even if it is many years after his original conviction, is not unduly burdensome to the state. Vasquez, 474 U.S. at 262 , 106 S.Ct. at 622 . The Court’s holding in Vasquez recently has been cited in dicta, demonstrating the Court’s continued commitment to impartiality and equal participation by all in our judicial system. See Arizona v. Fulminante, — U.S. -, -, 111 S.Ct. 1246, 1265 , 113 L.Ed.2d 302 (1991) (“Since our decision in Chapman, other cases have added to the category of constitutional errors which are not subject to harmless error the following: unlawful exclusion of members of the defendant’s race from a grand jury....”); Teague v. Lane, 489 U.S. 288, 328 , 109 S.Ct. 1060, 1084 , 103 L.Ed.2d 334 (1989) (Brennan, J., dissenting on other grounds) (Vasquez and Rose held that prisoners could seek habeas review of grand jury discrimination claims, and that such claims are not subject to harmless error).

Moreover, the Court in Rose specifically stated that we need not inquire into whether the defendant was “prejudiced in fact” by the discriminatory procedures used in the selection of the grand jury. 443 U.S. at 556 , 99 S.Ct. at 3000 . Prejudice in fact to the defendant is not required because our concern is not limited to harm to the defendant and because “proof of actual harm or lack of harm is virtually impossible to adduce.” Peters, 407 U.S. at 504 , 92 S.Ct. at 2169 .

Though the defendant need not have suffered an outcome-determinative injury, I believe that discriminatory grand jury selection procedures like the one in this case increase the risk of the grand jurors’ discriminating against a defendant on the basis of race and possibly could lead to an erroneous indictment. I have no doubt that if the assignment judge instructed the grand jury that it is permissible to treat African-Americans differently in the administration of justice, this court would have granted Ramseur’s petition. But for all practical purposes, the judge conveyed exactly that same message to the jurors through his actions. In full view of the grand jury, he treated prospective African-American jurors less favorably than prospective white jurors. The white persons who expressed a willingness to serve were seated in the panel, while some of the African-American persons who expressed a willingness to serve were forced to sit aside until, as a last resort, they were needed because no more whites were available. Such actions imply that African-Americans are less fit to serve on the jury and are therefore inferior to whites. Because the defendant also is an African-American, the stigmatizing of members of his race is likely to bias the jury against him.

The majority also states that the analytical focus of discriminatory selection claims is upon the opportunity to deliberate as jurors. Although at least two of the temporarily excluded African-Americans eventually served as jurors, their ability to fully participate may have been handicapped by the discrimination in the selection process. In this case, an African-American defen *1251 dant got to have African-American grand jurors on the panel which indicted him, but only after some of those jurors were humiliated, degraded, and possibly intimidated in open court through less favorable treatment on account of their race. The judge’s actions show that even in a court of law, African-Americans may be treated as second-class citizens. The judge’s treatment of them may have caused the other grand jurors (particularly the white grand jurors) to regard them as inferior, rendering them less effective and influential when the grand jury deliberated.

Because jury selection procedures like the one before us infect court proceedings with racism and help to perpetuate negative stereotypes about African-Americans, I believe that Ramseur suffered a sufficiently concrete injury to give him standing to assert the equal protection rights of the temporarily excluded jurors. See Powers, — U.S. at -, 111 S.Ct. at 1370-71 (third-party standing requires injury-in-fact, close relation between litigant and third party, and hindrance to third party’s ability to protect his interests). In Powers , the Court concluded that the exclusion of a juror because of his race causes a cognizable injury to the defendant because it easts doubt on the integrity of the judicial process. Id. at -, 111 S.Ct. at 1371. The Court stated:

The overt wrong, often apparent to the entire jury panel, casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial of the cause....

The purpose of the jury system is to impress upon the criminal defendant and the community as a whole that a verdict of conviction or acquittal is given in accordance with the law by persons who are fair. The verdict will not be accepted or understood in these terms if the jury is chosen by unlawful means at the outset.

Id. at ---, 111 S.Ct. at 1371-72. Though this case, perhaps, does not involve actual exclusion of a juror because of race, the injury caused by the temporary exclusion of prospective African-American jurors is essentially the same as the injury recognized m Powers : by tainting the proceedings with discrimination in full view of the jury, the fairness of the criminal justice system which indicted and convicted Rams-eur is called into doubt.

The other two requirements for third-party standing — close relation between the defendant and juror, and hindrance to the juror’s protecting his rights — are easily met. Ramseur and the temporarily excluded jurors have a common stake in eliminating racial discrimination from the courtroom. Id. at -, 111 S.Ct. at 1372. This congruence of interests is sufficient to satisfy the Powers test. Id. Finally, the Supreme Court has recognized that the barriers to a civil suit by jurors with an equal protection claim are “daunting,” given the small financial stake involved and the economic burdens of litigation, and therefore constitute a significant hindrance to the jurors’ protection of their rights. Id. at -, 111 S.Ct. at 1373; McCollum , — U.S. at -, 112 S.Ct. at 2357 . By denying Ramseur’s petition, the majority has made it almost impossible for anyone to challenge the use of objectionable grand jury selection procedures like the one employed in this case, because the defendant is the only person with a strong incentive to raise such a claim. See Powers, — U.S. at -, 111 S.Ct. at 1373; B. Underwood, Ending Race Discrimination in Jury Selection: Whose Right Is It, Anyway?, 92 Colum.L.Rev. 725, 757 (1992).

I fear that the practical result of the majority’s opinion will be to encourage and tolerate discrimination in the courtroom. The discriminatory grand jury selection procedure upheld today was used for decades in Essex County, New Jersey, and procedures like it are probably still being used in courts throughout the country. In some ways, the procedure used to impanel Ramseur’s grand jury was even more shocking than the use of race-based peremptory challenges outlawed in Batson and McCollum , because in this case the discriminatory acts were committed by the judge rather than one of the advocates. Contrary to the majority’s assertion, I believe that the imprimatur of the state was *1252 forcefully given to discriminatory actions. If a judge in a court of law will not treat whites and African-Americans as equals, I do not see how we can expect better conduct of ordinary citizens. The majority’s opinion is a setback in our society’s quest to eliminate discrimination from its justice system.

For these reasons, I would remand this matter to the district court with instructions to grant the writ of habeas corpus, conditioned upon Ramseur’s not being rein-dicted within ninety days from the date of the district court’s order granting the writ.

Judge Mansmann and Judge Nygaard join me in this dissenting opinion.

. The Court's conclusions in Batson regarding proof of purposeful discrimination in petit jury selection are equally applicable in the grand jury context. 476 U.S. at 84 n. 3, 106 S.Ct. at 1716 n. 3 (quoting Alexander v. Louisiana, 405 U.S. 625 , 626 n. 3, 92 S.Ct. 1221 , 1223 n. 3, 31 L.Ed.2d 536 (1972)). Ramseur need only demonstrate purposeful discrimination in the selection of the grand jury panel which indicted him to establish a Fourteenth Amendment violation.

. The majority states that it is impossible to determine from the record Ms. Hardwick's race or the reason for her exclusion. In that case, we should remand to the district court for further factual findings. The district court easily should be able to determine, at least, Ms. Hard-wick’s race. If we knew for certain that she is African-American, then in light of the assignment's judge’s statement that he was asking African-Americans to sit aside, we would have substantial evidence of a grand juror’s exclusion because of her race.

. The other assignment judge in Essex County testified that he tried to achieve a 50-50 balance between white and non-white grand jurors because he believed that the county population was forty percent African-American. App. at 3828-30. His goal "was to try to make a generally even balance between the races based upon the percentage as [he] understood was the population division in the County of Essex.” App. at 3830. The testimony of both assignment judges indicates that it was a common practice in Essex County at that time to proportionally limit the number of African-Americans that could serve on a grand jury.