holding that article I, paragraphs 5, 9, and 10, when read together, “guarantee that in all criminal prosecutions the defendant is entitled to trial by an impartial jury without discrimination on the basis of religious principles, race, color, ancestry, national origin, or sex ... [including] the right to trial by a jury drawn from a representative cross-section of the community.”
How later courts described this case
- holding that article I, paragraphs 5, 9, and 10, when read together, “guarantee that in all criminal prosecutions the defendant is entitled to trial by an impartial jury without discrimination on the basis of religious principles, race, color, ancestry, national origin, or sex ... [including] the right to trial by a jury drawn from a representative cross-section of the community.”
- holding that presumption in favor of prosecution’s permissible use of peremptory strikes may be rebutted by defendant’s prima facie showing that prosecution exercised its peremptory challenges based on generalizations regarding racial groups, and requiring prosecution to provide legitimate non-race-based reasons for striking jurors
- holding that the New Jersey Constitution, independent of the United States Constitution, protected the right to a trial by jury by forbidding the exclusion of black jurors by use of peremptory challenges
- stating that defendant “has the ultimate burden of proving, by a preponderance of the evidence, that the prosecution exercised its peremptory challenges on constitutionally-impermissible grounds”
Written by the judges who cited it.
The opinion
CLIFFORD, J.,
dissenting.
Except for its concurrence in the judgment of the Court, Justice O’Hern’s opinion gains my vote.
I do not join in the judgment of affirmance, however, not because I disagree with the salutary principles announced by the Court, 1 but because I do not share the Court’s confidence that those principles are being applied correctly in this case. To be blunt about it, unlike the majority and the Appellate Division I am not prepared, on the basis of the record before us, to look the assistant prosecutor in the eye and charge him with giving “sham excuses belatedly contrived to avoid admitting *547 acts of group discrimination against all the black prospective jurors.” Ante at 543 (quoting State v. Gilmore, 199 N.J.Super. 389, 413 (App.Div.1985)). It is serious business to tell the State’s representative that in exercising his peremptory challenges he “exceeded constitutionally-permissible bounds.” Ante at 543. An indictment of that magnitude, based — as it must be — on a sensitive appraisal of the prosecutor’s purpose and motives as they may have manifested themselves in the courtroom, is better made by the trial court.
We can profit from an occasional reminder of the limitations that our isolation from the courtroom imposes on a full appreciation of the trial dynamics. As Judge Jayne once put it, even the best and most accurate record of oral testimony is like “a dehydrated peach; it has neither the substance nor the flavor of the peach before it was dried.” Trusky v. Ford Motor Co., 19 N.J.Super. 100, 104 (App.Div.1952). A bloodless record conceals subtle nuances; although we cannot always sniff them out, they do not often escape detection by our trial judges.
The Court agrees that “the determination whether the prosecution exceeded constitutionally-permissible bounds ordinarily is better made by the trial court than by the Appellate Division,” ante at n. 12, but it sees “no useful purpose [to be] served by yet another remand to the trial court.” That is understandable, I suppose, unless one sees, as I do, a moderately useful purpose to be served in assuring that the State is afforded, in this case, the same fair treatment that the Court’s newly-established procedures seek to guarantee for both prosecution and defense in future cases as well as those that are caught up in the limited-retroactivity net. To that end I would order “yet another” remand to the same trial judge, Hon. A. Donald McKenzie, who conducted the hearings on the first remand, for further proceedings in keeping with the standards set forth in this Court’s opinion — specifically, to make findings of fact and conclusions of law, on the basis of the existing record, informed by his sense of the witnesses’ credibility, as to “whether the defendant has carried the ultimate burden of *548 proving, by a preponderance of the evidence, that the prosecution exercised its peremptory challenges on constitutionally-impermissible grounds of presumed group bias.” Ante at 538-539.
Moreover, I would encourage the trial court to keep in mind, while making that assessment and within the newly-declared limitations of constitutional considerations, that
a party is entitled to the visceral reaction of the trial attorney to the prospective juror, and especially to the attorney’s appraisal of the venireman’s visceral reaction to him, to the extent that it may be divined. This is difficult to identify and articulate, and the tendency to exaggerate it in some considerable degree is no doubt endemic to the trial bar; but it is nonetheless real, it is valuable, and it should be taken into account. [Roman v. Mitchell, 82 N.J. 336, 361 , 413 A2d 322 (1980) (Clifford, J., dissenting in part).]
O’HERN, J., concurring in the result.
For affirmance — Chief Justice WILENTZ, and Justices HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN — 6.
For remandment — Justice CLIFFORD — 1.
Specifically, I endorse the prohibition against a prosecutor's exercise of peremptory challenges to remove jurors on the basis of their race. I would oppose that practice whether or not the Constitution permitted it. "Not everything the Constitution permits is right, nor does it outlaw everything wrong. I am opposed to [that practice] not because [it is] unconstitutional but because [it is] revolting.” E. van den Haag & J. Conrad, The Death Penalty: A Debate 181 (1983).