Sixth Amendment
Juries and Fair Trials
Duncan v. Louisiana (1968)
391 U.S. 145 (1968)
Vote: 7-2
Opinion: White
Decision: Reversed
Majority: White, joined by Warren, Black, Douglas, Brennan, Fortas, Marshall
Concurring: Black, Douglas, Fortas
Dissent: Harlan and Stewart
MR. JUSTICE WHITE delivered the opinion of the Court.
Appellant, Gary Duncan, was convicted of simple battery in the Twenty-fifth Judicial District Court of Louisiana. Under Louisiana law simple battery is a misdemeanor, punishable by a maximum of two years’ imprisonment and a $300 fine. Appellant sought trial by jury, but because the Louisiana Constitution grants jury trials only in cases in which capital punishment or imprisonment at hard labor may be imposed, the trial judge denied the request. Appellant was convicted and sentenced to serve 60 days in the parish prison and pay a fine of $150. Appellant sought review in the Supreme Court of Louisiana, asserting that the denial of jury trial violated rights guaranteed to him by the United States Constitution … appellant sought review in this Court, alleging that the Sixth and Fourteenth Amendments to the United States Constitution secure the right to jury trial in state criminal prosecutions where a sentence as long as two years may be imposed …
Appellant was 19 years of age when tried. While driving on Highway 23 in Plaquemines Parish on October 18, 1966, he saw two younger cousins engaged in a conversation by the side of the road with four white boys. Knowing his cousins, Negroes who had recently transferred to a formerly all-white high school, had reported the occurrence of racial incidents at the school, Duncan stopped the car, got out, and approached the six boys. At trial the white boys and a white onlooker testified, as did appellant and his cousins. The testimony was in dispute on many points, but the witnesses agreed that appellant and the white boys spoke to each other, that appellant encouraged his cousins to break off the encounter and enter his car, and that appellant was about to enter the car himself for the purpose of driving away with his cousins. The whites testified that just before getting in the car appellant slapped Herman Landry, one of the white boys, on the elbow. The Negroes testified that appellant had not slapped Landry, but had merely touched him. The trial judge concluded that the State had proved beyond a reasonable doubt that Duncan had committed simple battery, and found him guilty.
…
The test for determining whether a right extended by the Fifth and Sixth Amendments with respect to federal criminal proceedings is also protected against state action by the Fourteenth Amendment has been phrased in a variety of ways in the opinions of this Court. The question has been asked whether a right is among those “‘fundamental principles of’ liberty and justice which lie at the base of all our civil and political institutions,'” Powell v Alabama (1932). The claim before us is that the right to trial by jury guaranteed by the Sixth Amendment meets these tests. The position of Louisiana, on the other hand, is that the Constitution imposes upon the States no duty to give a jury trial in any criminal case, regardless of the seriousness of the crime or the size of the punishment which may be imposed. Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which-were they to be tried in a federal court-would come within the Sixth Amendment’s guarantee … Since we consider the appeal before us to be such a case, we hold that the Constitution was violated when appellant’s demand for jury trial was refused …
The history of trial by jury in criminal cases has been frequently told. It is sufficient for present purposes to say that by the time our Constitution was written, jury trial in criminal cases had been in existence in England for several centuries and carried impressive credentials traced by many to Magna Carta. Its preservation and proper operation as a protection against arbitrary rule were among the major objective of the revolutionary settlement which was expressed in the Declaration and Bill of Rights of 1689 …
Even such skeletal history is impressive support for considering the right to jury trial in criminal cases to be fundamental to our system of justice, an importance frequently recognized in the opinions of this Court …
Jury trial continues to receive strong support. The laws of every State guarantee a right to jury trial in serious criminal cases; no State has dispensed with it; nor are there significant movements underway to do so. Indeed, the three most recent state constitutional revisions, in Maryland, Michigan, and New York, carefully preserved the right of the accused to have the judgment of a jury when tried for a serious crime …
Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it. Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power-a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence. The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States …
We would not assert, however, that every criminal trial-or any particular trial-held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury. Thus, we hold no constitutional doubts about the practices, common in both federal and state courts, of accepting waivers of jury trial and prosecuting petty crimes without extending a right to jury trial. However, the fact is that in most places more trials for serious crimes are to juries than to a court alone; a great many defendants prefer the judgment of a jury to that of a court. Even where defendants are satisfied with bench trials, the right to a jury trial very likely serves its intended purpose of making judicial or prosecutorial unfairness less likely …
Louisiana’s final contention is that even if it must grant jury trials in serious criminal cases, the conviction before us is valid and constitutional because here the petitioner was tried for simple battery and was sentenced to only 60 days in the parish prison. We are not persuaded. It is doubtless true that there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision s’ and should not be subject to the Fourteenth Amendment jury trial requirement here applied to the States. Crimes carrying possible penalties up to six months do not require a jury trial if they otherwise qualify as petty offenses, Cheff v. Schnackenberg (1966). But the penalty authorized for a particular crime is of major relevance in determining whether it is serious or not and may in itself, if severe enough, subject the trial to the mandates of the Sixth Amendment. District of Columbia v. Clawans (1937). In the case before us, the Legislature of Louisiana has made simple battery a criminal offense punishable by imprisonment for up to two years and a fine. The question, then, is whether a crime carrying such a penalty is an offense which Louisiana may insist on trying without a jury.
We think not … Of course, the boundaries of the petty offense category have always been ill-defined, if not ambulatory. In the absence of an explicit constitutional provision, the definitional task necessarily falls on the courts, which must either pass upon the validity of legislative attempts to identify those petty offenses which are exempt from jury trial or, where the legislature has not addressed itself to the problem, themselves face the question in the first instance. In either case it is necessary to draw a line in the spectrum of crime, separating petty from serious infractions. This process, although essential, cannot be wholly satisfactory, for it requires attaching different -consequences to events which, when they lie near the line, actually differ very little.
In determining whether the length of the authorized prison term or the seriousness of other punishment is enough in itself to require a jury trial, we are counseled b … chiefly the existing laws and practices in the Nation. In the federal system, petty offenses are defined as those punishable by no more than six months in prison and a $500 fine. In 49 of the 50 States crimes subject to trial without a jury, which occasionally include simple battery, are punishable by no more than one year in jail.” … We need not, however, settle in this case the exact location of the line between petty offenses and serious crimes. It is sufficient for our purposes to hold that a crime punishable by two years in prison is, based on past and contemporary standards in this country, a serious crime and not a petty offense.” Consequently, appellant was entitled to a jury trial and it was error to deny it.
The judgment below is reversed and the case is remanded for proceedings not inconsistent with this opinion.
Batson v. Kentucky (1986)
476 U.S. 79 (1986)
Vote: 7-2
Decision: Reversed and remanded
Majority: Powell, joined by Brennan, White, Marshall, Blackmun, Stevens, and O’Connor Concurrence: Marshall
Concurrence: White
Concurrence: O’Connor
Concurrence: Stevens, joined by Marshall
Dissent: Burger, joined by Rehnquist
Dissent: Rehnquist, joined by Burger
JUSTICE POWELL delivered the opinion of the Court.
This case requires us to reexamine that portion of Swain v. Alabama … (1965), concerning the evidentiary burden placed on a criminal defendant who claims that he has been denied equal protection through the State’s use of peremptory challenges to exclude members of his race from the petit jury.
Petitioner, a black man, was indicted in Kentucky on charges of second-degree burglary and receipt of stolen goods. On the first day of trial in Jefferson Circuit Court, the judge conducted voir dire examination of the venire, excused certain jurors for cause, and permitted the parties to exercise peremptory challenges. The prosecutor used his peremptory challenges to strike all four black persons on the venire, and a jury composed only of white persons was selected. Defense counsel moved to discharge the jury before it was sworn on the ground that the prosecutor’s removal of the black veniremen violated petitioner’s rights under the Sixth and Fourteenth Amendments to a jury drawn from a cross-section of the community, and under the Fourteenth Amendment to equal protection of the laws. Counsel requested a hearing on his motion. Without expressly ruling on the request for a hearing, the trial judge observed that the parties were entitled to use their peremptory challenges to “strike anybody they want to.” The judge then denied petitioner’s motion, reasoning that the cross-section requirement applies only to selection of the venire, and not to selection of the petit jury itself.
The jury convicted petitioner on both counts. On appeal to the Supreme Court of Kentucky, petitioner pressed, among other claims, the argument concerning the prosecutor’s use of peremptory challenges. … The Supreme Court of Kentucky affirmed. … The court observed that it recently had reaffirmed its reliance on Swain, and had held that a defendant alleging lack of a fair cross-section must demonstrate systematic exclusion of a group of jurors from the venire. … We granted certiorari … and now reverse.
In Swain v. Alabama [(1965)], this Court recognized that a
“State’s purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause.”. …
This principle has been “consistently and repeatedly” reaffirmed … in numerous decisions of this Court both preceding and following Swain. We reaffirm the principle today.
More than a century ago, the Court decided that the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully excluded. Strauder v. West Virginia, (1880). That decision laid the foundation for the Court’s unceasing efforts to eradicate racial discrimination in the procedures used to select the venire from which individual jurors are drawn. In Strauder, the Court explained that the central concern of the recently ratified Fourteenth Amendment was to put an end to governmental discrimination on account of race. … Exclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure.
In holding that racial discrimination in jury selection offends the Equal Protection Clause, the Court in Strauder recognized, however, that a defendant has no right to a “petit jury composed in whole or in part of persons of his own race.”. … But the defendant does have the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria. The Equal Protection Clause guarantees the defendant that the State will not exclude members of his race from the jury venire on account of race … or on the false assumption that members of his race as a group are not qualified to serve as jurors. …
Purposeful racial discrimination in selection of the venire violates a defendant’s right to equal protection, because it denies him the protection that a trial by jury is intended to secure. …
Racial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try. … As long ago as Strauder … the Court recognized that, by denying a person participation in jury service on account of his race, the State unconstitutionally discriminated against the excluded juror. …
The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. … Discrimination within the judicial system is most pernicious because it is
“a stimulant to that race prejudice which is an impediment to securing to [black citizens] that equal justice which the law aims to secure to all others.” Strauder. …
In Strauder, the Court invalidated a state statute that provided that only white men could serve as jurors. … We can be confident that no State now has such a law. The Constitution requires, however, that we look beyond the face of the statute defining juror qualifications, and also consider challenged selection practices to afford “protection against action of the State through its administrative officers in effecting the prohibited discrimination.” Norris v. Alabama [(1935)] Thus, the Court has found a denial of equal protection where the procedures implementing a neutral statute operated to exclude persons from the venire on racial grounds, and has made clear that the Constitution prohibits all forms of purposeful racial discrimination in selection of jurors. While decisions of this Court have been concerned largely with discrimination during selection of the venire, the principles announced there also forbid discrimination on account of race in selection of the petit jury. …
Accordingly, the component of the jury selection process at issue here, the State’s privilege to strike individual jurors through peremptory challenges, is subject to the commands of the Equal Protection Clause. Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges … the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant. …
The principles announced in Strauder never have been questioned in any subsequent decision of this Court. Rather, the Court has been called upon repeatedly to review the application of those principles to particular facts. A recurring question in these cases, as in any case alleging a violation of the Equal Protection Clause, was whether the defendant had met his burden of proving purposeful discrimination on the part of the State. That question also was at the heart of the portion of Swain v. Alabama we reexamine today.
Swain required the Court to decide, among other issues, whether a black defendant was denied equal protection by the State’s exercise of peremptory challenges to exclude members of his race from the petit jury. The record in Swain showed that the prosecutor had used the State’s peremptory challenges to strike the six black persons included on the petit jury venire. While rejecting the defendant’s claim for failure to prove purposeful discrimination, the Court nonetheless indicated that the Equal Protection Clause placed some limits on the State’s exercise of peremptory challenges. The Court sought to accommodate the prosecutor’s historical privilege of peremptory challenge free of judicial control, and the constitutional prohibition on exclusion of persons from jury service on account of race.
The Court went on to observe … that a State may not exercise its challenges in contravention of the Equal Protection Clause. It was impermissible for a prosecutor to use his challenges to exclude blacks from the jury “for reasons wholly unrelated to the outcome of the particular case on trial,” or to deny to blacks “the same right and opportunity to participate in the administration of justice enjoyed by the white population.”. … Accordingly, a black defendant could make out a prima facie case of purposeful discrimination on proof that the peremptory challenge system was “being perverted” in that manner. … For example, an inference of purposeful discrimination would be raised on evidence that a prosecutor,
“in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries.”. …
A number of lower courts following the teaching of Swain reasoned that proof of repeated striking of blacks over a number of cases was necessary to establish a violation of the Equal Protection Clause. Since this interpretation of Swain has placed on defendants a crippling burden of proof, prosecutors’ peremptory challenges are now largely immune from constitutional scrutiny. For reasons that follow, we reject this evidentiary formulation as inconsistent with standards that have been developed since Swain for assessing a prima facie case under the Equal Protection Clause.
Since the decision in Swain, we have explained that our cases concerning selection of the venire reflect the general equal protection principle that the “invidious quality” of governmental action claimed to be racially discriminatory “must ultimately be traced to a racially discriminatory purpose.” Washington v. Davis, (1976). As in any equal protection case, the “burden is, of course,” on the defendant who alleges discriminatory selection of the venire “to prove the existence of purposeful discrimination.” Whitus v. Georgia [(1967)]. … In deciding if the defendant has carried his burden of persuasion, a court must undertake “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Arlington Heights v. Metropolitan Housing Development Corp. (1977). Circumstantial evidence of invidious intent may include proof of disproportionate impact. … We have observed that, under some circumstances, proof of discriminatory impact “may, for all practical purposes, demonstrate unconstitutionality because, in various circumstances, the discrimination is very difficult to explain on nonracial grounds.”. …
Moreover, since Swain, we have recognized that a black defendant alleging that members of his race have been impermissibly excluded from the venire may make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. … Once the defendant makes the requisite showing, the burden shifts to the State to explain adequately the racial exclusion. … The State cannot meet this burden on mere general assertions that its officials did not discriminate, or that they properly performed their official duties. … Rather, the State must demonstrate that “permissible racially neutral selection criteria and procedures have produced the monochromatic result.” Alexander v. Louisiana [(1973)].
The showing necessary to establish a prima facie case of purposeful discrimination in selection of the venire may be discerned in this Court’s decisions. … The defendant initially must show that he is a member of a racial group capable of being singled out for different treatment. … In combination with that evidence, a defendant may then make a prima facie case by proving that, in the particular jurisdiction, members of his race have not been summoned for jury service over an extended period of time. … Proof of systematic exclusion from the venire raises an inference of purposeful discrimination, because the “result bespeaks discrimination.” Hernandez v. Texas [(1952)]. …
… [S]ince the decision in Swain, this Court has recognized that a defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case. These decisions are in accordance with the proposition, articulated in Arlington Heights v. Metropolitan Housing Development Corp.[(1977)], that “a consistent pattern of official racial discrimination” is not “a necessary predicate to a violation of the Equal Protection Clause. A single invidiously discriminatory governmental act” is not “immunized by the absence of such discrimination in the making of other comparable decisions.”. For evidentiary requirements to dictate that “several must suffer discrimination” before one could object … would be inconsistent with the promise of equal protection to all.
The standards for assessing a prima facie case in the context of discriminatory selection of the venire have been fully articulated since Swain. … These principles support our conclusion that a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group … and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Avery v. Georgia [(1953)]. … Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination.
In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. …
Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, we emphasize that the prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause. … But the prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on the assumption — or his intuitive judgment — that they would be partial to the defendant because of their shared race. … Just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as jurors … so it forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black. The core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ race. Nor may the prosecutor rebut the defendant’s case merely by denying that he had a discriminatory motive or “affirm[ing] [his] good faith in making individual selections.” Alexander v. Louisiana. …
The State contends that our holding will eviscerate the fair trial values served by the peremptory challenge. Conceding that the Constitution does not guarantee a right to peremptory challenges and that Swain did state that their use ultimately is subject to the strictures of equal protection, the State argues that the privilege of unfettered exercise of the challenge is of vital importance to the criminal justice system.
While we recognize, of course, that the peremptory challenge occupies an important position in our trial procedures, we do not agree that our decision today will undermine the contribution the challenge generally makes to the administration of justice. The reality of practice, amply reflected in many state and federal court opinions, shows that the challenge may be, and unfortunately at times has been, used to discriminate against black jurors. By requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision enforces the mandate of equal protection and furthers the ends of justice. In view of the heterogeneous population of our Nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race.
In this case, petitioner made a timely objection to the prosecutor’s removal of all black persons on the venire. Because the trial court flatly rejected the objection without requiring the prosecutor to give an explanation for his action, we remand this case for further proceedings. If the trial court decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner’s conviction be reversed. …
It is so ordered.
Georgia v. McCollum Et Al. (1992)
505 U.S. 42 (1992)
Vote: 7-2
Decision: Reversed and remanded
Majority: Blackmun, joined by Kennedy, White, Souter, Stevens, and Rehnquist
Concurrence: Rehnquist
Concurrence: Thomas
Dissent: O’Connor
Dissent: Scalia
JUSTICE BLACKMUN delivered the opinion of the Court.
For more than a century, this Court consistently and repeatedly has reaffirmed that racial discrimination by the State in jury selection offends the Equal Protection Clause. Last Term this Court held that racial discrimination in a civil litigant’s exercise of peremptory challenges also violates the Equal Protection Clause. … Today, we are asked to decide whether the Constitution prohibits a criminal defendant from engaging in purposeful racial discrimination in the exercise of peremptory challenges.
On August 10, 1990, a grand jury … returned a six-count indictment charging respondents with aggravated assault and simple battery. … The indictment alleged that respondents beat and assaulted Jerry and Myra Collins. Respondents are white; the alleged victims are African-Americans. Shortly after the events, a leaflet was widely distributed in the local African-American community reporting the assault and urging community residents not to patronize respondents’ business.
Before jury selection began, the prosecution moved to prohibit respondents from exercising peremptory challenges in … a racially discriminatory manner. The State explained that it expected to show that the victims’ race was a factor in the alleged assault. According to the State, counsel for respondents had indicated a clear intention to use peremptory strikes in a racially discriminatory manner. … [T]he State contended that, if a statistically representative panel is assembled for jury selection, 18 of the potential 42 jurors would be African-American. With 20 peremptory challenges, respondents therefore would be able to remove all the African-American potential jurors. … Relying on Batson v. Kentucky, (1986), the Sixth Amendment, and the Georgia Constitution, the State sought an order providing that, if it succeeded in making out a prima facie case of racial discrimination by respondents, the latter would be required to articulate a racially neutral explanation for peremptory challenges.
The trial judge denied the State’s motion, holding that “[n]either Georgia nor federal law prohibits criminal defendants from exercising peremptory strikes in a racially discriminatory manner.” . … The Supreme Court of Georgia … affirmed the trial court’s ruling. The court acknowledged that in Edmonson v. Leesville Concrete Co., (1991), this Court had found that the exercise of a peremptory challenge in a racially discriminatory manner “would constitute an impermissible injury” to the excluded juror. … The court noted, however, that Edmonson involved private civil litigants, not criminal defendants. “Bearing in mind the long history of jury trials as an essential element of the protection of human rights,” the court “decline[d] to diminish the free exercise of peremptory strikes by a criminal defendant.”. …
We granted certiorari to resolve a question left open by our prior cases-whether the Constitution prohibits a criminal defendant from engaging in purposeful racial discrimination in the exercise of peremptory challenges. …
Over the last century, in an almost unbroken chain of decisions, this Court gradually has abolished race as a consideration for jury service. …
In deciding whether the Constitution prohibits criminal defendants from exercising racially discriminatory peremptory challenges, we must answer four questions. First, whether a criminal defendant’s exercise of peremptory challenges in a racially discriminatory manner inflicts the harms addressed by Batson. Second, whether the exercise of peremptory challenges by a criminal defendant constitutes state action. Third, whether prosecutors have standing to raise this constitutional challenge. And fourth, whether the constitutional rights of a criminal defendant nonetheless preclude the extension of our precedents to this case.
The majority in Powers [v. Ohio (1991)] recognized that “Batson ‘was designed “to serve multiple ends,'” only one of which was to protect individual defendants from discrimination in the selection of jurors.”. … As in Powers and Edmonson, the extension of Batson in this context is designed to remedy the harm done to the “dignity of persons” and to the “integrity of the courts.” Powers. …
As long ago as Strauder [v. WV (1880)], this Court recognized that denying a person participation in jury service on account of his race unconstitutionally discriminates against the excluded juror. … While “[a]n individual juror does not have a right to sit on any particular petit jury … he or she does possess the right not to be excluded from one on account of race.” Powers. … Regardless of who invokes the discriminatory challenge, there can be no doubt that the harm is the same. …
… One of the goals of our jury system is “to impress upon the criminal defendant and the community as a whole that a verdict of conviction or acquittal is given in accordance with the law by persons who are fair.” Powers. … Selection procedures that purposefully exclude African Americans from juries undermine that public confidence. …
. …
… [I]f a court allows jurors to be excluded because of group bias, it is a willing participant in a scheme that could only undermine the very foundation of our system of justice-our citizens’ confidence in it. …
. … Racial discrimination … violates the Constitution only when it is attributable to state action. … Thus, the second question that must be answered is whether a criminal defendant’s exercise of a peremptory challenge constitutes state action. …
Until Edmonson, the cases decided by this Court that presented the problem of racially discriminatory peremptory challenges involved … a prosecutor. … In Edmonson, by contrast, the contested peremptory challenges were exercised by a private defendant in a civil action. … [T]o determine whether state action was present in that setting, the … Court in Edmonson used the analytical framework summarized in Lugar v. Edmondson Oil Co.
The first inquiry is “whether the claimed [constitutional] deprivation has resulted from the exercise of a right or privilege having its source in state authority.”. … [P]eremptory challenges satisfy this first requirement, as they “are permitted only when the government, by statute or decisional law, deems it appropriate to allow parties to exclude a given number of persons who otherwise would satisfy the requirements for service on the petit jury.” Edmonson. …
The second inquiry is whether the private party charged with the deprivation can be described as a state actor. … In resolving that issue, the Court in Edmonson found it useful to apply three principles: (1) “the extent to which the actor relies on governmental assistance and benefits”; (2) “whether the actor is performing a traditional governmental function”; and (3) “whether the injury caused is aggravated in a unique way by the incidents of governmental authority.” …
As to the first principle, the Edmonson Court found that the peremptory challenge system, as well as the jury system as a whole, “simply could not exist” without the “overt, significant participation of the government.”. … Georgia … establishes the general criteria for service and the sources for creating a pool of qualified jurors representing a fair cross section of the community. …
In light of these procedures, the defendant in a Georgia criminal case relies on “governmental assistance and benefits” that are equivalent to those found in the civil context in Edmonson. …
In regard to the second principle, the Court in Edmonson found that peremptory challenges perform a traditional function of the government. … These concerns are equally present in the context of a criminal trial. … [T]he reality in a criminal trial will be that the court has excused jurors based on race, an outcome that will be attributed to the State.
. …
Having held that a defendant’s discriminatory exercise of a peremptory challenge is a violation of equal protection, we move to the question whether the State has standing to challenge. … In Powers … this Court held that a white criminal defendant has standing to raise the equal protection rights of black jurors wrongfully excluded from jury service. …
In applying the first prong of its standing analysis, the Powers Court found that a criminal defendant suffered cognizable … injury “because racial discrimination in the selection of jurors ‘casts doubt on the integrity of the judicial process,’ and places the fairness of a criminal proceeding in doubt.” . … Surely, a State suffers a similar injury when the fairness and integrity of its own judicial process is undermined.
In applying the second prong of its standing analysis, the Powers Court held that voir dire permits a defendant to “establish a relation, if not a bond of trust, with the jurors,”. … “Exclusion of a juror on the basis of race severs that relation in an invidious way.” Edmonson. … The State’s relation to potential jurors in this case is closer than the relationships approved in Powers and Edmonson. As the representative of all its citizens, the State is the logical and proper party to assert the invasion of the constitutional rights of the excluded jurors. …
In applying the final prong of its standing analysis, the Powers Court recognized that … the “barriers to a suit by an excluded juror are daunting.”. … Accordingly, we hold that the State has standing to assert the excluded jurors’ rights.
The final question is whether the interests served by Batson must give way to the rights of a criminal defendant. … This Court repeatedly has stated that the right to a peremptory challenge may be withheld altogether without impairing the constitutional guarantee of an impartial jury and a fair trial. …
We do not believe that this decision will undermine the contribution of the peremptory challenge to the administration of justice. Nonetheless, “if race stereotypes are the price for acceptance of a jury panel as fair,” we reaffirm today that such a “price is too high to meet the standard of the Constitution.”. … It is an affront to justice to argue that a fair trial includes the right to discriminate against a group of citizens based upon their race. …
Lastly, a prohibition of the discriminatory exercise of peremptory challenges does not violate a defendant’s Sixth Amendment right to a trial by an impartial jury. …
We hold that the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges. Accordingly, if the State demonstrates a prima facie case of racial discrimination by the defendants, the defendants must articulate a racially neutral explanation for peremptory challenges. The judgment of the Supreme Court of Georgia is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
J.E.B. v. Alabama ex rel. T. B. (1994)
511 U.S. 127 (1994)
Vote: 6-3
Decision: Reversed and remanded
Majority: Blackmun, joined by Stevens, O’Connor, Souter, and Ginsberg
Concurrence: O’Connor
Concurrence: Kennedy
Dissent: Rehnquist
Dissent: Scalia, joined by Rehnquist and Thomas
JUSTICE BLACKMUN delivered the opinion of the Court.
In Batson v. Kentucky, (1986), this Court held that the Equal Protection Clause of the Fourteenth Amendment governs the exercise of peremptory challenges by a prosecutor in a criminal trial. The Court explained that although a defendant has “no right to a ‘petit jury composed in whole or in part of persons of his own race,'” … Strauder v. West Virginia, (1880), the “defendant does have the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria,”. … Since Batson, we have reaffirmed repeatedly our commitment to jury selection procedures that are fair and nondiscriminatory. …
Although premised on equal protection principles that apply equally to gender discrimination, all our recent cases … defining the scope of Batson involved alleged racial discrimination in the exercise of peremptory challenges. Today we are faced with the question whether the Equal Protection Clause forbids intentional discrimination on the basis of gender, just as it prohibits discrimination on the basis of race. We hold that gender, like race, is an unconstitutional proxy for juror competence and impartiality.
On behalf of relator T. B., the mother of a minor child, respondent State of Alabama filed a complaint for paternity and child support against petitioner J. E. B. in the District Court of Jackson County, Alabama. On October 21, 1991, the matter was called for trial and jury selection began. The trial court assembled a panel of 36 potential jurors, 12 males and 24 females. After the court excused three jurors for cause, only 10 of the remaining 33 jurors were male. The State then used 9 of its 10 peremptory strikes to remove male jurors; petitioner used all but one of his strikes to remove female jurors. As a result, all the selected jurors were female.
Before the jury was empaneled, petitioner objected to the State’s peremptory challenges on the ground that they were exercised against male jurors solely on the basis of gender, in violation of the Equal Protection Clause of the Fourteenth Amendment. Petitioner argued that the logic and reasoning of Batson v. Kentucky, which prohibits peremptory strikes solely on the basis of race, similarly forbids intentional discrimination on the basis of gender. The court rejected petitioner’s claim. … The jury found petitioner to be the father of the child, and the court entered an order directing him to pay child support. On post judgment motion, the court reaffirmed its ruling that Batson does not extend to gender based peremptory challenges. …
We granted certiorari … to resolve a question that has created a conflict of authority whether the Equal Protection Clause forbids peremptory challenges on the basis of gender as well as on the basis of race. Today we reaffirm what, by now, should be axiomatic: Intentional discrimination on the basis of gender by state actors violates … the Equal Protection Clause, particularly where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women.
. … Gender-based peremptory strikes were hardly practicable during most of our country’s existence, since, until the 20th century, women were completely excluded from jury service. So well entrenched was this exclusion of women that in 1880 this Court, while finding that the exclusion of African-American men from juries violated the Fourteenth Amendment, expressed no doubt that a State “may confine the selection [of jurors] to males.” Strauder v. West Virginia. … Many States continued to exclude women from jury service well into the present century. … States that did permit women to serve on juries often erected other barriers, such as registration requirements and automatic exemptions, designed to deter women from exercising their right to jury service. …
The prohibition of women on juries was derived from the English common law which, according to Blackstone, rightfully excluded women from juries under “the doctrine of propter defectum sexus, literally, the ‘defect of sex.”’ United States v. De Gross. … Women were thought to be too fragile and virginal to withstand the polluted courtroom atmosphere. …
This Court in Ballard v. United States, (1946), first questioned the fundamental fairness of denying women the right to serve on juries. Relying on its supervisory powers over the federal courts, it held that women may not be excluded from the venire in federal trials in States where women were eligible for jury service under local law. In response to the argument that women have no superior or unique perspective, such that defendants are denied a fair trial by virtue of their exclusion from jury panels, the Court explained:
“It is said … that an all male panel drawn from the various groups within a community will be as truly representative as if women were included. The thought is that the factors which tend to influence the action of women are the same as those which influence the action of men-personality, background, economic status-and not sex. Yet it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. Men likewise do not act like a class. … The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded.”
Fifteen years later, however, the Court still was unwilling to translate its appreciation for the value of women’s contribution to civic life into an enforceable right to equal treatment under state laws governing jury service. In Hoyt v. Florida [(1961)] … the Court found it reasonable … to exempt women from mandatory jury service by statute, allowing women to serve on juries only if they volunteered to serve. The Court justified the differential exemption policy on the ground that women, unlike men, occupied a unique position “as the center of home and family life.”. …
In 1975, the Court finally repudiated the reasoning of Hoyt and struck down, under the Sixth Amendment, an affirmative registration statute nearly identical to the one at issue in Hoyt. See Taylor v. Louisiana, (1975). …
Taylor relied on Sixth Amendment principles, but the opinion’s approach is consistent with the heightened equal protection scrutiny afforded gender-based classifications. Since Reed v. Reed, (1971), this Court consistently has subjected gender-based classifications to heightened scrutiny in recognition of the real danger that government policies that professedly are based on reasonable considerations in fact may be reflective of “archaic and overbroad” generalizations about gender, see Schlesinger v. Ballard … or based on “outdated misconceptions concerning the role of females in the home rather than in the ‘marketplace and world of ideas.'” Craig v. Boren, (1976). …
Despite the heightened scrutiny afforded distinctions based on gender, respondent argues that gender discrimination in the selection of the petit jury should be permitted, though discrimination on the basis of race is not. Respondent suggests that “gender discrimination in this country … has never reached the level of discrimination” against African-Americans, and therefore gender discrimination … is tolerable in the courtroom. …
While the prejudicial attitudes toward women in this country have not been identical to those held toward racial minorities, the similarities between the experiences of racial minorities and women, in some contexts, “overpower those differences.”. …
Certainly, with respect to jury service, African-Americans and women share a history of total exclusion. …
We need not determine, however, whether women or racial minorities have suffered more at the hands of discriminatory state actors during the decades of our Nation’s history. It is necessary only to acknowledge that “our Nation has had a long and unfortunate history of sex discrimination [Frontiero v. Richardson (1973)]. … Under our equal protection jurisprudence, gender-based classifications require “an exceedingly persuasive justification” in order to survive constitutional scrutiny. … Thus, the only question is whether discrimination on the basis of gender in jury selection substantially furthers the State’s legitimate interest in achieving a fair and impartial trial.
In making this assessment, we do not weigh the value of peremptory challenges as an institution against our asserted commitment to eradicate invidious discrimination from the courtroom. Instead, we consider whether peremptory challenges based on gender stereotypes provide substantial aid to a litigant’s effort to secure a fair and impartial jury.
. …
… [R]espondent maintains that its decision to strike virtually all the males from the jury in this case “may reasonably have been based upon the perception, supported by history, that men otherwise totally qualified to serve upon a jury in any case might … be more sympathetic and receptive to the arguments of a man alleged in a paternity action to be the father of an out-of-wedlock child, while women equally qualified to serve upon a jury might be more sympathetic and receptive to the arguments of the complaining witness who bore the child.”. … We shall not accept as a defense to gender-based peremptory challenges “the very stereotype the law condemns.” Powers v. Ohio. … Respondent’s rationale … is reminiscent of the arguments advanced to justify the total exclusion of women from juries. … Respondent offers virtually no support for the conclusion that gender alone is an accurate predictor of juror’s attitudes. …
Even if a measure of truth can be found in some of the gender stereotypes used to justify gender-based peremptory challenges, that fact alone cannot support discrimination on the basis of gender in jury selection. We have made abundantly clear in past cases that gender classifications that rest on impermissible stereotypes violate the Equal Protection Clause, even when some statistical support can be conjured up for the generalization. …
Discrimination in jury selection, whether based on race or on gender, causes harm to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process. …
Because … stereotypes have wreaked injustice in so many other spheres of our country’s public life, active discrimination by litigants on the basis of gender during jury selection “invites cynicism respecting the jury’s neutrality and its obligation to adhere to the law.” Powers v. Ohio [(1991)]. … Discriminatory use of peremptory challenges may create the impression that the judicial system has acquiesced in suppressing full participation by one gender. …
In recent cases we have emphasized that individual jurors themselves have a right to nondiscriminatory jury selection procedures. … All persons, when granted the opportunity to serve on a jury, have the right not to be excluded summarily because of discriminatory and stereotypical presumptions that reflect and reinforce … patterns of historical discrimination. … Striking individual jurors on the assumption that they hold particular views simply because of their gender is “practically a brand upon them, affixed by the law, an assertion of their inferiority.” Strauder v. West Virginia. …
Our conclusion that litigants may not strike potential jurors solely on the basis of gender does not imply the elimination of all peremptory challenges. Neither does it conflict with a State’s legitimate interest in using such challenges in its effort to secure a fair and impartial jury. Parties still may remove jurors who they feel might be less acceptable than others on the panel; gender simply may not serve as a proxy for bias. …
… [T]his Court long has tolerated the discriminatory use of peremptory challenges, but this is not a reason to continue to do so. Many of “our people’s traditions,” … such as de jure segregation and the total exclusion of women from juries, are now unconstitutional even though they once coexisted with the Equal Protection Clause. …
The experience in the many jurisdictions that have barred gender-based challenges belies the claim that litigants and trial courts are incapable of complying with a rule barring strikes based on gender. … As with race-based Batson claims, a party alleging gender discrimination must make a prima facie showing of … intentional discrimination before the party exercising the challenge is required to explain the basis for the strike. Batson. … When an explanation is required, it need not rise to the level of a “for cause” challenge; rather, it merely must be based on a juror characteristic other than gender, and the proffered explanation may not be pretextual. …
. …
When persons are excluded from participation in our democratic processes solely because of race or gender, this promise of equality dims, and the integrity of our judicial system is jeopardized. In view of these concerns, the Equal Protection Clause prohibits discrimination in jury selection on the basis of gender. …
The judgment of the Court of Civil Appeals of Alabama is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
It is so ordered.
Justice Scalia, with whom The Chief Justice and with whom THE CHIEF JUSTICE and Justice THOMAS join, dissenting.
Today’s opinion is an inspiring demonstration of how thoroughly up-to-date and right-thinking we Justices are in matters pertaining to the sexes (or as the Court would have it, the genders), and how sternly we disapprove the male chauvinist attitudes of our predecessors. The price to be paid for this display—a modest price, surely—is that most of the opinion is quite irrelevant to the case at hand. The hasty reader will be surprised to learn, for example, that this lawsuit involves a complaint about the use of peremptory challenges to exclude men from a petit jury. To be sure, petitioner, a man, used all but one of his peremptory strikes to remove women from the jury (he used his last challenge to strike the sole remaining male from the pool), but the validity of his strikes is not before us. Nonetheless, the Court treats itself to an extended discussion of the historic exclusion of women not only from jury service, but also from service at the bar (which is rather like jury service, in that it involves going to the courthouse a lot). All this, as I say, is irrelevant, since the case involves state action that allegedly discriminates against men. The parties do not contest that discrimination on the basis of sex is subject to what our cases call “heightened scrutiny,”. …
The Court also spends time establishing that the use of sex as a proxy for particular views or sympathies is unwise and perhaps irrational. The opinion stresses the lack of statistical evidence to support the widely held belief that, at least in certain types of cases, a juror’s sex has some statistically significant predictive value as to how the juror will behave. This assertion seems to place the Court in opposition to its earlier Sixth Amendment “fair cross-section” cases. … But times and trends do change, and unisex is unquestionably in fashion. Personally, I am less inclined to demand statistics, and more inclined to credit the perceptions of experienced litigators who have had money on the line. But it does not matter. The Court’s fervent defense of the proposition iln’ya pasde différence entre les hommes et les femmes (it stereotypes the opposite view as hateful “stereotyping”) turns out to be, like its recounting of the history of sex discrimination against women, utterly irrelevant. Even if sex was a remarkably good predictor in certain cases, the Court would find its use in peremptories unconstitutional.
Of course the relationship of sex to partiality would have been relevant if the Court had demanded in this case what it ordinarily demands: that the complaining party have suffered some injury. Leaving aside for the moment the reality that the defendant himself had the opportunity to strike women from the jury, the defendant would have some cause to complain about the prosecutor’s striking male jurors if male jurors tend to be more favorable toward defendants in paternity suits. But if men and women jurors are (as the Court thinks) fungible, then the only arguable injury from the prosecutor’s “impermissible” use of male sex as the basis for his peremptories is injury to the stricken juror, not to the defendant. … This case illustrates why making restitution to Paul when it is Peter who has been robbed is such a bad idea. Not only has petitioner, by implication of the Court’s own reasoning, suffered no harm, but the scientific evidence presented at trial established petitioner’s paternity with 99.92% accuracy. Insofar as petitioner is concerned, this is a case of harmless error if there ever was one; a retrial will do nothing but divert the State’s judicial and prosecutorial resources, allowing either petitioner or some other malefactor to go free.
The core of the Court’s reasoning is that peremptory challenges on the basis of any group characteristic subject to heightened scrutiny are inconsistent with the guarantee of the Equal Protection Clause. That conclusion can be reached only by focusing unrealistically upon individual exercises of the peremptory challenge, and ignoring the totality of the practice. Since all groups are subject to the peremptory challenge (and will be made the object of it, depending upon the nature of the particular case) it is hard to see how any group is denied equal protection. … That explains why peremptory challenges coexisted with the Equal Protection Clause for 120 years. … The pattern here, however, displays not a systemic sex-based animus but each side’s desire to get a jury favorably disposed to its case. That is why the Court’s characterization of respondent’s argument as “reminiscent of the arguments advanced to justify the total exclusion of women from juries,” ante, at 138, is patently false. Women were categorically excluded from juries because of doubt that they were competent; women are stricken from juries by peremptory challenge because of doubt that they are well disposed to the striking party’s case.
Although the Court’s legal reasoning in this case is largely obscured by anti-male-chauvinist oratory, to the extent such reasoning is discernible it invalidates much more than sexbased strikes. After identifying unequal treatment (by separating individual exercises of peremptory challenge from the process as a whole), the Court applies the “heightened scrutiny” mode of equal protection analysis used for sexbased discrimination, and concludes that the strikes fail heightened scrutiny because they do not substantially further an important government interest. The Court says that the only important government interest that could be served by peremptory strikes is “securing a fair and impartial jury. … It refuses to accept respondent’s argument that these strikes further that interest by eliminating a group (men) which may be partial to male defendants, because it will not accept any argument based on “`the very stereotype the law condemns.’ ” … This analysis, entirely eliminating the only allowable argument, implies that sexbased strikes do not even rationally further a legitimate government interest, let alone pass heightened scrutiny. That places all peremptory strikes based on any group characteristic at risk, since they can all be denominated “stereotypes.” Perhaps, however (though I do not see why it should be so), only the stereotyping of groups entitled to heightened or strict scrutiny constitutes “the very stereotype the law condemns”—so that other stereotyping (e. g., wide-eyed blondes and football players are dumb) remains OK. Or perhaps when the Court refers to “impermissible stereotypes,” it means the adjective to be limiting rather than descriptive—so that we can expect to learn from the Court’s peremptory/stereotyping jurisprudence in the future which stereotypes the Constitution frowns upon and which it does not.
. …
And damage has been done, secondarily, to the entire justice system, which will bear the burden of the expanded quest for “reasoned peremptories” that the Court demands. The extension of Batson to sex, and almost certainly beyond, Batson, 476 U. S., at 124 (Burger, C. J., dissenting), will provide the basis for extensive collateral litigation, which especially the criminal defendant (who litigates full time and cost free) can be expected to pursue.
The irrationality of today’s strike-by-strike approach to equal protection is evident from the consequences of extending it to its logical conclusion. If a fair and impartial trial is a prosecutor’s only legitimate goal; if adversarial trial stratagems must be tested against that goal in abstraction from their role within the system as a whole; and if, so tested, sex-based stratagems do not survive heightened scrutiny—then the prosecutor presumably violates the Constitution when he selects a male or female police officer to testify because he believes one or the other sex might be more convincing in the context of the particular case, or because he believes one or the other might be more appealing to a predominantly male or female jury. A decision to stress one line of argument or present certain witnesses before a mostly female jury—for example, to stress that the defendant victimized women—becomes, under the Court’s reasoning, intentional discrimination by a state actor on the basis of gender.
In order, it seems to me, not to eliminate any real denial of equal protection, but simply to pay conspicuous obeisance to the equality of the sexes, the Court imperils a practice that has been considered an essential part of fair jury trial since the dawn of the common law. The Constitution of the United States neither requires nor permits this vandalizing of our people’s traditions.
For these reasons, I dissent.
Foster v. Chatman (2016)
578 U.S. 488 (2016)
Vote: 7-1
Decision: Reversed and remanded
Majority: Roberts, joined by Kennedy, Ginsberg, Breyer, Sotomayor, and Kagan
Concurrence: Alito (in judgment)
Dissent: Thomas
Chief Justice Roberts delivered the opinion of the Court.
Petitioner Timothy Foster was convicted of capital murder and sentenced to death in a Georgia court. During jury selection at his trial, the State exercised peremptory strikes against all four black prospective jurors qualified to serve. Foster argued that the State’s use of those strikes was racially motivated, in violation of our decision in Batson v. Kentucky, (1986). The trial court and the Georgia Supreme Court rejected Foster’s Batson claim.
Foster then sought a writ of habeas corpus from the Superior Court of Butts County, Georgia, renewing his Batson objection. That court denied relief, and the Georgia Supreme Court declined to issue the Certificate of Probable Cause necessary under Georgia law for Foster to pursue an appeal. We granted certiorari and now reverse.
On the morning of August 28, 1986, police found Queen Madge White dead on the floor of her home in Rome, Georgia. White, a 79-year-old widow, had been beaten, sexually assaulted, and strangled to death. Her home had been burglarized. Timothy Foster subsequently confessed to killing White, and White’s possessions were recovered from Foster’s home and from Foster’s two sisters. The State indicted Foster on charges of malice murder and burglary. He faced the death penalty. …
District Attorney Stephen Lanier and Assistant District Attorney Douglas Pullen represented the State at trial. Jury selection proceeded in two phases: removals for cause and peremptory strikes. … This first phase whittled the list down to 42 “qualified” prospective jurors. Five were black.
In the second phase, known as the “striking of the jury,” both parties had the opportunity to exercise peremptory strikes against the array of qualified jurors. … This second phase continued until 12 jurors had been accepted.
The morning the second phase began, Shirley Powell, one of the five qualified black prospective jurors, notified the court that she had just learned that one of her close friends was related to Foster. The court removed Powell for cause. That left four black prospective jurors: Eddie Hood, Evelyn Hardge, Mary Turner, and Marilyn Garrett.
The striking of the jury then commenced. The State exercised nine of its ten allotted peremptory strikes, removing all four of the remaining black prospective jurors. Foster immediately lodged a Batson challenge. The trial court rejected the objection and empaneled the jury. The jury convicted Foster and sentenced him to death.
Following sentencing, Foster renewed his Batson claim in a motion for a new trial. After an evidentiary hearing, the trial court denied the motion. The Georgia Supreme Court affirmed. …
Foster subsequently sought a writ of habeas corpus … again pressing his Batson claim. While the state habeas proceeding was pending, Foster filed a series of requests under the Georgia Open Records Act … seeking access to the State’s file from his 1987 trial. In response, the State disclosed documents related to the jury selection at that trial. Over the State’s objections, the state habeas court admitted those documents into evidence. They included the following:
(1) Four copies of the jury venire list. On each copy, the names of the black prospective jurors were highlighted in bright green. A legend in the upper right corner of the lists indicated that the green highlighting “represents Blacks.”. … The letter “B” also appeared next to each black prospective juror’s name. … According to the testimony of Clayton Lundy, an investigator who assisted the prosecution during jury selection, these highlighted venire lists were circulated in the district attorney’s office during jury selection. …
(2) A draft of an affidavit that had been prepared by Lundy “at Lanier’s request” for submission to the state trial court in response to Foster’s motion for a new trial. … The typed draft detailed Lundy’s views on ten black prospective jurors, stating “[m]y evaluation of the jurors are a[s] follows.” . … “If it comes down to having to pick one of the black jurors, [this one] might be okay. This is solely my opinion. … Upon picking of the jury after listening to all of the jurors we had to pick, if we had to pick a black juror I recommend that [this juror] be one of the jurors.”. …
(3) Three handwritten notes on black prospective jurors Eddie Hood, Louise Wilson, and Corrie Hinds. Annotations denoted those individuals as “B#1,” “B#2,” and “B#3,” respectively. … Lundy testified that these were examples of the type of “notes that the team—the State would take down during voir dire to help select the jury in Mr. Foster’s case.”. …
(4) A typed list of the qualified jurors remaining after voir dire … included “Ns” next to ten jurors’ names … [s]uch an “N” appeared alongside the names of all five qualified black prospective jurors. … Lundy testified that he was unsure who had prepared or marked the two lists.
(5) A handwritten document titled “definite NO’s,” listing six names. The first five were those of the five qualified black prospective jurors. … The State concedes that either Lanier or Pullen compiled the list, which Lundy testified was “used for preparation in jury selection.”. …
(6) A handwritten document titled “Church of Christ.” A notation on the document read: “NO. No Black Church.”. …
(7) The questionnaires that had been completed by several of the black prospective jurors. On each one, the juror’s response indicating his or her race had been circled. …
The Georgia Supreme Court denied Foster the “Certificate of Probable Cause” necessary under state law for him to pursue an appeal, determining that his claim had no “arguable merit.”. …
… [T]he State introduced short affadavits from Lanier and Pullen. …
The “Constitution forbids striking even a single prospective juror for a discriminatory purpose.” Snyder v. Louisiana (2008). … Our decision in Batson v. Kentucky [(1986)] … provides a three-step process for determining when a strike is discriminatory:
“First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.” Snyder. …
Both parties agree that Foster has demonstrated a prima facie case, and that the prosecutors have offered race-neutral reasons for their strikes. We therefore address only Batson’s third step. That step turns on factual determinations, and, “in the absence of exceptional circumstances,” we defer to state court factual findings unless we conclude that they are clearly erroneous. Synder. …
Before reviewing the factual record in this case, a brief word is in order regarding the contents of the prosecution’s file that Foster obtained through his Georgia Open Records Act requests. Pursuant to those requests, Foster received a “certif[ied] … true and correct copy of 103 pages of the State’s case file” from his 1987 trial. … The State argues that “because [Foster] did not call either of the prosecutors to the stand” to testify in his state habeas proceedings, “he can only speculate as to the meaning of various markings and writings” on those pages, “the author of many of them, and whether the two prosecutors at trial (District Attorney Lanier and Assistant District Attorney Pullen) even saw many of them.”. … For these reasons, the State argues, “none of the specific pieces of new evidence [found in the file] shows an intent to discriminate.”. … For his part, Foster argues that “[t]here is no question that the prosecutors used the lists and notes, which came from the prosecution’s file and were certified as such,” and therefore the “source of the lists and notes, their timing, and their purpose is hardly ‘unknown’ or based on ‘conjecture.’ ”. …
The State concedes that the prosecutors themselves authored some documents … and Lundy’s testimony strongly suggests that the prosecutors viewed others. … There are, however, genuine questions that remain about the provenance of other documents. Nothing in the record, for example, identifies the author of the notes that listed three black prospective jurors as “B#1,” “B#2,” and “B#3.” Such notes, then, are not necessarily attributable directly to the prosecutors themselves. The state habeas court was cognizant of those limitations, but nevertheless admitted the file into evidence, reserving “a determination as to what weight the Court is going to put on any of [them]” in light of the objections urged by the State. …
We agree with that approach. Despite questions about the background of particular notes, we cannot accept the State’s invitation to blind ourselves to their existence. … At a minimum, we are comfortable that all documents in the file were authored by someone in the district attorney’s office. Any uncertainties concerning the documents are pertinent only as potential limits on their probative value.
Foster centers his Batson claim on the strikes of two black prospective jurors, Marilyn Garrett and Eddie Hood. We turn first to Marilyn Garrett. According to Lanier, on the morning that the State was to use its strikes he had not yet made up his mind to remove Garrett. Rather, he decided to strike her only after learning that he would not need to use a strike on another black prospective juror, Shirley Powell, who was excused for cause that morning.
Ultimately, Lanier did strike Garrett. In justifying that strike to the trial court, he articulated a laundry list of reasons. Specifically, Lanier objected to Garrett because she: (1) worked with disadvantaged youth in her job as a teacher’s aide; (2) kept looking at the ground during voir dire; (3) gave short and curt answers during voir dire; (4) appeared nervous; (5) was too young; (6) misrepresented her familiarity with the location of the crime; (7) failed to disclose that her cousin had been arrested on a drug charge; (8) was divorced; (9) had two children and two jobs; (10) was asked few questions by the defense; and (11) did not ask to be excused from jury service. …
The trial court accepted Lanier’s justifications, concluding that “[i]n the totality of circumstances,” there was “no discriminatory intent, and that there existed reasonably clear, specific, and legitimate reasons” for the strike. … On their face, Lanier’s justifications for the strike seem reasonable enough. Our independent examination of the record, however, reveals that much of the reasoning provided by Lanier has no grounding in fact.
Lanier’s misrepresentations to the trial court began with an elaborate explanation of how he ultimately came to strike Garrett:. … The four negative challenges were allocated for Hardge, Hood, Turner and Powell. … But on the morning of jury selection, Juror Powell was excused for cause with no objections by [d]efense counsel. She was replaced by Juror Cadle [who] was acceptable to the State. This left the State with an additional strike it had not anticipated or allocated. Consequently, the State had to choose between [white] Juror Blackmon or Juror Garrett, the only two questionable jurors the State had left on the list.”. …
Lanier concluded that “the chances of [Blackmon] returning a death sentence were greater when all these factors were considered than Juror Garrett. Consequently, Juror Garrett was excused.”. …
Moreover, several of Lanier’s reasons for why he chose Garrett over Blackmon are similarly contradicted by the record. Lanier told the court, for example, that he struck Garrett because “the defense did not ask her questions about” pertinent trial issues such as her thoughts on “insanity” or “alcohol,” or “much questions on publicity.”. … But the trial transcripts reveal that the defense asked her several questions on all three topics. …
Still other explanations given by the prosecution, while not explicitly contradicted by the record, are difficult to credit because the State willingly accepted white jurors with the same traits that supposedly rendered Garrett an unattractive juror. Lanier told the trial court that he struck Garrett because she was divorced … he declined to strike three out of the four prospective white jurors who were also divorced. … Additionally, Lanier claimed that he struck Garrett because she was too young, and the “State was looking for older jurors that would not easily identify with the defendant.”. … Yet Garrett was 34, and the State declined to strike eight white prospective jurors under the age of 36. … Two of those white jurors served on the jury; one of those two was only 21 years old. …
In sum, in evaluating the strike of Garrett, we are not faced with a single isolated misrepresentation.
. …
[The Court goes through a similar analysis of the strike of Hood.]
The prosecution’s file fortifies our conclusion that any reliance on … religion was pretextual. The file contains a handwritten document titled “Church of Christ.” The document notes that the church “doesn’t take a stand on Death Penalty,” and that the issue is “left for each individual member.”. … The document then states: “NO. NO Black Church.”. … The State tries to downplay the significance of this document by emphasizing that the document’s author is unknown. That uncertainty is pertinent. But we think the document is nonetheless entitled to significant weight, especially given that it is consistent with our serious doubts about the prosecution’s account of the strike.
Many of the State’s secondary justifications similarly come undone when subjected to scrutiny. …
Many of the State’s secondary justifications similarly come undone when subjected to scrutiny. …
As we explained in Miller-El v. Dretke, “if a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack panelist who is permitted to serve, that is evidence tending to prove purposeful discrimination.” (2005). … But that is not all. There are also the shifting explanations, the misrepresentations of the record, and the persistent focus on race in the prosecution’s file. Considering all of the circumstantial evidence that “bears upon the issue of racial animosity,” we are left with the firm conviction that the strikes … were “motivated in substantial part by discriminatory intent.” Snyder. …
Throughout all stages of this litigation, the State has strenuously objected that “race [was] not a factor” in its jury selection strategy. … The contents of the prosecution’s file, however, plainly belie the State’s claim that it exercised its strikes in a “color-blind” manner. … The sheer number of references to race in that file is arresting. The State, however, claims that things are not quite as bad as they seem. The focus on black prospective jurors, it contends, does not indicate any attempt to exclude them from the jury. It instead reflects an effort to ensure that the State was “thoughtful and non-discriminatory in consideration of black prospective jurors to develop and maintain detailed information on those prospective jurors in order to properly defend against any suggestion that decisions regarding [its] selections were pretextual.”. …
In addition, the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury. The State argues that it “was actively seeking a black juror.”. … But this claim is not credible. An “N” appeared next to each of the black prospective jurors’ names on the jury venire list. … An “N” was also noted next to the name of each black prospective juror on the list of the 42 qualified prospective jurors; each of those names also appeared on the “definite NO’s” list”. … And a draft affidavit from the prosecution’s investigator stated his view that “[i]f it comes down to having to pick one of the black jurors, Garrett, might be okay.”. … Such references are inconsistent with attempts to “actively seek” a black juror.
The State’s new argument today does not dissuade us from the conclusion that its prosecutors were motivated in substantial part by race when they struck Garrett and Hood from the jury 30 years ago. Two peremptory strikes on the basis of race are two more than the Constitution allows.
The order of the Georgia Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Sheppard v. Maxwell (1966)
384 U.S. 333 (1966)
Vote: 8-1
Decision: Reversed and remanded
Majority: Clark, joined by Warren, Douglas, Harlan, Brennan, Stewart, White, and Fortas
Dissent: Black
MR. JUSTICE CLARK delivered the opinion of the Court.
This federal habeas corpus application involves the question whether Sheppard was deprived of a fair trial in his state conviction for the second-degree murder of his wife because of the trial judge’s failure to protect Sheppard sufficiently from the massive, pervasive and prejudicial publicity that attended his prosecution. The United States District Court held that he was not afforded a fair trial, and granted the writ subject to the State’s right to put Sheppard to trial again. … The Court of Appeals for the Sixth Circuit reversed by a divided vote. … We granted certiorari … concluded that Sheppard did not receive a fair trial consistent with the Due Process Clause of the Fourteenth Amendment and, therefore, reverse the judgment.
Marilyn Sheppard, petitioner’s pregnant wife, was bludgeoned to death. … Sheppard pieced together … the following story: he and his wife had entertained neighborhood friends, the Aherns, on the previous evening at their home. After dinner … Sheppard became drowsy and dozed off to sleep on a couch. Later, Marilyn partially awoke him saying that she was going to bed. The next thing he remembered, was hearing his wife cry out in the early morning hours. He hurried upstairs and, in the dim light from the hall, saw a “form” standing next to his wife’s bed. As he struggled with the “form,” he was struck on the back of the neck and rendered unconscious. On regaining his senses, he found himself on the floor next to his wife’s bed. He rose, looked at her, took her pulse and “felt that she was gone.” He then went to his son’s room and found him unmolested. Hearing a noise, he hurried downstairs. He saw a “form” running out the door and pursued it to the lake shore. He grappled with it on the beach, and again lost consciousness. Upon his recovery, he was lying face down with the lower portion of his body in the water. He returned to his home, checked the pulse on his wife’s neck, and “determined or thought that she was gone.” He then went downstairs and called a neighbor, Mayor Houk of Bay Village. The Mayor and his wife came over at once … Sheppard then related the above-outlined events … the Mayor called the local police, Dr. Richard Sheppard, petitioner’s brother, and the Aherns. The local police were the first to arrive. They, in turn, notified the Coroner and Cleveland police. …
From the outset, officials focused suspicion on Sheppard. … Dr. Gerber, the Coroner, is reported … to have told his men, “Well, it is evident the doctor did this, so let’s go get the confession out of him.” He proceeded to interrogate and examine Sheppard while … under sedation in his hospital room. … Later that, afternoon Chief Eaton and two Cleveland police officers interrogated Sheppard at some length, confronting him with evidence, and demanding explanations. Asked by Officer Shotke to take a lie detector test, Sheppard said he would if it were reliable. Shotke replied that it was “infallible,” and “you might as well tell us all about it now.” At the end of the interrogation, Shotke told Sheppard: “I think you killed your wife.”. …
On July 7, the day of Marilyn Sheppard’s funeral, a newspaper story appeared in which Assistant County Attorney Mahon — later the chief prosecutor of Sheppard — sharply criticized the refusal of the Sheppard family to permit his immediate questioning. … [O]ne story described a visit by Coroner Gerber and four police officers to the hospital on July 8. When Sheppard insisted that his lawyer be present, the Coroner wrote out a subpoena and served it on him. Sheppard then agreed to submit to questioning without counsel, and the subpoena was torn up. The officers questioned him for several hours.
On July 9, Sheppard, at the request of the Coroner, reenacted the tragedy at his home before the Coroner, police officers, and a group of newsmen, who apparently were invited by the Coroner. The home was locked, so that Sheppard was obliged to wait outside until the Coroner arrived. Sheppard’s performance was reported in detail by the news media, along with photographs. The newspapers also played up Sheppard’s refusal to take a lie detector test and “the protective ring” thrown up by his family. Front-page newspaper headlines announced on the same day that “Doctor Balks At Lie Test; Retells Story.” A column opposite that story contained an “exclusive” interview with Sheppard headlined: “Loved My Wife, She Loved Me,’ Sheppard Tells News Reporter.” The next day, another headline story disclosed that Sheppard had “again late yesterday refused to take a lie detector test,” and quoted an Assistant County Attorney as saying that, “at the end of a nine-hour questioning of Dr. Sheppard, I felt he was now ruling [a test] out completely.” But subsequent newspaper articles reported that the Coroner was still pushing Sheppard for a lie detector test. More stories appeared when Sheppard would not allow authorities to inject him with “truth serum.”
On the 20th, the “editorial artillery” opened fire with a front-page charge that somebody is “getting away with murder.” The editorial attributed the ineptness of the investigation to
“friendships, relationships, hired lawyers, a husband who ought to have been subjected instantly to the same third-degree to which any other person under similar circumstances is subjected. … ”
. … July 21 a … page-one editorial was headed: “Why No Inquest? Do It Now, Dr. Gerber.” The Coroner called an inquest the same day, and subpoenaed Sheppard. It was staged the next day in a school gymnasium; the Coroner presided with the County Prosecutor as his advisor and two detectives as bailiffs. In the front of the room was a long table occupied by reporters, television and radio personnel, and broadcasting equipment. The hearing was broadcast with live microphones placed at the Coroner’s seat and the witness stand. A swarm of reporters and photographers attended. Sheppard was brought into the room by police who searched him in full view of several hundred spectators. Sheppard’s counsel were present during the three-day inquest, but were not permitted to participate.
When Sheppard’s chief counsel attempted to place some documents in the record, he was forcibly ejected from the room by the Coroner, who received cheers, hugs, and kisses from ladies in the audience. Sheppard was questioned for five and one-half hours about his actions on the night of the murder, his married life, and a love affair with Susan Hayes. At the end of the hearing, the Coroner announced that he “could” order Sheppard held for the grand jury, but did not do so. Throughout this period, the newspapers emphasized evidence that tended to incriminate Sheppard and pointed out discrepancies in his statements to authorities. …
A front-page editorial on July 30 asked: “Why Isn’t Sam Sheppard in Jail?” It was later titled “Quit Stalling — Bring Him In.” After calling Sheppard “the most unusual murder suspect ever seen around these parts,” the article said that, “[e]xcept for some superficial questioning during Coroner Sam Gerber’s inquest, he has been scot-free of any official grilling. … ” It asserted that he was “surrounded by an iron curtain of protection [and] concealment.” That night, at 10 o’clock, Sheppard was arrested at his father’s home on a charge of murder. He was taken to the Bay Village City Hall, where hundreds of people, newscasters, photographers and reporters were awaiting his arrival. He was immediately arraigned — having been denied a temporary delay to secure the presence of counsel — and bound over to the grand jury. …
With this background, the case came on for trial two weeks before the November general election at which the chief prosecutor was a candidate for common pleas judge and the trial judge, Judge Blythin, was a candidate to succeed himself. Twenty-five days before the case was set, 75 veniremen were called as prospective jurors. All three Cleveland newspapers published the names and addresses of the veniremen. As a consequence, anonymous letters and telephone calls, as well as calls from friends, regarding the impending prosecution were received by all of the prospective jurors.
[S]eats were … assigned by the court for the entire trial. The first row was occupied by representatives of television and radio stations, and the second and third rows by reporters from out-of-town newspapers and magazines. One side of the last row, which accommodated 14 people, was assigned to Sheppard’s family, and the other to Marilyn’s. … Private telephone lines and telegraphic equipment were installed in these rooms so that reports from the trial could be speeded to the papers. … All of these arrangements with the news media and their massive coverage of the trial continued during the entire nine weeks of the trial. The courtroom remained crowded to capacity with representatives of news media. … The jurors themselves were constantly exposed to the news media. Every juror except one testified at voir dire to reading about the case in the Cleveland papers or to having heard broadcasts about it. …
[I]n a broadcast heard over Station WHK in Cleveland, Robert Considine likened Sheppard to a perjurer. … Though defense counsel asked the judge to question the jury to ascertain how many heard the broadcast, the court refused to do so. The judge also overruled the motion for continuance based on the same ground. … Defense counsel made motions for change of venue, continuance and mistrial, but they were denied. No action was taken by the court.
. … When the trial was in its seventh week, Walter Winchell broadcast over WXEL television and WJW radio that Carole Beasley, who was under arrest in New York City for robbery, had stated that, as Sheppard’s mistress, she had borne him a child. The defense asked that the jury be queried on the broadcast. Two jurors admitted in open court that they had heard it. The judge asked each: “Would that have any effect upon your judgment?” Both replied, “No.” This was accepted by the judge as sufficient. …
. … On December 9 … Sheppard … testified that he had been mistreated by Cleveland detectives after his arrest. Although he was not at the trial, Captain Kerr of the Homicide Bureau issued a press statement denying Sheppard’s allegations which appeared under the headline: “Bare-faced Liar,’ Kerr Says of Sam.” Captain Kerr never appeared as a witness at the trial.
. … After the case was submitted to the jury, it was sequestered for its deliberations, which took five days and four nights. After the verdict, defense counsel ascertained that the jurors had been allowed to make telephone calls to their homes every day while they were sequestered at the hotel … the jurors were permitted to use the phones in the bailiffs’ rooms. … The court had not instructed the bailiffs to prevent such calls. By a subsequent motion, defense counsel urged that this ground alone warranted a new trial, but the motion was overruled, and no evidence was taken on the question.
. … A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. … The press does not simply publish information about trials, but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. … And where there was “no threat or menace to the integrity of the trial,” Craig v. Harney … we have consistently required that the press have a free hand, even though we sometimes deplored its sensationalism.
But the Court has also pointed out that “[l]egal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.” Bridges v. California. … And the Court has insisted that no one be punished for a crime without “a charge fairly made and fairly tried in a public tribunal free of prejudice, passion, excitement, and tyrannical power.” Chambers v. Florida, (1940). …
Among … “legal procedures” is the requirement that the jury’s verdict be based on evidence received in open court, not from outside sources. Thus, in Marshall v. United States (1959), we set aside a federal conviction where the jurors were exposed, “through news accounts,” to information that was not admitted at trial. … Likewise, in Irvin v. Dowd (1961), even though each juror indicated that he could render an impartial verdict despite exposure to prejudicial newspaper articles, we set aside the conviction. …
It is clear that the totality of circumstances in this case also warrants such an approach. … Sheppard was not granted a change of venue to a locale away from where the publicity originated; nor was his jury sequestered … the Sheppard jurors were subjected to newspaper, radio, and television coverage of the trial while not taking part in the proceedings. They were allowed to go their separate ways outside of the courtroom, without adequate directions not to read or listen to anything concerning the case. …
At intervals during the trial, the judge simply repeated his “suggestions” and “requests” that the jurors not expose themselves to comment upon the case. Moreover, the jurors were thrust into the role of celebrities by the judge’s failure to insulate them from reporters and photographers. … The numerous pictures of the jurors, with their addresses, which appeared in the newspapers before and during the trial itself exposed them to expressions of opinion from both cranks and friends. The fact that anonymous letters had been received by prospective jurors should have made the judge aware that this publicity seriously threatened the jurors’ privacy. …
… [T]hree months before trial, Sheppard was examined for more than five hours without counsel during a three-day inquest which ended in a public brawl. The inquest was televised live from a high school gymnasium seating hundreds of people. Furthermore, the trial began two weeks before a hotly contested election at which both Chief Prosecutor Mahon and Judge Blythin were candidates for judgeships. While we cannot say that Sheppard was denied due process by the judge’s refusal to take precautions against the influence of pretrial publicity alone, the court’s later rulings must be considered against the setting in which the trial was held.
In light of this background, we believe that the arrangements made by the judge with the news media caused Sheppard to be deprived of that “judicial serenity and calm to which [he] was entitled.” Estes v. Texas. … The erection of a press table for reporters inside the bar is unprecedented. The bar of the court is reserved for counsel, providing them a safe place in which to keep papers and exhibits and to confer privately with client and co-counsel. It is designed to protect the witness and the jury from any distractions, intrusions or influences, and to permit bench discussions of the judge’s rulings away from the hearing of the public and the jury. Having assigned almost all of the available seats in the courtroom to the news media, the judge lost his ability to supervise that environment.
The movement of the reporters … caused frequent confusion and disruption of the trial. … The total lack of consideration for the privacy of the jury was demonstrated by the assignment to a broadcasting station of space next to the jury room on the floor above the courtroom, as well as the fact that jurors were allowed to make telephone calls during their five-day deliberation. …
There can be no question about the nature of the publicity which surrounded Sheppard’s trial. … As the trial progressed, the newspapers summarized and interpreted the evidence, devoting particular attention to the material that incriminated Sheppard, and often drew unwarranted inferences from testimony. … Nor is there doubt that this deluge of publicity reached at least some of the jury. On the only occasion that the jury was queried, two jurors admitted in open court to hearing the highly inflammatory charge that a prison inmate claimed Sheppard as the father of her illegitimate child. Despite the extent and nature of the publicity to which the jury was exposed during trial, the judge refused defense counsel’s other requests that the jurors be asked whether they had read or heard specific prejudicial comment about the case … we can assume that some of this material reached members of the jury.
The court’s fundamental error is compounded by the holding that it lacked power to control the publicity about the trial. From the very inception of the proceedings, the judge announced that neither he nor anyone else could restrict prejudicial news accounts. … Since he viewed the news media as his target, the judge never considered other means that are often utilized to reduce the appearance of prejudicial material and to protect the jury from outside influence. We conclude that these procedures would have been sufficient to guarantee Sheppard a fair trial and so do not consider what sanctions might be available against a recalcitrant press nor the charges of bias now made against the state trial judge.
The carnival atmosphere at trial could easily have been avoided, since the courtroom and courthouse premises are subject to the control of the court. As we stressed in Estes, the presence of the press at judicial proceedings must be limited when it is apparent that the accused might otherwise be prejudiced or disadvantaged. Bearing in mind the massive pretrial publicity, the judge should have adopted stricter rules governing the use of the courtroom by newsmen, as Sheppard’s counsel requested. The number of reporters in the courtroom itself could have been limited at the first sign that their presence would disrupt the trial. They certainly should not have been placed inside the bar. Furthermore, the judge should have more closely regulated the conduct of newsmen in the courtroom. For instance, the judge belatedly asked them not to handle and photograph trial exhibits lying on the counsel table during recesses.
Secondly, the court should have insulated the witnesses. All of the newspapers and radio stations apparently interviewed prospective witnesses at will, and in many instances disclosed their testimony. …
Thirdly, the court should have made some effort to control the release of leads, information, and gossip to the press by police officers, witnesses, and the counsel for both sides. Much of the information thus disclosed was inaccurate, leading to groundless rumors and confusion … the judge was aware of his responsibility in this respect. … The prosecution repeatedly made evidence available to the news media which was never offered in the trial. Much of the “evidence” disseminated in this fashion was clearly inadmissible. The exclusion of such evidence in court is rendered meaningless when news media make it available to the public. … The fact that many of the prejudicial news items can be traced to the prosecution as well as the defense aggravates the judge’s failure to take any action. …
The fact that many of the prejudicial news items can be traced to the prosecution, as well as the defense, aggravates the judge’s failure to take any action. …
From the cases coming here, we note that unfair and prejudicial news comment on pending trials has become increasingly prevalent. Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. … Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. In addition, sequestration of the jury was something the judge should have raised. … If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. … Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable, and worthy of disciplinary measures.
Since the state trial judge did not fulfill his duty to protect Sheppard from the inherently prejudicial publicity which saturated the community and to control disruptive influences in the courtroom, we must reverse the denial of the habeas petition. The case is remanded to the District Court with instructions to issue the writ and order that Sheppard be released from custody unless the State puts him to its charges again within a reasonable time.
It is so ordered.
Peña-Rodriguez v. Colorado (2017)
580 U.S. ___ (2017)
Vote: 5-3
Decision: Reversed and remanded
Majority: Kennedy, joined by Ginsburg, Breyer, Sotomayor, and Kagan
Dissent: Thomas
Dissent: Alito, joined by Roberts and Thomas
Justice Kennedy delivered the opinion of the Court.
The jury is a central foundation of our justice system and our democracy. Whatever its imperfections in a particular case, the jury is a necessary check on governmental power. The jury, over the centuries, has been an inspired, trusted, and effective instrument for resolving factual disputes and determining ultimate questions of guilt or innocence in criminal cases. Over the long course its judgments find acceptance in the community, an acceptance essential to respect for the rule of law. The jury is a tangible implementation of the principle that the law comes from the people.
. … The right to a jury trial in criminal cases was part of the Constitution as first drawn, and it was restated in the Sixth Amendment. Art. III, §2, cl. 3; Amdt. 6. By operation of the Fourteenth Amendment, it is applicable to the States.
Like all human institutions, the jury system has its flaws, yet experience shows that fair and impartial verdicts can be reached if the jury follows the court’s instructions and undertakes deliberations that are honest, candid, robust, and based on common sense. A general rule has evolved to give substantial protection to verdict finality and to assure jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations. This principle, itself centuries old, is often referred to as the no-impeachment rule. The instant case presents the question whether there is an exception to the no-impeachment rule when, after the jury is discharged, a juror comes forward with compelling evidence that an-other juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict.
State prosecutors in Colorado brought criminal charges against petitioner, Miguel Angel Peña-Rodriguez, based on the following allegations. In 2007, in the bathroom of a Colorado horse-racing facility, a man sexually assaulted two teenage sisters. … The State charged petitioner with harassment, unlawful sexual contact, and attempted sexual assault on a child. Before the jury was empaneled, members of the venire were repeatedly asked whether they believed that they could be fair and impartial in the case. … None of the empaneled jurors expressed any reservations based on racial or any other bias. And none asked to speak with the trial judge. After a 3-day trial, the jury found petitioner guilty of unlawful sexual contact and harassment, but it failed to reach a verdict on the attempted sexual assault charge. …
Following the discharge of the jury, petitioner’s counsel entered the jury room to discuss the trial with the jurors. As the room was emptying, two jurors remained to speak with counsel in private. They stated that, during deliberations, another juror had expressed anti-Hispanic bias toward petitioner and petitioner’s alibi witness. Petitioner’s counsel reported this to the court and, with the court’s supervision, obtained sworn affidavits from the two jurors. The affidavits by the two jurors described a number of biased statements made by another juror, identified as Juror H. C. According to the two jurors, H. C. told the other jurors that he “believed the defendant was guilty because, in [H. C.’s] experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.” [App.] 110. The jurors reported that H. C. stated his belief that Mexican men are physically controlling of women because of their sense of entitlement, and further stated, “ ‘I think he did it because he’s Mexican and Mexican men take whatever they want.’ Id., at 109. According to the jurors, H. C. further explained that, in his experience, “nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.” Id., at 110. Finally, the jurors recounted that Juror H. C. said that he did not find petitioner’s alibi witness credible because, among other things, the witness was “ ‘an illegal.’ ” Ibid. (In fact, the witness testified during trial that he was a legal resident of the United States.)
After reviewing the affidavits, the trial court acknowledged H. C.’s apparent bias. But the court denied petitioner’s motion for a new trial, noting that “[t]he actual deliberations that occur among the jurors are protected from. … Like its federal counterpart, Colorado’s Rule 606(b) generally prohibits a juror from testifying as to any statement made during deliberations in a proceeding inquiring into the validity of the verdict.. … The verdict deemed final, petitioner was sentenced to two years’ probation and was required to register as a sex offender. … The Colorado Supreme Court affirmed by a vote of 4 to 3. … The prevailing opinion relied on two decisions of this Court rejecting constitutional challenges to the federal no-impeachment rule as applied to evidence of juror misconduct or bias. … This Court granted certiorari to decide whether there is a constitutional exception to the no-impeachment rule for instances of racial bias. …
Juror H. C.’s bias was based on petitioner’s Hispanic identity, which the Court in prior cases has referred to as ethnicity, and that may be an instructive term here. … Yet we have also used the language of race when discussing the relevant constitutional principles in cases involving Hispanic persons. … This opinion refers to the nature of the bias as racial in keeping with the primary terminology employed by the parties and used in our precedents.
At common law jurors were forbidden to impeach their verdict, either by affidavit or live testimony. The Mansfield rule … prohibited jurors, after the verdict was entered, from testifying either about their subjective mental processes or about objective events that occurred during deliberations. American courts adopted the Mansfield rule. … The common-law development of the no-impeachment rule reached a milestone in 1975, when Congress adopted. … broad no-impeachment rule … with exceptions only where the jury had considered prejudicial extraneous evidence or was subject to other outside influence. …
The current version of [the law] states as follows:
“(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
“(2) Exceptions. A juror may testify about whether:
“(A) extraneous prejudicial information was improperly brought to the jury’s attention;
“(B) an outside influence was improperly brought to bear on any juror; or
“(C) a mistake was made in entering the verdict on the verdict form.”
This version of the no-impeachment rule has substantial merit. It promotes full and vigorous discussion by providing jurors with considerable assurance that after being discharged they will not be summoned to recount their deliberations, and they will not otherwise be harassed or annoyed by litigants seeking to challenge the verdict. The rule gives stability and finality to verdicts. …
In addressing the scope of the common-law no-impeachment rule before Rule 606(b)’s adoption, the Reid and McDonald Courts noted the possibility of an exception to the rule in the “gravest and most important cases.”. … Yet since the enactment of Rule 606(b), the Court has addressed the precise question whether the Constitution mandates an exception to it in just two instances.
In its first case, Tanner [v. US (1987)] … the Court rejected a Sixth Amendment exception for evidence that some jurors were under the influence of drugs and alcohol during the trial … the Court’s reasoning were the “long-recognized and very substantial concerns” supporting “the protection of jury deliberations from intrusive inquiry.”. … The Tanner Court echoed … concern that, if attorneys could use juror testimony to attack verdicts, jurors would be “harassed and beset by the defeated party,” thus destroying “all frankness and freedom of discussion and conference.”. … The Court was concerned, moreover, that attempts to impeach a verdict would “disrupt the finality of the process” and undermine both “jurors’ willingness to return an unpopular verdict” and “the community’s trust in a system that relies on the decisions of laypeople.”. …
In Warger [v. Shauers (2014)] … [t]he Court again rejected the argument that, in the circumstances there, the jury trial right required an exception to the no-impeachment rule. …
In Warger, however, the Court did reiterate that the no-impeachment rule may admit exceptions. … [T]he Court warned of “juror bias so extreme that, almost by definition, the jury trial right has been abridged.”
The recognition in Warger that there may be extreme cases where the jury trial right requires an exception to the no-impeachment rule must be interpreted in context as a guarded, cautious statement. … Today, however, the Court faces the question that Reid, McDonald, and Warger left open … whether the Constitution requires an exception to the no-impeachment rule when a juror’s statements indicate that racial animus was a significant motivating factor in his or her finding of guilt.
It must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons. This imperative to purge racial prejudice from the administration of justice was given new force and direction by the ratification of the Civil War Amendments. …
. … In the years before and after the ratification of the Fourteenth Amendment, it became clear that racial discrimination in the jury system posed a particular threat both to the promise of the Amendment and to the integrity of the jury trial. … Time and again, this Court has been called upon to enforce the Constitution’s guarantee against state-sponsored racial discrimination in the jury system. Beginning in 1880, the Court interpreted the Fourteenth Amendment to prohibit the exclusion of jurors on the basis of race. Strauder v. West Virginia. … The Court has repeatedly struck down laws and practices that systematically exclude racial minorities from juries. … To guard against discrimination in jury selection, the Court has ruled that no litigant may exclude a prospective juror on the basis of race. … The unmistakable principle underlying these precedents is that discrimination on the basis of race, “odious in all aspects, is especially pernicious in the administration of justice.” Rose v. Mitchell [(1979)]. … Permitting racial prejudice in the jury system damages “both the fact and the perception” of the jury’s role as “a vital check against the wrongful exercise of power by the State.” Powers v. Ohio (1991). …
This case lies at the intersection of the Court’s decisions endorsing the no-impeachment rule and its decisions seeking to eliminate racial bias in the jury system. The two lines of precedent, however, need not conflict.
Racial bias of the kind alleged in this case differs … from … McDonald … Tanner, or … Warger. The behavior in those cases is troubling and unacceptable, but … neither history nor common experience show that the jury system is rife with mischief of these or similar kinds. …
The same cannot be said about racial bias, a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice. This Court’s decisions demonstrate that racial bias implicates unique historical, constitutional, and institutional concerns. An effort to address the most grave and serious statements of racial bias is not an effort to perfect the jury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy. …
. … All forms of improper bias pose challenges to the trial process. But there is a sound basis to treat racial bias with added precaution. A constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.
For the reasons explained above, the Court now holds that where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.
Not every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow further judicial inquiry. For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict. Whether that threshold showing has been satisfied is a matter committed to the substantial discretion of the trial court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence.
The practical mechanics of acquiring and presenting such evidence will no doubt be shaped and guided by state rules of professional ethics and local court rules, both of which often limit counsel’s post-trial contact with jurors. … These limits seek to provide jurors some protection when they return to their daily affairs after the verdict has been entered. But while a juror can always tell counsel they do not wish to discuss the case, jurors in some instances may come forward of their own accord.
That is what happened here. In this case the alleged statements by a juror were egregious and unmistakable in their reliance on racial bias. Not only did juror H. C. deploy a dangerous racial stereotype to conclude petitioner was guilty and his alibi witness should not be believed, but he also encouraged other jurors to join him in convicting on that basis. … With the understanding that they were under no obligation to speak out, the jurors approached petitioner’s counsel, within a short time after the verdict, to relay their concerns about H. C.’s statements. … Pursuant to local court rules, petitioner’s counsel then sought and received permission from the court to contact the two jurors and obtain affidavits limited to recounting the exact statements made by H. C. that exhibited racial bias. While the trial court concluded that Colorado’s Rule 606(b) did not permit it even to consider the resulting affidavits, the Court’s holding today removes that bar. When jurors disclose an instance of racial bias as serious as the one involved in this case, the law must not wholly disregard its occurrence.
. … This case does not ask, and the Court need not address, what procedures a trial court must follow when confronted with a motion for a new trial based on juror testimony of racial bias. … The Court also does not decide the appropriate standard for determining when evidence of racial bias is sufficient to require that the verdict be set aside and a new trial be granted. …
The Nation must continue to make strides to overcome race-based discrimination. The progress that has already been made underlies the Court’s insistence that blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases like this one despite the general bar of the no-impeachment rule. It is the mark of a maturing legal system that it seeks to understand and to implement the lessons of history. The Court now seeks to strengthen the broader principle that society can and must move forward by achieving the thoughtful, rational dialogue at the foundation of both the jury system and the free society that sustains our Constitution.
The judgment of the Supreme Court of Colorado is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
