holding that direct appeal counsel was not per se ineffective for filing a defective appellate brief where the Superior Court was able to review at least some of the claims on the merits
How later courts described this case
- holding that direct appeal counsel was not per se ineffective for filing a defective appellate brief where the Superior Court was able to review at least some of the claims on the merits
- prosecutor must justify his peremptory challenges when they are exercised disproportionately to exclude from juries members of a particular racial class
- evidence that prosecutor used five of six peremptory strikes to exclude blacks from jury panel established prima facie case of racial discrimination requiring racially neutral explanation
Written by the judges who cited it.
The opinion
PAPADAKOS, Justice,
concurring.
I concur only in the result reached here because, in my view, the majority reverses the trial court’s finding that the defendant did not satisfy his burden of showing a prima facie case of purposeful discrimination in exercising peremptory challenges against blacks without giving definitive guidance to the bench and bar as to how we intend to apply Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), and Powers v. Ohio, 499 U.S.-, 111 S.Ct. 1364 , 113 L.Ed.2d 411 (1991), to future cases.
The majority simply concludes, without real explanation, that by exercising peremptory challenges against five *80 blacks where two challenges are made to the strikes, that an inference arises to suggest purposeful discrimination under Batson . Does this also mean that four strikes and two challenges raise the same inference? What about three strikes and one challenge or two strikes and two challenges?
It seems to me that the teaching of Batson and Powers is to guarantee that no juror is to be stricken for a racially discriminatory reason, because each unexplained strike raises the inference of discrimination. Accordingly, the only way to remedy this impropriety is to require the prosecutor and defense counsel to give a racially neutral justification each time either uses a peremptory challenge to strike anyone from a venire panel.
Absent such a clear message from us, prosecutors, defense counsel and the lower courts will still struggle to anticipate when our conscience will be moved to find an inference of discrimination. Additionally, since the Batson issue is raised in a pre-trial setting and reviewed post-verdict, the integrity of civil and criminal judgments will be in jeopardy until we formulate a clear and simple rule. Unfortunately, I do not believe the majority has fashioned such a rule today.
Since it is clear that the use of peremptory challenges can easily be made a tool for the practice of discrimination in the selection of jurors in civil and criminal cases, the entire system of peremptory challenges has been called into question and perhaps should be eliminated.