Petition — McCray v. New York

Supreme Court brief1983

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LLED

FEB LL 1983

RUGREMOER L. STEVAS,

CLERK

Ee I

No. 82-____

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

MICHAEL MCCRAY,

Petitioner,

—

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS FOR THE

STATE OF NEW YORK

STEVEN R. SHAPIRO

(Counsel of Record)

RICHARD EMERY

NEW YORK CIVIL LIBERTIES UNION

84 Fifth Avenue

New York, New York 10011

(212) 924-7800

BURT NEUBORNE

CHARLES S. SIMS

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

132 West 43 Street

New York, New York 10036

Of Counsel

Michael McCray respectfully petitions

for a writ of certiorari to review the judg-

ment in this case of the Court of Appeals of

the State of New York.

QUESTIONS PRESENTED

1. May a prosecutor utilize race as a

principal factor in determining whether to

exercise a peremptory challenge of a prospec-

tive juror? If not, does the systematic use

of peremptory challenges to exclude all black

and hispanic jurors in a criminal case raise

en inference that race has been impermissibly

used as a factor in the jury selection process?

2. May a prosecutor peremptorily chal-

lenge and exclude all black and hispanic jurors

in a criminal case, consistent with the defend-

ant's right to be tried by a jury drawn from a

representative cross-section of the community,

as guaranteed by the Sixth and Fourteenth

Amendments?

3. Does this Court's holding in Swain

v. Alabama, 380 U.S. 202 (1965), forbid a

finding that a prosecutor's use of peremptory

challenges to exclude all black and hispanic

jurors in a criminal case violates equal pro-

tection absent statistical evidence establish-

ing a pattern and practice of such exclusions

and, if so, should that holding sow be

modified?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTE tcc eebeibacavbeweenees i

TABLE OF AUTHORITIES... ccccccesscecveee V

OPINIONS BELOW. ..ccccccccscccccccccsccce Lt

JURISDICTION. .cccccccccccccvccccccccscves Ll

CONSTITUTIONAL PROVISIONS INVOLVED...... 2

STATEMENT OF THE CASE...cccccccccccccess 3

REASONS FOR GRANTING THE WRIT.....-+++-- G

I. THE DECISION BELOW CONFLICTS

WITH TAYLOR v. LOUISIANA...... 13

II. THIS CASE PRESENTS A TIMELY

OPPORTUNITY TO RE-EXAMINE

THE HOLDING OF SWAIN v.

ALABAMA. .ccccccccccccccscscscce 18

III. THE DECISION BELOW HIGHLIGHTS

A CONFLICT AMONG THE STATES

IN CONSTRUING THE SIXTH

AMENDMENT... cccccccccccccsccscee 2)

CO se Rss 66S 600 bee ewe O66 bee eee eos 29

PA NL 6 6-86 6b. 0866 Ose bce e 6 eae ab Oe See la

Decision of the Court of Appeals

of the State of New York,

December 14, > Aer ere a la

Decision of the Appellate Division,

Second Department,

November 9, lO ) oe re ee 4la

- iii -

em ee ee

Decision of the Supreme Court

of the State of New York,

Criminal Term, Kings County,

GUNG 2p SPOGs ccceccvccseccsesecess 828

Decision of the Supreme Court

of the State of New York,

Criminal Term, Kings County,

BPCAS 24). THSSr seeoviecsivesescvece S46

TABLE OF AUTHORITIES

Cases Page

Castaneda v. Partida, 430 U.S.

Ge oy) re a ee a

Commonwealth v. Soares, 377 Mass.

461, 389 N.E.2d 499, cert.

denied, 444 U.S. 881 (1979) ... .22

Duncan v. Louisiana, 391 U.S. 145

(1968) . . . . . . ° . . . . . . . 9

Duren v. Mississippi, 439 U.S. 357

(1979) - . ° . . . . a . . ce 10, 18

Franks v. Delaware, 438 U.S. 154

(1978) - ° . ° . e e ° . o °° . . . 25

People v. Allen, 23 Cal.3d 286,

S90 FP. 26 30 URS) «se 8 tt CUS er

People v. Lucero, 99 Cal.App.3d

EY C2979) 26 oe ee ee we ee 6 ae

People v. McCray, 104 Misc.2d 782

(Sup.Ct. Kings Co. 1980), aff'd,

84 A.D.2d 769 (2d Dept. 1981)... 1

People v. Payne, 106 I11.App.3d

1034, 436 N.E.2d 1046 (1982) .. . 27

People v. Randle, 130 Cal.App.3d

S39 (3962) 2. ec ssc ean ese et ae a

People v. Wheeler, 22 Cal.3d 263,

583 P.2d 748 (1978) . . . .22, 23, 24

25, 26

Peters v. Kiff, 407 U.S. 493

(1972) . . . . . . . . . . . . . . 14

State v. Crespin, 94 N.M. 486,

612 P.2d@ 716 (1980) ..... .22, 28

Strauder v. West Virginia, 100

ie. Bee-Cseeer « +s + 6 ee ee ee

Swain v. Alabama, 380 U.S. 202

(1965) _ . _ * . . . . . . . . passim

Taylor v. Louisiana, 419 U.S. 522

(Sora?) « «2 0 2 ss es © sos ORC

Texas Department of Community

Affairs v. Burdine, 450 U.S.

eee Ch0CLe & 6 8 0 es ee ee we

Thiel v. Southern Pacific Co.,

Ja0 Welle Bae Cane) 2s 3 & eS oe cene

Other Authorities

Annot., “Use of Peremptory Challenge

to Exclude From Jury Persons

Belonging to a Class or Race,"

TP AskssRMs de 16 C2975) « 2 2 0 te ee

Brown, McGuire & Winters, "The

Peremptory Challenge as a Manip-

ulative Device in Criminal Trials:

Traditional Use or Abuse," 14 New

Bng.%.mev. 192 CiSTS) . 2 6 0 0 8 ee

Page

Comment, "The Prosecutor's Exercise

of the Peremptory to Exclude Non-

White Jurors as a Valued Common

Law Privilege in Conflict with the

Equal Protection Clause," 46 U.Cin.

L. Mev. 555 (i977) «2 « 6 6 8 ee oe

Note, “Limiting the Peremptory

Challenge: Representation of Groups

on Petit Juries," 86 Yale L.J.

27S (E977) 2 ce tte Be 6 ee ht Uae

Winick, "Prosecutorial Peremptory

Challenge Practices in Capital

Cases: An Empirical Study and a

Constitutional Analysis," 81 Mich.

Doe. 2 Ti9GZ) « « + 6 + 8 + eBhy Se

- vii -

OPINIONS BELOW

The opinion of the New York Court of

Appeals (App. at la-40a) is not yet reported.

The opinion of the Appellate Division (App. at

4la) is reported at 84 A.D.2d 769 (2d Dept.

1981). The opinion of the trial court denying

petitioner's post-conviction motion for a mis-

trial or, alternatively, for an inquiry into

the prosecutor's use of her peremptory chal-

lenges (App. at 42a-50a) is reported at 104

Misc.2d 782 (Sup.Ct.Kings Co. 1980). The trial

court's opinion denying petitioner's motion for

a new trial during voir dire (App. at 5la-67a)

was rendered orally and never published.

JURISDICTION

The judgment of the New York Court of

Appeals was entered on December 14, 1982. Ju-

risdiction is conferred on this Court by 28

U.S.C. §1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment provides, in perti-

nent part:

In all criminal prosecutions, the

accused shall enjoy the right to a

speedy and public trial, by an im-

partial jury of the State and dis-

trict wherein the crime shall have

been committed ....

The Fourteenth Amendment provides, in

pertinent part:

- « « No State shall make or enforce

any law which shall abridge the priv-

ileges cr immunities of citizens of

the United States; nor shall any

State deprive any person of life,

liberty, or property, without due

process of law; nor deny to any person

within its jurisdiction the equal pro-

tion of the laws.

STATEMENT OF THE CASE

Michael McCray is a young black man who

was convicted by an all white jury of first

and second degree robbery based on identifica-

tion testimony.

The robbery occurred in downtown Brooklyn

during the evening of November 15, 1978.

Philip Roberts, a local art student, had just

withdrawn twenty dollars from an automatic bank

machine when he was surrounded by several

youths, pushed into the vestibule of an apart-

ment building and robbed at gunpoint. McCray

was arrested three weeks later when Roberts

picked him out on a street corner while cruising

the neighborhood in a police car. No one else

was ever arrested for the crime. McCray had

never been arrested before and has not been ar-

rested since.

Two trials then ensued. The first trial

ended in a hung jury with three black jurors in

favor of acquittal. § The second trial ended

in conviction and concurrent sentences of 2-6

years on the charge of first degree robbery

and 1-1/2 - 4-1/2 years on the charge of

second degree ain

In the process of selecting a jury for

the second trial, the prosecution exercised

eleven peremptory challenges. Eight of those

challenges were used to excuse the only minor-

ity members drawn for the jury panel: seven

blacks and one hispanic. Asserting that the

prosecutor's action violated the federal Con-

stitution as well as New York State law (52a-

55a), petitioner moved for a mistrial, or

An earlier proceeding had ended in a mistrial

after four jurors were selected because of a

variance between the date of the crime as set

forth in the indictment and complainant's

statement.

McCray's sentence has been stayed by Chief

Judge Cooke of the New York Court of Appeals

until ten days after the petition for

certiorari is filed.

- 4-

alternatively, for an inquiry to determine

whether the prosecutor's use of her peremptory

challenges was based, as it appeared, exclu-

sively on race. Those motions were denied

by the trial judge and voir dire continued.

(63a-66a).

The jury that convicted McCray was com-

posed entirely of whites. After conviction,

McCray moved for a new trial, alleging again

that the use of peremptory challenges to cre-

ate an all white jury violated his right to "a

jury of his own peers" under "our constitu-

tion." That motion, too, was denied by the

trial judge, who concluded on the basis of this

Court's decision in Swain v. Alabama, 380 U.S.

202 (1965), that the use of peremptory

In support of his motion, defense counsel

pointed out that the minority jurors excluded

by the prosecution shared nothing in common

except their race. Indeed, one black juror

was excluded by the prosecution even though

his relative had been a crime victim -- a

fact that would normally be thought to favor

the prosecution. (54a-55a).

@ § «

challenges in a particular case is immune from

inquiry. (43a). Neither decision by the

trial judge contains any finding on the criti-

cal question of whether the prosecutor actual-

ly utilized her peremptory challenges to ex-

clude minority jurors. Indeed, the trial

judge considered that question so legally ir-

relevant that he never sought any explanation

for the undisputed fact that every black and

hispanic on the jury panel was peremptorily

excused by the sianeialinas ©

On appeal, McCray's conviction was af-

firmed without opinion by the Appellate

In the course of his oral decision denying

petitioner's post-conviction motion for a new

trial, the trial judge suggested some uncer-

tainty in his own memory about whether a

black juror had eventually been seated. In

fact, a black alternate was seated but never

served. Unfortunately, the voir dire in this

case was never recorded.

A prosecutor's desire to exclude every

black from a criminal jury trying a black de-

fendant was portrayed by the trial judge as

sound, wind even commendable, legal sfvategy.

(45a, 60a-6la).

-6-«-

Division (4la) and in a 4-3 decision by the New

York Court of Appeals (la-40a). The majority

quickly dismissed McCray's federal claim by

relying on Swain and then rejected the invita-

tion to "depart[] from this holding" in con-

struing New York's own constitution, (2a).

The majority's interpretation of federal

law and this Court's decisions were strongly

disputed by the dissent. Pointing out that

Swain was decided “solely on equal protection

grounds" at a time when the Sixth Amendment had

not yet been applied to the states, Judge Meyer

concluded that,

the use by a prosecutor of peremptory

challenges systematically and without

apparent reason to exclude all blacks

on the panel from the petit jury be-

fore which is to be tried a black

defendant charged with robbing a

white victim violates the Sixth

Amendment guarantee of a fair trial

by an impartial jury. (19a).

Unlike the typical case in which majority

and dissent disagree on their interpretation of

a given case, here the majority and dissent

could not even agree on which precedents were

relevant. The majority began and ended its

analysis with Swain. Judge Meyer, by con-

trast, adopted the view that Swain had been

modified, if not superseded, by Taylor v.

Louisiana, 419 U.S. 522 (1975), which held

that the Sixth Amendment re yguires a jury drawn

from a representative cross-section of the

community.

In a separate dissent, Judge Fuchsberg

described the record in this case a "a classi-

cal picture of intentional and systematic ex-

clusion [from the jury] on account of race,

creed, color or national origin." (32a). This

picture, he reasoned, violated petitioner's

constitutional rights "without more and absent

any countervailing explanation." Id.

REASONS FOR GRANTING THE WRIT

This case presents an unresolved ques-

tion which is crucial to the administration of

criminal justice in this country. At issue is

the reconciliation of two decisions by this

Court and the interpretation of two constitu-

tional provisions.

In Swain v. Alabama, 380 U.S. 202 (1965),

this Court held that a prosecutor's use of

peremptory challenges could not be attacked

under the Equal Protection Clause, or even sub-

ject to inquiry, merely by showing that every

minority juror had been excused in a particular

case. Ten years later, in Taylor v. Louisiana,

419 U.S. 522 (1975), this Court ruled that the

guarantee of an impartial jury embodied in the

Sixth Amendment demands that each jury be drawn

from a representative cross-section of the com-

munity. In between, the Sixth Amendment was

deemed applicable to the states in Duncan v.

Louisiana, 391 U.S. 145 (1968).

What this case demonstrates is that the

relationship among these decisions has been

the source of considerable confusion through-

out the nation. Specifically, this Court has

never indicated whether the creation of an all

white jury through the use of peremptory chal-

lenges by the prosecution violates the Sixth

Amendment principles announced in Taylor or

whether such situations remain governed by

Swain despite subsequent developments in con-

stitutional law. The few hints that exist sup-

port petitioner's position. In Taylor itself,

this Court explicitly distinguished between an

equal protection challenge to jury composition

and a challenge based on the representative

cross-section requirement of the Sixth Amend-

ment. 419 U.S. at 533-34. That distinction

has been adopted in other decisions as well.

E.g. Duren v. Mississippi, 439 U.S. 357, 368

n.26 (1979). To the extent that the Sixth

Amendment offers a different framework for jury

-~ 10 -

exclusion cases, the decision below was plain-

ly incorrect in its analysis of petitioner's

constitutional claim.

In any event, the premises of Swain

should now be re-examined in light of eighteen

years' experience with its implementation.

The decision in Swain represented an effort to

balance two competing interests. On the one

hand, the Court strongly condemned, as it has

condemned for more than a century, any effort

to limit jury service on the basis of race.

On the other hand, the Court was anxious to

preserve the unconditional nature of peremp-

tory challenges as a time-tested device for

securing impartial juries and promoting public

confidence in the jury system. Accordingly,

the Court fashioned a rule which made it im-

possible even to question the racially moti-

vated use of peremptory challenges in a partic-

ular case absent statistical evidence estab-

lishing a pattern and practice of racial

=» i] «

exclusions. Any other rule, the Court feared,

would inevitably destroy the value of peremp-

tory challenges.

It is now clear that both sides of the

Court's equation in Swain have been empirically

disproved. The burden imposed on criminal de-

fendants in Swain has proved insuperable in

practice. As a result, the decision has had

the unfortunate effect of condoning what it

sought to condemn: the deliberate selection

of all white juries through manipulation of a

prosecutor's peremptory challenges. Most de-

fendants lack the time, money and capacity to

mount the sort of statistical case which Swain

demands. Moreover, the rule in Swain does

nothing to protect the first victim of discrim-

ination in a particular jurisdiction. On the

other side of the scale, those states which

have departed from Swain under their own con-

stitutions have not experienced the wholesale

disruption of peremptory challenges which Swain

envisioned. Instead, procedures have been de-

veloped which effectively protect both a pros-

ecutor's interest in peremptory challenges and

a defendant's right to a representative jury.

Those same procedures can and should be incor-

porated in a new federal rule which more faith-

fully reflects the constitutional interests at

stake.

Finally, there is presently a conflict

among the states, and between state and federal

courts, on the constitutional protections af-

forded a defendant whose jury has been purged

of minority members by a prosecutor's use of

peremptory challenges. That conflict can only

be resolved by this Court.

I. THE DECISION BELOW CONFLICTS WITH

TAYLOR v. LOUISIANA

In Taylor v. Louisiana, 419 U.S. 522,

527 (1975), this Court declared "that the

American concept of a jury trial contemplates

- 13 -

———

a jury drawn from a fair cross-section of the

community." The court below held that this

requirement had been satisfied notwithstanding

the fact that every minority member of the ju-

ry panel in this case had been excused through

use of the prosecutor's peremptory challenges.

That result can only be sustained by repudi-

ating the principle which Taylor announced.

The importance of diversity as a means

of securing the impartial jury which the Sixth

Amendment commands has long been recognized by

this Court. Taylor itself approvingly quotes

Justice Marshall's opinion in Peters v. Kiff,

407 U.S. 493, 503-04 (1972):

When any large and identifiable seg-

ment of the community is excluded

from jury service, the effect is to

remove from a jury room qualities

of human nature and varieties of

human experience, the range of

which is unknown and perhaps un-

knowable. It is not necessary to

assume that the excluded group will

consistently vote as a class in

order to conclude, as we do, that

their exclusion deprives the jury

of a perspective on human events

- 14 «

that may have unsuspected impor-

tance in any case that may be

presented.

See also Thiel v. Southern Pacific Co., 328

U.S. 217, 227 (1946) (Frankfurter, J., dis-

senting).

Justice Marshall's observations are es-

pecially pertinent in a case such as this

which hinged almost entirely on identification

testimony. It does not require extensive soci-

Ological citation to appreciate that the possi-

bility of a white victim misidentifying a black

youth on an urban street corner three weeks af-

ter a crime may be more readily understood by

black jurors than white jurors. Indeed, this

Court has held for more than a century that the

purposeful exclusion of minority members from

jury service fatally undermines the representa-

tive character of the jury as an institution.

Strauder v. West Virginia, 100 U.S. 303 (1980).

This is not to suggest that the jury ac-

tually chosen in any particular case must

- 15 -

faithfully duplicate the ethnic composition of

the community at large. Taylor v. Louisiana,

419 U.S. at 538. But the constitutional im-

perative of an impartial jury drawn from a

fair cross-section of the community which

Taylor endorsed is plainly frustrated by the

prosecutor's use of peremptory challenges to

exclude potential jurors on the basis of race

une”

The court below endeavored to distinguish

Taylor on the ground that it only applies to

jury pools and has no application to the proc-

ess of jury selection. The point of demanding

a representative jury pool, however, is to max-

imize the chance of obtaining a representative

jury. The intentional exclusion of prospective

~ As Judge Meyer's dissent noted, "the fair

cross section-impartiality requirement is

meaningless if in any case involving a defend-

ant of a given race the prosecutor can inten-

tionally and systematically exclude all mem-

bers of that race without cause. (?6a).

e 16 «

jurors on the basis of race, whether in the

process of compiling a jury pool or selecting

a jury, is equally destructive of the consti-

tutional wise

In rejecting petitioner's constitutional!

claim, the New York Court of Appeals felt bound

by Swain and its interpretation of the Equal

Protection Clause. For reasons set forth in

the following section, petitioner believes that

Swain should now be re-examined. But regard-

less of the outcome of that re-examination, the

court below entirely overlooked petitioner's

independent rights under the Sixth Amendment.

The symmetry between the Equal Protection

Clause and the Sixth Amendment presumed by the

Court below is unsupported by this Court's

~ Another goal of the fair cross-section re-

quirement recognized in Taylor is to promote

"public confidence in the fairness of the

criminal justice system." 419 U.S. at 530.

Such confidence is unlikely to be felt by a

minority community which observes the system-

atic exclusion of every black juror through

the prosecutor's use of peremptory challenges.

= if @

decisions which carefully stress that "equal

protection challenges to jury selection and

composition are not entirely analogous" to

cases brought under Taylor and its progeny.

Duren v. Mississippi, 439 U.S. 357, 368 n.26

(1979).

This Court should decide whether peti-

tioner's trial before an all white jury

crafted by the prosecutor's use of peremptory

challenges violated his right to an impartial

jury guaranteed by the Sixth Amendment.

II. THIS CASE PRESENTS A TIMELY OPPORTUNITY

TO RE-EXAMINE THE HOLDING OF SWAIN v.

ALABAMA

Under the rule announced by this Court

in Swain v. Alabama, 380 U.S. 202 (1965), a

defendant must demonstrate a pattern and prac-

tice of racial exclusions from jury service in

order to prove that the jury selection process

in his own case has been racially biased. In

theory, the rule was intended to effectuate

- 18 «

this Court's long-standing view, restated in

Swain, that "a State's purposeful or deliber-

ate denial to Negroes on account of race of

participation as jurors violates the Equal

Protection Clause." 380 U.S. at 204. In

practice, it has had precisely the opposite

effect. This Court could not have intended

that result.

The burden of proof fashioned by the

Swain Court represented an obvious attempt to

balance two competing interests. On the one

hand, the Court was committed to the principle

of racial equality in the administration of

justice. On the other hand, the Court was

concerned that the system of peremptory chal-

lenges could not survive even a limited in-

quiry into the prosecutor's motives based on

the record in a single case. Eighteen years

later, it is now apparent that the balance

struck by the Swain Court was based on as-

sumptions that have proven invalid.

- 19 -

Most significantly, the burden of proof

established in Swain has been virtually im-

possible for defendants to meet. In this

case, for example, there are no available

statistics which document the pattern of per-

emptory challenges by the Kings County prose-

cutor. Accordingly, to satisfy the Swain

test, McCray would have had to transcribe

enough voir dire proceedings to create a sta-

tistically significant sample, assuming that

a significant number of voir dires are even

recorded. |§ The time and expense involved in

that undertaking are evident. Even then,

there is no assurance that the transcripts

would be helpful since the race of prospective

jurors is often not revealed during voir dire.

Furthermore, all of this discovery must be ac-

complished virtually overnight since its need

Many voir dires, including McCray's, are

conducted without a stenographer present.

- 20 -

eee

does not arise until a defendant's own jury

selection is already ace And, by

definition, the first victim of discrimina-

tory jury selection in a jurisdiction can ob-

tain no relief under Swain.

Given these difficulties, it is hardly

surprising that in the decade following Swain

not a single defendant was able to satisfy its

stringent standard. Annot., "Use of Peremp-

tory Challenge to Exclude From Jury Persons

Belonging to a Class or Race," 79 A.L.R.3d 14,

24 (1975). Placed in the context of this

Court's other decisions on racial discrimina-

tion in the administration of justice, it is

difficult to believe that Swain was meant to

erect such an absolute barrier to equal pro-

tection claims.

9/7

The complexity of the statistical case re-

quired by Swain is fully described in Winick,

"Prosecutorial Peremptory Challenge Practices

in Capital Cases: An Empirical Study and a

Constitutional Analysis," 81 Mich.L.Rev. l,

21-39 (1982).

- 21 -

The consequences of Swain have been

strongly condemned by many legal commenta-

NN Its approach has also been rejected

by three different states in construing their

own constitutions. People v. Wheeler, 22 Cal.

3d 263, 583 P.2d 748 (1978); Commonwealth v.

Soares, 377 Mass. 461, 389 N.E.2d 499, cert.

denied, 444 U.S. 881 (1979); State v. Crespin,

94 N.M. 486, 612 P.2d 716 (1980).

The rule adopted in each of these state

cases is essentially the same and fully re-

spects the important value of peremptory chal-

lenges. Thus, under the so-called Wheeler

rule, the exercise of peremptory challenges in

any given case is presumed to be valid. But

I0/7

BE.g. Brown, McGuire & Winters, "The Peremp-

tory Challenge as a Manipulative Device in

Criminal Trials: Traditional Use or Abuse,"

14 New Eng.L.Rev. 192 (1978); Winick, supra

n.4; Comment, "The Prosecutor's Exercise of

the Peremptory to Exclude Non-White Jurors:

A Valued Common Law Privilege in Conflict

with the Equal Protection Clause," 46 U.Cin.

L.Rev. 555 (1977); Note, "Limiting the Per-

emptory Challenge: Representation of Groups

on Petit Juries," 86 Yale L.J. 1715 (1977).

- 22 =

unlike Swain, that presumption can be re-

butted by a showing that prospective jurors

are being challenged “because of their group

association rather than because of any spe-

cific bias." People v. Wheeler, 22 Cal.3d at

281.

Among the relevant factors identified

by Wheeler in making that showing are whether

all or most of an identified group have been

excluded from jury service, whether a dis-

proportionate number of peremptories have

been used against a specific group and whether

members of that group have been excused with

little or no questioning. If a prima facie

case is made, the burden shifts and the pros-

ecutor must offer some reason other than group

bias for the exercise of his peremptory chal-

lenges. The burden is a minimal one, however,

and “need not rise to the level of a showing

for cause." 22 Cal.3d at 282.

The reported decisions do not reveal

- 23-

any disruption in the system of peremptory

challenges as a result of this modification

of the Swain test.” The positive values

identified in Swain are still being served --

namely, the elimination of perceived bias and

the increased confidence of litigants in the

system of justice. 380 U.S. at 219. At the

same time, the Wheeler rule minimizes the

likelihood that peremptory challenges will be

used to disguise racial discrmination or ob-

tain a racially skewed jury which does not

Las

fairly reflect the community it represents. _

11/

~ There have been eight reported decisions ap-

plying Wheeler in California. None indi-

cates any problem with the rule's implemen-

tation or any concern about its effect on

peremptory challenges. E.g. People v.

Randle, 130 Cal.App.3d 499 (1982); People v.

Allen, 23 Cal.3d 286, 590 P.2d 30 (1979).

The same is true in Massachusetts and New

Mexico.

12/

The district attorney joined petitioner below

in seeking a constitutional ruling that per-

emptory challenges should not be used to

(fn. cont. on next page)

- 24-

Simply put, Swain has not accomplished

the goal it was designed to achieve. With

hindsight it is now clear that Swain's at-

tempt to balance competing interests has

been imbalanced from the start. As a result,

this Court has inadvertently endorsed a pro-

cedure which is rife with the possibilities

of abuse. Based on the actual experience of

the last eighteeen years -- in jurisdictions

(fn. continued from preceding page)

exclude prospective jurors solely on the

basis of race. (2a). The district attorney

opposed petitioner's request for a new trial,

however, by arguing that petitioner did not

make a showing at trial sufficient to sat-

isfy even the Wheeler test. That assertion

ignores the fact that every minority member

of the jury panel in petitioner's case was

excluded by the prosecution's peremptory

challenges, and that the prosecution's per-

emptory challenges were disproportionately

directed against minority jurors. In any

event, what petitioner is seeking from this

Court is a standard by which his claim can

be tested. He should not be faulted for

failing a test that did not apply at the

time of his trial. See Franks v. Delaware,

438 U.S. 154 (1978). Furthermore, it is ob-

vious from the trial judge's opinion that no

showing by petitioner would have been suffi-

cient to question the prosecution's peremp-

tory challenges.

- 28 «

which have followed Swain and in those which

have departed from it -- petitioner respect-

fully submits that Swain should now be modi-

fied to permit the sort of limited inquiry

contemplated by Wheeler. In so doing, this

Court will more faithfully enforce the funda-

13/

mental principles which Swain espouses.

13/

Since Swain, this Court has extensively re-

viewed the burden of proof in discrimination

cases. In effect, petitioner is seeking the

same shift in the burden of production that

applies in virtually every other discrimina-

tion context. As explained by this Court in

Texas Department of Community Affairs v.

Burdine, 450 U.S. 248 (1981), the burden of

persuasion remains throughout the litigation

with the party asserting discrimination.

Once a prima facie case of discrimination is

presented, however, the party charged with

discrimination must assert some legitimate,

non-discriminatory reason for the challenged

action. 450 U.S. at 254. This burden of

rebuttal is not an onerous one, but it is

nonetheless more than is currently required

by Swain when a criminal defendant's liberty

may be at stake. The appropriateness of ap-

plying the general principles of discrimina-

tion law to the jury selection process was

recognized by this Court in Castaneda v.

Partida, 430 U.S. 482 (1977).

—

III. THE DECISION BELOW HIGHLIGHTS A

CONFLICT AMONG THE STATES IN

CONSTRUING THE SIXTH AMENDMENT

The dispute between the majority and

dissenting opinions below on whether the

Sixth Amendment's guarantee of an impartial

jury places any limit on the use of peremp-

tory challenges to disqualify jurors on the

basis of race reflects a more general debate

that now exists throughout the country on

this critical question of constitutional law.

Two state courts have expressly adopted the

view advocated by the dissent that Taylor v.

Louisiana applies to jury selection and pro-

hibits the creation of unrepresentative juries

through racially-based peremptory challenges.

People v. Payne, 106 I1l.App.3d 1034, 436 N.E.

2d 1046 (1982); People v. Lucero, 99 Cal.App.

3d 17 (1979). In addition, the New Mexico

Supreme Court has cited Taylor in support of

the proposition that "[rJecent United States

Supreme Court decisions infer that the

= 37 «

challenge allowed in Swain may be too

limited." State v. Crespin, 94 N.M. 486,

612 P.2d 716, 717 (1980). Other state and

federal courts, including the New York Court

of Appeals, have rejected the notion that

Taylor modified Swain or that the Sixth

Amendment may guarantee rights in this situa-

tion which do not exist under the Equal Pro-

tection Clause. These conflicting views of

constitutional law can only be reconciled by

a decision from this Court.

» 26 <

CONCLUS ION

For the reasons stated herein, a writ

of certiorari should be issued in this case.

Respectfully submitted,

STEVEN R. SHAPIRO*

(Counsel of Record)

RICHARD EMERY

New York Civil

Liberties Union

84 Fifth Avenue

New York, NY 10011

(212) 924-7800

Counsel for Petitioner

BURT NEUBORNE

CHARLES S. SIMS

American Civil Liberties

Union Foundation

132 West 43 Street

New York, NY 10036

(212) 944-9800

Of Counsel

*Counsel gratefully acknowledges the assistance

of Elizabeth Plapinger in the preparation of

this petition.

- 29 -

COURT OF APPEALS

STATE OF NEW YORK

[A AAAS onennnanescas x

THE PEOPLE OF THE STATE

OF NEW YORK,

Respondent.

- against -

MICHAEL McCRAY,

Appellant.

Anion nenenanescoas x

Gabrielli J. -- Section 270.25 of the

Criminal Procedure Law states that: "A

peremptory challenge is an objection to a

prospective juror for which no reason need be

assigned. Upon any peremptory challenge, the

court must exclude the person challenged from

service." This right to peremptory challenges

has been exercised by prosecutors and defend-

ants in this State pursuant to the same or

similar statute for over 100 years (see People

v. Walter, 32 N.Y. 147). In Swain v. Alabama

(380 U.S. 202), the Supreme Court determined

that a prosecutor is not required to disclose

- la -

his reasons for excusing prospective jurors in

a particular case on the mere allegation by

the defense that peremptories are being used

to exclude minority jurors. We find nothing

in our State Constitution or statutes which

compels a departure from this holding of the

Supreme seal

Defendant was convicted of robbery in

the first and second degrees for his part in

the Nov. 15, 1978 gunpoint robbery of Philip

Roberts, a student at Pratt Institute. After

Roberts had withdrawn money from an automatic

bank teller machine, the defendant and several

companions pushed him into the vestibule of an

apartment building and took his money. Defend-

ant was identified by Roberts several weeks

later when, while Roberts was being driven by

I observe on this underlying issue that the

People join defendant in contending that the

provisions of our State Constitution prohibit

the use of peremptory challenges to exclude

potential jurors solely on the basis of race.

- 2a -

polj -e around the neighborhood where he was

accosted, he spontaneously picked out the

defendant from a group of four individuals

standing on a street corner.

During jury selection, the defense

moved for a mistrial, claiming that the pros-

ecutor had unlawfully used peremptory chal-

lenges to exclude jurors on the basis of race.

In the alternative, the defense moved for a

hearing to inquire into the prosecutor's use

of her peremptory challenges. In pursuing

these motions, the defense pointed out that

eight of the eleven peremptory challenges exer-

cised by the prosecutor had been used to ex-

clude all of the blacks and the only hispanic

prospective juror drawn. Nevertheless, these

defense motions were denied. The court relied

upon Swain v. Alabama (supra) in concluding

that it is inappropriate to inquire into a

party's motives solely on the basis of the man-

ner in which peremptory challenges have been

- 3a -

exercised in a single case. On the appeal

from defendant's conviction, the Appellate

Division affirmed, without opinion. Defendant

now argues to this court, inter alia, that the

trial court committed reversible error in

denying his motion for a mistrial or for a

hearing to inquire into the prosecutor's in-

tentions and motives in exercising peremptory

challenges to exclude certain jurors.

The issue of minority representation on

criminal juries has been the subject of sever-

al decisions by the Supreme Court. These de-

cisions draw a critical distinction between the

jury pool, which is the group of prospective

jurors from which the litigants will select a

jury to hear their particular case, and the ju-

ry that is ultimately chosen to serve. The

Sixth hentnent requires that the jury pool be

selected from a representative cross-section of

the community (Taylor v. Louisiana, 491 U.S.

522), and distinctive groups in the community

- 4a -

may not be systematically excluded from the

pool. Once the jury pool is selected, how-

ever, prospective jurors may then be excluded

through the exercise of cause challenges and

peremptory challenges. The challenge for

cause removes those jurors who either admit to

actual bias or those who admit to circum-

stances from which the law will infer an over-

whelming potential for bias. The peremptory

challenge, in contrast, is a challenge for

which no reason need be assigned. This chal-

lenge enables either the prosecutor or the de-

fense to exclude prospective jurors who may

harbor subtle prejudices which may be sensed by

counsel but which are not explicitly revealed

by the prospective juror on voir dire.”

It is also designed to permit counsel to remove

prospective jurors who counsel may have

The number of peremptory challenges that may

be exercised by each party is strictly

limited by C.P.L. Section 270.25(2).

- 5a -

alienated during the course of questioning on

voir dire.

In Swain v. Alabama (supra), the Supreme

Court clearly determined that the prosecutor's

motives for striking particular jurors may not

be subjected to scrutiny simply upon tis abeer~

tion by the defense that peremptories are being

used to exclude minorities. The Court noted

that only if it can be established that the

prosecutor's office is using peremptory chal-

lenges systematically to exclude minorities

from juries over a period of time will a prima

facie case of discrimination be made out. The

decision in Swain upheld the traditional model

for jury selection, which "assumes that impar-

tiality is best realized by first choosing a

pool of jurors from the community at large, ex-

cusing those clearly biased, and then permit-

ting the parties to excuse additional jurors

who, in their view, are less likely than others

to provide a fair trial." (Saltzburg and Powers,

- 6a -

Peremptory Challenges and the Clash Between

Impartiality and Group Representation, 41 Md.

L.Rev. 337, 355).

In urging a reversal in this case, de-

fendant argues that this Court should reject

the holding of the Supreme Court in Swain on

the basis of the provisions of our State Con-

stitution. Defendant would have this Court

overturn the present system of limited peremp-

tory challenges by requiring the prosecutor to

shoulder the burden of assigning and proving

jusitifable reasons for his exercise of these

challenges whenever there ius a statistically

supportable allegation that the prosecutor is

renoving prospective jurors on the basis of

their status as minority members of the commu-

nity. The defendant, in effect, would require

the prosecutor to prove that a prospective ju-

ror's racial biases, whether based upon group

affinity or otherwise, would interfere with the

attainment of a fair and impartial verdict

- Ja-

before that juror could be excused. We de-

cline to adopt this position for it would con-

vert the peremptory challenge system into a

system based solely upon challenges for cause.

Indeed, we find no persuasive reason for de-

parting from our present method of jury selec-

tion.

A system which would require counsel to

prove that a prospective juror harbors racial,

sexual or religious prejudices that could in-

terfere with the attainment of a fair and just

verdict would succeed in eliminating only the

most blatant biases from the jury. To begin

with, we must recognize that it is the sad

reality of our times that predisposition and

bias may, in some individuals, be based upon

racial, religious or sexual status. At the ex-

treme end of the spectrum, those who admit to

such prejudices or admit to membership in

groups from which such prejudices may readily

be inferred, obviously should be disqualified

— Se

from sitting on juries where these prejudices

could interfere with the attainment of a fair

and just verdict. For example, fundamental

fairness dictates that a member of the Ku

Klux Klan be disqualified from sitting on a

jury in a case in which a black man is accused

of assaulting a white. These individuals can

adequately be eliminated through the challenge

for cause. Just as dangerous to the attain-

ment of justice, however, is bias on the part

of jurors which is not quite as overt in speech

or behavior. While the questioning that takes

place on voir dire is perfectly suited to fer-

ret out and eradicate blatant and admitted bias

from the jury, it is simply unlikely to dis-

close certain subtle and hidden biases which

could prevent the jury from rendering a fair

and impartial verdict. Several reasons for the

inadequacy of voir dire for this purpose have

been identified (see Saltzburg and Powers,

Peremptory Challenges and the Clash Between

- 9a -

Impartiality and Group Representations, 41 Md.

L.Rev. 337, 355). First, jurors may be reluc-

tant to admit their prejudices before specta-

tors or others present in the court room

during the voir dire. Second, certain pros-

pective jurors may evade full disclosure of

their prejudices in an effort to avoid being

struck from the jury. Finally, other prospec-

tive jurors may simply be unaware of the exis-

tence of certain biases or prejudices they may

harbor. A system of jury selection in which

reasons must be assigned for the removal of in-

dividual jurors seriously hampers the elimina-

tion of these biases from the jury. The in-

adequacy of relying upon voir dire to filter

out all potential biases based upon group af-

finity is exacerbated by the reluctance’ of

some trial judges to permit extensive time-

consuming voir dire examination.

In this vein, it has long been recognized

that one who discriminates "cannot be expected

- 10a -

a i

to declare or announce his purpose. Far more

likely is it that he will pursue his discrim-

ination practices in ways that are devious,

by methods subtle and elusive -- for we deal

with an area in which subtleties of conduct *

* * play no small part" (Matter of Holland v.

Edwards, 307 N.Y. 38, 45; see also Imperial

Diner v. State Division of Human Rights, 52

N.Y¥.2d 72, 77). In order to effectively meet

this problem the usual and more demanding stan-

dards of proof have been reduced in cases where

the object of the law is to eliminate discrim-

ination or bias (Matter of Holland v. Edwards,

supra). In the jury selection process that

rule is served by the peremptory challenge

which permits an experienced attorney to elim-

inate a juror who he believes might be biased

against his case in instances where the poten-

tial bias cannot be disclosed or articulated to

the degree necessary to establish a challenge

for cause.

- lla -

We further note that inherent in relying

upon the cause challenge to eradicate certain

prejudices from the jury is that litigants may

be reluctant to engage in the intensive ques-

tioning needed to reveal the biases of poten-

tial jurors. Pointed questions directed at an

area as sensitive as a potential juror's ra-

cial, religious or sexual biases may, even

where such biases do not exist, alienate a ju-

ror against counsel and his position. To avoid

the possibility of such juror alienation, coun-

sel may be forced to accept the risk that bi-

ased jurors may be sworn to serve on the jury.

Furthermore, to the extent that restric-

tions on a party's exercise of the peremptory

challenge would require more extensive voir

dire to disclose provable racial biases, as

well as requiring extensive evidentiary hear-

ings on motions to determine the motives of a

party exercising a peremptory challenge, the

rule proposed by the defendant would invite the

- l2a -

additional delays at trial which our justice

system can ill afford. In this era of over-

crowded court calendars and scarce judicial

resources, we should not alter the trial stage

in such a way as to necessitate or encourage

unwarranted additional lengthy delays.

Finally, under the system proposed by

defendant there is a danger that the prejudices

of prospective jurors may not be recognized by

trial judges, despite the presence of answers

given on voir dire which suggest the possibil-

ity of bias. Due to the sensitivity of the

subject of racial, religious or sexual preju-

dice, trial judges may be hesitant to strike a

juror on this basis, particularly when the ju-

ror denies the existence of such bias. Asa

result, the spectre of racial prejudices influ-

encing jury verdicts may be heightened rather

than hindered under the defendant's proposed

formulation. This danger does not exist under

a system where counsel may excuse a limited

- l3a -

number of prospective jurors without assigning

specific reasons for doing so.

Although concern has been expressed over

the possible abuse of a system containing un-

restricted peremptory challenges, the poten-

tial for abuse is limited by certain practical

considerations. If counsel excuses potential

jurors on the basis of group status he or she

will waste limited peremptory challenges which

could be used to excuse other potential jurors

who might be more predisposed to the opponent's

position. Furthermore, counsel must be aware

that he may alienate those jurors ultimately

selected if it becomes apparent that selection

was made upon the basis of group status.

For all of the foregoing reasons, we find

no compelling basis for rejecting the holding

of the Supreme Court in Swain v. Alabama,

supra. The benefits of requiring the prosecu-

tor to justify the exercise of certain peremp-

tory challenges are simply outweighted by the

- l4a -

damage to a system of jury selection which best

serves to guarantee a fair and impartial jury.

As the Supreme Court noted, the peremptory chal-

lenge "'must be exercised with full purpose'"

(Swain v. Alabama, supra, at 219, citing Lewis

v. United States, 146 U.S. 370, 378).

Additionally, some comment should be made

regarding the defendant's reliance (and, indeed,

that of the District Attorney) upon certain pro-

visions of our State Constitution. They first

refer to article I, Section 2 of the New York

State Constitution, which guarantees the right

to trial by jury, and Section 1 of that same

article, which appears to specify that convic-

tion of a defendant must be by "the judgment of

his peers." In Taylor v. Louisiana (419 U.S.

522), the Court held that the Sixth Amendment

right to a jury trial, a right which obviously

and necessarily implies the right to a judgment

of one's peers, requires only that distinctive

groups in the community may not be systematically

- l5a -

excluded from the jury pool. Nothing in the

language of our State's counterpart to the

Sixth Amendment right to a jury trial suggests

that the framers of our State Constitution in-

tended a more expansive interpretation. Simi-

larly, there is nothing in the language or

history of our State equal protection provi-

sion (Article I, Section 11) which suggests

that the scope of the rights guaranteed by

this provision should extend beyond the rights

guaranteed by the equal protection clause of

our Federal Constitution in this instance. It

must be recalled that in Swain, the Supreme

Court specifically rejected the federal equal

protection challenge, and our Court has held

that our State constitutional equal protection

clause is no more broad in coverage than its

Federal prototype (Matter of Esler v. Walters,

56 N.Y.2d 306). Furthermore, defendant's

In Matter of Esler, supra, we said: "In cer-

tain areas, of course, the State Constitution

(fn. cont. on next page)

- loa -

Due ee, J Se

reliance on our State Constitution's due proc-

ess provision is also unavailing.

We have considered defendant's remaining

contentions and we find them to be without

ue Accordingly, the order of the Appel-

late Division should be affirmed.

(fn. continued from preceding page)

affords the individual greater rights than

those provided by its Federal counterpart.

We have noted, however, that the wording of

the State constitutional equal protection

clause (N.Y. Const., art. I, Section 11) ‘is

no more broad in coverage than its Federal

prototype’ and that the history of this pro-

vision shows that it was adopted to make it

clear that this State, like the Federal Gov-

ernment, is affirmatively committed to equal

protection, and was not prompted by any per-

ceived inadequacy in the Supreme Court's de-

lineation of the right (Dorsey v. Stuyvesant

Town Corp., 299 N.Y. 512, 530-531)" (56 N.Y.

2d at 313-314 [footnote omitted]}).

We have no occasion to pass on the merits of

defendant's contention that improper negative

identification testimony was admitted in this

case. The testimony of which defendant com-

plained (anticipated by both counsel in their

openings) was as to the failure of the com-

plainant co earlier identify defendant among

those individuals he viewed in the neighbor-

hood several weeks after the robbery took

place.

- 17a -

x * *

Order affirmed. Opinion by Judge

Gabrielli in which Chief Judge Cooke and

Judges Jasen and Wachtler concur, Chief Judge

Cooke in a concurring memorandum. Judge Meyer

dissents and votes to reverse in an opinion in

which Judge Jones concurs. Judge Fuchsberg

dissents and votes to reverse in a separate

dissenting opinion.

Cooke, Ch. J. (concurring) -- I concur

in the majority's holding that the prosecutor's

use of peremptory challenges did not violate

defendant's constitutional rights.

I also agree that this court need not de-

cide the negative identification issue, but for

a reason different than that implicitly adopted

by the majority, which erroneously concludes

that defendant's counsel opened the door to

this testimony. Assuming arguendo that admis-

sion of the negative identification testimony

- 18a -

was improper, in light of the entire record,

including defense counsel's own reference to

this subject in his opening statement, the

error, if any, cannot be said to have preju-

diced defendant.

Meyer, J. (dissenting) -- In my view the

use by a prosecutor of peremptory challenges

systematically and without apparent reason to

exclude all blacks on the panel from the petit

jury before which is to be tried a black de-

fendant charged with robbing a white victim

violates the Sixth Amendment guarantee of a

fair trial by an impartial jury. I, therefore,

dissent.

Defendant, a black man, was indicted for

first degree robbery. The complainant was a

white man. During selection of the trial jury,

after the prosecution had exercised 1l of its

15 peremptory challenges, defendant moved for a

mistrial on the ground that the prosecutor had

- 19a -

aeeip ena.

by peremptory challenge excluded all seven

blacks and the one hispanic who had been drawn ,

as prospective trial jurors up to the time the

motion was made. In the course of argument of

the motion, defendant's attorney asked for a

hearing at which the prosecutor would testify

concerning the grounds for the challenges.

The trial judge denied the motion and there-

after filed an opinion (104 Misc.2d 782) in

which he reasoned that the "potential affinity"

between a defendant and a juror who shares the

defendant's background justified the peremptory

challenges exercised by the People and that

under Swain v. Alabama (380 U.S. 202, 222): "In

light of the presumption of regularity and the

historic immunity from inquiry concerning the

use of peremptory challenges, it is inappropri-

ate to inquire into a party's motives solely on

the basis of the manner in which peremptory

challenges have been exercised in a single

case" (104 Misc.2d at 784). The Appellate

- 20a -

Division affirmed without opinion.

Swain, upon which the majority and the

courts below so heavily rely, was decided

solely on equal protection grounds. Acknowl-

edging that jurors "should be selected as in-

dividuals, on the basis of individual qualifi-

cations, and not as members of a race" (380

U.S. at 204), and that nothing in the Consti-

tution of the United States requires the grant

of peremptory challenges (id., p. 219), the

Supreme Court held that to subject the prose-

cutor's scrutiny for reasonableness and sin-

cerity would establish a rule wholly at odds

with the peremptory challenge system. Excusal

The inconsistency between that affirmance and

the earlier opinion of the same Department in

People v. Thompson (79 AD.2d 87, app. with-

drawn 55 N.Y.2d 879) which after extensive

and thoughtful analysis held such a use of

peremptory challenges unconstitutional un-

doubtedly resulted from its holding that

Thompson would not be applied retroactively

(79 AD.2d at p. 112, n.22). Thompson was de-

cided on Feb. 2, 1981. The McCray jury was

selected on April 24, 1980.

- 2la -

of blacks on the basis of their potential af-

finity for a black defendant, it reasoned, did

not violate the equal protection clause of the

Fourteenth Amendment; such a violation could

be established only if purposeful discrimina-

tion by state officials was shown (id., pp.

219-224) as when "the prosecutor in a county,

in case after case, whatever the crime and

whomever the defendant or victim may be, is

responsible for the removai of Negroes who

have been selected as qualified jurors by the

jury commissioners and who have survived chal-

lenges for cause, with the result that no Ne-

groes — serve on petit juries." (id. at p.

223) 2

Not addressed by Swain, which was decided

prior to the holding in Duncan v. Louisiana

Although only four justices concurred in the

part of the opinion from which the quoted

words are taken, the three dissenting jus-

tices who argued that the proof presented was

sufficient to demonstrate a constitutional

violation implicitly agreed with it.

- 22a -

(391 U.S. 145) that the Fourteenth Amendment

made applicable to the state the Sixth Amend-

ment's guarantee of trial by an impartial jury,

was the effect of the latter provision. The

Supreme Court's subseauent holding in Taylor v.

Louisiana (419 U.S. 522) that the Sixth Amend-

ment requires a jury pool made up of a repre-

sentative cross section of the community has

raised the question whether the Court when

confronted by the situation of the present

case, involving not the pool but the petit

jury itself, will adhere fully to its Swain

ruling. At least one court (People v. Payne,

I11.App.3d 1034, 1042) has concluded, as do I,

that Duncan and Taylor compel a result differ-

ent from Swain.

In Taylor v. Louisiana, supra, the Su-

preme Court construed the Sixth Amendment to

require a pool of jurors representing a fair

cross-section of the community. The purpose of

the fair cross section requiroment is to assure

- 23a -

that the jury reflects the broad range of hu-

man experience. But a petit jury from which

all members of defendant's shee have been

purposefully excluded is not a petit jury

"representative of a cross section of the com-

munity who have the duty and the opportunity

to deliberate" (Taylor v. Louisiana, 419 U.S.

522, 528, quoting Apodaca v. Oregon, 406 U.S.

404, 410-411 [plurality opinion]; see Williams

v. Florida, 399 U.S. 78, 100). Indeed, as the

Supreme Court has noted in another context,

such a procedure "destroys the appearance of

justice and thereby casts doubt on the integ-

rity of the judicial process" (Rose v. Mitchell,

443 U.S. 545, 555-556). Nor is such a jury im-

partial, even though each of its members con-

sidered individually may be, for as stated by

Justice Thurgood Marshall, concurring in Peters

v. Kiff (407 U.S. 493, 503) and quoted with ap-

proval in the majority opinion in Taylor v.

Louisiana (419 U.S. 522, 532 n.12, supra).

- 24a -

"When any large and identifiable

seqment of the community is ex-

cluded from jury service, the ef-

fect 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. It is not

necessary to assume that the ex-

cluded group will consistently

vote as a class in order to con-

clude, as we do, that its exclu-

sion deprives the jury of a per-

spective on human events that may

have unsuspected importance in

any case that may be presented."

It is no answer to suggest, as does the

majority, that so to hold is inconsistent with

the legislative definition of a peremptory

challenge as "an objection to a prospective ju-

ror for which no reason need be assigned"

(C.P.L. 270.25, subd. [1]). Nor, contrary to

the majority's suggestion does so

holding require a prosecutor to prove bias or

even assign a reason for each peremptory chal-

lenge. What such a rule would do, rather, and

all it would do, would be to call upon a prose-

cutor who had so exercised his peremptories as

to exclude from the petit jury all members of

- 25a -

defendant's race and thus evidenced his or her

intention to have defendant tried before a ra-

cially imbalanced jury to offer reasonable ex-

planations for the various challenges grounded

in a reason other than race. To the extent

that C.P.L. 270.25 (subd. [1]) appears to be

inconsistent with such a rule it must, on fa-

miliar principles, be construed so as to avoid

inconsistency with the Sixth Amendment (cf.

People v. Thompson, 79 A.D.2d 87, 109, n.20,

supra), for the fair cross section-impartiality

requirement is meaningless if in any case in-

volving a defendant of a given race the prose-

cutor can intentionally and systematically ex-

clude all members of that race without cause.

This does not mean that a prosecutor may

never exercise a peremptory challenge against a

black in a case involving a black defendant.

Peremptory challenges are intended to permit

elimination from the jury of persons whose bias

is suspect but cannot be proven, to assure that

- 26a -

those s.ho ultimately constitute the petit jury

"will decide on the basis of the evidence

placed before them and not otherwise" (Swain v.

Alabama, 380 U.S. at 211-212, 219, supra).

But that does not provide carte blanche to ex-

clude all blacks for that reason alone. Even

in a case in which the testimony is expected

to reveal that a key witness has referred to

defendant as "the nigger," a prosecutor may not

exclude all blacks through the exercise of per-

emptory challenges. Rather his obligation to

maintain the fair cross section diversity of

the petit jury requires voir dire inquiry by

him of black prospective jurors concerning

whether they will be able to weigh objectively

the testimony of a witness who used such a ra-

cial epithet. (People v. Johnson, 22 Cal.3d

296).

To hold otherwise is to sanction under

the guise of fairness or tradition, or both,

deliberate discrimination by a state official.

- 27a -

There can be only two explanations for a pros-

ecutor's challenge of all the members of the

defendant's race. First, the prosecutor might

have legitimate reasons to doubt the imparti-

ality of each individual. If that be the case,

however, the state will not be harmed if he is

asked to articulate those reasons and justify

the dua The only other possible ex-

planation for the prosecutor's elimination of

all blacks from the jury is his mistrust of the

ability of blacks, as a group, to be impartial.

But the corollary of this view, in a case like

this where the complainant and defendant are

The contrary suggestions of the majority,