Defendant May Not Base Peremptory Juror Challenge on Racial Animus
Georgia v. McCollum, Supreme Court of the United States (1992), 505 U.S. 42, 112 S.Ct. 2348
FACTS:
A Georgia grand jury returned an indictment charging Thomas McCollum and two family members with aggravated assault and simple battery of African-Americans, Jerry and Myra Collins. Prior to the jury selection process, the state filed a motion to prohibit the Caucasian-American defendants from exercising peremptory challenges in a racially discriminatory fashion. Counsel for the McCollums had indicated the intent to exclude African-Americans from the jury through the use of peremptory challenges. Normally counsel who exercises a peremptory challenge to exclude a juror may do so for any reason what so ever.
The prosecutor based the motion challenging the use of peremptory challenges on Batson v. Kentucky, 476 U.S. 79 (1986), in which the Court held that a defendant may establish a case of purposeful racial discrimination in the selection of a trial jury solely based on a prosecutor's exercise of peremptory challenges. The trial court judge denied the motion holding that neither state nor federal law prohibits criminal defendants form using peremptory challenges in a racially discriminatory fashion. The Supreme Court of Georgia affirmed and the Supreme court of the United States granted certiorari.
PROCEDURAL QUESTION:
Does the Constitution of the United States prohibit a criminal defendant from engaging in purposeful racial discrimination in the exercise of peremptory challenges to prospective trial jurors?
HELD: Yes.
RATIONALE:
Justice Blackmun delivered the opinion of the Court.
II
Over the last century, in an almost unbroken chain of decisions, this Court gradually has abolished race as a consideration for jury service. In Strauder v. West Virginia, 100 U.S. 303 (1880), the Court invalidated a state statute providing that only white men could serve as jurors. While stating that a defendant has no right to a "petit jury composed in whole or in part of persons of his own race," Id., at 305, the Court held that a defendant does have the right to be tried by a jury whose members are selected by nondiscriminatory criteria. [Citations omitted.]
In Swain v. Alabama, 380 U.S. 202 (1965), the Court was confronted with the question whether an African-Amercian defendant was denied equal protection by the State's exercise of peremptory challenges to exclude members of his race from the petit jury. Id., at 209-210. Although the Court rejected the defendant's attempt to establish an equal protection claim premised solely on the pattern of jury strikes in his own case, it acknowledged that proof of systematic exclusion of African-Americans through the use of peremptories over a period of time might establish such a violation. Id., at 224-228.
In Batson v. Kentucky, 476 U.S. 79 (1986), the Court discarded Swain's evidentiary formulation. The Batson Court held that a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury based solely on the prosecutor's exercise of peremptory challenges at the defendant's trial. Id., at 87. "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." Id., at 97.
Last Term this Court applied the Batson framework in two other contexts. In Powers v. Ohio, 499 U.S. (1991), it held that in the trial of a white criminal defendant, a prosecutor is prohibited from excluding African-Amercian jurors on the basis of race. In Edmonson v. Leesville Concrete Co., 500 U.S. (1991), the Court decided that in a civil case, private litigants cannot exercise their peremptory strikes in a racially discriminatory manner.
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.
IIIA* * *
As long ago as Strauder, this Court recognized that denying a person participation in jury service on account of his race unconstitutionally discriminates against the excluded juror. 100 U.S., at 308. See also Batson, 476 U.S., at 87. 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, 499 U.S., at (slip op. 9). Regardless of who invokes the discriminatory challenge, there can be no doubt that the harm is the same - in all cases, the juror is subjected to open and public racial discrimination.
But "the harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community." Batson, 476 U.S., at 87. 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, 499 U.S. at (slip op. 12). Selection procedures that purposefully exclude African-Americans from juries undermine that public confidence - as well they should. "The overt wrong, often apparent to the entire jury panel, casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial of the cause." . . . .
* * *
Be it at the hands of the State or the defense, if 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. Just as public confidence in criminal justice is undermined by a conviction in a trial where racial discrimination has occurred in jury selection, so is public confidence undermined where a defendant, assisted by racially discriminatory peremptory strikes, obtains an acquittal.
B
The fact that a defendant's use of discriminatory peremptory challenges harms the jurors and the community does not end our equal protection inquiry. Racial discrimination, although repugnant in all contexts, violates the Constitution only when it is attributable to state action.
* * *
Regardless of who precipitated the jurors' removal, the perception and the 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.
* * *
Lastly, the fact that a defendant exercises a peremptory challenge to further his interest in acquittal does not conflict with a finding of state action. Whenever a private actor's conduct is deemed "fairly attributable" to the government, it is likely that private motives will have animated the actor's decision. Indeed, in Edmonson, the Court recognized that the private party's exercise of peremptory challenges constituted state action, even thought the motive underlying the exercise of the peremptory challenge may be to protect a private interest. See 500 U.S., at (slip op. 11).
* * *
We recognize, of course, that a defendant has the right to an impartial jury that can view him without racial animus, which so long has distorted our system of criminal justice. We have, accordingly, held that there should be a mechanism for removing those on the venire whom the defendant has specific reason to believe would be incapable of confronting and suppressing their racism. See Ham v. South Carolina, 409 U.S. 524, 526-527 (1973); [Other citations omitted.].
But there is a distinction between exercising a peremptory challenge to discriminate invidiously against jurors on account of race and exercising a peremptory challenge to remove an individual juror who harbors racial prejudice. This Court firmly has rejected the view that assumptions of partiality based on race provide a legitimate basis for disqualifying a person as an impartial juror. As this Court stated just last Term in Powers, "[w]e may not accept as a defense to racial discrimination the very stereotype the law condemns." 499 U.S., at (slip op. 9). "in our heterogeneous society policy as well as constitutional considerations militate against the divisive assumption - as a per se rule - that justice in a court of law may turn upon the pigmentation of skin, the accident of birth, of the choice of religion." Ristaino v. Ross, 424 U.S. 589, 596, n. 8 (1976). We therefore reaffirm today that they exercise of a peremptory challenge must not be based on either the race of the juror or the racial stereotypes held by the party.
IV
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.
JUSTICE THOMAS, concurring in the judgment.
* * *
I write separately to express my general dissatisfaction with our continuing attempts to use the Constitution to regulate peremptory challenges. See e.g., Batson v. Kentucky, 476 U.S. 79 (1986); Powers v. Ohio, 499 U.S. - (1991); Edmonson, supra. In my view, by restricting a criminal defendant's use of such challenges, this case takes us further from the reasoning and the result of Strauder v. West Virginia, 100 U.S. 303 (1880). I doubt that this departure will produce favorable consequences. On the contrary, I am certain that black criminal defendants will rue the day that this court ventured down this road that inexorably will lead to the elimination of peremptory strikes.
In Strauder, as the Court notes, we invalidated a state law that prohibited blacks from serving on juries. In the course of the decision, we observed that the racial composition of a jury may affect the outcome of a criminal case. We explained: "It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some case to deny to persons of those classes the full enjoyment of that protection which others enjoy." Id., at 309. We thus recognized, over a century ago, the precise point that JUSTICE O'CONNOR makes today. Simply stated, securing representation of the defendant's race on the jury may help to overcome racial bias and provide the defendant with a better chance of having a fair trial. Post, at 7.
I do not think that this basic premise of Strauder has become obsolete. The public, in general, continues to believe that the makeup of juries can matter in certain instances. Consider, for example, how the press reports criminal trials. Major newspapers regularly note the number of whites and blacks that sit on juries in important cases. Their editors and readers apparently recognize that conscious and unconscious prejudice persists in our society and that it may influence some juries. Common experience ad common sense confirm this understanding.
* * *
Our departure from Strauder has two negative consequences. First, it produces a serious misordering of our priorities. In Strauder, we put the rights of defendants foremost. Today's decisions, while protecting jurors, leaves defendants with less means of protecting themselves. Unless jurors actually admit prejudice during voir dire, defendants generally must allow them to sit and run the risk that racial animus will affect the verdict. Cf. Fed. Rule Evid. 606(b) (generally excluding juror testimony after trial to impeach the verdict). In effect, we have exalted the right of citizens to sit on juries over the rights of the criminal defendant, even thought it is the defendant, not the jurors, who faces imprisonment or even death. At a minimum, I think that this inversion of priorities should give us pause.
Second, our departure from Strauder has taken us down a slope of inquiry that had no clear stopping point. Today, we decide only that white defendants may not strike black veniremen on the basis of race. Eventually, we will have to decide whether black defendants may strike white veniremen. See, e.g., State v. Carr, 261 Ga. 845, 413 S.E.2d 192 (1992). Next will come the question of whether defendants may exercise peremptories on the basis of sex. See, e.g., United States v. DeGross, 960, F. 2d 1433 (CA9 1992). The consequences for defendants of our decision and of these future cases remain to be seen. But whatever the benefits were that this Court perceived in a criminal defendant's having members of his class on the jury, see Strauder, 100 U.S., at 309-310, they have evaporated.
Notes
1. As both the McCollum and the Batson courts held that persons cannot be excluded from jury service by peremptory challenges based on race, and Taylor v. Louisiana required a fair cross section of prospective jurors which could not be altered due to gender, should people be excluded from sitting on a jury under a peremptory challenge on the basis of gender? In a case which may foretell a future United States Supreme Court case, Tyler v. State of Maryland, 330 Md. 261 (1993), the Court of Appeals held that the state may not use peremptory challenges to exclude potential jurors because of gender. The court based its decision partly on Maryland's Equal Rights Amendment and the Maryland Declaration of Rights which place gender discrimination in a "suspect" classification which necessitates strict scrutiny where such classifications are used by the government. Presumably, the Maryland court would also prohibit using a peremptory challenge by a defendant in a similar context. From what your have read in McCollum and Batson, would the United States Supreme Court be likely to follow the lead of the Maryland Court of Appeals in Tyler?
2. Consider the separate concurring opinion of Justice Thomas. Does Thomas have a valid point when he expressed concern over prospective jurors who may possess prejudices, but who fail to admit that they may harbor such feelings? Is there no way to exclude such persons with the use of peremptory challenges if their race is different from that of defendant? Do you agree with Justice Thomas that the McCollum decision exalts the right of citizens to sit on juries over the rights of the criminal defendant? Why do you agree or disagree?
The Sixth Amendment Right to Counsel
The right to counsel in a criminal case allows an accused to have a modicum of equality when the resources of the state or federal government are arrayed against the defendant. The right to counsel accrues both to the indigent and the more prosperous individual, but the indigent is entitled to have the government compensate the attorney.
While the right to counsel is primarily a trial right, it applies at other stages of the criminal justice process. The right to counsel within the context of Miranda, Chapter 3, applies during custodial interrogation. The right to the assistance of counsel has been applied to some identification procedures, including post-indictment lineups. See Chapter 15, Lineups and Identification Procedures. At trial, an attorney skilled in the substantive areas of law, the rules of evidence, and the art of trial practice can deliver assistance beyond any which an unschooled defendant could hope to personally achieve. The right to be represented during a trial includes access to an attorney for purposes of trial preparation as well as various pretrial proceedings which affect the basic fairness of the trial. See Coleman v. Alabama, 399 U.S. 1 (1970), This Lesson. Legal advice at a post-trial sentencing proceeding, may make the difference between a long or short sentence or a death sentence. See Mempa v. Rhay, 389 U.S. 128 (1967) and Evitts v. Lucey, 469 U.S. 387 (1985), Next Lesson. In short, at almost every stage of the criminal justice process, the Sixth Amendment right to the assistance of counsel proves advantageous to a defendant and is required by case law or by the Constitution.
When the Sixth Amendment was ratified in 1791, it was viewed as a limitation only on the federal government and had no application to criminal justice procedure in the states. Consistent with a federal form of government, the people of the states could look to their respective state laws and constitutions for the right to counsel in state criminal prosecutions. While most, if not all, states granted the right to counsel, generally a defendant could have the assistance of an attorney if the defendant could afford to retain an attorney and not otherwise. In Gideon v. Wainwright, 372 U.S. 335 (1963), Next Lesson, the Court held that the defendant in a state felony prosecution had a right to appointed counsel under the Sixth Amendment as applied to the states through the due process clause of the Fourteenth Amendment. The assistance of counsel was fundamentally essential to receiving a fair trial according to the Court because the government hires the best lawyers to prosecute criminal cases. To expect a defendant, who lacks the skill and knowledge to adequately prepare a defense, to have any chance of a fair trial requires the assistance of counsel. The right under Gideon was limited to felony trials, although the Court had earlier held that a right to counsel accrued to capital defendants in state cases under the due process clause of the Fourteenth Amendment. See Powell v. Alabama, 287 U.S. 45 (1932).
The extension of the right to counsel occurred gradually on a case by case basis as the Court recognized that, not only felonies, but misdemeanors could be complicated and require an attorney. Since misdemeanor cases frequently prove complex and may involve the loss of freedom, the Court determined that the assistance of counsel was required in most situations. See Argersinger v. Hamlin, 407 U.S. 5 (1972). The Argersinger Court even quoted Gideon when it stated, ". . . A person's right to . . . his day in court . . . include[s] . . . [the right to] be represented by counsel." Finally, the Court determined that any time a defendant faces the possibility of loss of freedom, counsel must be provided or incarceration cannot be part of any punishment conferred by a trial court. Scott v. Illinois, 440 U.S. 367 (1979).
The Sixth Amendment right to counsel continues after the trial and includes part of the appellate process. While there is no constitutional right to an appeal in a criminal case, all jurisdictions permit one appeal following a trial verdict. In order to have a chance at a meaningful appeal, the convict must have the assistance of an attorney to review the record, prepare an appellate brief, and argue the case before an appellate court. In Douglas v. California, 372 U.S. 353 (1963), the Court held that where the type of an appeal a person receives depends on the ability to pay counsel, where a poor person receives little assistance and the rich appellant gets a meaningful appeal, such process violates the Equal Protection Clause of the Fourteenth Amendment. Accordingly, the Court held that the right to free counsel is constitutionally mandated for indigent appellants for the first appeal.
While the right to counsel has been extended to the appellate level, the Sixth Amendment has not been construed to require assistance of counsel beyond the first appeal. Similarly, the right to counsel does not include appeals to state supreme courts or beyond. Likewise, where an indigent defendant desires to pursue a second discretionary appeal or state or federal habeas corpus relief, the Sixth Amendment offers no assistance. Pennsylvania v. Finley, 481 U.S. 551 (1987). In death row situations, the right to counsel has not been deemed an essential right within the criminal justice system on the theory that the convict has had a fair trial and at least one appeal with the assistance of counsel. See Murray v. Giarratano, 492 U.S. 1 (1989), Next Lesson
Right to Counsel Applies to Preliminary Hearing
COLEMAN v. ALABAMA, Supreme Court of the United States (1970), 399, U.S. 1, 90 S.Ct. 1999
FACTS:
Petitioner was convicted of assault with intent to murder a Mr. Reynolds. At the trial, Mr. Reynolds testified that he had been engaged in changing an automobile tire when three men approached him and his wife. One of the men shot Reynolds and who also testified that Coleman put his hands on Mrs. Reynolds. As a car approached, the men ran away after one of them shot Reynolds a second time. The victims positively identified Coleman and the others as the perpetrators.
At a pretrial hearing, Coleman was without any counsel to advise him of legal issues presented. Under Alabama law, the issues to be determined at a preliminary hearing concern whether there is probable cause to present the case to the grand jury and to fix bail for bailable crimes. Following his trial and conviction, Coleman argued on appeal that Alabama's failure to provide him with appointed counsel at the preliminary hearing unconstitutionally violated the Sixth Amendment right to counsel, a "critical stage" of the prosecution.
PROCEDURAL QUESTION:
Is a preliminary hearing, where a defendant is not required to advance any defenses and loses no potential defenses, considered a "critical stage" of the criminal justice process for which the Sixth Amendment right to counsel is required?
HELD: Yes.
RATIONALE:
Mr. Justice Brennan announced the judgement of the Court and delivered the following opinion.
* * *II
This Court has held that a person accused of a crime "requires the guiding hand of counsel at every step in the proceedings against him," Powell v. Alabama, 287 U.S. 45, 69 (1932), and that constitutional principle is not limited to the presence of counsel at trial. "It is central to that principle that in addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial." Accordingly, "the principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice." Id.,at 227. Applying this test, the Court has held that "critical stages" include the pretrial type of arraignment where certain rights may be sacrificed or lost, Hamilton v. Alabama, 368 U.S. 52, 54,82 S.Ct. 157,158-9 (1961), [Other citations omitted.] . . . .
The preliminary hearing is not a required step in an Alabama prosecution. The prosecutor may seek an indictment directly from the grand jury without a preliminary hearing. Ex parte Campbell, 278 Ala. 114, 176 So.2d 242 (1965). The opinion of the Alabama Court of Appeals in this case instructs us that under Alabama law the sole purposes (sic) of a preliminary hearing are to determine whether there is sufficient evidence against the accused to warrant presenting his case to the grand jury, and if so to fix bail if the offense is bailable. [Citations omitted.] The court continued:
"At the preliminary hearing . . . the accused is not required to advance any defenses, and failure to do so does not preclude him from availing himself of every defense he may have upon the trial of the case. Also Pointer v. State of Texas [380 U.S. 400 (1965)] bars the admission of testimony given at a pre-trial proceeding where the accused did not have the benefit of cross-examination by and through counsel. Thus, nothing occurring at the preliminary hearing in the absence of counsel can substantially prejudice the rights of the accused on trial." 44 Ala.App., at 433; 211 So.2d. at 921.
This Court is of course bound by this construction of the government of Alabama law. [Citation omitted.] However, from the fact that in cases where the accused has no lawyer at the hearing the Alabama courts prohibit the State's use at trial of anything that occurred at the hearing, it does not follow that the Alabama preliminary hearing is not a "critical stage" of the State's criminal process. The determination whether the hearing is a "critical stage" requiring the provision of counsel depends, as noted, upon an analysis "whether potential substantial prejudice to the defendant's rights inheres in the . . . confrontation and the ability of counsel to help avoid that prejudice." United States v. Wade, [388 U.S. 218 at 227]. Plainly the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or improper prosecution. First, the lawyer's skilled examination and cross-examination of witnesses may expose fatal weaknesses in the State's case, that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State's witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination or bail.
The inability of the indigent accused on his own to realize these advantages of a lawyer's assistance compels the conclusion that the Alabama preliminary hearing is a "critical stage" of the State's criminal process at which the accused is "as much entitled to such aid [of counsel] . . . as at the trial itself." Powell v. Alabama, supra, at 57.
III
There remains, then, the question of the relief to which petitioners are entitled. The trial transcript indicates that the prohibition against use by
the State at trial of anything that occurred at the preliminary hearing was scrupulously observed. Cf. White v. Maryland, supra. But on the record it cannot be said whether or not petitioners were otherwise prejudiced by the absence of counsel at the preliminary hearing. That inquiry in the first instance should more properly be made by the Alabama courts. The test to be applied is whether the denial of counsel at the preliminary hearing was harmless error under Chapman v. California, 368 U.S. 18, (1967). See United States v. Wade, supra, at 242.
We accordingly vacate the petitioner convictions and remand the case to the Alabama courts for such proceedings not inconsistent with this opinion as they may deem appropriate to determine whether such denial of counsel was harmless error, see Gilbert v. California, [388 U.S. 263], at 272, and therefore whether the convictions should be reinstated or a new trial ordered.
It is so ordered.
Notes
1. In Coleman, if the defendant could not lose any defense theories, how cold the defendant be prejudiced by merely waiting for the later appointment of counsel? Would counsel be able to find out some of the state's theory of prosecution by requesting information during the discovery process? Is failure to have counsel present at a preliminary hearing, merely justice delayed rather than justice lost?
2. If a defendant has a Sixth Amendment right to counsel at the pre-trial stage, and such right was not accorded a defendant, the remedy of a new trial is available only if the case would have been decided by the trial court differently. How can a court, especially an appellate court determine what would have happened? Is this a tough call to make? The test is called the "harmless error rule" from Chapman v. California, 368 U.S. 18 (1967).