State v. Salinas

Utter, J.

(dissenting)—I dissent. Action by the State which results in exclusion of persons from jury service solely on the basis of race is a denial of equal protection of the laws and of due process and is “at war with our basic concepts of a democratic society.” Smith v. Texas, 311 U.S. 128, 130 , 85 L. Ed. 84 , 61 S. Ct. 164 (1940). A fair trial in a fair tribunal is a fundamental requirement of due process. Peters v. Kiff, 407 U.S. 493, 500 , 33 L. Ed. 2d 83 , 92 S. Ct. 2163 (1972).

If the State through the prosecuting attorney is allowed to exclude from the trial jury by use of the peremptory challenge all members of the defendant’s race, then the assurance gained by their presence of at least the appearance of a fair trial in a fair tribunal is lost. Decisions on systematic exclusion of jurors have deferred to the use of the peremp *123 tory challenge by prosecuting attorneys. Judicial deference, however, does not resolve the conflict between the right to use the peremptory challenge and a defendant’s right to be tried by a fair and impartial jury.

The defendant is entitled to a fair and impartial tribunal. Even if there is no actual bias in the tribunal, the Supreme Court has held that there is a denial of due process where circumstances create the likelihood or appearance or bias. Peters v. Kiff, supra at 502. There, at page 503, the court noted “[w]hen any large and identifiable segment of the community is excluded from jury service, the effect 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.”

A long line of United States Supreme Court decisions has required that the selection process insure “a fair possibility for obtaining a representative cross-section of the community.” Williams v. Florida, 399 U.S. 78, 100 , 26 L. Ed. 2d 446 , 90 S. Ct. 1893 (1970). Some courts have recently extended this principle to hold that, under the Sixth Amendment an impartial jury of the state and district where the crimes shall have been committed, must be selected from a representative cross section of the community where the crime ■occurred. Maryland v. Brown, 295 F. Supp. 63, 77 (D. Md. 1969); People v. Jones, 9 Cal. 3d 546, 556 , 510 P.2d 705 , 108 Cal. Rptr. 345 (1973); Alvarado v. State, 486 P.2d 891 (Alas. 1971).

The function of a modern jury has been said to be “the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence.” Williams v. Florida, supra at 100. Where members of the defendant’s race, who comprise a significant part of the community, are excluded from participation on the jury by the exercise of peremptory challenges and cannot participate in the commonsense judgment of a group of laymen *124 by sharing their qualities of human nature and varieties of human experience, the integrity of the jury process is severely challenged. “The very idea of a jury is a body of men [and women] composed of the peers ... of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates . . .” Strauder v. West Virginia, 100 U.S. 303, 308 , 25 L. Ed. 664 (1879). There is no argument in this case that Mexican-Americans do not constitute a significant number in either Yakima County or in the town of Granger, where the offense allegedly occurred. In fact, it is estimated that Mexican-Americans comprise from 65 to 75 percent of the population of Granger. The State’s use of the peremptory challenge resulted in no persons of that race serving on the jury which determined appellant’s guilt or innocence.

There is no constitutional or historical sanctity attached to the peremptory challenge. Its use by the Crown in England was curtailed through the Ordinance for Inquest as early as 1305. 33 Edw. 1 , Stat. 4 (1305). Since that time it has been available only to the defendant and has fallen into disuse in England. Orfield, Criminal Procedure from Arrest to Appeal 355 (1947); Harris, Criminal Law 443 (20th ed. 1960). If the use of a peremptory challenge, a procedure not of constitutional stature, violates a constitutional right, there is no room for its survival. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178, 2 L. Ed. 60 (1803).

The very nature of the peremptory challenge is that it is one for which no cause is publicly stated. RCW 4.44.140. When the only apparent cause for its exercise in a given case is the exclusion of a juror on the basis of that juror’s racial background, that exercise should be viewed as prima facie discriminatory and unconstitutional. Placing the burden of justifying the challenge on nonracial grounds on the prosecution, the only party able to explain why a particular juror was excluded by it, would tend to negate the appearance or fact of the State’s involvement in discriminatory jury selection. This shift of burden is common in other *125 cases where discriminatory practices appear to have occurred, particularly where one party has the ability to produce the relevant facts. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 432 , 28 L. Ed. 2d 158 , 91 S. Ct. 849 (1971) (employment requirements); Gaston County v. United States, 395 U.S. 285, 293 , 23 L. Ed. 2d 309 , 89 S. Ct. 1720 (1969) (voting rights); United States v. St. Louis-San Francisco Ry., 464 F.2d 301 , 307-08 (8th Cir. 1972) (employment); United States v. Carpenters Local 169, 457 F.2d 210 , 214 (7th Cir. 1972) (employment); Chambers v. Hendersonville City Bd. of Educ., 364 F.2d 189 , 192 (4th Cir 1966) (employment); Northcross v. Board of Educ., 333 F.2d 661, 664 (6th Cir. 1964) (education); Burner v. Washington, 399 F. Supp. 44, 47-48 (D.D.C. 1975) (municipal services); Larry P. v. Riles, 343 F. Supp. 1306, 1309-10 (N.D. Cal. 1972) (educational tests); Hobson v. Hansen, 269 F. Supp. 401, 417, 426, 429 (D.D.C. 1967) (education); see generally Hernandez v. Texas, 347 U.S. 475, 480 , 98 L. Ed. 866 , 74 S. Ct. 667 (1954) (jury service).

I recognize that in Swain v. Alabama, 380 U.S. 202 , 13 L. Ed. 2d 759 , 85 S. Ct. 824 (1965), in which one Justice specially concurred, one concurred in the result, and three Justices dissented, the majority refused to limit the use of peremptory challenges when they were used to remove Blacks from the petit jury. There it was shown no Blacks had been on a trial jury in that county in nearly 15 years. The court held allegations or proof that the prosecutor made discriminatory use of peremptory challenges in a particular case will not sustain a claim of the denial of equal protection. “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.” Swain v. Alabama, supra at 222 . The majority in Swain took the anomalous position that if the discrimination involved exclusion from a jury panel, a prima facie ■case of jury exclusion would be made out but if the exclusion was from the jury itself, the burden remained on the *126 defendant. As noted by the dissent, at page 239, “[tjhis distinction is novel to say the least.”

The court did appear to leave open the question of possible rebuttal of the presumption that the prosecutor acted properly where it could be shown the prosecutors consistently and systematically used peremptory challenges to prevent all Blacks from serving as trial jurors. It held the facts of the case did not rebut that presumption by failing to show when, how often, and under what circumstances the prosecutor alone had challenged Blacks appearing on county jury panels. The majority stated, at page 226, “[i]n short, petitioner has not laid the proper predicate for attacking the peremptory strikes as they were used in this case. Petitioner has the burden of proof and he has failed to carry it.” Such a holding places an insurmountable burden on the challenging party. Presumably, under this test one member of a racial minority could be purposely placed on a jury in the course of 15 years simply to overcome any prospective problems of claimed discrimination. The illogic of requiring proof of a pattern of discrimination before a constitutional right is violated, is that it ignores what can be clear discrimination in those cases occurring before a pattern of discrimination is established. Moreover, it immunizes from scrutiny those discriminatory acts which occur only occasionally but which nevertheless infringe important rights of the accused and the prospective juror.

While Swain recognizes exclusion of minority members of a panel can be a violation of constitutional rights, the standard of proof it establishes is unworkable. The basics of a workable standard as it applies to the facts of this case require the removal of the current, practically irrebuttable, presumption of propriety on the part of the prosecution’s exercise of its peremptory challenge. To do so would require the prosecution, when the exercise of that challenge removes from the trial jury a member of a minority race which constitutes a significant body of the community from which the panel is drawn, to proceed to treat its challenge in the same manner as one for cause. This would, in some *127 measure, prevent the now ludicrous spectacle of assuring a participant in a trial that veniremen are selected in such a manner as to insure a fair and impartial trial, while at the same time condoning the destruction of the representative nature of the jury panel by the discriminatory use of the peremptory challenge. Placing the burden on the prosecution to justify on permissible grounds its use of the peremptory challenge against a minority juror insures more than fair treatment of the accused and jury panel members. As the Supreme Court stated in Ballard v. United States, 329 U.S. 187, 195 , 91 L. Ed. 181 , 67 S. Ct. 261 (1946):

The evil lies in the admitted exclusion of an eligible class or group in the community . . . 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.

While I am aware of no case on the federal level declaring the use of peremptory challenges by the prosecution violative of the due process or equal protection clauses of the Fourteenth Amendment, we are not bound to construe article 1, section 12 of our state constitution in the same manner as the Fourteenth Amendment. Darrin v. Gould, 85 Wn.2d 859, 868 , 540 P.2d 882 (1975). Const, art. 1, § 12 may be construed to provide greater protection to individual rights than that provided by the equal protection clause of the Fourteenth Amendment. Carter v. University of Washington, 85 Wn.2d 391 , 536 P.2d 618 (1975). I would so hold in this case.

The issue is of more than academic importance. Oúr previous cases defining “grievous bodily harm” as an element of assault in the second degree, RCW 9.11.020, have been far from consistent. The adjectives “atrocious, aggravating, harmful, painful, hard to bear, [and] serious in nature” have been used to describe the degree of harm required. State v. Linton, 36 Wn.2d 67, 95 , 216 P.2d 761 (1950). Our cases demonstrate that existence of “grievous bodily harm” is a peculiarly difficult determination for triers of fact. In *128 State v. Miles, 77 Wn.2d 593 , 464 P.2d 723 (1970), the appellant struck a woman in the face with either his fist or a pistol. There was evidence her lip was cut and swollen. While this was admittedly painful and harmful for a short time, we reversed as a matter of law the finding by the trial court that the victim suffered grievous bodily harm.

I do not condone appellant’s conduct. His assault on the victim inflicted abrasions and contusions which were undoubtedly a cause of discomfort. Whether these injuries were so atrocious, aggravated, and harmful as to amount to assault in the second degree was, however, clearly a question of fact. The appellant should not have had his guilt or innocence—resting as it did on a factual determination so susceptible to individual judgment—determined without the presence on the trial jury of members of his own race who were properly on the jury panel. Such prospective jurors, had they not been disqualified peremptorily, would have brought to the deliberations their own “qualities of human nature and varieties of human experience” relevant to the determination of whether the victim in fact suffered “grievous bodily harm.” While all the Mexican-American members of the jury panel may well have been removed for reasons unrelated to their race, we are unable to know the truth of the matter in view of the position adopted by the majority.

I would reverse the conviction and remand for a new trial.

Hunter and Horowitz, JJ., concur with Utter, J.

Petition for rehearing denied August 3, 1976.