prosecutor’s concern that prospective juror would not be able to “comprehend the facts of the case” was legitimate, ethnically neutral reason for striking her
How later courts described this case
- prosecutor’s concern that prospective juror would not be able to “comprehend the facts of the case” was legitimate, ethnically neutral reason for striking her
- fact that prospective juror appeared fearful was nondiscriminatory reason for striking him
Written by the judges who cited it.
The opinion
ZAPPALA, Justice,
concurring.
Six years ago in Commonwealth v. Dinwiddie, 529 Pa. 66 , 601 A.2d 1216, 1221 (1992), I authored a concurring opinion in which I raised the question whether “the practice of allowing peremptory challenges has become such a burden to the system that it would be better to discard it entirely.” The issue there was whether the defendant had made out a prima facie case that the prosecutor exercised peremptory challenges in a discriminatory manner. The trial court had found na prima facie case of discrimination and had not required the prosecutor to set forth reasons for the challenges.
It seemed to me then that we were “headed for much contentious litigation over questions germane not to the guilt or innocence of the accused, but to the fairness, or apparent fairness, of the process by which guilt or innocence is determined.” Id. at 1222. I concluded by suggesting that “[instead of pushing our courts into the morass of trying to judge between explanations for the irrational, perhaps the entire *541 process would be better served by abandoning the use of peremptory challenges altogether, trying cases before the first group of twelve jurors randomly chosen from the venire, and allowing only challenges for cause.” Id. at 1222-23.
Two years later, in Commonwealth v. Horne, 535 Pa. 406 , 635 A.2d 1033 (1994), I authored an Opinion in Support of Reversal reiterating these observations. In that case, the difficulty centered on appellate review of the trial judge’s ruling. The trial judge had found that the prosecutor’s explanation for his peremptory challenges were race-neutral and not pretextual, but the Superior Court reversed the judgment of sentence and ordered a new trial.
Today the Court concludes that it is a question of fact, within the trial court’s discretion, whether an ethnic group (in this case Italian-Americans) comprises a cognizable group such that the same scrutiny of peremptory challenges may be invoked. Mr. Justice Castille rightly identifies the “potentially troublesome ramifications of the test that the Court sets forth” to decide this question, Concurring Opinion at 997, describing it as “an albatross” which we must place around the necks of the trial courts, id. at 1000.
Although I agree with Mr. Justice Castille’s sentiments, I disagree that this is a course we “must” follow. I respectfully suggest once again that “the entire process would be better served by abandoning the use of peremptory challenges altogether, trying cases before the first group of twelve jurors randomly chosen from the venire, and allowing only challenges for cause.” 601 A.2d at 1222 .