Thomas C. Ramseur v. Howard C. Beyer, Superintendent, New Jersey State Prison, Robert Del Tufo, New Jersey Attorney General

L.Ed.2d Nor do we Judge conclude that Muka- sey’s relief constitutes an abuse of the broad discretion that we have previously held that district judges possess court Injunctive B. Relief fashioning relief under the ADEA. See Texaco contends that Whittlesey, 742 F.2d at grant- 727-28. In against plaintiff found retaliation last oc ing injunction, Judge Mukasey admit- curred in 1983 and none subsequently, so it erred, ted that if he preferred he to do so enjoin was an abuse of discretion to Texaco on the side caution. protests Texaco permanently retaliatory from future con Judge Mukasey’s decision before this Court duct. Texaco characterizes such relief as hands; as if however, it had clean it cannot “drastic,” “superfluous,” and an abuse of set aside fact that it has been found discretion. It on relies Kirkland v. guilty Buffa two acts of willful discrimination Educ., F.Supp. lo Bd. in violation of the agree ADEA. We (W.D.N.Y.1979), support its contention doubts are to be wrong- resolved improper. that relief was doer’s favor. We affirm the district court’s injunctive order. hardly It seems require drastic to Texaco obey the law set forth in the ADEA respect Malarkey. with to Catherine It is CONCLUSION heavy difficult to discern what burden Accordingly, judgment of the district places employer: on order it covers a court is affirmed. party Each to bear its single employee company in a employing costs, own including attorney’s fees. In nearly corporate two thousand its head- connection, we note the district court quarters injunction alone. The does not already plaintiff has attorney’s awarded require change employment Texaco to prac- greater $268,000. fees in a sum than tices, reorganize departments, or rewrite procedures. Moreover, official we do not

regard superfluous it as subject em- an

ployer found to have discriminated to the contempt powers,

district court's it to

repeat retaliatory its conduct.

Texaco’s reliance Kirkland is mis- placed Kirkland, as well. In the district RAMSEUR, Appellant, Thomas C. illegal practice court determined that the issue was an violation of isolated VII. Title F.Supp. result, See at 773. As a it BEYER, Superintendent, Howard C. grant refused to plaintiff in- broad Jersey Prison, New State Robert Del junction barring against discrimination all Tufo, Jersey Attorney New General. employees black defendant school No. 90-5333. The court found board. that such in- go junction beyond would well an act that United Appeals, States Court of repeated. its view not be id. Third Circuit. markedly We have a different situation. Argued Nov. 1991. case, In this there was evidence of wide- spread, antagonism continuous within Tex- Reargued Sept. Malarkey, aco towards which the de- Decided Dec.

termined reached two decisionmakers. facts,

light of Judge these deter- Mukasey

mined that a danger of future retaliation

exists issued injunction pro- a narrow

tecting just one individual. We refuse

find that this contradicts Kirkland. petit juries tried and

convicted the appellant were drawn from lists that unconstitutionally underrepre- sented African-Americans and whether the procedures used in Essex County, New Jer- sey, to select jury forepersons violat- Equal ed the Protection Clause of the Four- teenth Amendment or the Sixth Amend- guarantee ment’s of a trial drawn from a community. cross-section of the Fi- nally, we must determine whether miscon- prosecutor duct in this case denied appellant right his constitutional to a fair Appellant, Ramseur, trial. Thomas has ad- grounds vanced petition these in his for a (argued), N.J., Matthew Astore State of corpus. writ of habeas The district court Advocate, Dept, of the Public Office of the petition. denied his For the reasons that Defender, Newark, N.J., Public appel- for follow, we will affirm the denial of the lant. petition but will do so for the reasons we Hilary (argued), Asst., Legal L. Brunell state below. Section, Appellate County Office of the

Prosecutor, Newark, N.J., appellee. I. May On found Thomas Argued Nov. guilty Ramseur of the murder of Asaline MANSMANN, Before: COWEN and Stokes, girlfriend. his former He was con-

ROTH, Judges. Circuit charged victed on all counts in the indict- Reargued Sept. against (1) (N.J.S.A. ment him: murder Before, SLOYITER, Judge, Chief 3); (2) possession unlawful of a knife 2C:11— STAPLETON, MANSMANN, manifestly under circumstances not appro- GREENBERG, HUTCHINSON, SCIRICA, (N.J.S.A. priate 2C:39-5d); for lawful use COWEN, NYGAARD, ALITO, ROTH, (3) possession and unlawful of a knife with Judges. Circuit purpose using against the of it another (N.J.S.A. 2C:39-4d). Following the sen- THE OPINION OF COURT trial, tencing phase of the bifurcated the ROTH, Judge. Circuit rendered a sentence of death that was 17,1983. imposed the trial court on June During the selection of the appellant, Ramseur, 5, 1987, which indicted Jersey Thomas On March the New Su- assignment judge, through the preme statements Court affirmed Ramseur’s convic- actions, and treated certain African-Ameri- all tions on counts but reversed his death Ramseur, sentence. See State v. differently can members of the venire be- 106 N.J. is, however, (1987). cause their of race. There 524 A.2d 188 Ramseur then nothing in the record to any petition indicate actual filed a corpus for a writ of habeas appellant’s grand jury exclusion from of under 28 2254 in the U.S.C. U.S. District § jurors African-American on Jersey.1 account of Court for the District of New On appeal requires 14, 1990, their race. This us to ad- March the district court denied question dress the difficult petition of whether Ramseur’s for writ of habeas comprise these events corpus. appeal constitutional vio- This followed. We have lation. jurisdiction appeal We must also determine pursuant whether over this to 28 court, petition only during argument panel 1. Before the district the habe- for oral before the of corpus part assumption as was based in on the this Court that we were that advised these two jurors jurors ultimately that two had been excluded from the had in been seated fact grand jury panel. and grand jury panel on the basis of race. It was served on the who had persons those of consisted group scope of review Our 1291, 2253. §§ U.S.C. had excuses but whose to be excused asked with of law conclusions court’s a district of in the to sit asked They were denied. been for a petition prisoner’s a state regard to understand- the with body of the courtroom Hu plenary. corpus of habeas writ to serve upon might be called they (3d ing that 432, 435 F.2d Beyer, manik ju- prospective other of the later, after all 812, 110 denied, 493 U.S. Cir.1989), cert. second questioned. had been rors L.Ed.2d proffered persons of consisted group willing to excuse, were stated II. no to sit asked serve, nonetheless but were that complaint of Ramseur’s The crux aside. ju- grand empanel to used procedure the to Ramseur’s right empaneling his of County violated the course in rors Essex he the judge under announced laws the jury, grand of the protection is- a cross section Resolving “pick to attempting was Amendment. Fourteenth jury. grand the the community” to serve examination the close requires a sue Esther Cata- Later, he asked juries grand App. at empanel to used procedure Smith, app. George the time and app. at gen, and to county prior the courtroom the body 2438, to sit indictment. willing they were had although both stated III how Part describe We will judge assignment When to serve. in Essex created lists juror source pro- forty-third Patrick, the Betty reached jurors selected qualified panels County, of Ramseur’s juror spective to sent lists, summonses and those from she indicated Ms. Patrick jury, grand grand for designated randomly persons However, judge willing to serve. upon jurors, Many potential jury panels. body of the a seat to take her asked and jury service summons receipt and stated: courtroom jury service realization gen- and you, ladies telling mind I don’t would period, week six for a last would panel or the tlemen an excuse. for request written submit get a cross- trying I am jury, ex- these screen would office clerk’s noticed, probably section; you’ve and requests would meritorious and cuses the blacks who two of I have asked actually ap- before granted sit to serve willingness indicated a assembly Prior to for service. peared I am deliber- body of the courtroom. judges venire, assignment people ofmix even get trying ately letters County review would Essex races, things background se- At actual received. questionnaires I you think any of ifAnd that. like ques- judges lection, assignment it, sneaky about being way any am the excuses reconsider each tion I am am not. that I please understand denied. requested but previously is the is, like it you telling empaneled who judge assignment The done. I have what I have done reason following the jury used grand Ramseur’s Following this an- App. at 2449-2450.2 assembled: was the venire once procedure other two nouncement, judge asked the each interviewed briefly First, judge the willing- expressed a who members panel things: three did he one Then juror. Hardwick, app. at serve, Francena to ness cause, ju- asked the juror for the excused to sit Ikena, app. at 2453, and Orro the court- body of in the a seat to take ror courtroom. body of the the juror the being, asked the time room through twen- one members panel he After Those panel. the on take a seat to selected, prior to voir but ty-two had been courtroom body of the in the sit to asked Ms. Cata- judge asked dire, assignment the first groups. The two one of into fell up to sit aside panel asked members three of clearly which indicate not does The record point referring were black. to nor to that judge was panel members all only rather than two it establish does body any jury panel, per- of the court- If from more up from the gen to come service, sons remain available for after twenty-three. and take seat number room allowed, excuses have been than are nec- dire of judge then embarked voir essary grand jury, to constitute the jurors jurors assembled. One persons whose names are first drawn “prejudiced against explained that she was excused, twenty- not to exceed judge races.” The people, certain certain number, three in shall constitute the juror, explaining, appreci- “I excused that grand jury. honesty, people don’t want your ate we procedure The random selection set forth in Jury.” App. you like to serve on Grand Jersey routinely ig- statute was New replaced by Orro juror at 2464. That was assignment judges nored of Essex proffered Ikena point Ikena. At that Mr. County time at the Ramseur's accepted. Ms. excuse which the court hearing regarding At a was chosen.3 to was then asked to take the seat Patrick allegations assign- one assigned. Mr. Ikena had been Ulti- judge ment stated that rather than select- Smith, juror the fifth mately, George ing jurors randomly may “it be on the basis expressed willingness to serve but had my them I observation of feel that body initially asked to sit they App. should not be selected.” 3883-3884. Asked if his choices were made courtroom, way his onto the also found “discretionary judgment as a result of his although transcript does not re- panel person,” judge responded, about each Hardwick, came about. Ms. flect how this question “There is no that.” about Id. expressed willingness to serve who had many The record this case contains simi- nonetheless asked to sit but was lar statements that show that Essex Coun- courtroom, body was never chosen ty assignment judges subjective used crite- juror. as a record does grand jurors ria to select and often consid- Ikena, clearly the race of Mr. Mr. establish race, ered “a racial balance” or a “cross Smith, or Ms. Hardwick. and white when section” of black juries.4 provides: assembling grand N.J.S.A. 2A:73-1 3. We are advised that the For 4. judgments? effect. tinued: time of Ramseur’s indictment guess Mr. sir, of Essex that I believe I tial. they say before me. Jones and Tom Jones stands Grand er or not I think look about and County factory job for look for because that is one of the A. It Q. Q. And A. Of keeping his race? assignment judges Kairys. on the sum total of example, Say Juror on the basis of the depends upon ^[******] it, course, County trying the next how what are and he is letters, in mind and, I do not I will look at the know that is one of the all of most of listen gain a questions they person that I have been a resident look and determine wheth- 25 your mean what Essex in Essex years my to what will be all, potential panel that is my cross-section of person standards procedures in the line is Tom to be life, be fair and old. Do to the life’s up are no questionnaires, County until I am they say, a and he has a evasive, County experiences, things responsible judge things for these longer you selecting recently, used impar- at the Essex but I I do con- look how that all judgment juror— forms a cross-section or at least going first 23. not tell he you law.... cuse” means. have an obvious cross-section. what does a cross-section different vocations County Oriental men and A. It is A. Yes. Q. A. Q. Q. Q. A. A. Q. is should cross-section going Absolutely. That is what the word "ex- Absolutely, Let’s How You My concept How about Now, you is made ^[******] they ^[******] ignore on each read the statute as use say are we whether you judgment are not I follow the law or not? your What is a cross-section? And he is can excuse a prejudice. their said that up undesirable_ of Essex undesirable? of Essex juror going or not women, own discretion and make indeed a of qualified. black. responsibility call, black, white, and not vocation, people consist you County I County. Mr. figure juror can excuse a people who have particular juror mandating also look for Kairys. my conception I just pick can excuse a because of? is that Essex out whether under the Hispanic, I can- they who a 1224 106 88 L.Ed.2d 598 of the S.Ct. upon protections Based Mitchell, (1986) (quoting Rose v. the Fourteenth U.S. Clause of

Equal Protection Supreme 2993, 3000, Amendment, 545, 556, L.Ed.2d States S.Ct. the United race as a (1979)). has abolished “gradually Georgia v. service.” consideration in the selec Discrimination — -, McCollum, -, U.S. defendant, prospec process tion harms (1992). 2348, 2352, 120 L.Ed.2d 33 “[R]a- community jurors, and the tive and actual qualification in or cial discrimination “inter has an as a whole. defendant dignity jurors offends the selection procedures selection ... est neutral integrity of the courts.” persons and — in the selec because racial discrimination Ohio, -, -, Powers v. jurors integrity doubt on the tion of casts 1364, 1366, 113 L.Ed.2d judicial process, places the fair in the on the basis race Discrimination proceeding a in doubt.” criminal unacceptable ness grand jurors is selection “ — Powers, at-, at 1371. at values of ‘strikes the fundamental right to unmarred society as a Jurors have be judicial system and our our ” justice system. Vasquez Hillery, public discrimination whole.’ will will people I was faced It black females App. at 3882-3901. females tion I will County assignment judge suggest proportionality. I have secondly, able, sir, similar selection do notion of selecting a mothers. plish bly have have al will Q. A. A. A. A. Yes— At this same A. Q. A. Q. Q. Q. Q. worked or 60 that tasks random line process, pass pass pass advocation [sic] picked people I Yes, absolutely. Both Yes; Well, I have never pass people. No, Could And Are And A Even publicly "try kept workers, great is, ****** and Caucasians and non-Caucasians." jurors them. them. them. on a I am out, my judgment, proportion? I I could there are there situations where even if I had it in does one, that what I grand jury, would meet the with though process cannot your it sir, variety get opposite announced hearing in go mind initially is I cross-section I day-to-day usually If people Yesterday’s If I have too a balance between estimation? "procedure,” do not think had an inordinate number of either go I have too If I have too both say is the retired, form the beginning any one initial great race to that. circumscribed too few blacks avail- way? conducted that to try brings race census which would point The reason testified to basis, housewives, qualifications, perform Grand executives, variety. on I many but potential or many stating I my get you’re making. many accomplish you them, sir, before could accom- another that what qualified? guess. other Essex studies nor a balance? Jury mind males and females, ministeri- have you blacks, I do process. males, process. then using me the assem- panel. selec- then over and, yes. any not he I I I judge bearing administrative top little note on thereafter that App. at tion courtroom get If that sometimes here. through county record recall could. even balance ance name was something that percentage or she was marked, sir, ing division A: A: I insisted that the A: A: I tried to A: Q: Q: A: Q: Q: Q: Q: Q: white. and take the first name and the race and as to whether or not you I Not I How did You tried My And I I understand. The How good 50/50? continued as follows: it, is I person is somewhere around did in mind see. tried ^{[******] [******]} would clear, goal obviously sought called I would make an observation. necessarily. your I did not. rather than excuse about not balance between so would know in list? white, my major But between the races based to I understood was the activity, although was you I you consciously say half. County of you that the black do goal ask for excuses and do that about there? you balance as get thinking it. know then would did not black, so ill that did questioning to is to half excused. did try chart, race, Sometimes I every procedure I the race as get black was white. to make a Essex. then start about what was the bal- person was black black and B for they population of the be then, just take time, them and half white. I would my of the second from, percent present some percent, balance was could leave black; every then of not- final selec- same, if population though. you solely by generally I tried to upon the did and as each say, were if so the not be white, it black. in the put name went as I un- he I Co., In Edmonson v. Leesville Concrete fairness of the proceedings conducted — -, -, 2077, 2087, there. Racial bias mars the integrity of (1991), explained 114 L.Ed.2d 660 the Court judicial system the prevents and the idea discriminatory perempto- the harm of government of democratic from becom- ry challenges danger includes the ing reality. “persons required by could be summons to — Edmonson, at-, 111 S.Ct. at put open public at be risk discrimi- 2077. participation nation as a condition of their The Court has ruled that a deter justice system.” in the Discrimination in mination of racial discrimination in the se jury process selection undermines grand jurors lection of and, support will justice system, thereby, the whole of quashing resulting society. our indictment and re versal of the conviction.5 injury caused the discrimination [T]he jury process] selection is made [in Intentional discrimination in the selection government more severe because grand grave is a constitutional permits it to occur within the courthouse trespass, possible only under color of places itself. Few are a more real ex- state authority, wholly within the pression of the authority constitutional power of prevent. Thus, the state to government courtroom, than a remedy we have embraced for over a where the itself law unfolds. Within the century only remedy effective —the courtroom, government invokes its this disproportionate violation —is not rights laws to determine of those the evil that it grand seeks to deter. If who stand it. before full view of the jury discrimination thing becomes a public, litigants cases, press their wit- past, again no conviction ever will give testimony, nesses juries render ver- lost on account of it. dicts, judges act with utmost Vasquez, 262, 474 U.S. at at 623.6 care to justice ensure that is done. Race discrimination In order to pro within the court- establish questions violation, room raises party serious as to the tection must show that Absolutely. require A: feet" that will state officials to “take App. at 3828-3831. note of a federal court’s determination that their procedures are unconstitutional and must be challenge grand In the context of a habeas 5. Rose, changed.” 443 U.S. 99 S.Ct. at jury procedures, appropriate selection relief overriding imperative 3004. "The to eliminate petitioner for a successful is to "reverse[] systemic grand [of flaw discrimination in conviction order[ ] indictment selection], difficulty as well as the of assess- quashed,” requiring the state to reindict and defendant, ing any given requires its effect on retry petitioner or release from him confine- mandatory our continued adherence to a rule of Rose, ment. See 443 U.S. at 99 S.Ct. at Vasquez, reversal." 474 U.S. at 106 S.Ct. at remedy supported by 3000. This has been two 624. First, considerations. the Court has concluded grand jury that discrimination in the selection analysis It should be noted that error harmless process pro- cannot be divorced from the trial inappropriate involving in cases discrimina ceeding Vasquez, itself. In 474 U.S. at process. tion in the ”[T]he explained: S.Ct. at the Court ... has reversed the conviction and ordered the persuaded quashed inqui Nor are we indictment ry in such cases without that discrimination in grand jury prejudiced into has no effect on the whether the defendant fairness the criminal trials that result fact at the the discrimination jury’s Rose, grand jury's stage.” actions.... ven if a S.Ct. at [E] probable plurality opinion Vasquez explicitly determination of cause is confirmed stat hindsight by grand jury in offense, a conviction on the indicted ed that "discrimination under way suggests integrity that confirmation in no mines the structural of the criminal itself, impermissibly that the discrimination did not and is not amenable to harmless- tribunal and, framing Vasquez, infect the of the indictment con- U.S. at error review.” Moreover, sequently, very justices joined nature existence of the S.Ct. at 623. all nine — proceedings Fulminante, U.S. -, opinions to come. Arizona Second, (1991), reversing the Court has concluded that 113 L.Ed.2d 302 analysis convictions after explained obtained tainted in dicta that harmless error proceedings apply has an "educative and deterrent ef- does not in the context of discrimination 122 any grand prospective be said that “purposeful cannot actual has been some

there grand pro- jury actually selection were excluded from in the discrimination” Kentucky, 476 U.S. race. The jury v. on the basis of their cess. See Batson service 1712, 1722, 90 L.Ed.2d 69 96, 79, African-Ameri- S.Ct. two record indicates in question at issue crucial grand jurors were asked to prospective can purposeful is such present case whether courtroom, possi- body for sit in In been demonstrated. discrimination has selection, Afri- later ble discriminatory Batson, involved the ju- prospective can-American. These two prose- peremptory challenges of use While an eventually empaneled. rors were petit jury, choosing in the Court cution prospective grand additional single invidiously discriminato- held that “a body the courtroom asked to sit of to consti- ry act” sufficient governmental empaneled, subsequently it is and was not id. at violation. a constitutional See tute from the record either impossible to discern In at 1722. Batson 106 S.Ct. initially her race or whether she was that, having than to show rather meant passed over because of her race of because petit ju- systematic race-based exclusion of as her “back- of some other factor such chal- peremptory the use of through rors Therefore, ground.” presents the this case defendant could show lenges, a criminal question purposeful of whether difficult prosecutor exer- case alone the his proof may be shown absent discrimination challenges peremptory to exclude cised jury exclusion from service of of the actual race from the of defendant’s members of her race. someone on basis jury. See id. principles prohibiting exclu articulated in “The basic Under the rationale participation persons necessary progeny,7 sion of its it is to Batson of their race ‘are essen service on account an infer three elements to raise establish grand juries and tially the for same in the context of ence discrimination ” 3, at petit juries.’ Id. at 84 n. 106 S.Ct. First, grand prospective jury selection. Louisiana, v. (quoting 1716n. 3 Alexander against must juror allegedly discriminated 1221, 1223 626 n. 92 n. 405 U.S. cognizable group. racial be a member Therefore, (1972)). L.Ed.2d Batson, at at 106 S.Ct. U.S. grand in the analog to Batson context (prohibiting peremptory chal use that, to establish a Four selection lenges to strike members defendant’s violation, a defendant — teenth Amendment at-, Powers, group); racial purposeful discrimina must demonstrate (extending prohibit Batson to panel grand jury in the selection of the tion challenges ju strike peremptory use that indicted him. regardless of their race rors on the basis case, however, same as the de a whether their race is the present presents race). Second, be “a Here, there must factual situation. it fendant’s rather unusual Batson, invoking citing equally process. are See id. at- In we -, (such authority prior as Neal v. Dela- of cases such 1256-57 discrimination review”); ware, (1880), holding 26 L.Ed. 567 harmless error id. is "not amenable to at-, ("Since right "a our decision in denial ... of [defendant's] 111 S.Ct. at petit jurors catego- without dis- Chapman, added selection of other cases have against subject of their ry crimination race, his race because of constitutional errors which are following: Constitu- would be harmless error the unlawful exclu- a violation expressly Id. at Neal deals with of members of the defendant’s race from tion....’’ sion pres- systemic jury, Vasquez Hillery....”); see also deliberate discrimination. references, case, States, express but ent we have racial Bank Nova Scotia United exclusion, 250, 257, express 101 L.Ed.2d 228 we do not have racial reason, analyzed (1988) represent (Vasquez Rose cases Neal. For this we where grand ju- employing court’s actions tests formulated "racial discrimination selection of cases, dealing examples of less compelled with dismissal of the indictment” be- more recent rors impractical in Neal. than was found remedies were and it blatant discrimination cause "other discriminatorily presumed exclusion here on that a se- Had there been an actual could race, however, Neal we would consider treat defendants unfair- basis of lected precedent than Batson. ly”). as relevant rather

1227 practice permits (same); jury selection 'those see also United States v. Cala mind brese, to discriminate are of a to dis- (3d 942 Cir.1991) F.2d 227 (pro ” Batson, criminate.' 476 U.S. 106 cedures which subjectively allowed courts (quoting S.Ct. at 1723 Avery Georgia, v. categories juror add for exclusion to the 559, 562, 891, 891, U.S. 97 Jury Selection-and pro Service Act of 1988 (1953)). Finally, L.Ed. 1244 the defendant vided opportunity discrimination). an for “opportunity must show that the for dis- problem The real here is whether Batson, crimination” was utilized. See opportunity for discrimination was uti 96-97, (in peremp- U.S. at 106 S.Ct. at 1723 lized absent the actual exclusion context, tory challenge the “defendant panel from the on the basis of race. The any must that these show facts and other previous case dealing -law with discrimina relevant circumstances raise an inference tion in jury the context of selection involves prosecutor practice that the used exclusion on See, account of e.g., race. petit jury exclude the veniremen from the — McCollum, at -, 112 S.Ct. at race”); on account of their v. Geor- Whitus (defendant’s use of peremptory chal 545, 552, 643, 647, gia, 385 U.S. 87 S.Ct. lenges to exclude African-Americans); (1967) (discrimination L.Ed.2d 599 in the Batson, 476 U.S. at 106 S.Ct. at 1715 jury selection of a venire found when (prosecutor’s peremptory use of challenges prospective ju- names of black white blacks); to exclude Vasquez, 474 U.S. at separated rors were on the list used to (grand 106 S.Ct. at jury assign jurors select and there existed a substantial judge’s ment exclusion of blacks from disparity percentage between of blacks grand service); jury Partida, Castaneda v. population in the jury and that in the veni- 482, 493-94, 430 U.S. 1279- re). (1977) (jury L.Ed.2d 498 list’s sub case, present the first criterion is underrepresentation stantial of Mexican- clearly assignment judge’s met. The state Americans); Cassell, 339 U.S. at ment, jurors after passed three over (jury pro S.Ct. at 631-32 commissioners’ service, for that he had asked two African- portional limitation of grand blacks on body Americans to sit of the court jury). room in his effort to create a cross section community of the on the jury panel Moreover, analytical an focus of prospective jurors, demonstrates that two discriminatory jury upon selection claims is manner, treated were members of a opportunity of our citizens to deliberate cognizable group. Moreover, racial jurors. Supreme As the Court has re second criterion is practices met. The em cently stated Powers: ployed by assignment judges opportunity ordinary for citizens to County grand Essex process selection participate in jus- the administration of provided es opportunity an for discrimina long recognized tice has been as one of tion. As by assignment documented principal justifications retaining for judge’s during statements jury system. Jury pre- service selection at issue and his later testimo law, serves the democratic element of the ny, practice permitted judge subjec guards rights as it parties tively to include or exclude pro acceptance insures continued of the laws opportunity vided the for discrimination Indeed, people.... all of the with the based race. upon Vasquez, 474 atU.S. Cf. exception voting, for most citizens 256, 106 (subjective judicial S.Ct. at 619 privilege jury duty honor and is their grand jurors provided op selection of an significant opportunity partici- most discrimination); portunity for Cassell pate in process. the democratic Texas, 282, 287, 629, 631, — Powers, at -, 111 S.Ct. at 1368- (1950) (jury 94 L.Ed. 839 commissioners’ subjective provided selection of venire discrimination); opportunity recently Smith Court has also em (3d Cir.1972) Yeager, that, 465 F.2d phasized general, discrimination in 122 taint- impermissibly “im- denied for a process could erate ed reason. proceedings to court

permissibly infect” defendant, prospective the detriment Second, as- do not believe that the we community. jurors, and actual signment judge’s statements and actions 263, 106 at 623 Vasquez, 474 U.S. at comprised an of actual exclusion short deny the (infection proceedings could of assignment equal protection violation. Edmonson, trial); a see also defendant fair employed as judge mentioned that he race — at-, (noting at 2087 U.S. “pick in a sec- a factor his effort to cross public open community” of and discrimination an “get the “risk tion the and even of races, in participation background and [jurors’] people a of mix of from as condition — Powers, things App. at at and like that.” justice system”); U.S. the temporarily He African- (“race in also asked two -, neutrality at 1373 jurors to sit in the inevitable, prospective American visible, jury selection [is] body they were be- of the courtroom until judicial system’s own com- measure of the objec- find latedly empaneled. While we to commands of the Constitu- mitment the subjective sorting jury of the tionable this tion”).8 judge’s the about members and statements race, balancing jury according to we the present Viewing of the the facts cannot conclude that these activities violat- light precedent, the of we conclude case in Equal ed the Protection Clause. While of the as that the statements actions represent subjectively rigging jury the to present not signment judge the case did appropriate representation his vision impermissibly proceedings the at is infect County’s population ill-con- of Essex was protec comprise do not an sue and by ceived, it apparently was motivated First, there no actual tion violation. was purposefully a desire to discriminate juror prospective on account exclusion African-Americans, ap- it against nor was jurors two of her race. The were attempt to limit the parently expressly passed upon their race initially over based of who could number African-Americans Moreover, eventually empaneled. we County grand jury. serve on an Essex willing accept appellant’s to are not invita speculate, supporting tion to absent evi distinguish pres the These factors record, 288-89, Francena Hard- Cassell, dence at ent case seated, wick, passed jury who was over and involved 70 S.Ct. at 632-33. Cassell passed African-American and limitation of African-Amer both commissioners’ Therefore, grand jury panels her race.9 to one African- over on account of icans on panel. jury prospective juror’s opportunity per no American commission- delib- - -, McCollum, jury proceeding U.S. at 112 S.Ct. at 8. Because the infected selection also defendants, ju- impairs rights (”[I]f criminal of be excluded a court allows rors, public, Supreme has bias, and the group willing participant it because of standing, that criminal stated defendants very only in a that could undermine the scheme parties, challenge as first or third such infect- justice—our system citi- foundation our — at-, McCollum, proceedings. ed See Judge it”). disagree We with zens confidence in 2353-55, important at 2357. It standing, analysis party see Alito’s third infra recognition an' heed the Court’s infected underemphasizes it integ- jury proceeding selection undermines the jury pro- community's selection interest rity jury system lays groundwork cess. for the denial of future criminal defendants’ guarantees. jury “The acts as constitutional argues that this case should be 9. The dissent against wrongful vital check exercise court in order to deter- remanded to district power by the The intrusion of racial State.... mine Ms. Hardwick’s race. 1248 n. process infra discrimination into damages improper. would be Ms. Such a remand perception both the fact race cannot be determined from the Hardwick’s Jury primary guarantee. selection is the means developed has record this case which been may a court enforce a defendant's which ethnic, years. for over nine We conclude that Ramseur right to be tried free from — Powers, racial, proof political failed his burden of with prejudice.” has to meet at-, (citations omitted); regard to race. 111 S.Ct. at 1364 see Ms. Hardwick's expressed their legiti preted ers both belief assignment judge’s jury sorting macy of proportionally limiting the purposeful discrimination, number as this rebuke of grand jury panels African-Americans prejudice would countermand such an representation general to their popu interpretation.10 Unlike Batson and its opinions lation and their peremptory did not challenge progeny, present any know African-Americans who were case involves no imprima- instances to serve qualified jurors. See id. tur of the being given state to discriminato- inferred, upon actions, The Court ry based such state Rather, such as exclusions. ments, present commissioners had case involves statements and con- purposefully against duct, discriminated Afri although objectionable, simply engaged “propor can-Americans and do not warrant an “purpose- inference of tional limitation” of African-Americans on ful” discrimination. Indubitably, we seek grand jury panels. id. See to eradicate discrimination from the Here, assignment 631. judges’ the process. However, the rec- statements pro demonstrate no such desire ord here justify does not finding our either portionally to limit the number of blacks to an purpose invidious to discriminate or a figure, some cutoff nor do indicate the public communication to the assign- the presence purposeful judge ment manifestations of the state countenanced invidious judge prejudice.11 The in racial discrimination.

present apparently case wished the non- III. objective representative

invidious jury. areWe reluctant to infer invidious dis We will next address Ramseur’s chal- criminatory purpose when the record does lenge juror to the source lists in used Es- support not See, such an inference. e.g., County. that, sex contends Ramseur be- Bedonie, United States v. 913 F.2d underrepresents cause it the African- — (10th Cir.1990), denied, cert. community American County, Essex -, 115 L.Ed.2d 1059 composition juror of the source list and (1991) (refusing to per infer that use of resulting qualified pool jurors violates emptory strike of pro Native American right his Fourteenth Equal Amendment to spective juror racially motivated). Protection of the laws and his Sixth right Amendment petit jury to Moreover, judge empan drawn from a of his cross-section communi- eled Ramseur’s explicitly re ty.12 We will first forth the set factual legitimacy buked racial discrimina basis for explore his claim then in grand jury tion proceedings. When a legal framework within which these facts juror expressed had preju that she was must be examined. against diced people, “certain certain races,” judge, excusing her, stated, 1979, grand petit juries Since Es- appreciate your “I honesty, we don’t want County sex have been chosen from a people you like on the Jury serve Grand consisting source list of the names found just I will be you.” honest with Department See on the Motor li- Vehicles App. at 2464. To the prospec extent that censed driver list and the registration voter jurors public tive and the might have list, inter- list. From this source which is ar- way engaging We are in no in a equal "harmless protection exclusion would constitute an analysis. error” Rather, supra merely discussion note 6. violation. We hold that the conduct in judge’s we have present examined impermissibly action of case was insufficient excusing racially prospective proceedings biased to "infect" the such that an process determining message protection what is con- violation occurred. veyed public by totality judge’s message conduct. We find that the sent to the women, 12.Ramseur also contends that low in- public disapproval, acceptance, is one of groups, young people, come students and New- discrimination, invidious racial underrepresented. ark residents were Howev- er, argument underrepresen- he rests his on the This does not mean that there are no circum- tation of blacks and thus we examine his claim stances under which short conduct of actual on that basis. only per- perts concluded that 21.2% there derived ranged by municipality, list of those consisting of all on the source and 21.8% of the names sons “master” list questionnaires qualified list were African-Ameri- qualifying on the people to whom managers decide the Jury may be sent. can. to be sent based questionnaires number of Equal Protection Clause of past jurors and anticipated need for on the requires Amendment the Fourteenth regarding rate of return experience of “racial discrimination eradication questionnaire mailing. expected from procedures select the venire from used to questionnaires appropriate number of jurors are drawn.” Bat which individual randomly people then selected are sent Kentucky, 476 U.S. son v. This method de- from the source list. 1712, 1717, The Sixth 90 L.Ed.2d jurors prospective signed to ensure requires drawn Amendment in each mu- from each street are selected represent cross- pools “fair from choosing more than one nicipality without community. “[Jjury section” of person any household. from one names, wheels, pools panels, or venires percent of the Twenty twenty-eight sys juries are drawn must completed are and re-

questionnaires sent groups distinctive tematically exclude questionnaires are then turned. Those fail community thereby to be rea Those eligibility. for screened sonably Duren v. representative thereof.” past seven jury served on within £ 363-64, 357, Missouri, 439 99 S.Ct. U.S. questionnaire years or received a who have 668, (1979) 664, (quoting L.Ed.2d 579 58 years eligible. past four are not within the 538, Louisiana, 522, U.S. Taylor response questionnaire to the indi- If the 692, 701, (1975)). 42 L.Ed.2d 690 hardship, potential juror cates extreme remaining The names are is excused. requirements party The a must placed list. “qualified” on the Once challenging jury when selection meet managers completed, jury qualified list racially discriminatory process being as are grand jurors a selection of make random equal protection and fair comparable under from it. Those who are chosen as analysis. prove To either cross-section petit grand jurors designated jurors. are identify claim, must first a a defendant panels resulting are divided into lists is, constitutionally cognizable group, that a the jurors summonses are sent to being singled group capable of out for dis ordering report jury panels, them to criminatory treatment. See Castaneda duty. 482, 494, 1272, Partida, 430 U.S. figures indicated that The 1980 census Duren, (1977); 1280, 51 L.Ed.2d County African-American adults Essex 364, at has at 99 S.Ct. 668. Ramseur U.S. percent comprised population 35.9 prong of clearly met the first both ages eighteen those between fair tests equal protection and cross-section seventy-four. experts in this case Defense unques are African-Americans surveys separate between conducted three tionably constitutionally cognizable a in order to determine the 1981 and 1982 84, See, Batson, 476 U.S. at group. e.g., of African-Americans on the percentage Mitchell, 1716; Rose v. 106 S.Ct. at surveys— jury telephone Two lists. 545, 551, 99 S.Ct. May other in one conducted L.Ed.2d 739 May geographic 1982. The third was Second, prove equal pro to survey, study in which the race inference violation, defendant must show tection juror is inferred from census infor- of each subject cognizable group to makeup of the regarding mation the racial underrepresentation” over a “substantial County in which the area of Essex Castaneda, 41; significant period of time. See Ramseur, n. 106 N.J. at 214 lives. See 494, 97 S.Ct. at 1280. The 430 U.S. at By averaging 233 n. 41. 524 A.2d at in a Amendment requirement Sixth telephone surveys and the second results of the applica- challenge may somewhat in geographic study, ex- differ inference defense disparity non-random that exists. See Al- must show that defendant tion: exander, 405 U.S. at 92 S.Ct. at 1225. cognizable group was representation to the relation not “fair and reasonable case, present In the we find the persons in the communi- number of such Jersey Supreme analysis of New Court’s at Duren, at ty.” challenges composition carefully per venire reasoned and his Ramseur, equal pro suasively explained. Finally, prove an It violation, 524 A.2d at 232-40. the defendant must show N.J. tection logical being both and consistent with the United procedure which is used that the Supreme requirements that “susceptible of abuse or States Court’s jurors is select the first, evaluated, Castaneda, challenges these de racially neutral.” is not termining whether there is a non-random 1280. To succeed 97 S.Ct. at Afri disparity percentage between the challenge, the defen Amendment Sixth County underrepre can-Americans who live Essex only that the dant need show percentage African-Americans exclu and the systematic result of sentation was a lists, second, County jury pro on Essex group sion of the imbalance, by addressing the Duren, there is an 439 U.S. at cess. See reasons for it.13 at 668. proceeding to determine necessary estab

The imbalance existed, disparity we Amend whether non-random equal protection or Sixth lish an disparity, evidence of absolute composition examine violation ment disparity, and deviation from bright comparative line by a venire is not determined results expected random selection.14 The never an Supreme Court “has test. reflected an absolute that of Ramseur’s studies mathematical standards” nounced qualified and disparity for the list challenges. The of apply would to all such 14.1% disparity for the has, however, may of recognized that it an absolute 14.6% disparity in the source list. Absolute infer that unconstitutional possible differ context is defined as the groups cognizable of exists when exclusion percentage of a certain pop ence between the disparity group’s between a there is a duty and eligible for population group figures representation in the ulation and its actually group percentage of that sufficiently large that it is ex jury venire re The results appear the venire.15 tremely unlikely disparity that the results disparity for Castaneda, comparative of 430 flected 39.3% random chance. See from for the source 17, qualified list and n. 40.1% at 496 & n. 97 S.Ct. 1281 & U.S. by 625, disparity is calculated 17; Louisiana, Comparative 405 U.S. list. Alexander v. by popu 1221, 9, dividing disparity 9, n. 31 the absolute n. 1225 & 630 & It group. (1972). figure population for a may an inference lation L.Ed.2d 536 Such that likelihood by exam measures the diminished or a direct be bolstered weakened group, underrepresented an any seemingly for members of ination of the reasons 202, Alabama, See, 380 U.S. analysis requires examining e.g., v. evidence 14. Swain 13.This 829-30, 824, 208-09, pigeonholed to the second 759 that could be prong either 13 L.Ed.2d S.Ct. 85 underrepresentation” analy- Alexander, "substantial (1965) (absolute disparity); 405 U.S. Castaneda, prong "susceptible the third sis of of abuse or is not 629-30, (mentioning com- 1224-25 92 S.Ct. at racially prong of neutral” Castaneda, disparity figures); 430 U.S. parative prong the extent that each can Castaneda. To (standard 17, n. 17 S.Ct. at 1281 at 496 n. 97 independent inquiry, an ex- be characterized as analysis). deviation satisfy evidence that could both amination of fully collapse inquiries. prongs need not those System- Jury Project, Jurywork: See National 15. Moreover, logical presence it is to view the 5.05[2][c][i], [ii], and Techniques, [iv] § atic establishing disparity an non-random “under- (absolute (1983) disparity is achieved sub- disparity’s severity, representation,” while appears tracting group percentage of causes, longevity, underlying and documenta- group popula- percentage of that from list tion). whether it was "substan- tion would establish tial." 1232 4, 5, 19 L.Ed.2d 25 25, 24, S.Ct. 88 U.S. as a 389 population to the compared

when Texas, 347 v. Hernandez (15.7%); Fi- (1967) service.16 whole, called bewill 671-72, 98 unchal- according to the defendant’s nally, Cox, Stephens v. standard devi- analysis, (14.0%); (1954) lenged statistical L.Ed. Cir.1971) (15.0%). that there analysis (4th revealed ation 659-60 F.2d devia- 28.9 “standard deviation observed dis- comparative aof evidence This deviation. expected tions” It is is also borderline. parity of 40% about probability explains analysis condemned than lower the 45.4% a bit Afri- percentages between disparity (5th Mandville, F.2d 1392 Preston of Essex population can-Americans comparative to the Cir.1970) close 42% and qual- County African-Americans in Swain v. permissible disparity found result is a list and source pool ified S.Ct. Alabama, 380 U.S. 28.9 stan- deviation A chance. random Thus, abso- both probability L.Ed.2d means dard deviations analyses disparity result comparative is the at issue disparity lute that the range 1 in margin less than at the chance present random results 482, 496 & Partida, the courts. Castaneda acceptable found 17, 51 n. 1281 & n. however, the importantly, Perhaps more (1977).17 L.Ed.2d 28.9 analysis revealed deviation standard absolute compare' the 14.1% If we deviations, departure from standard source County juror Essex in the disparity by ran occur value which expected cases, we find in other the results list with occa in 10140 than in less chance dom significance. of borderline to be the 14.1% virtually identical to figure is This sions. whether addressing question Courts condemned deviations 29 standard “sub disparity constitutes given absolute 17, 97 & n. Castaneda, at 496 held underrepresentation” stantial We, New like the & n. at 1281 between 2.0% disparities that absolute this stan Court, find Jersey Supreme under- substantial constitute do 11.5% un- analysis reveals dard deviation However, courts some representation.18 Essex of blacks derrepresentation between 10% disparities of have found ran result not the County jury pools un “substantial establish sufficient 16% Georgia, dom selection. v. Jones See derrepresentation.” than randomly 5 is less shelved pens would & John Kairys, Joseph B. Kadane See David 17, Castaneda, n. 496 U.S. at 430 percent. See Man- A Jury Representativeness: Lehoczky, P. 776, n. 17. at 1281 Lists, S.Ct. 97 65 Cal.L.Rev. Multiple Source date for 790-91 21, Hafen, 726 F.2d 23 v. States United 18. See 962, denied, 104 S.Ct. Cir.), 466 U.S. (1st cert. proceed analysis would deviation A17. standard (1984) (2.02%); Bryant v. 2179, 561 80 L.Ed.2d be similar Creating jury list would as follows: Cir.1982), (11th 1373, 1377-78 Wainwright, F.2d 686 pens stocking 100 a shelf with hypothetically to 2096, 932, denied, 103 U.S. S.Ct. 461 rt. pens, 1000 batch randomly from a ce selected (7.4%); v. (1983) States United 305 77 L.Ed.2d which are red. 300 of are blue 700 of which Cir.1981), 436, (5th cert. Hawkins, 442 661 F.2d pens be 700 of blue would expected number 2274, 991, L.Ed.2d 73 denied, U.S. 456 of red expected number pens 70 .1 or X Clifford, v. (5.45%); States (1982) United However, 1287 pens. 30 .1 or pens be 300 X Cir.1981) (7.2%); 150, United (8th 155 F.2d 640 selec- probability that random is a certain there Blackburn, F.2d 639 v. rel. Barksdale ex States The stan- result. yield a different tion would denied, Cir.1981), 454 1115, (5th cert. 1126-27 likely how measures calculation dard deviation (1981) 603, 1056, 70 L.Ed.2d 593 S.Ct. 102 by U.S. chance. occurred result that a deviant it is 901, Potter, F.2d 552 v. States (11.5%); United is example, deviation the standard In the above Shep- Cir.1977) (2.7%); Thompson v. (9th 906 product of number square root of Cir.1974), 830, (5th rt. 832-33 F.2d pard, 490 ce (100) probability of times pens shelved 1415, 984, L.Ed.2d denied, S.Ct. 43 95 U.S. 420 (0.3) probability of pen times drawing a red Musto, 540 (11.0%); (1975) United States Here, 666 (0.7). that number pen drawing a blue nom., 346, (D.N.J.1982), sub F.Supp. in a results aff'd deviation standard pens. Each 4.6 Cir.1983), (3d Aimone, F.2d 822 States United the result probability substantially reduced 3585, denied, rt. example, by In our chance. ce random occurred (5.4%). (1984) L.Ed.2d 80 blue pens and red that 20 probability However, period presence peri of non-ran nificant of time” have covered underrepresentation not neces dom does substantially longer years ods than the two sarily purposeful discrimination mean that by study. covered Hobby v. Unit occurred; rather, any implication has States, 339, 341, 104 ed S.Ct. discrimination that exists must be evaluat (1984)(7 years); 82 L.Ed.2d 260 Cas light ed in of the circumstances surround taneda, 430 U.S. at Particularly signifi ing present case. (11 years); Hernandez, 347 U.S. at analysis period cant to our are the time (25 Therefore, at 671 years). while un covered Mr. Ramseur’s evidence of figures presented indicate Ramseur derrepresentation and the nature of the that the underrepresentation was not ran procedures by source lists and dom, we find figures that the are insuffi compiled. are cient to requirement meet Castaneda’s upon The evidence which is relied underrepresentation sig occur over a underrepresentation to document the of a period nificant comprise time to minority group jury care on lists must be protection violation. fully Castaneda, 430 scrutinized. See (requiring 97 S.Ct. at 1280 evidence Moreover, an examination of the underrepresentation demonstrates source lists reveals that the mechanism time”). significant period “over a As used to create the facially source lists was one court has stated: respect neutral with to race. Essex Coun points A disparity percentage of fifteen ty, Jersey registration New voter utilized greater is much in a case where the class and-Department of Motor Vehicle lists to group represents only twenty percent jury create its venire. These lists are con general population, than where the using facially neutral criteria and stituted group represents seventy per- class or opportunity subjective allow no for or ra population. Similarly, cent a dis- cially judgments. motivated See Alexan parity points percentage of fifteen der, (find 405 U.S. at 92 S.Ct. at 1225 much significant more it has contin- if ing discrimination when commission years, ued ten than it has oc- for easy opportunity ers had “a clear and curred in one only year. isolated discrimination”); Yeager, racial 465 F.2d at magnitude disparity may also de- (striking system permitted down pend on whether the statistics are based decision[s]”).19 subjective “tainted one thirty people, venire of or on repre- dozens of venires presence When we combine the senting people. thousands of facially multiple, neutral selection lists with added). Bryant, (emphasis 686 F.2d at 1377 indicating presence of studies non-ran present case, In the the defense underrepresentation dom of blacks that telephone surveys covering two conducted duration, only years find that cover two we year period a two and contacted a total of underrepresentation” the “substantial re persons on the source list. In quirement of is unfulfilled. Castaneda addition, geographically study inferred implication Any provided of discrimination 7,149 persons May covered the on the by is Mr. Ramseur’s data undercut both qualified list. We believe that the brief the data and limited usefulness of itself sample duration and limited size of the County jury sys the context of the Essex surveys undermine an inference that sub Therefore, we Mr. tem. conclude that underrepresentation stantial of blacks took support Ramseur’s data is insufficient to place significant period over a of time. presumption discrimination of neces Those studies which have been found to satisfy requirement “sig- sary equal protection of a Castaneda's under a Castaneda 19. Furthermore, presence multiple any of one source list would be translated to the jury jury generally, Kairys, sources for lists reduces the chance that final al., David et lists. See underrepresentation cognizable group aof 65 Cal.L.Rev. at 803-27. only special segments popu- of prima up of create a facia order to

claim groups large, are case.20 lace or distinctive pool. Community par- from the excluded regard to Ramseur’s Sixth With ticipation in of the the administration lists, challenge to the source Amendment law, moreover, only is not con- criminal the studies conducted conclude that we heritage but sistent with our democratic here, do reflect substantial un- not public in the is critical to confidence also derrepresentation significant period a over justice system. of the criminal fairness time, satisfy fair do not Duren’s of also Restricting only special jury service to analysis. Duren’s second cross-section excluding groups seg- or identifiable cognizable group’s repre a prong requires major playing ments roles the commu- and in rela to be “fair reasonable sentation nity squared cannot be with the constitu- persons such tion to the number of concept jury of “Trial tional trial. Duren, community.” jury presupposes jury a drawn from a making our at 668. Sixth Amend broadly representative of pool the com- are analysis, we use standards that ment impartial specific munity as well as a than those under somewhat different representative require broad underrepresentation” case.... “substantial [T]he analysis. jury A main- equal protection character of the should be ment tained, focus significant partly reason for is as assurance of a diffused protections, Amendment more impartiality partly sharing of Sixth protections, Amendment is than Fourteenth justice phase a in the administration is concept jury system a upon the as responsibility.” of civic upon rights. As Jus rather than individual at 697-98 Taylor White stated in v. Louisiana: tice Co., (quoting Thiel v. Southern Pacific guard against is purpose 217, 227, 984, 989, 90 L.Ed. arbitrary power—to the exercise make (1946) J., (Frankfurter, dissenting); judgment of available the commonsense omitted).21 other citations community against hedge as a Therefore, a Sixth Amendment prosecutor or overzealous mistaken group’s analysis will examine whether professional preference per- to the or jury lists is “unfair” representation on response haps overconditioned biased functioning proper judge.... prophylactic This such that vehicle system is provided jury pool not if the made threatened. We believe is time, however, significant period 20. It possible, Rams- over a the contin- that were Mr. comprehensive presumption by jury data more ued officials on the eur’s exclusive reliance Jersey of discrimination would exist. The New constitu- voter and DMV lists could become Supreme explained: tionally suspect. Ramseur, at 239. 106 N.J. at 524 A.2d assume, although may did not We defendant attempt prove, major that a for the reason Amar, Rights 21. See also Akhil R. Bill as apparent underrepresentation of blacks in Es- Constitution, Yale L.J. 1182-1199 County jury pools is sex the likelihood explains Amar Professor proportionally more blacks than do whites historically as an serves conceived register to driver's vote do not have important localities from institution to insulate this, may Knowing jury officials licenses. legislators power. could "Just state federal by idly sit in the belief that no constitutional oppres- against protect sion, central their constituents complaint may lodged against a random obviously ‘interpose’ jurors could so too upon facially mechanism that relies through against tyranny central the themselves voter and DMV lists. That belief "neutral” nonindictments, presentments, and devices of mistaken, for would be such inaction militia, jury general As with the the verdicts. system's knowledge underrepre- face of of composed of Citizens from the same would be under- sentativeness would indicate representation community expected to and its actions were systematic partly a has and by community cause, values.” Id. informed subjective signifi- over has continued a jury time, implication The of this vision of and the period being cant of and counter- Thus, primary impor- though Amendment is that the by Sixth acted efforts at reform. even protections arguably tance Sixth Amendment is struc- shown here are within numbers limits, acceptable were to tural nature. continue in of,the process improve dures will continue to seek to factors such as nature jury composed, the by yield jurors which lists are from the source lists. length underrepresentation, and of time of Ramseur, 106 N.J. at 524 A.2d at 239. purports strength the evidence that rep- Such efforts at reform to increase the an “unfair and unreasonable” to establish jury resentativeness lists have rel- some should be examined under representation question evance to the of whether a Seabold, See, e.g., Ford v. Duren. group’s representation on those lists is (6th Cir.1988), denied, F.2d cert. system If ap- “fair and reasonable.” a 928, 109 315, 102L.Ed.2d 334 pears likely representa- to create ex ante (1988) (examining length of time of under- jury pre- tive lists there should be some process by representation and nature of sumption legitimacy, even though of its composed); jury lists are Timmel v. which post may evidence ex demonstrate (5th Cir.1986) Phillips, 799 F.2d representative enough. lists are not We LaChance, (same); States v. United post presented find the evidence ex in this (2d Cir.1986) (examining F.2d 866-69 case insufficient to establish that Essex underrepresentation and length of time of County’s jury system was unfair strength purports of evidence estab enough unreasonable constitute a representa lish an unfair and unreasonable Sixth Amendment violation. tion). hold, therefore, We that Ramseur has case, present In the the evidence prima showing not made a facie that the convincingly demonstrate that the does use of these source lists denied him representation of African-Americans on rights Equal his under Protection jury pools was unfair or unreasonable. Amendment, Clause of the Fourteenth nor by length The of time documented Rams right a denial his has he established years. More only eur’s studies was two by trial a fair cross-section of the communi- over, process facially neu the selection guaranteed by ty the Sixth Amendment. tral and included names both vot registration er and DMV lists. Additional IV.

ly, Jersey Supreme found it New significant employed lists that these Next, that the manner Ramseur contends part on-going Jersey in of an effort New grand jury forepersons in are select- which representativeness to increase the of the judges by County assignment vio- ed Essex State’s lists: Equal of the lates the Protection Clause look to the State’s efforts at re- [W]e as well as the Fourteenth Amendment dealing form. are not here with a We guarantee of a trial Sixth Amendment’s system long- there has which been drawn from a cross-section standing attempts abuse with no at re- first to the methods community. We look Jersey form. has conscious of New been forepersons employed the selection obligation greater its to achieve neutrali- County. Essex ty representativeness in its se- is chosen Essex Once system. the DMV lection The addition of their County, assignment judges use very lists in a time few 1979—at when foreperson and choosing discretion federal, jurisdictions, required state or all deputy foreperson. judges review multiple in addition to the use of lists excuses questionnaires proffered obviously voter intended to lists—was and once the prior empaneling jury, representativeness broaden the judges confer with empaneled, the jury addition, pool. Task Force grand jury manager to determine study chaired Justice Clifford to forepersons make the best jury system current made numerous has deputies. may in- recommendations that serve to judges, who testified assignment representativeness juries.

crease the Jersey proceed- court New state currently that Ramseur’s We are certain those employed in Es- procedures working improvements jury proce- ings about the on speedy trial guarantee of tional jury fore- select County to sex jury mem that jury” demands “impartial a factor was that race persons, related of a fair cross-section from bers be drawn deputy fore- or foreperson choice of their Louisiana, community. Taylor v. the stated, their “When judge One person. 42 L.Ed.2d I as to serve called were names be it should outset (1975). At the them, determine would I observe substan differs guarantee noted that because, white or they black were whether flow from protections that the tially from ques- appear the not obviously, does that See United Clause. Protection Equal the appear not on does and it tionnaire 346, 362 Musto, F.Supp. States knowing wheth- way no Iso had list and nom., United sub (D.N.J.1982), Cauca- were aff'd people all these not er or (3d Aimone, Cir. 715 F.2d States or what or Chinese black sian or analysis, 1982). protection equal In ex- judge Another App. at were.” discrimination purposeful on focus is plained: cross- individuals, in a fair whereas against upon may choice be based My ultimate dis- is not on focus challenge “the section even get a cross-section desire to my instead is but criminatory conduct deputy foreperson or of the impar- is system jury selection whether I be- although as indicated foreperson; com- of the a microcosm yield and will tial requirement. is a fore, think I do not that represent fairly can munity which certain be a there should I that think society.” within persons of all views should I think there and of men number 522, 95 S.Ct. 419 U.S. at (citing Taylor, Id. I and of women number certain be a analy- protection equal 692). Unlike number a certain should there think or Amendment the Fourteenth under sis and Hispanics and whites and of blacks analysis un- analogous equal protection groups executive and laboring groups are based which Amendment der the Fifth should groups who housewife individu- directly protecting upon primarily even Jury body but on the Grand only be abuse, “fair cross- government als deputy fore- foreperson or sharing as Amend- the Sixth analysis under section” person. above, is III in Section ment, note we as App. at 3880. re- “jury provide primarily grounded grand jury allegation support his To people from for the a buffer view” as viola- manner in a chosen forepersons empha- power. government abuses Constitution, Ramseur contacted tive of proper its function- system is on the sis sixty-six persons thirty-three of citizen.23 individual on the ing rather than between forepersons as served emphases of the differing of these Because September 1979 Term of the the start Amendments, deci- Fourteenth Sixth was in which Ramseur month holding that fore- courts of other sions survey determined indicted. Ramseur’s constitutionally significant occupy persons 6.1%, thirty-three two, of the only do purposes equal protection positions for Afri- contacted were forepersons former that, a matter the conclusion compel vot- can-American, although 35.9% foreperson constitu- law, the role was African-American.22 population ing aof Sixth in the context significant tionally Musto, 540 challenge. See Amendment Turning first 360-61.24 F.Supp. at challenge, the constitu- Amendment Sixth deciding discrimination without only sume[d] survey 25.8% revealed that also 22. The only female, the fore- compared regard selection of to the to the with thirty-three were setting fe- voting population require aside defen- man" would 53.2% used the courts have Some male. dant’s conviction. grounds for Rose as Supreme dicta in Court's Amar, and dis- at 1182-89 100 Yale L.J. 23. See foreperson holding the role of supra note 15. cussion for Sixth Amend- constitutionally significant However, involved purposes. Rose ment Mitchell, n. U.S. at 551-52 Rose v. violation, not a Sixth protection claimed Supreme "as- at 2998 n. Instead, alleges foreperson unlikely a defendant to affect when a tainted improperly representative values are an otherwise ar- that fair cross-section particular underrepresentation of a ray grand jurors. Similarly, Id. we grand jury fore in the office of group County must determine whether Essex that the must show person, the defendant grand jury forepersons signif- “have such a foreperson carries with it some office impact justice system on the criminal icant process of to affect the deliberative power discrimination their represents a otherwise array amounts to a constitutional violation.” community. As one of the cross-section Aimone, F.2d United States aptly observed: district court has (3d Cir.1983). excluded group as a whole is When Supreme Jersey Court of The New underrepresented on significantly grand jury the atti- that the duties of jury, the defendant is denied concluded outlook, tudes, accumu- experiences, foreperson County in Essex were “not con rele- group. Ramseur, of that stitutionally significant.” lated wisdom question to the of- vance of the similar N.J. at 524 A.2d at 244. Because however, foreperson, is not so fice of County forepersons in Essex have no more Assuming a fair cross-section clear. significant powers than federal whole, enjoys júry as a defendant forepersons, whom we determined in Ai community's general the richness of the constitutionally signifi play mone do not groups certain are make-up, even where process, in the indictment cant role we forepersons. underrepresented agree the district court’s conclusion with fair cross-section to the benefit of the County foreperson that the role of Essex “im- destroyed only if the defendant is significant constitutionally a fair pact grand jury foreperson is so challenge of nature. cross-section to influence or alter the substantial as Therefore, hold that even if African- we unique qualities and characteristics of underrepre and women were Americans jury’s individual members.” position foreperson in Es sented in the Cabrera-Sarmiento, 533 United States underrepresentation County, such did sex (S.D.Fla.1982) (citations F.Supp. Amendment because not violate the Sixth omitted). signifi underrepresentation their had no representa impact cant on the otherwise will The successful defendant array panel. tive repre foreperson that the alters the show sentative character when equal regard to Ramseur's With foreperson “overpowering exerts an influ unlike a Sixth Amend protection challenge, ence” over the other such that their equal protection chal challenge, an ment substantially during views are diminished grand jury fore lenge to the selection Musto, process. the deliberative See require that the fore persons does not F.Supp. grand jury at 362. If the fore than ministerial or persons’ more role be person plays significant no more role than influence. Be with substantial invested “jury arrays any other are Amendment focuses cause the Fourteenth community,” representative of the Sixth protection for individ upon direct primarily Amendment values are not disturbed even uals, discrimination in the any invidious underrepresentation there is the fore process gives rise to an jury selection Musto, person position. in Id. case challenge to that discrimination. protection foreperson volving the role of the in a — McCollum, -,U.S. Georgia v. grand jury, federal the court determined -, 120 L.Ed.2d that no Sixth Amendment violation existed (1992)(noting that “the harm from discrim- the role of the federal beyond that foreperson purely inatory jury selection extends ministerial and such noted, protections are different. Amendment violation. As we have underlying concerns each of these constitutional 1238 authority which foreperson’s the tent of and the excluded defendant the on inflicted Hobby. principle concern the was Court’s community” and the entire to touch 1067, Puckett, F.2d 929 Johnson analysis serves protection equal that — denied, Cir.1991), (5th cert. 1071 dignity of to the done “remedy the harm (1991). 274, courts”) -, 116 L.Ed.2d 112 S.Ct. integrity of the to the persons and Therefore, Rose, governs the Hobby, not omitted). (quotations equal protection Ramseur’s of outcome Jersey contended The State of New claim. 339, 104 States, 468 U.S. Hobby v. United (1984), governs 3093, 82 L.Ed.2d cautioned in Rose Court equal protection of Ramseur’s the outcome holdings that these “[notwithstanding on find the state’s reliance challenge. We in the selection discrimination claims of Supreme Hobby, In the misplaced. Hobby cognizable jury are grand the members that, if discrimination even held support corpus, and will federal habeas grand of federal in the selection a factor setting aside a state a writ issuance did discrimination such

jury forepersons, indictment the ordering conviction Pro- of the Due a violation not constitute true that to be entitled it remains quashed, justi- Amendment the Fifth Clause required cess relief the to habeas is] [defendant petitioner’s conviction fying reversal of the the standards under prove discrimination In indictment. of the the dismissal Id. 443 U.S. in this Court’s set out cases.” conclusion, the Court examined reaching its Therefore, at 3004-05. at federal foreperson in a the role of require if the now we must determine insignificant it to jury and found grand Castaneda, set forth Section ments of in the selection “discrimination met with opinion, have been III of this of a among the members person from one forepersons in respect to the selection grand jury can constituted properly that.Ramseur County. We conclude Essex upon little, any, appreciable effect if indeed prima facie case un not established has funda- process right to defendant’s due der Castaneda. 345, 468 U.S. fairness.” mental survey of conclude that Ramseur’s We S.Ct. at sixty-six forepersons who of the only half year period did 545, three over a Mitchell, served 443 U.S. In Rose v. procedure conclusively establish that n. n. underrepresenta- in substantial (1979), “resulted a case in which L.Ed.2d race or of the identifi- tion of rights alleged that his under petitioner [defendant’s] belongs ... over a violated, he group to which able had been Equal Protection Clause Castaneda, period of time.” deciding significant without Court assumed As noted 97 S.Ct. at 430 U.S. the selection discrimination study of of Ramseur’s in our discussion equal protec foreperson would violate venire, see su- County’s Essex conviction be set require that a tion study only covers year analysis Hobby pra, re three The Court’s aside. comport does not group at issue half of the role of garding “constitutional” have found vio- in which courts with a Fifth cases in the Amend foreperson context set forth Cas- lations of the standards challenge limit process did not due ment Moreover, only sampling of half taneda. analysis with previous Rose the Court’s served forepersons who could principles equal protection respect to First, possible it is results. According to skew the process. jury selection represent the entire do injury those contacted Rose, where claim purportedly covered year period values, three injury occurs wheth protection that, Second, it is even study. possible discriminatory affects the exclusion er period, sample span did the entire if such a grand jurors to of individual spo- merely a series of might represent foreperson it panel or the selection underrepresentation rather periods of panel. radic among grand jurors on the significant “over a than one that continued regardless of ex- injuries exist These Mulligan, 544 F.2d study Perry is thus rel. period of time.” (3d Cir.1976), denied, a constitutional vio- cert. insufficient to establish Therefore, we lation under 52 L.Ed.2d 365 Castaneda. not made a success-

hold that Ramseur has respect evaluating prosecu equal protection challenge with whether ful grand jury forepersons to the selection of tor’s misconduct rose to the level of consti County. violation, in Essex tutional we must examine that

conduct in the context of the trial as a V.’ Greer, 766, whole. 483 at See U.S. 107 (determining S.Ct. at 3109 whether “re Finally, we address conten- marks, trial, in the context of the entire by prosecutor de- tion misconduct sufficiently prejudicial were to violate re right nied him his to fair trial violation spondent’s process rights”) (quoting due The conduct al- of the Sixth Amendment. 639, Donnelly, 416 U.S. at 94 S.Ct. at (1) pros- leged improper includes: to be 1869); Adams, see also United States v. ecutor’s reference to matters outside of the 1099, (3d Cir.), denied, 759 F.2d 1111 cert. evidence; (2) testimony re- prosecutor’s 971, 336, 474 106 U.S. S.Ct. 88 L.Ed.2d 321 personal as to the ve- garding opinion his (1985)(examining the “context of the entire guilt; racity testimony and Ramseur’s trial”). conclude, We as did the New Jer (3) prosecutor’s ridicule of defense ex- Court, sey Supreme although there im- perts allegedly resulted their prosecution’s were instances in which the (4) prosecutor’s misstate- peachment; might inappropriate, conduct deemed evidence; improper use of ments about and any error resulted which was harmless (5) prosecutor’s mischaracterization light day entire trial. fourteen of the defense. Ramseur, N.J. at 524 A.2d at 106 At outset make the we obser Moreover, improper whenever the 288-90. every vation that “not trial error or infirmi defense, objected conduct was might ty application which call for of su objections trial court sustained the valid ' pervisory powers correspondingly consti proper limiting gave instruc tutes a ‘failure to that fundamen observe Adams, (“pros tions. 759 F.2d at 1111 Cf. tal essential to the administration fairness all, remarks, improper ecutor’s at ” justice.’ Donnelly DeChristoforo, v. or could have blunted either trivial been 637, 642, 1868, 1871, 94 40 416 U.S. S.Ct. appellants a curative instruction that did (1974)(quoting L.Ed.2d 431 v. Lisenba Cal Therefore, request”). we will affirm 219, 236, 280, ifornia, 314 U.S. that the the district court’s determination 289, Instead, (1941)). 86 L.Ed. 166 our egregious prosecutor’s conduct was not so prosecutor’s review of a conduct a state to a denial of Ramseur’s as amount application trial on for a writ of habeas rights. constitutional determining corpus is limited to whether prosecution’s conduct “so infect[ed] make the result trial with unfairness as to VI. ing process.” conviction a denial of due reasons, 756, foregoing we will affirm Miller, 765, 107 For the 483 U.S. S.Ct. Greer 3102, 3108, (1987) denial of Thomas Rams- (quoting the district court’s 97 L.Ed.2d 618 643, petition corpus. a writ of Donnelly, 416 94 eur’s habeas U.S. S.Ct. 1871); Lehman, F.2d Lesko v. 925 — (3d Cir.1991), denied, 1546 cert. GREENBERG, Judge, Circuit -, 116 L.Ed.2d 226 concurring. one, While the line is sometimes a fine “[i]t Judge opinion I for the join Roth’s distinguish ordinary is essential to between reached ex- judgment court and the but egregious trial error and that sort of mis opinion press regarding conduct which amounts to a denial of con one reservation may significant implications for process.” stitutional due States ex which have United 391, 431, 83 S.Ct. briefed parties eases.1 future Sedivy (1963).2 See also assumption that L.Ed.2d case on argued the (3d Cir. F.2d Richardson, violation constitutional was a if there inqui indicted corpus (“federal 1973), habeas [is] of the excusing is not by reason simpliciter,’ either [and] Ramseur ry into ‘detention or on it from service persons particular military court of a review state a direct of selection method overall denied, cert. judgment”), County at the time in Essex juries (1975). There L.Ed.2d ato indictment, be entitled he will of his in a habe- conviction fore, a “reversal” agrees opinion Judge Roth’s new trial. judgment not disturb case does n. at 13 Typescript assumption. with this accordingly it differs conviction appeal. aon direct reversal conventional might not Nevertheless, assumption this relief will Thus, granting habeas a court constitu no federal is There be correct. petitioner done the must be specify what try criminal states that requirement tional Obviously if custody. in is to be retained de murder, only the after cases, even for the court tainted because is an indictment v. Cali Hurtado indicted. See is fendant a basis on a racial jurors grand excluded 111, 516, 28 L.Ed. 4 S.Ct. fornia, for, as required be will indictment new Wojtycha ex rel. (1884); States United cannot “a conviction Vasquez, in Cir.1975). indicated (3d 420, 425 F.2d Hopkins, 517 v. attributable the taint to cure re are be understood Jersey, indictments Thus, in New on the basis body waived, charging cases selected in criminal to a quired, unless course, the that know simply Of cannot law. we state race only as a matter [for] sys in indictment assessed Jersey the been uses have New since to indict need potential properly a tem, may not exclude grand way by it a the same on the basis grand jury 264, on at 624. service from 106 S.Ct. at Id. constituted.” a tried in petitioner Accordingly, a of race. necessarily that follow does not itBut re an on indictment Jersey court New an cure cannot a conviction simply because jurors which grand a turned indictment, indict- valid a defective earlier basis on a racial been excluded of which offense precise for the ment relief, corpus habeas to federal entitled cure an cannot convicted was petitioner re prerequisites the other provided only because conviction defective earlier Hillery, v. Vasquez are satisfied. lief In flawed. was indictment original 617, L.Ed.2d 598 106 S.Ct. 474 U.S. that if an hold logical to fact, seem it would (1986). reversed must be conviction valid otherwise that the indicated Vasquez Court it on which the indictment solely because proceed- corpus in a habeas granted relief constitutionally defec- was predicated was “reversal is a petitioner ing to a successful for is returned indictment tive, a new when at 106 S.Ct. Id. the conviction.” petitioner was which for the offense pro- Nevertheless, habeas a federal 619. which convicted, of conviction judgment from the separate a civil action ceeding is limited sense only in the reversed was petitioner a so that when case criminal holding the for the basis be it could “cannot revise successful, court federal recog- custody may then be petitioner in only on act it judgment; can court the state purpose. for that nized as valid Noia, v. Fay petitioner.” body of the (1991). But in facts, 115 L.Ed.2d on has failed case 1. While Fay Noia on Court reaffirmed grand selec- system Coleman used for view of in tion in Essex the Court indicat- it is it as County point was indicted which I cite when he petitioner be state will able a court reviews possible that some other when federal ed that showing case in his or her not review petition make a it “does prisoner’s habeas a racial basis. excused jurors petitioner’s on judgment, the lawfulness but -, Id. at custody simpliciter.” grounds in Fay overruled other v. Noia was 2. — U.S. -, -, Thompson, Coleman did not address after a trial Vasquez indicts a defen- nor did it do so in Rose v. possibility dant then a court will know how it assessed Mitchell, 545, 99 S.Ct. the need to indict. (1979), on which it relied L.Ed.2d course, recognize I Of that a state court Vasquez, though the Court did indicate might obliged feel as a matter of state law that remedies other than reversal to cure to set aside a conviction returned on the discrimination the selection of basis of indictment held invalid under Vasquez, “are ineffectual.” federal law. But that would not a fed 5, 106 at 623 n. U.S. at 262 n. eral court’s concern. See Geschwendt v. there can Accordingly, while be no doubt (3d Cir.) (in banc), Ryan, 967 F.2d Vasquez judg affirmed that the Court — denied, U.S. -, cert. appeals providing ment of the court 121 L.Ed.2d 379 unless petitioner be released analysis sup- I suggesting am finds retried, did not the Court consider whether port in proceed- our case law in the return of a new indictment itself ings 2255, following under 28 U.S.C. § fed- holding petitioner in justify could convictions, eral we limit remedies for con- Therefore, custody. not consid we should problem stitutional violations to the at hand possibility er that foreclosed as an inferior Thus, go no further. recently but we held quick federal court should not be to hold (3d in v. Day, United States 969 F.2d 39 Supreme rejected an Court has Cir.1992), petitioner that a who turned argument it never considered. See Bias advantageous plea down an offer before Rales, (3d F.2d band v. 1042-43 might trial and later was convicted be enti- Cir.1992). accept the offer if tled even after trial he My suggestion that the return of a valid rejected the offer because constitutional- might following jus- indictment a conviction ly deficient advice from an ineffective at- tify recognition judgment of the state torney. Day quoted from we United does not introduce a harmless er- as valid Morrison, 361, 364, States analysis dealing ror into eases with racial 665, 668, (1981), 66 L.Ed.2d 564 that a in discrimination selection. remedy for a Sixth Amendment violation Quite contrary to the it treats the discrimi- injury “should be tailored to the suffered prejudicial and nation as addresses the unnecessarily infringe not on should Furthermore, remedy my sugges- for it. in competing interests.” Earlier United requirement in tion is consistent with the DeFalco, (3d F.2d 132 Cir. States Vasquez that convictions based on constitu- 1979) (in banc), we held that absent his tionally invalid indictments must be re- to effective assistance of counsel on waiver only dealing pro- versed for I am with appeal, petitioner a whose conviction direct which follow a cedures reversal. already affirmed would be enti had been My suggested analysis dependent upon appeal to an from his convic tled de novo the law that there is no federal constitu- attorney appeal his direct tion if his on in right tional to indictment state criminal in pleaded guilty charges to criminal right in the of such a it cases for absence petitioner’s appeal district court before the may plausibly be contended that there can- was decided. right not a federal to a valid indictment be Day and DeFalco are instructive Arguably the conviction. the feder- before they respectively alleged constitu- involved right al constitutional to a valid indictment and after the trial tional violations before fully by

would be vindicated an indictment suggest in that the neither case did we post-trial returned after the trial a Rather, trial. in remedy should be a new satisfy indictment would the Court’s con- Morrison, we tailored the the words of Vasquez simply in that “we cern cannot If remedy injury “to the suffered.” we did know that the need to indict would have in were not way by grand that in federal cases which we been assessed the same a comity federal-state inter- jury properly Vasquez, constituted.” 474 concerned with ests, reasonably argued that we Obviously, U.S. at 106 S.Ct. at 624. if it can be jury that grand grounds from racial in federal a reluctant as at least be should perfectly Ramseur, and it seems con- indicted following a state corpus case habeas equal protection own forever Ramseur’s remedy which clear that a grant viction in the hold a violated been a basis to not have rights as could a conviction invalidates I would there- the constitution- effect. custody when such an absence petitioner express from isolated can be and would arguably further go no al flaw fore significant particularly question may hypothetical Day trial. on the any view petitioner if protection regard because equal own Ramseur’s whether his contentions correct had such that case been violated have rights would tried. never been have should then he been shown. exclusion separate- I write aforesaid of the In view it as well regard seems The court not be it should my view ly to state equal pro- a defendant’s own settled in this opinion court’s from the assumed whenever race are rights violated tection challeng- successfully petitioner case that jury selec- grand in the account taken into jury on of the composition ing the ef- purpose and if the process tion —even from excluded were ground that consti- jury that empanel is to fect necessarily is entitled racial basis it on a community. a cross-section tutes open as question regard the I trial. a new correct, less I am may be court While the here. to be decided it does sure. concurring. Judge, ALITO, has Supreme Circuit recognize I century that defen- more than held for opinion II of the in all but Part I concur on overturned must be dant’s conviction the conclusion agree with court.1 I grounds members protection habeas a writ II—that part reached group or ethnic race defendant’s on issued based not be corpus should the grand serving by law barred of discrimination claim 100 U.S. Virginia, v. West jury, I arrive Strauder process jury selection grand —but if discriminato- (1880),or 303, 25 L.Ed. 664 somewhat different by a conclusion at that of the defen- members caused reasoning. ry practices of process group to be substan- ethnic race dant’s it is neces- First, that not think I do grand jury.2 on underrepresented tially Rams- whether question sary to reach the have been based appear to These decisions rights protection equal own eur’s by such discrim- harm caused part on composition if the violated have been oppor- were denied those who ination to assign- by the affected jury had been grand to the juries or grand on tunity serve to taking policy of announced judge’s ment that extent To the community large.3 empan- purpose of account race into unequal treatment on relied these decisions makeup same jury with the eling grand themselves, the Court of the defendants fully county. I of population as the the defen- to have reasoned appears does the record the court with agree because, as a unequally treated dants on was excluded any person show not Texas, U.S. (1947); 347 v. Hernandez L.Ed. 76 logic Judge Green- agree I with also (1954); 667, v. 475, Reece L.Ed. 866 98 74 S.Ct. concurring opinion. berg’s 167, 85, 77 L.Ed. 100 76 S.Ct. Georgia, U.S. 350 584, Louisiana, 78 (1955); 356 U.S. v. Eubanks 370, Delaware, 567 26 L.Ed. 103 U.S. v. 2. Neal (1958); 970, v. North Arnold L.Ed.2d 991 2 S.Ct. 110, Kentucky, 1 S.Ct. 107 U.S. (1881); Bush v. 1032, 773, Carolina, 12 L.Ed.2d 84 S.Ct. U.S. 376 Texas, (1883); 177 625, v. Carter 354 27 L.Ed. 625, Louisiana, U.S. 405 (1964); v. 77 Alexander (1900); 687, 442, L.Ed. 839 44 S.Ct. 20 U.S. Partida, U.S. 1221; 430 v. Castaneda S.Ct. 92 482, 257, 226, Alabama, 48 24 S.Ct. U.S. Rogers 192 v. (1977); 1272, Vas L.Ed.2d 498 51 97 S.Ct. Louisiana, (1904); 306 U.S. Pierre v. L.Ed. 417 617, 254, 88 106 S.Ct. Hillery, U.S. quez v. 474 536, (1939); v. 354, Smith L.Ed. 757 83 S.Ct. 59 L.Ed.2d 598 164, 128, L.Ed. 84 Texas, 85 61 S.Ct. U.S. 311 Texas, (1941); U.S. Hill v. 555-56, Mitchell, 3. See, Texas, e.g., v. Rose (1942); Akins L.Ed. 1559 86 398, (1979); L.Ed.2d 739 (1945); Patton L.Ed. 1692 Strauder, U.S. at 308. Mississippi, grand jury potential particular result of discrimination defendants of a race or present- process, background their cases were vary depending ethnic to grand juries likely that were less particular grand ed to jury to which their them of other be fair to than to members presented. cases are It is therefore diffi- groups likely races or ethnic and less to be cult to understand how it thought can be juries fair to them than would selected on a equal protection rights that the potential nondiscriminatory basis.4 defendants are violated when their cases presented grand juries are to crossrsection reasoning apply when This same does presented but not when their cases are grand jury is selected so that its racial randomly grand juries. selected composition that of the ethnic mirrors convenience, (For I community as a whole. sure, To be when the race and ethnic grand jury such a a “cross-section will call background potential grand jurors are Indeed, easy grand jury.”) it is not selecting grand taken into account in po- comprehend how it can be said that a jury, potential grand jurors these are treat- deprived tential defendant is differently, appropriate ed and thus it is protection his or her case laws when inquire equal protection whether their presented grand jury. to a cross-section rights by procedure. are violated such a composi- grand jury Such a has the same logically But the same cannot be said about tion as the median selected equal protection rights potential de- purely procedure. random selection Since reasons, fendants. For these if I were grand juries these have the same two slate, writing on a clean I would be inclined makeup, there is no reason to believe equal protection rights to hold that the any one will be fairer or less fair than the defendants are not violated when are potential any other towards defendants grand juries. indicted cross-section potential group. race or ethnic And since a equal protection rights defendant’s are not, however, writing We are on a clean presented violated when his or her case is I slate. While do not think that the Su- randomly to the median selected preme concerning per- Court’s decisions jury, why it is unclear the same conclusion emptory challenges and most of its deci- potential should not follow when the defen- concerning sions discrimination in the selec- presented dant’s case is to a cross-section petit jurors tion of are control- grand jury. ling respect point I with to the am discuss- ing, plurality concurring opinions the contrary, theOn the use of cross-section 282, Texas, in v. 339 U.S. 70 S.Ct. Cassell grand juries likely in seems to result more 629, (1950), strong 94 L.Ed. 839 contain equal potential treatment for defendants that a defendant’s statements to the effect randomly grand than the use of selected equal protection rights are violated a juries. composition The racial and ethnic procedure that the selection limits number randomly grand juries of most does not jurors grand of of the defendant’s race on community large. mirror that of the at panel representa- each on that race’s over-representation Most contain an of one based 286, Therefore, community. in 70 group grand or tion the Id. at S.Ct. another. these are, 295, juries anything, likely (plurality); if at 631 at 70 S.Ct. at 635 more to treat id. J., (Frankfurter, potential unequally concurring). opinion defendants based on The 202, 208, Alabama, racial or ethnic bias than are cross-section v. 380 U.S. 85 Swain Furthermore, 824, (1965), 829, grand juries. because a ran- S.Ct. 13 L.Ed.2d 759 con- system All produce grand juries dom tends to tains similar statements. of these dicta, vary composition, technically that and it likely it is more statements are system system under such a at for the treatment of seems obvious that the selection See, 555-56, Underwood, Rose, Ending e.g., ing, 4. 443 U.S. at S.Ct. at see Barbara D. Race 99 2999-3000; York, 261, 285, Fay Right v. New 332 U.S. Jury Discrimination in Selection: Whose Is 1613-16, (1947); 67 S.Ct. der, It, 725, 91 L.Ed. 2043 Strau Anyway?, 92 Colum.L.Rev. 728-36 analysis 100 at U.S. 309. For an (1992). conceptual problems presented by this reason- 1244 See, City Rich e.g., purpose. serve that of than an more nothing was in Cassell

issue 469, Co., 488 U.S. Croson v. J.A. mond and was desegregation minimize to effort 720-21, 102 L.Ed.2d 706, 493-94, S.Ct. 109 that the system the from different far thus 520, S.Ct. id. at 109 (1989) (plurality); 854 employing openly was judge assignment concurring judgment); J., (Scalia, at 735 to required be might well Still, we here.5 Education, Board v. Jackson Wygant if of weight controlling statements these give 1842, 1846- 273-74, S.Ct. 267, 106 476 U.S. hypothetical the to decide forced were we id. at (1986) (plurality); 260 47, L.Ed.2d 90 equal own whether question of (opinion at 1852-53 284-86, 106 S.Ct. if the violated have been would protection Furthermore, found we J.). O’Connor, actually af- had system judge’s assignment apply required to violation, might be the we grand jury. the of composition fected judging for used generally re- standards noted, are we But, previously as remedies. equal protection of propriety question.6 that decide to quired Dowell, v. Education See, e.g., Board of question to the brings me 2. This 630, 111 S.Ct. 237, ---, 498 U.S. any rights protection equal whether v. (1991); Milliken 636-38, L.Ed.2d 715 112 were grand actual or potential 2749, 267, 282, 97 S.Ct. Bradley, 433 U.S. reach to appropriate If it violated. reach (1977). Before 2758, 745 L.Ed.2d 53 we would question,7 this merits it these the merits ing matters,^however, assignment whether to ask required Ramseur whether necessary ask is first satisfied procedure selection judge’s protection equal assert standing to has applicable standard protection strict jurors. grand actual potential rights is, classifications, that whether all racial crimi- that has held Court Supreme compelling served procedure selection litigants civil defendants nal narrowly tailored interest state judgment), three J., concurring in the (White, in Dallas murder for indicted been had 5. Cassell defendant a criminal concluded Texas, Justices Hill v. County, Prior Texas. But 243. § rights 18 U.S.C. under may assert (1942), appar- L.Ed. 86 1559 62 S.Ct. frequently dis Supreme Court has jury grand while aon served ever ently had black no defendants in which in cases statute cussed to reverse Court County, led the which in Dallas on discrimi based challenged convictions their 403-04, at Id. at rape conviction. Hill's process, it unclear jury selection place nation system at the grand a criminal held has ever Court commis- time involved the the statute rights under can assert defendant initial list sioners itself. Clause Equal Protection Cassell, opposed to panel of judge select Co., Concrete Leesville See, e.g., Edmonson Following 283-84, at 629-30. 70 S.Ct. U.S. -, -, —Inc., U.S. poten- decision, every list of almost Hill —Ohio, (1991); Powers L.Ed.2d 12 actual panels of jurors, and most tial L.Ed.2d -, -, Apparently, one black. jurors, contained 370, 394, Delaware, (1991); Neal v. one. Id. than more contained none ever L.Ed. 567 approximated in sixteen One at 631. eligible county blacks proportion of another significance of some could be This paid poll (i.e., had those service has held Supreme case, 'the since blacks proportion of tax) 6.5%, not the but Amendment of the Fourteenth Five — Section whole, which county pro- as population authority statutes to enact Congress gives 284-85, 70 Id. previous census. at the violative 15.5% as practices state scribing certain laws al- protection S.Ct. right to the though adjudge same not courts Equal Protection 18 U.S.C. violative practices not invoked has Ramseur Since Morgan, v. standing required alone. to decide Katzenbach 243, not likewise Clause we are § 1717, 1722, 648-49, 16 641, 86 S.Ct. rights this stat under U.S. assert 384 he could whether (1966). pursuant to Section ute, 828 Congress L.Ed.2d enacted which Amendment Fourteenth Five of based person excluded 7.If in the selec discrimination racial criminalizes process had judge’s selection assignment juries. on the petit grand and federal of state and tion practice, we challenging that a suit rights commenced private rarely confer statutes Criminal decide, reaching the required before 281, might Brown, be U.S. (see, Chrysler Corp. v. e.g., plaintiff whether question, (1979)), 1725, constitutional 1705, 316, 60 L.Ed.2d S.Ct. § 243. 18 U.S.C. rights under 505-07, could assert Kiff, 407 U.S. v. in Peters but 6, supra. (1972) note 2169-71, L.Ed.2d 83 S.Ct. standing rights third-party to assert the of not think that third-party Ramseur has petit jurors perempto prospective standing any who are theory under to assert rily challenged of race. In reach rights potential grand jurors. or actual conclusion, ing this the Court has reasoned This conclusion entirely seems to me con- litigants that criminal defendants and civil sistent principles with basic regarding potential have a “close relation” to trial third-party standing. One of the reasons jurors as a result of voir dire. Powers v. why generally the law does not allow A to —Ohio, -, -, U.S. S.Ct. rights assert B’s is that A may not think 1372, 113 (1991); L.Ed.2d 411 Edmonson v. rights violated, that his or her may were —Inc., Co., Leesville Concrete U.S. B any not want advantage obtain as a 2077, 2087-88, -, ----, 111 S.Ct. 114 result of the rights, violation of A’s may (1991). L.Ed.2d 660 has written agree not trying with the relief that B is permits party dire to estab “\v]oir obtain. See Duke Power Co. v. Carolina relation, trust, lish a if not a with bond Study Environmental Group, 438 U.S. jurors. This relation continues 80, 2620, 2633, 98 S.Ct. 57 L.Ed.2d 595 throughout may the entire trial and in (1978); Singleton Wulff, sentencing some eases extend to the 2868, 2873-74, 49 L.Ed.2d — Powers, at- , well.” U.S. (1976) (plurality opinion). any Under at 1372. circumstances, of these a court would not I reasoning do not think that this can be helping by allowing A B to assert A’s applied involving to a case the exclusion of rights. potential grand jurors. An individual precise These may considerations well grand jury whose case is submitted to a apply in present case. Ramseur wants present when the members of the first-degree us to vacate his murder convic Thus, grand jury are selected. this individ- for, remedy among things, tion as a other generally ual any potential never even sees the insult that he claims several black grand jurors Moreover, who are excluded. grand jurors assignment suffered when the unless this individual testifies before the judge temporarily asked them to sit grand jury, generally he or she never sees body of the courtroom rather than immedi actual members. And ex- ately taking panel. a seat on the But be circumstances, cept very rare he or she considering remedy, fore such a should we grand jurors’ never learns the names or recipients not have some indication that the anything Consequently, about I them. do actually they this treatment feel that type see how a “close relation” of the wronged vacating and feel that Rams- found in Powers and Edmonson can be appropriate remedy? eur’s conviction is an person said to exist between a whose case they We would have such an indication if presented potential to a brought they certainly had suit—as could grand jurors. or actual Jury have under Commission Carter I present Nor do think that case County, 396 Greene type involves the of “close relation” that (1970) 24 L.Ed.2d 549 had — and the Court found sufficient to sustain third- relief, asked for such but we have no such party standing McCollum, in Georgia v. indication here. — -, -, 2348, 2357, know, grand jurors may For all we these There, 120 L.Ed.2d 33 the Court assignment judge any- not feel that the did prosecutor held that a third-party had all, thing wrong. assignment After standing equal protection to assert judge simply attempting implement to rights potential petit jurors peremptorily of in grand jury the context of selection the by struck a criminal defendant. The Court permissible preferable that it is and in prosecutor reasoned that the view had a close strictly certain jurors relation with the struck the circumstances to abandon representative state is “the “color of all its citi- blind” selection criteria favor of Obviously, designed zens.” Ibid. the same is not race-conscious criteria to achieve Thus, person See, true for a diversity. like Ramseur. I do e.g., Broadcasting Metro 1246 basis, in the I concur On this jurors. grand 567-68, 110 S.Ct. 547, FCC, 497 U.S. v.

Inc. court’s II of the in Part (1990). reached result 445 L.Ed.2d 111 2997, Jersey opinion. con in New Many public officials should criteria race-conscious that

tend in the participants selecting other used dissenting. Judge, COWEN, Circuit including judges8 system, justice criminal majority’s the Part II of from I dissent jurors Thus, grand the prosecutors.9 and for procedure the that which holds opinion may well case in this wronged supposedly did not violate jury grand impaneling in what improper or nothing unusual see rights. protection equal Ramseur's They think may judge did. assignment assignment by the employed procedure every grand thing for good it is a that excluding qualified temporarily judge and racial reflect County to Essex —of allow- jurors and grand They African-American community. diversity of ethnic that only on condition fairer, to serve ing them more to lead this will may feel that to violence unavailable—does that were may also feel whites They decisions. uniform and can equal protection accep of community principle greater will lead this confidence public racially only undermine decisions grand of tance unsym- very is a grand Ramseur system. these justice even And cases. sensitive his murdered defendant, having judge assignment pathetic that jurors feel witnesses, but did, six of in front girlfriend as he them treated should irrelevant crime is of his to benefit seriousness Ramseur may not want they I claim. protection they equal Or of his resolution wrong to them. done from majority arrives is seek Ramseur believe relief that the might feel excessively through a it desires his conviction—is result overturning of ing—the prece- Supreme Court reading remedy narrow disproportionate or misdirected pro- the fact downplaying and dent wrong suffered. jurors, African-American spective these we assume Why should serve, were willing to and qualified were benefit and to assert want Ramseur degrad- in a system judicial by the treated assumption Any such rights? their from dehumanizing manner. ing and jurors’ solely on the be based must principle wrong it is race, I believe Supreme Court century, the For over assumptions. racially based equal make such is denied a defendant has held I be- inaccurate—as empirically also It ishe indicted when law protection show. plainly case of this facts lieve which members grand jury female a former brutally killed purpose- Ramseur been group have racial cognizable young her public street while Mitchell, on friend v. Rose fully excluded. looked witnesses other grandchildren 3000, 2993, L.Ed.2d 61 556, 545, by a 39% indicted Louisiana, He on.10 was 405 v. (1979); Alexander 739 black, he was 1224, whose members 31 625, 628, petit aby to death sentenced Kentucky, convicted (1972); v. Bush L.Ed.2d were black.11 members whose 625, 633, 58% L.Ed. 354 Delaware, 103 U.S. (1883); Neal own that Ramseur’s sum, I would hold sufficient (1880). Where 26 L.Ed. not violated rights were protection out, made been has of discrimination standing proof lacks he and that case required uniformly has Supreme Court potential of actual rights assert Ramseur, A.2d 106 N.J. 10, 1992) State v. (por- (Aug. 10. seq. et N.J.L.J. Supreme Jersey 206-07 report of New tion Concerns, Minority Committee on Force Task Pro- Participation in the Judicial Minority on Supreme his Jersey Court reversed New 11. cess). grounds. State procedural sentence death Ramseur, supra. 14, 1992) (reporting (Dec. N.J.L.J. new regarding promises governor's County prosecutor). Essex

1247 — that the defendant’s be McCollum, conviction set aside U.S. -, -, 112 S.Ct. and the indictment by 2348, returned 2356, uncon- 120 (1992), L.Ed.2d 33 by pri stitutionally grand selected jury litigants, vate civil Edmonson v. Leesville — quashed. Rose, 3, 443 U.S. at 556 & n. Co., 99 Concrete U.S. -, -, 111 S.Ct. S.Ct. at & n. 3. 2077, 2998 2087, 114 (1991), L.Ed.2d 660 and in cases juror where the and defendant are of principles These have developed been be- — races, different Ohio, Powers v. U.S. cause discrimination in the selection of a -, -, 111 1364, S.Ct. 1370, 113 grand jury panel at “strikes fundamental (1991). L.Ed.2d 411 judicial values of system our and our soci- ety as a whole.” Id. Even the earliest Though Batson and its progeny involved cases in which the applied Equal the actual jurors, exclusion of the Court’s Protection Clause in the context of racial reasoning in opinions those depen was not grand discrimination in jury selection re- dent upon the fact of exclusion. Race- flect a concern with “the so- fundamental based peremptory challenges violate the cial values the Fourteenth Amendment equal protection clause because defendants adopted protect, though even it ad- right have the by juries be tried selected dressed the issue the context of review- through non-discriminatory means. Pow — ing an individual ers, criminal conviction.” Id. -, U.S. at 111 S.Ct. at 1367. 555, at 2999; 99 S.Ct. see Strauder v. “The prohibits Constitution all forms of Virginia, 303, West 308, 100 U.S. purposeful 25 L.Ed. racial discrimination in selection (1880). 664 Racial discrimination in the jurors.” Batson, 88, 476 U.S. at 106 selection grand jury “impairs the confi- S.Ct. at 1718. The Court did not outlaw dence public in the administration race-based peremptory challenges because justice.” Rose, 556, 443 U.S. at 99 S.Ct. excluded might helped 3000. Just illegal as defendant, unconstitutional but they cast doubt on jury procedures selection create the appear- the integrity judicial process and the ance of in an case, bias individual so fairness of criminal proceedings. Powers, — increase possibility of actual at -, bias U.S. 111 S.Ct. at 1371. This well. Peters Kiff, 493, 503, 92 position is with precedents consistent de 2163, 2168, 33 L.Ed.2d 83 scribing the harm by caused discrimination grand jury process: In a cases, recent series of Supreme The harm is only accused, Court has affirmed its commitment to the indicted as he jury century-old principle which a that race cannot abe segment of community has been ex- consideration selection. In Batson It society cluded. is to as a 79, whole. ‘The Kentucky, U.S. injury is 1712, 1722, limited to the defendant— (1986), 90 L.Ed.2d 69 the Court there is injury to the jury system, concluded to the prima that a pur- facie case of institution, law as an poseful to the community discrimination under the Four- at large, and to the teenth democratic ideal re- Amendment is established the de- processes flected fendant our can show courts.’ in his case the prosecutor exercised peremptory Rose, chal- 556, 443 U.S. at 99 S.Ct. at 3000 lenges to remove members (quoting defen- Ballard v. States, United dant’s race venire, from the 187, rather than 195, 91 L.Ed. systematic show cognizable exclusion of a (1946)). Thus, primary our concern in group period over a of time.1 The holding a case like this one is with the harm caused of Batson has since been pro- extended to justice to the system itself, a that is harm hibit peremptory race-based challenges by not cured the ultimate inclusion some criminal lawyers, defense Georgia v. African-Americans on grand 1. The Court's regarding conclusions in Batson 626 n. 1223 n. proof purposeful petit jury (1972)). discrimination in only L.Ed.2d 536 Ramseur need dem- equally applicable selection are purposeful onstrate tion discrimination in the selec- context. U.S. at n. S.Ct. at panel him indicted 1716 n. (quoting Louisiana, Alexander v. establish Fourteenth Amendment violation. record, I that think this On not occur. of absence presence is the It jury panel. of by preponderance a established Ramseur the selection discrimination purposeful permanently juror was a of that the exclusion evidence necessarily the process, race.2 of her Rams- because excluded whether determines jurors, vio- have been rights protection equal eur’s that at Furthermore, know though we lated. jurors grand African-American least two no there was that contends majority The their because excluded temporarily were (1) ju- no because discrimination purposeful only that say for certain race, cannot we (2) assignment the and excluded was ror At a way. that treated jurors were two invidious, discrimina- an have judge did not allegations, as- hearing on Ramseur’s conclusions. both question We tory intent. tried to that he judge testified signment said us, it cannot be before theOn record sex, race, on jury based diverse select a ju- grand prospective any that certain for during his actual But background. and service from actually excluded were rors year jury a grand Ramseur’s impaneling of record indicates their race. because he only that earlier, he stated half pro- asked five judge assignment that sit aside to asking African-Americans was willing to who were jurors grand spective record, mix. On this his desired to achieve selec- later possible for aside to sit serve than that more therefore, very possible it is order, they were chronological tion. five, pro- of the two, even all perhaps Betty Pat- Catagen, Smith, Esther George aside to sit forced jurors were spective Ikena. Hardwick, Orro rick, Francena race. of their account juror, prospective asking the third After discriminatory an- aside, judge se- Patrick, to sit the harm Betty Because jury system two as “asked he had is to the that procedures nounced lection willingness therein, to public’s have indicated confidence blacks a whole defendant, courtroom.” body I to sit only to the individual serve and not indicates statement protection immaterial, equal This App. at 2449. for it is believe jurors grand prospective two Afri- that least two or more that purposes, analysis because excluded temporarily judge were jurors whom can-American Shortly thereaf- pan- were African-American. ultimately served to sit aside asked prospective two more ter, asked judge any of whether Regardless members. el serve, willing to jurors who grand actually juror was grand African-American Ikena, to sit and Orro Hardwick Francena that panel serving on from excluded Signifi- later selection. possible for aside procedures Ramseur, the selection indicted for chosen never was cantly, Ms. Hardwick right case violated used this mo- announced judge Because service. law because protection equal to asking African- he was that earlier ments in purposeful engaged judge assignment the court- body of sit in to Americans discrimination. it is reason- panel, on the than rather room deliberate, pos- albeit was a Clearly there Hardwick, the Ms. that to conclude able setting aside only temporary, sibly African- juror, was excluded permanently prospective of two minimum seat on denied and was American African-Ameri- they were solely because this I draw her race. panel because record, quite possible is it can. On exclu- I believe not because conclusion discrimi- jurors were five many as that as pro- necessary establish to sion African- they were against because nated majority violation, but because tection by the singled out They were American. alleged lack heavily on so relies panel the entire before judge assignment did argue that discrimination exclusion she is certain If we knew for race. impossible wick’s African-American, majority it states assign- light of the then in race record Ms. Hardwick's determine asking Afri- case, he judge’s statement ment's In that exclusion. her or the reason aside, sub- we would sit can-Americans to fur- court for district remand we should juror’s exclusion evidence easily stantial court findings. The district ther factual least, her race. determine, Hard- Ms. able should be being ineligible solely willingness as to serve to serve to sit in body the Moreover, of their race. both Essex Coun- deliberately the courtroom. I am trying to ty assignment judges readily admitted that get people an even mix of background from indicted, at the time Ramseur was African- races, and things and like App. that.” at routinely Americans were excluded from 2429, During hearing the on Rams- grand jury if judge service the decided that allegations, eur’s the judge testified that randomly panel selected contained too his idea of a cross-section of Essex County many if judge African-Americans or the people was of different races and voca- thought particular juror was “undesir- tions, and therefore he tried to select a Finally, even if able.” the two African- “great variety” people to serve on the jurors initially American asked to sit aside grand jury. App. Though at 3897. he did panel were later asked to serve as mem- specify numbers, assignment exact the bers, they only were asked to serve at the judge trying get was to a racial cross- moment, very suggesting they last jury, section on the even he also was by assignment judge chosen the as a trying get to cross-sections based on fac- resort,” sullying “last further the selection judge tors other than race. The could not process. I this believe that race-based se- obtain appropriate what he considered an procedure purposeful lection constituted without, racial balance temporarily, at least principles discrimination under the an- excluding qualified two or more African- by Supreme nounced Court and thus jurors.3 American Even if he was mo- Equal violated the Protection Clause. race, tivated any malice toward majority argues assignment that the judge’s attempt proportionally to limit the judge engage purposeful did not in discrim number of African-Americans on the ination trying pro because he was not to purposeful discrimination in violation of portionally limit the number of African- Equal Protection Clause. jurors, American trying but instead was Cassell, Supreme pur- Court found objective rep achieve non-invidious poseful discrimination where commis- jury. resentative Aside from the fact that (1) sioners limited the number African- allegedly his objective “non-invidious” vio grand jurors per panel American to one law, lated both federal and state see Cas proportion reflect of African-Ameri- Texas, 282, 286-87, sell v. 339 U.S. (2) in general population, cans testi- 629, 631-32, (1950) 94 L.Ed. (plurality) fied appeared that no African-Americans (proportional racial ju limitation of on the list from which the defendant’s rors population based on is unconstitution grand jury was selected because did al); (West 1976) N.J.Stat.Ann. 2A:73-1 § any qualified not know African-Americans. (imposing procedure), random the record 286-90, 339 U.S. at 70 S.Ct. at 631-33. indicates that assignment judge who Admittedly, the second fact is absent from impaneled tried to case, assignment judge as the im- did limit the ju number of African-American panel grand jury containing qualified Af- rors to coincide subjective with his However, rican-Americans. arbitrary proportion notion the Court of Afri clearly practice stated that the County popu can-Americans the Essex Cassell limitation, itself, During grand selection, proportional lation. racial con- he my purpose stated at the outset that stitutes unlawful racial discrimination. Id. “[i]t try pick assign- a cross section of the at at commu 631-32. The nity,” stated, “I judge equal pro- afterward have asked ment violated Ramseur’s two of the blacks rights by engaging practice. who have indicated a tection in assignment judge County 3. The percentage popu- other in Essex understood was [he] County testified that he tried to achieve a App. 50-50 balance lation division of Essex.” at grand jurors testimony between white and assignment judges non-white be- 3830. The of both county population cause he believed that the practice indicates that it was a common in Es- forty percent App. was County proportionally African-American. sex at that time to limit goal try gener- 3828-30. His ally "was to to make a the number of African-Americans that could upon even balance grand jury. between the races based serve on a specifically Moreover, Rose comfort draws majority into wheth- inquire need not that we stated excused judge fact fact” “prejudiced was defendant er the against prejudiced that she admitted used discriminatory procedures by the judge’s Unfortunately, races. certain jury. its crudest racism intolerance to in fact Prejudice at 3000. 556, S.Ct. 99 him prevent not did form obvious most our because required not is defendant the of form a more subtle in engaging defen- to harm the to limited not is concern less African-Americans treating by racism or harm of actual “proof and because dant selec- jury during whites favorably than ad- to impossible virtually is harm lack of tion. at 504, S.Ct. 92 at Peters, 407 U.S. duce.” error cannot constitutional of This sort good of assertion mere by the cured be suf- not have need defendant Though The Su error.” “harmless intentions I injury, an outcome-determinative fered ar rejected has consistently preme Court jury se- grand discriminatory that believe may affirmed a conviction that guments in case one this like procedures lection in discrimination racial of regardless dis- jurors’ grand of the risk increase Vasquez v. jury. grand of the ba- on the defendant a criminating against 617, 261, 254, S.Ct. 106 Hillery, to an lead possibly could race and of sis Rose, U.S. (1986); 622, 88 L.Ed.2d no doubt I have indictment. erroneous Cassell, 339 U.S. 3001; at 559, at instructed judge assignment if the that A. 633; Charles also see at 70 S.Ct. treat at to permissible it that is grand Procedure and Practice the ad- differently Federal Wright, African-Americans analysis can error (harmless (1982) court justice, ministration of § purposeful been But has petition. “if there be used not granted have grand conveyed judge the selection purposes, practical discrimination all jurors has to the Indeed, message called the Court that same jurors”). exactly petit view In full grave “a constitutional his through actions. discrimination such African- prospective requiring treated jury, he grand stated has trespass” and pro- favorably than is defendant, jurors if it less even American retry to state persons The white conviction, jurors. is white spective original his after many years were to willingness serve expressed the state. Vas to unduly burdensome not Afri- of the some while panel, seated quez, expressed a persons who recently can-American Vasquez holding in Court’s The to sit forced were to serve willingness demonstrating the dicta, cited been has resort, they were until, a last as aside impartial to commitment continued Court’s avail- whites no more needed our by all in participation ity and that African- imply actions Such able. Fulmi Arizona system. See judicial on the serve fit to less are Americans — U.S. -, -, nante, Be- whites. inferior therefore and are (“Since (1991) our 1265, 113 L.Ed.2d an African- is also the defendant cause have cases other Chapman, decision of members American, stigmatizing er of constitutional category added against bias likely to race his er harmless subject to are rors him. exclusion following: unlawful ror analyt- states majority also race from defendant’s members claims discriminatory selection Lane, 489 ical focus Teague v. jury....”); grand as deliberate opportunity upon tem- two at least Although dissenting J., jurors. (Brennan, (1989) L.Ed.2d even- African-Americans excluded porarily held and Rose (Vasquez grounds) other on fully ability to their jurors, tually served review habeas seek could prisoners handicapped been may have claims, participate jury discrimination grand process. the selection discrimination harmless subject to are claims such defen- case, an African-American In this error). got dant to have grand African-American recognized m Powers: tainting pro- jurors panel him, on the which indicted but ceedings with discrimination in full view of only after jurors some of those were humil- jury, the fairness of the justice criminal iated, degraded, possibly intimidated system which indicted and convicted Rams- open through court less favorable treat- eur is called into doubt. ment account of their race. judge’s The other requirements two for third- actions law, show that even in a court party standing relation between the —close may African-Americans be treated as sec- juror, defendant and and hindrance to the ond-class judge’s citizens. The treatment juror’s protecting rights his easily —are may of them caused the other met. Ramseur the temporarily exclud jurors (particularly the white jurors) ed have a common stake in eliminat regard inferior, them as rendering them ing racial discrimination from the court less effective and influential when the at -, room. Id. 111 S.Ct. at 1372. This grand jury deliberated. congruence of interests is sufficient to sat Because procedures selection like isfy the Powers test. Id. Finally, the Su the one before us proceedings infect court preme recognized Court has that the barri with racism help perpetuate and to nega ers to a by suit civil with equal stereotypes tive African-Americans, about protection claim “daunting,” are given the I believe that Ramseur a suffi suffered small financial stake involved and the eco ciently injury give concrete to standing him nomic litigation, burdens of and therefore to assert the protection rights of the significant constitute a hindrance to the temporarily jurors. Powers, excluded jurors’ protection of rights. their Id. at — at -, U.S. 111 S.Ct. at 1370-71 — -, 1373; McCollum, S.Ct. at (third-party standing requires injury-in- at -, 112 S.Ct. at By denying fact, close relation litigant between and petition, Ramseur’s majority has made party, third and party’s hindrance to third it impossible almost anyone to chal ability protect interests). to his Powers, In lenge the objectionable use of the Court concluded that the exclusion of a procedures selection like employed the one juror because of his race cogniza causes a case, in this because the defendant is the injury ble to the defendant it because easts only person strong with a incentive raise to doubt integrity on the judicial pro — such a Powers, claim. See at -, cess. Id. 111 S.Ct. at 1371. The -, 1373; Underwood, S.Ct. at B. Court stated: Ending Race Discrimination Jury Se wrong, The overt often apparent to the It, lection: Right Anyway?, Whose Is jury panel, entire casts doubt over the Colum.L.Rev. obligation parties, jury, and indeed court to adhere I to the law fear practical result of the

throughout the trial of the cause.... majority’s opinion will encourage be to purpose The tolerate jury system is discrimination to courtroom. impress upon the discriminatory grand criminal defendant and community as a procedure upheld whole that a verdict today was used for dec- of conviction or acquittal given in ac- ades in County, Essex Jersey, New cordance with by persons law procedures like it probably are being still are fair. The verdict will not accepted used in throughout courts country. understood these terms the jury ways, some procedure used impanel is chosen unlawful means at the out- Ramseur’s jury was even more set. shocking than the use of per- race-based at ---, emptory challenges Id. outlawed in at 1371-72. Batson Though case, McCollum, this perhaps, does not involve this case the actual exclusion race, discriminatory acts because of committed injury caused by judge the temporary exclu rather than one of the advocates. prospective sion of ju Contrary African-American majority’s assertion, I be- rors essentially the same as the injury imprimatur lieve that the of the state was discriminatory actions. forcefully given not treat will of law court judge in If a I equals, and African-Americans

whites con- expect better we can how

do see majority’s ordinary citizens. duct quest society’s our a setback opinion is justice its from discrimination

to eliminate

system. reasons, I would remand

For these instruc- with court district to the

matter corpus, of habeas writ grant the tions being rein- upon conditioned the date ninety days dicted within the writ. granting order district court’s Nygaard Judge

Judge Mansmann opinion. dissenting in this

join me MARTIN, Secretary

Lynn Petitioner, Labor, & HOTEL CA- PLACE PARK

BALLY’S Safety & Occupational SINO Commission, Respon- Review Health

dents. 92-3001.

No. Appeals, States Court

United

Third Circuit. Sept.

Argued Jan.

Decided 12, 1993. Amended Feb.

As

Case Details

Case Name: Thomas C. Ramseur v. Howard C. Beyer, Superintendent, New Jersey State Prison, Robert Del Tufo, New Jersey Attorney General

Court Name: Court of Appeals for the Third Circuit

Date Published: Dec 31, 1992

Citation: 983 F.2d 1215

Docket Number: 90-5333

Court Abbreviation: 3rd Cir.