*1 1040 seal Certiorari denied. granted. under
District Court Murphy. Ohio, App. Ct. Summit No. 87-1558. v. Ohio for leave respondent proceed pau- Motion of to County. informa denied. Certiorari granted. peris Tex. App. Ct. Crim. Cer- No. 87-6138. v. Texas. Modden denied. tiorari Brennan, dissenting.
Justice the death is in all my penalty to view that circum- Adhering punishment prohibited by Eighth and unusual the stances cruel Amendments, Gregg Georgia, 153, v. 428 U. S. and Fourteenth petition the for writ of certiorari (1976), grant 227 I would and in this case. the death sentence vacate Marshall, dissenting. Justice my view that the death in all
Adhering penalty to is circum- punishment prohibited by and unusual the Eighth cruel stances Amendments, Gregg Georgia, see v. 428 and Fourteenth U. S. (1976) (Marshall, J., I 153, dissenting), grant 231-241 would the and vacate petitioner’s for certiorari death sentence. petition view, I grant if I did not hold this would the petition But even for and remand this case for a to hearing petition- certiorari consider improperly that the used prosecutor peremptory er’s claim chal- from the in persons jury to exclude black violation of the lenges Protection Clause. Equal
The Protection Clause of the Fourteenth Amendment Equal for- exercise of prosecution’s peremptory challenges against bids the jurors “solely on account of their race or on the as- prospective jurors group that black as a will be unable sumption impartially against to the State’s case a black defendant.” Batson consider (1986). 79, 476 89 Kentucky, Recognizing “crippling v. U. S. the then up placed that to had been on defendants claiming burden” id., discrimination, 92, at this Court in Batson al- dramatically evidentiary facing tered the burden defendants who claim that a improperly peremptory challenges has used to exclude prosecutor Batson, their racial from a group jury panel. members of Under prima showing purposeful a makes a facie of discrimi- defendant by of the venire that he is a mem- showing nation in the selection
1041 racial cognizable group, prosecutor ber of a that the has exercised to remove from the venire members of the peremptory challenges *2 race, facts, that along any defendant’s and these with other rele- circumstances, vant raise an inference that the used prosecutor peremptory challenges venirepersons to exclude on account of Id., prima their race. at 96. Once the defendant makes such a the for- showing, prosecution facie burden shifts to the to come ward with a race-neutral for the explanation challenging prospec- Id., tive at 97. jurors.
In case, petitioner, man, this a black was murder- charged with in ing robbery. a white woman the course of a committing During selection, the jury prosecution peremptory exercised three strikes jurors to exclude black from the venire. The also chal- prosecution for five other lenged venirepersons. Although peti- cause black tioner about the exclusion of black from the complained persons jury, apparently prosecutor the trial court never asked the to ex- the of venire- plain peremptory challenges exercise to exclude black persons, explanation and no was As a result of the given. prosecu- cause, tor’s use of peremptory challenges only and exclusions for one black that person ultimately jury was selected to serve on the petitioner Although convicted and sentenced him to death. the my record is in view a facie sparse, petitioner prima has made under Batson of the showing discriminatory exercise of peremptory challenges. prima
Because has made a facie of discrimi petitioner showing nation, prosecution the burden falls on the to a race-neutral give trial explanation peremptory challenges. for its use of Petitioner’s Batson, surpris concluded before this decided it not Court so is ing prosecu that the trial court failed to determine whether the tor could a race-neutral for the proffer explanation challenges.* circumstances, Under these I would vacate the of the judgment Appeals Texas Court of Criminal and remand with instructions that a hearing petitioner’s prosecu be held to consider claim that the peremptory challenges rights tion’s use of violated his under the Equal Protection Clause. Kentucky, 314, (1987), * In v. 479 ruled that U. S. 328 this Court Griffith Kentucky, of Batson holding (1986), applied
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