Commonwealth v. Brown

NIX, Justice,

dissenting.

The record in this case establishes that sixteen prospective jurors were excluded because of their race. The record also shows that the Commonwealth only exercised sixteen peremptory challenges. Nevertheless, the majority has seen fit to hold “that appellant has not met his ‘initial burden of demonstrating a prima facie case of discrimination.’ ” See maj. opinion page 186, 187. This conclusion is based on the fact that one person of the racial group involved did in fact serve on the jury and further upon a reliance of the test initially set forth in Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), and adopted in this jurisdiction in Commonwealth v. Martin, 461 Pa. 289 , 336 A.2d 290 (1975).

Writing in dissent in Martin , I expressed my disagreement with adoption of the Swain rule for this jurisdiction as follows:

“I respectfully dissent from that portion of the majority opinion which dismisses appellant’s claim that he was denied a fair trial by reason of the Commonwealth’s complete exclusion of Black jurors from the jury which tried him. Under the admitted facts, all of the prospective Black jurors who were members of the panel from which the petit jury which convicted appellant was selected were rejected. Two were excused for cause, the remaining eight members were challenged peremptorily by the Commonwealth.

The majority relied upon the presumption suggested by the Supreme Court of the United States in Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), to overcome this blatant discriminatory exclusion of Blacks from this jury and to foreclose the right of appellant to complain. The Supreme Court in Swain stated:

‘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. *572 The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes.’ Id. at 222 , 85 S.Ct. at 837 .

In Swain the Court reasoned that the presumption is only overcome where the prosecutor n case after case is responsible for the removal of all Negroes from every jury. Id. at 223 , 85 S.Ct. 824 [at 837].

Is justice to sit supinely by and be flouted in case after case before a remedy is available? Is justice only obtainable after repeated injustices are demonstrated? Is there any justification within the traditions of the Anglo-Saxon legal philosophy that permits the use of a presumption to hide the existence of an obvious fact?

Blackstone, in his Commentaries, says, ‘The right of trial by jury, or the country, is a trial by the peers of every Englishman, and is the bulwark of his liberties, and is secured to him by the Great Charter.’ In America, the right of trial by jury in this pluralistic society must at least mean trial by fellow citizens regardless of race.

‘The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.’ Strauder v. West Virginia, 100 U.S. 303, 308 , 25 L.Ed. 664 (1880).

The glaring weakness in the Swain rationale is that it fails to offer any solution where the discriminatory use of peremptory challenges is made on a selected basis. In Northern communities systematic exclusion of an entire racial group from juries is rarely seen. More frequently, the problem arises in cases where the facts give rise to racial overtones and where an objective and unbiased jury is most needed. Swain provides no protection against this type of abuse. To the contrary, it facilitates its perpetuation.

*573 While there is possible justification for the Supreme Court of the United States who must be concerned with the quality of justice throughout the nation to confine its attention to the most blatant examples of exclusion based on race in jury selection, a state should be more concerned with the particular kind of injustice that may be found within its borders. It must be remembered there is no constitutional right granted to the State to have peremptory challenges. It is, however, abundantly clear that both the Federal and the Pennsylvania Constitution guarantee the accused the right of trial by his peers. U.S. Const., Amend. VI; Pa.Const., Art. II, § 9. It would seem incumbent upon this Court to interpret our constitutional provision in such a manner that it meets the kind of injustices which are prevalent within this jurisdiction.

While I have great respect for the tradition of peremptory challenges, no tradition can be allowed to perpetrate injustice. Where, as here, it is apparent that the only available Black jurors were challenged peremptorily by the Commonwealth and the record of voir dire offers no basis for their rejection except race, it is, in my judgment, unreasonable to conclude that a presumption can justify a finding that the prosecutor’s use of the challenge was only to obtain a fair and impartial jury. There is no justification for the use of a presumption to obscure fact. Its only legitimate evidentiary value is to assist in determining truth. Under the facts of this case, I believe the burden should be shifted to the prosecution to rebut the inference of improper exclusion of Black jurors. Commonwealth v. Darden, 441 Pa. 41, 51 , 271 A.2d 257, 262 (1970).

I would remand the matter for a hearing to afford the Commonwealth an opportunity to explain the bases, other than race, for the peremptory challenges to the eight Black jurors.”

The fact that this problem has repeated itself in this and other cases since our pronouncement in Martin bears further evidence of the ineffectiveness of the Swain test in preserving the fundamental principles of fair trial in this jurisdic *574 tion. I again urge the majority of this Court to reconsider its position, and to frame a test that is more realistic and that will be more effective in ferreting out and rejecting this invidious type of racism which should have no place in a court proceeding in the Commonwealth of Pennsylvania.