United States v. Eugene Leslie

the indemni- negligence of compasses remand Drilling. We reverse and

tee, Bay in accord- judgment court for

to the district opinion. with this

ance reasons, judgment the above

For part and is AFFIRMED court

the district REMANDED.

REVERSED America, STATES

UNITED

Plaintiff-Appellee, LESLIE, Defendant-Appellant.

Eugene

No. 83-3719. Appeals, States Court

Fifth Circuit. 20, 1986.

Feb. issue, Orleans, La., Glass, peremptory for de- lution of the New Robert affirms Leslie’s conviction.1 fendant-appellant. Volz, A. Pe- Atty., Howat given P. U.S. in a trial the

John We hold that where Harper, ters, Jr., McSherry, Fred P. Harry challenges prosecutor’s peremptory Orleans, La., Jr., New Attys., purpose procuring jury Asst. U.S. made for the Crisitelli, Glazer, Dept, of Sidney M. Sara likely than otherwise to convict more D.C., Justice, plaintiff-ap- for Washington, case, and are particular not made pellee. being to the case tried purposes unrelated any part systematic practice of a

or as jury from ser- attempting to exclude blacks vice, challenges im- are not rendered they proper because are made whole or CLARK, Judge, Chief Before of the affil- on the basis REAVLEY, RUBIN, BROWN, GEE, POL- race, iations, challenged including of the RANDALL, TATE, JOHNSON, ITZ, WIL- venirepersons. We further hold that GARWOOD, JOLLY, LIAMS, HIGGIN- where, here, there is neither claim nor JONES, BOTHAM, DAVIS, HILL and Cir- prima showing prosecutor’s facie Judges. cuit challenges were exercised ei- any part systematic practice of a ther as GARWOOD, Judge: Circuit attempting jury to exclude blacks from ser- Appellant appeals Leslie his conviction purposes par- vice or other than for conspiring to distribute narcotics and tried, being it is a misuse of ticular case narcotics with intent to distrib- possessing supervisory authority we whatever them, ute in violation of U.S.C. require judicial premises have in the 841(a)(1) Rejecting and 846. his other §§ inquiry prosecution’s reasons or into the panel divided of this Court complaints, a challenges. motives for its that the dis- sustained Leslie’s contention case, Supreme and the The facts of this by failing inquire into trict court erred Alabama, opinion in Court’s Swain v. prosecutor’s peremptorily motives for challenging venirepersons, although black (1965), our constitute the framework of showing there was no claim or analysis.2 challenges purposes were made for un- related the outcome any part being

case tried or were of a I. systematic practice excluding blacks Facts Context (5th

from service. 759 F.2d 366 Cir.

1985). Appellant was tried in New panel majority rested its hold- Leslie Or- leans, Giron, ing respect “upon supervisory along with Fernando a Hondu- our ran, conspir- charges distributing power over federal district courts and fed- Court, ing cocaine. After the first prosecutors.” eral Id. at 374. This to distribute banc, trial, guilty disagreeing panel’s day pleaded and testi- en with the reso- Giron expressed panel primarily dissent. F.2d at 1. This case was taken en banc view peremptory challenge matter. Les- 403 n. 35. address complaints lie's other relate to the admission in plea agreement course, are, evidence of letters between the We aware that the witnesses, government and certain of its and the granted certiorari in Batson v. Ken- Court has — permit impeach U.S.-, trial court’s refusal to Leslie to tucky, 85 L.Ed.2d government’s by testimony witness Giron presented where the issue concerns lawyer, Moriarty. Giron's The en banc court validity prosecu- the constitutional of the state correctly rejected panel concludes that the contentions, these to remove all tor’s use of respect panel opinion and the venirepersons panel. Bat- from the black Respecting Moriarty’s son, directly thereto is reinstated. being prosecution, a state does not proffered testimony, the writer remains of the implicate supervisory power issue. significant single jury, way black on is no there government. Other fied for through peers Claude to communicate in this government were for the witnesses community.” acquired Griffin, he had testified that who it to Giron and distributed cocaine mis- trial court denied the motion for it, Thom- Leslie, then redistributed who trial, objected stating, and Leslie’s counsel transported cocaine who had Gray, reason, apparent “there is no other than Griffin, re- for New Orleans Houston to race, striking.” for the exchange for in money from Leslie ceived again The matter was raised in the money to given the drugs, and then the court, either new trial or motion for Giron, Griffin, Gray are and Griffin. No made to attempt otherwise. was ever white; Leslie is black. analyze or comment on the voir dire. transcript no Nothing composi- The record contains concerning was said the process, al- jury panel except voir dire tion of the venire in terms of selection showing jury include list though it does was black was who on it and who white. by perempto- cause for and those removed claimed anything Leslie never similar completed ry challenge. When the court likely had ever before occurred or would cause, jury venirepersons excusing attempt for again, occur or that there was twenty-eight, reduced panel peremptory purposes had been to utilize to strikes government The being were black. whom six other than outcome of the case re- peremptory used its six tried. blacks, the defense six move these brief, appellant’s initial his Leslie challenges to re- used its ten complaint following casts his con- persons com- whites. Of four move ten text: black; pool, one was prising the alternate Leslie, “Eugene prominent black peremp- used its alternate government City in fight promoter and trainer individual, de- and the tory to remove Orleans, New was tried an all white to re- used its alternate fense charges____ sig- cocaine No jury ... on pool. a white from alternate move against was nificant witness Leslie

procedure exercising peremp- and order of black____ in record. tory strikes are not reflected government’s theory “The peremptories completed, After the were bought cocaine Griffin ... had Claude moved He Leslie’s counsel for a mistrial. Honduran, Leslie’s co-indictee from a government its complained Giron, Houston, used in Texas. Fernando peremptories to remove all the blacks from to de- sold a of the cocaine Griffin Leslie____ pools. and alternate The Assist- fendant Attorney States stated that ant United intercepted phone agents “FBI challenged were those “not struck on Griffin Leslie. These calls between in give basis of race” offered to “an cocaine. telephone calls did not mention reason,” which de- camera the trial court however, calls, suspicious to sounded inquired The trial court clined. then repetitively and FBI ears since Leslie had why Leslie’s counsel he was entitled to varying forms asked Griffin whether mistrial, to responded: which counsel ‘anything yet.’ there was

“Well, the last Court decision in- presented entirely “The defense subject said chal- explanation style for the nocent lenges demonstrating pattern without typical with it was conversations Griffin: peremptories Leslie, man, all practice, speak which strike in short- a black blacks, things the oth- system. are within But which he and hand about eliminate the under- doesn’t Court’s discretion. er individual stood____ the conversation case, “And in this Mr. is a black Leslie meaning of standing explained “Leslie the true community;

man in this he has in the fol- with his conversations Griffin community. in the black And without had first met lowing manner. Leslie capacity as an aircon- Leslie, Griffin’s Griffin acquit “... To the defendant They installer.

ditioning repairman Orleans, fight promoter black from New friendship; Leslie visited up a struck open possibility had Griffin, Leslie. At visited and Griffin spoken Griffin, that Leslie had to Claude house, Leslie met co-indict- Griffin’s witness, principal prosecution in a Giron, ee, was from who Hon- Fernando shorthand that was not code for cocaine. ____ and Giron talked duras Griffin juror explain There was black fighters, and the young Honduran about jurors the rest their delibera- coming their to the United possibility of nothing irregular tions that there was Leslie, training; ready ever States for speech patterns; about Leslie’s to me- opportunity champion, to train a for the lifestyle diate between Leslie’s and that developing was interested that connec- jurors; of the white or to evaluate the tion. credibility of the defense from the black

perspective.” “Along suspicious with the conversa- then, Fairly construed Leslie has not Griffin, tions of Leslie with the FBI had complained prosecution’s that the exercise similarly suspicious conversa- recorded peremptory challenges here was moti- prominent tions Griffin with another by anything attempt vated other than an city, in black man the funeral di- to enhance the chances that the verdict in Glapion. Glapion Alton rector was a case would be favorable it. this to There is closer friend of Griffin’s than was Leslie. allegation suggestion or these years, Glapion Griffin had known for 20 any part strikes were pre- effort to two____ Leslie for under Griffin was serving vent black citizens from on criminal major dealings in then involved business juries, by any or were personal motivated Glapion Glapion ready, with and will- was part desire on the of the Assistant United ing put up and able to his funeral home Attorney States to associate with Griffin; Rather, that, for bond for Leslie on the other complains blacks. Leslie be- money____ hand owed It Griffin peculiar setting cause of the factual of this case, theory the defense of the case jurors ... he needed one or more black speech when Griffin said the oil conversations “translate” his and conduct to the cocaine, effect, with Leslie were jury; about while the rest of the in to vouch for his Glapion explanation suspicious oil conversations with were conversations oil, about suggestion that he had made a self- and activities.4 There is no choice; preserving given up complaint prosecution Griffin had did other protect innocent the also than in pro- Leslie to make its strikes an effort to Glapion cure, innocent preserve among in his those order to summoned and not credibility, which, thereby disqualified, himself under to save the facts ease, family, along particular likely his who were indicted would least him, Leslie, by partial by excluding with from certain annihilation blacks as government.3 prone adopt individuals either more deals____ point single 3. Leslie's brief elaborates on this as fol- count He was forced to choose, friend, greater lows: and so chose his Gla- friend, pion, over his lesser Leslie. Griffin words, "In other belief of the was the Leslie, implicated Griffin, therefore as the least similarly defense that faced sus- with horribles with which he had to contend and picious intercepted telephone conversations friends, choose.” Glapion from his two black lie, and Les- say could not were that both of them brief describes this as "a case where Leslie's wrongdoing, though innocent of even conversation, po- the black defendant’s mode of exculpate were true. Griffin both could not community lifestyle required sition in the friends, of his black and still be believed to to be translation to the for the defense the extent that he would receive misdemean- members, credibly received.” family his ors for involved and his translator, spokesman, membership, and then similar Swain distin- role guished separately between and with being likely as more sus- dealt perhaps Leslie types challenges: first, two of such those so influence behalf of one ceptible to purpose made for the prevailing in the community. This is in the black prominent tried, particular being case which it ad- from Leslie’s statement apparent also II; part second, dressed those made “for brief, panel repeated in substance his wholly reasons unrelated to the outcome of argument, that: oral deny case on trial ... “Indeed, practice there is no pattern Negro right opportunity the same for the States District Court the United participate in the justice administration of could District of Louisiana which Eastern (id. enjoyed by population” the white up by systematic and ex- proved 838), part S.Ct. at which it considered examination of the haustive III. The distinction between the two cate- jur- prosecutors. Black practices of gories racially based chal- are no less oriented ors lenges descrip- is likewise reflected jurors than of other most cases type being tion of the second the kind races.” prosecution would make “whatever the circumstances, whatever the crime and II. the defendant whoever or the victim II, at 837. be.” Id. Discussion racially that peremptory Court held based Accordingly, question here is not challenges proper of the first kind were a prosecution may peremptorily whether part jury system and a traditional of the deny in challenge blacks an effort to citi- to the common known and American law right privilege race the zens of that III, jurisprudence. part In its the Swain juries. is it what serving on criminal Nor strongly racially intimated that proof to sustain such character suffices peremptory challenges based second claim, No prima a or otherwise. facie improper, expressly were kind but did not fairly presented. claim has been such rule since it held show- so that no sufficient Rather, prose- the issue here is whether the challenges ing had been made in that take race char- cution or similar of that question were kind. into it exercises a acteristics when _account Goldberg, joined by Justice Chief Justice purpose peremptory for the sole Douglas, Warren and Justice dissented. procuring jury partial a likely least to be however,\ dissent, The Id. at 840-50.5 defense, light in of the discrete facts part with II of or itsl found no fault Swain particular being case tried. race-¡ holding type first respecting v. Alabama Swain Rather, challenge. peremptory based The resolution of controlled this issue is proper prima took the view that a dissent by analysis part in II of the had been that the race- case made facie Alabama, opinion in Court’s Swain of the peremptory were based 13 L.Ed.2d emphasized kind. dissent that second case, prosecution As in this in system, venire selection Alabama peremptorily all six black Swain struck large part subjective on choices relied in venirepersons jury panel, with the commissioners, jury produced ve individual black was tried result that the defendant county averaged in the nires jury. by an all-white black, percent although ten to fifteen percent chal- twenty-six far as concerned constituted So blacks service; or lenges by population jury based on race available for III, joined improper. opinion, lenge, Id. Harlan Court's addressed in 5. Justice emphasized understanding his Black in the result at 840. Justice concurred ultimately Court did not decide whether or not opinion. Id. without type the second chal- race-based groes that “this method of venire selection can from service has not been not be in isolation and shown, viewed must be prosecutor’s motives are sub- peremp considered connection with the ject question judicial inquiry when tory challenge system.” They Id. at 845. Negroes he excludes other group particularly undisputed “it is noted that no sitting in a on from Negro any petit jury” has ever served on Only systematic where case. exclusion county. Id. The dissent summarized shown, has been would the State be by stating: its views upon justify called peremp- its use of case, holding “The called for negative tories or to the State’s involve- here, Negro that where as defendant discriminatory ment in jury selection.” proves Negroes constitute a sub- (footnote omitted; Id. at emphasis segment population, stantial added).6 Negroes qualified jurors, to serve as Eighth observed, Circuit “The and that none or a token number very heavy proof burden of set forth in juries has served on over an extended extensively has been criticized time, period prima facie case of the commentators.” United States v. Chil Negroes juries exclusion of from is then dress, 1313, 1316(8th Cir.1983)(en out; wholly made ... and that the State banc), prima fails to meet the facie case of Relatedly, it systematic purposeful racial discrim- has been said obviously that “Swain fur by showing ination that it has been ac- protection nishes no whatever to the first complished by the use of a defendant who suffers such discrimination challenge system unless the State also any given People Wheeler, court.” shows that it is not involved the mis- Cal.3d Cal.Rptr. 583 P.2d system use of such a prevent all (1978).7 However, what Negroes these con sitting any jury. ever directly cerns are proof Such a relevant to is holding would not interfere with required rights [emphasis prose sustain a claim that the defendants original] peremptories, to use nor the cution’s peremptory challenges exercise of right of the peremptories State to use as Here, is of the second Swain kind. as they normally and traditionally noted, have we are not concerned with how such been used. a claim is proved, or should be because no

“It would not Negroes fairly presented. mean ... that such claim has been proportionate entitled to representa- What we are concerned with is claima of jury____ tion on a racially Nor would it mean peremptory challenges based of the that systematic where exclusion of Ne- first Swain kind. scholarly given Newman, Certain comment has a similar See also United States v. reading Powers, Saltzburg (2d Cir.1977) of Swain. See and (quoting 248-49 Swain dissent and Peremptory Challenges and the discussing Clash Between majority common strains in the and Impartiality Group Representation, and dissenting opinions); Childress, Md. United States v. (1982): L.R. (8th Cir.1983), 79 L.Ed.2d 202 recognized pos- "The Swain Court thus two (1984) (comparing majority dissenting exercising challenges sible against motives for opinions, they agree). and the extent jurors. which black The first —the use of race as a proxy by identify probable prejudice which to course, thing, 7. Much the same of could be said particular explicitly approved in a case —was any approach of under a which material factor by justices, except all the Justice Black who judgment particular in a case is an evalu- opinion. concurred in the result without The ation of the results in other similar situations emphasized importance protect- of period over a of time. Performance over time ing strike, inviolability peremptory of the frequently has been to in looked venire underre- concluding that a court should not scrutinize presentation principles cases. See cases and prosecutor’s challenging motive for blacks Mitchell, discussed in Rose v. in a case. The second —the use of 2993, 3005, 3007, 3009, challenges keep juries blacks off all —was approved.” their demonstrate

We then to Swain II for extensive use turn holding long understanding widely peremptory that held belief —from Court, then past challenge necessary part by that well is no Justice on leadership of Jus- jury.” Chief Id. decade under at 835.9 Warrne, this sort of tice dissented—that opinion noting: by continues challenge valid. peremptory is Justice challenge “The of the function stating the de- White that commenced only to eliminate of partiality extremes it “seeking as did to inval- fendant’s motion sides, parties on both to assure the striking alleged purposeful idate of Ne- jurors they try that the before whom properly de- groes from will case decide on the basis of the evi- Id., He nied.” 85 S.Ct. at 831. noted them, placed dence before and not other- in” the state’s contention “there is merit wise.” Id. at 835. strikes, peremptory de- system explains peremptory also per- It that “the cause, “challenges with- scribed without rejection imagined mits par- for a real or judicial explanation scruti- out and without tiality designated easily is less or de- any group ny,” justified “striking of other- required challenges monstrable” for than given case, qualified any jurors wise for cause. at 836.10 Another Id. function Catholics, Negroes, ac- they whether “facilitates the eyes.” with blue Id. countants or those exercise for cause remov- over opinion 600-year-old traces the ing juror’s the fear incurring hostility history peremptory challenge at through examination and law, observing common one form or cause.” Id. state is as fully at 835. The on both be- “[pjeremptories another sides entitled to benefits as the these defendant: England” came law of and that the settled country view in this has been that “[T]he provided starting law common “[t]his system guarantee should ‘not point country.” in this peremptories against freedom bias the ac- further Id. 832. The traces the cused, any prejudice but also from existence, from the beginnings continuous against prosecution. his Between him nation, of this form of some and the are to be evenly state the scales offense, challenge, in trials of all serious Missouri, Hayes held.’ State both defense 30 L.Ed. system nearly federal and in all or all of Id. [1887].” majority at 832-34. The states. Id. As to use peremptories basis of explicit took note of the existence statu- group-related, the racial or as op- other tory government’s right recognition of the individual, posed to characteristics of the challenge in federal courts challenged venireperson, Swain states Although ever since 1865. Id. at 832-33. that: he observed that the United States Consti- peremptory challenge] “It is no availability tution not mandate the less does [the challenges,8 frequently grounds Justice White stat- exercised on normal- persistence peremptories ly thought legal ed that to proceedings irrelevant “[t]he itself, Supreme opinions by jury 8. While other mon law trial several Court with the and has stated, States, always have see Stilson v. also so United been held essential to the fairness of 583, 28, 30, 250 U.S. (1919); 40 S.Ct. 63 by L.Ed. 1154 jury.’’). Wood, 123, States v. 299 United U.S. 57 185, 177, (1936); S.Ct. L.Ed. 78 v. 81 Frazier related, long-recognized 10. A common-law func- States, 497, 201, United 206 n. Story prisoner tion noted Justice is that the 11, (1949), 93 L.Ed. 187 the Court never has against "may by persons not be whom he tried complete abrogation been faced with a prejudice.” has United States v. conceived a peremptory challenge. 480, Colson, (25 U.S.) 482, & Wheat Marchant 12 700, also Lewis v. 6 L.Ed. 700 See Unit- States, 370, 146 9. Lewis v. United U.S. 13 136, 370, 138, S.Ct. ed (1892) ("The right L.Ed. 1011 L.Ed. challenge [peremptory] comes com- from the action, race, namely, the presumption or reli- the court. The not over- official is nationality, occupation gion, or affil- prosecutor come and the therefore sub- people summoned for iations jected to examination allegations that question prosecutor For the duty. in case at Negroes hand all were counsel must decide is not defense they removed were juror particular of a whether race or they Negroes.” removed because were nationality in partial, fact but whether (footnotes omitted). Id. at 836-37 group from a different is less likely one is, language course, wholly This to It be. well known that these theory odds with of such cases as Peo widely explored during factors are Wheeler, ple supra, and Common dire, by prosecutor voir both and ac- Soares, 461, wealth 377 Mass. cused____ This held that Court has denied, N.E.2d 514-15 cert. requires by jury fairness of trial no less____ Hence veniremen are not al- venireperson may that a properly be judged ways solely as individuals peremptorily challenged because charac purpose exercising peremptory chal- thought to peculiarly teristics common lenges. they challenged Rather in “cognizable” any to group of which she is a light knowledge of the limited counsel member, distinguished as from her as them, has of include their uniquely (or noncogniza sumed individual affiliations, group context ble group) Plainly, characteristics. the Su case be tried. preme Court Swain has held In quest impartial “... prosecutor may challenge peremptorily on white, qualified jury, Negro and Protes- (or group) grounds racial similar long so Catholic, subject tant and are alike he does so “considerations related being challenged without cause. To sub- trying, particular case he is defendant ject prosecutor’s challenge and the charged.” involved crime particular case to the demands and tradi- Swain, 85 S.Ct. at 837. Equal tional standards of the Protection sum, change Clause would entail a radical Eighth as the Circuit said in operation the nature and chal- Carter, States 528 F.2d tanto, lenge. challenge, pro would (8th Cir.1975), cert. longer be peremptory ... 206, (1976), 48 L.Ed.2d “the presumption any particular Supreme “... The Court in Swain made clear that prosecutor case must be that the using race or other affiliation is fact a State’s legitimate ground to obtain fair for challenge in an indi impartial jury try the case before vidual case.11 Similarly, we systematic policy ju have said “the of racial exclusion from recognized ries," Swain); citing Newman, United States v. subject judicial cannot review even when (2d Cir.1977) (proper peremp 549 F.2d “ prosecution along exercised racial lines.” tory prosecutors under Swain where ‘believed Raymond, (5th Sorenson v. Cir.1976) striking of Black would veniremen less This, course, (citing II). en the risk of bias in favor of defend the [black] See, recognized e.g., is the view. United States "); Danzey, F.Supp. ant’ United States v. Thompson, (8th Cir.), v. denied, curiam, (E.D.N.Y.1979), per aff’d — U.S.-, 83 L.Ed.2d 1065, denied, reh’g F.2d en banc 622 F.2d (1984) (prosecution peremptory challenges 369 (2d Cir.), denied, 878, 1066 101 confessedly of blacks “based on the assumed 225, (1980) 66 (peremptory S.Ct. L.Ed.2d 101 affinity prospective jurors racial of these to des- challenges jurors “to exclude ethnic of the same ignated by black alibi witnesses" is sanctioned defendant";, background judges as the four con Swain does not violate the sixth amend- curring rehearing in denial of state that en banc ment); Clark, 679, United States v. 737 F.2d 682 peremptory challenges on "use of based a (7th Cir.1984) ("[t]he Supreme Court held some assumption cognizable legal bias denies no ago years equal that it is not a of denial the ” case,’ Swain, rights citing ‘in protection prosecutor of the laws for a to base might though it do so if used Blacks "to exclude peremptory challenges grounds, pro- on racial jurors general signifi- as from service in or in doing pursuance vided that he is not so in of a

549 securing juries method of which in fact Amendment Sixth parties and in the fair Swain that is suggested has been It ” impartial.’ authoritative, not au- or at least is longer applying Other decisions of this court in which respect to cases with thoritative Swain include: Da in federal prosecutions implicated, because the sixth amendment States, 1, (5th vis United 374 F.2d v. 5 years it three before decided some it was Pearson, v. Cir.1967); United States 448 Louisiana, v. held, in Duncan first was 1207, (5th Cir.1971); United F.2d 1213-14 145, 1444, 20 L.Ed.2d 491 U.S. 391 Carlton, 207, (5th v. F.2d States 456 208 applied to amendment that the sixth Cir.1972) curiam). (per haveWe continued connection, it states.12 In this the Taylor. e.g., holdings See with like after racially based claimed Durham, 799, States v. 587 United F.2d Swain in challenges of sustained the kind (5th Cir.1979); v. States 801 sixth amendment’s II violate the McLaurin, 1064, (5th Cir.), F.2d particularly as requirement,” “cross-section cert. denied sub nom. Hamilton v. United Taylor v. Louisi- in such reflected cases 1020, 743, U.S. S.Ct. ana, 692, 42 L.Ed.2d (1977). L.Ed.2d 767 In affirming the con Abrams, McCray v. (1975). See McLaurin, in stated: viction we Cir.1984), reh’g (2d en 1124-30 F.2d denied, (1985), petition “They [appellants] argue F.2d 277 banc ... — -, government its pending, certiorari U.S. exercised (1985). challenges in racially discriminatory 85 L.Ed.2d 837 manner, effect of net which was to analysis. reject this This Court We deny appellants right their to be tried applied Swain consistently prose- in federal representative by which is the sixth amendment has cutions where community. their obviously always fully applicable. been “... Swain Although in- course v. Thus, United States Wil- in we stated proceed- volved state than rather federal liams, (5th Cir.1971): F.2d apply we same standards and ings, “Appellant next contends that he analysis in our review of crimi- federal right his to a trial denied constitutional added; nal trial.” Id. at 1076 (emphasis Appellant, impartial jury. a Ne- omitted). footnote gro, jury____ was tried an all-white Likewise, however, objects, apply we He the fact have continued to Swain although Negroes were three on to our consideration cor- there habeas venire, applications arising twenty-eight-man pus all state convic- Taylor. in trials after Duncan were peremptorily three stricken tions Estelle, v. Easter 759-60 prosecutor Government without cause or Blackburn, Cir.1980); Prejean v. (5th explanation, in violation Sixth of his (5th Cir.1984), reh’g en Rights. Such 1103-04 Amendment a contention In Pre- holding v. banc 765 F.2d 482 with the conflicts jean despite explic- we followed this course Su- of Alabama State opinions on preme upheld system per- recognition the denial Court York, McCray v. New emptory challenges, finding explicitly of certiorari 961, 103 77 L.Ed.2d 1322 argument merit the State’s approval Elev- system necessary We cited with affords ‘a suitable and cases"); category King County appropriate Nas- establishes race as an basis for cant sau, (E.D.N.Y.l984) ("un- challenges”). F.Supp. exercise Swain, making der state use of racial criteria illegal only peremptory state, Woods, when 12. In DeStefano dominance, acting policy (1968) curiam), (per white attempts juries” (emphasis keep off all inapplicable blacks held that Duncan was original)); Grady, began prior May 93 Wis.2d State in which trial cases 607, (1979) (“Swain, adopted, 1968, N.W.2d 611 date was decided. Duncan 550 Zant, Willis v. opinion in

enth Circuit’s 720 Some of the more appellate recent federal 1212, (11th Cir.1983), cert. 1217-21 F.2d decisions to the same effect are in collected — denied, -, 3546, 104 U.S. S.Ct. 82 Abrams, in McCray dissent 750 F.2d (1984), which L.Ed.2d 849 in that Circuit McCray appears at 1136.13 to be the first (720 14), F.2d 1219 n. stated de “[W]e appellate reaching federal decision a con- petitioner’s cline invitation to extend the result, trary vigorous albeit over a dis- analysis sixth amendment’s cross-section then, panel sent.14 Since of the Sixth supra, Taylor, under to the traverse Circuit has followed McCray, see Booker v. Prejean, 743 See itself.” F.2d at 1104 & n. Jabe, (6th Cir., 1985), 775 F.2d 762 while a Maggio, 11. See also Sonnier v. 720 F.2d panel of the Tenth Circuit has declined to denied, 401, 407-08, reh’g en banc 723 Brown, do so. United States v. 770 F.2d denied, (5th Cir.1983), cert. 907 465 (10th Cir.1985). 912 1051, 1331, 104 U.S. S.Ct. 79 L.Ed.2d 726 Before the 1978 decision in People v. Wheeler, the state courts had been unani- holdings These are consistent with a vast following principle mous in of Swain. host of decisions other Circuits which Annot., 79 A.L.R.3d 14 Wheel- the Swain applied analysis have in federal itself, though er gives it extensive consider- prosecutions, habeas cases for state ation to decisions of the United States Su- Taylor. trials after Duncan No use Court, preme ultimately based on the purpose by citing ful would be served all of California Constitution. The California Su- itself, pre-date these cases. Some preme Court stated: such as Hall v. United 168 F.2d 161 “The court’s motivation in Swain seems denied, (D.C.Cir.), 853, cert. 334 U.S. to have been its desire to avoid what it 1509, 92 L.Ed. 1775 where the believed would be ‘a change radical dissent expressly grounded on the the operation the nature and [peremp- ory must be drawn from a (380 tory] challenge’ 221-222, section, pp. U.S. at cognizable group cross with no in 836), p. 85 S.Ct. at tentionally excluded, strongly we sus- and that the federal pect that desire has survived courts should ensure this use the advent supervi Taylor sory powers over rule. We challenges. therefore as- Id. at 165-66. Hall was cited with approv present question sume that if the were Swain, 26, al in 85 S.Ct. at 836 n. high also before the it court would reaffirm Carlton, 456 F.2d at 208. Swain and reach the same result under Zant, 1212, curiam, 286, denied, 13. These are reh’g Willis v. 720 F.2d 620 F.2d en banc — (11th Cir.1983), denied, U.S.-, denied, (2d Cir.), 878, 101 n. cert. F.2d 1065 cert. 449 U.S. 3546, (1984); 225, (1980); 104 S.Ct. 82 L.Ed.2d 849 66 L.Ed.2d 101 United States v. Childress, (8th Cir.1983) 82, (8th Cir.), denied, States v. Thompson, 715 F.2d 1313 730 F.2d cert. (en banc), denied, — 1063, -, 443, cert. 464 U.S. 104 S.Ct. 105 S.Ct. 83 L.Ed.2d 369 744, (1984); (1984); Clark, 679, 79 L.Ed.2d 202 United States v. United States v. 737 F.2d 145, Whitfield, (4th Cir.1983); (7th Cir.1984); 715 F.2d 146-47 Calhoun, 681-82 United States v. Morris, 1493, Weathersby (9th 1094, (9th Cir.1976). 708 F.2d 542 F.2d Cir.1983), denied, 1046, cert. 104 S.Ct. (1984); 79 L.Ed.2d 181 United States v. opinions 14. As reflected in the on denial of Canel, (3d Cir.), denied, 708 F.2d banc, rehearing McCray’s precedential en value 78 L.Ed.2d 151 "by adversity is undermined the lack of between (1983); Jenkins, United States v. 701 F.2d case,” litigants on the central issue in the (10th Cir.1983). 859-60 See also United States ex leading at least one member of the Second Cir- 168, 172 DeRobertis, rel. Palmer v. 738 F.2d & n. binding panels cuit to view as not on future — U.S.-, (7th Cir.), cert. Abrams, McCray that Court. 756 F.2d at 278. (1984) (rejecting argument L.Ed.2d 241 opinions Two of district courts in the Second against application opinions of Swain based on strongly Circuit have criticized its York, McCray on denial of certiorari v. New Abrams, McCray. F.Supp. See Roman v. (S.D.N.Y.1985) (Brieant, J.); 638-42 (1983)); Newman, United States v. Salamack, (S.D.N. F.Supp. Schreiber v. (2d Cir.1977); Danzey, United States v. J.). Y.1985) (Goettel, (E.D.N.Y.1979), F.Supp. aff'd per

551 presence of cross-section rule as it tended to reduce the blacks representative equal protection jury clause.” under the the venire and below the level did omitted).15 (footnote Thus, representative P.2d at 767 of a cross section. Tay- Justice White stated for the court in that have followed Wheeler Other states lor: on local based their decisions have likewise Soares, su- “A v. unanimous law. See Commonwealth Court stated Smith v. 481, Texas, 130, 164, Neil, 128, v. 457 So.2d pra; State S.Ct. 165, (1940), State, (Fla.1984); 85 L.Ed. 84 496 A.2d 997 Riley v. ‘[i]t Gilmore, (Del.1985); 199 N.J.Su- of the tradition the use of v. established State (1985). 389, public per. juries justice 489 A.2d 1175 See also as instruments of 486, Crespin, jury body truly representa- 94 N.M. 612 P.2d v. that the be a State 716, (1980). community.’ jury tive of the A state system systematic that resulted in exclu- However, approach remains the Swain Negroes jurors was sion of therefore overwhelming majority among rule Equal held to violate the Protection Marshall, dissenting Justice states. Clause of the Fourteenth Amendment. of certiorari in Gilliard v. Mis- the denial 867, 40, 43, Allen, 443, “... In Brown v. sissippi, 464 U.S. 474, (1983), L.Ed.2d 179 observed: 97 L.Ed. 469 (1953), the Court declared that my knowledge, years ‘[o]ur in the five “To duty protect the federal constitutional Soares, single not a since Wheeler rights of all does not mean we must or imposed supreme state court has state impose conception should on states our constitutional limits on chal- lists, fact, proper jury long of the source of so lenges. period, over the same at reasonably as the source reflects a cross- jurisdictions have considered the least 19 Swain, and, population section of the in char- following reaffirmed suitable issue intelligence acter and Negroes duty.’ that the exclusion of for that civic their view by peremptory challenges is constitution- system-

al in the absence of evidence import “The unmistakable (Footnotes omitted.)16 atic exclusion.” 1940, opinions, Court’s at least since Texas, supra, repudiat- Smith v. and not Moreover, when Swain decided decisions, by intervening ed is that the principle already long cross-section had established, petit jury represent- selection of a from a indisputably ap- been and was ative, community cross plicable pertained to the at least as it section states context, namely, component an essential of the Sixth to the a black de- right challenging jury Amendment to a trial.” 95 fendant his conviction on ground procedures selection 696-97.17 anti-Wheeler, faction, State, see v. 15. The Wheeler also observes that Jus- Lawrence 557, 1127, (1983). ap of both Swain and tice White is author A.2d Md. And Wheeler, Indiana, Arizona, Nevada, Taylor. See 583 P.2d at 767 n. 33. pellate courts joined reject Colorado have the ranks of those 16. state decisions which have considered State, ing 281, See Hobson v. 471 N.E.2d Wheeler. rejected Wheeler and Soares are cited in (Ind.1984); Wiley, State v. 144 Ariz. 285-86 footnote 3 to Justice Marshall’s dissent. 104 (1985) (en banc); People 698 P.2d 1244 v. v. S.Ct. at 43 n. 3. See also cases cited in State Fields, (certiorari (Colo.App.1984) 697 P.2d 749 Neil, (Fla.1984), 457 So.2d 484 n. 3 and in Court, granted by No. 84 S.C. Colorado Williams, People v. 97 Ill.2d 73 Ill.Dec. State, 1985); P.2d March Nevius v. 454 N.E.2d 1985) (Nev.Sup.Ct., (petition rehearing 80 L.Ed.2d 836 Annot., pending). People Lyles, See also 106 Ill.2d see For earlier decisions 79 A.L.R.3d (1985); 373, 87 Ill.Dec. 478 N.E.2d 291 wrote, appellate Since Justice Marshall State, (Miss.1984). Booker v. 449 So.2d Florida, Delaware, Jersey courts in and New Wheeler, following see can be added to those say application sixth Neil, State, This is not to supra; Riley supra; State nothing Gilmore, added amendment to the states Maryland likely supra. State v. can Rather, undecided, question. what it added selection than the considered as in the rather Swain Indeed, part largely II is guarantee based on “by amendment’s of trial an im- analysis partial of the current and jury” historical forbids the perempto- kind of in Swain challenge ry challenge approved role of the part II. Swain portion premised That jury system common law and American generally. type conclusion that particularly It relies on federal cases, integral such as Lewis v. United there sustained was an criminal States, recognized part of such 370, 136, trial. 146 U.S. 13 S.Ct. 36 L.Ed. equal protection States, The thought Pointer v. United clause was (1892); 1011 151 to forbid what clearly was so autho- 396, 410, (1894); 14 U.S. S.Ct. 38 L.Ed. 208 significant rized part as a of the constitu- States, Harrison v. United 140, 163 U.S. tionally required jury trial. 961, Miles v. (1896); 16 S.Ct. 41 L.Ed. 104 States, (103 U.S.) 304, 13 OTTO 26 Moreover, principle cross-section is Aldridge v. United (1881); L.Ed. 481 inapplicable to the kind of group-based per- States, 308, 470, 283 U.S. 51 S.Ct. 75 L.Ed. emptory challenge dealt with in Swain 1054 carefully likewise with, begin II. To the cross-section cases history traces the peremp- of the use of the systematic largely couched in terms of tory challenge in up federal criminal trials Further, exclusion. prin- cross-section Swain Accordingly, to 1965. it stands ciple applied formation of the its suggest possibly venires, head to that it could be juries individual selected Apodaca holding consistent with a Oregon, Thus, v. the sixth from them.18 is not quirement venire, material in the Swain context. applied jury, For exam- at the as well as the ple, the sixth amendment allows Abrams, one not a McCray selection level. v. 750 underrepresented member of the class to com- persuaded. F.2d at 1129. We are not is, was, plain, Taylor, while this result or at least with, begin To consistently we have held that equal protection less clear under the clause. capital peremptory challenges may cases Louisiana, 625, See Alexander v. 405 U.S. 92 express used to exclude hesitancy those who 1221, 1226, (1972); S.Ct. 31 L.Ed.2d 536 Peters v. imposing penalty about the death but whose 493, 2163, 2168-69, Kiff, 407 U.S. 92 S.Ct. 33 exclusion for cause is forbidden Wither- (1972). Further, L.Ed.2d 83 where the under- Watkins, spoon. 1067, See Jordan v. 681 F.2d one, represented group is not a racial the sixth (5th Cir.1982) Swain); (citing 1070 & n. 2 Son protection may stronger amendment’s than 401, 406-07, Maggio, reh'g nier v. 720 F.2d en equal protection that of the clause. See Duren denied, (5th Cir.1983), banc 723 F.2d 907 cert. Missouri, 357, 664, v. 439 U.S. 99 S.Ct. 58 denied, 1051, 1331, 465 U.S. 104 S.Ct. 79 L.Ed.2d (1979); Florida, 57, Hoyt L.Ed.2d 579 (1984) ). (citing 726 See also Dobbert v. 82 S.Ct. 7 L.Ed.2d 118 But Swain Strickland, (11th Cir.1983), 1525 claiming involved a black defendant underre- — -, cert. U.S. 104 S.Ct. presentation Finally, of his race. under the (1984) (same). L.Ed.2d Grigsby v. Ma Cf. equal protection clause the statistical case is (8th Cir.) bry, granted 758 F.2d 226 sub only prima facie, may be rebutted — McCree, -, nom. Lockhart v. U.S. sufficiently strong showing that there was no (1985) (challenge S.Ct. cause, 88 L.Ed.2d 48 discriminatory intent or that such intent peremptory challenge, but not of Wither- effect, had no determinative while under the spoon excludables violates the re cross-section response sixth amendment to the same guilt quirement on the or innocence issue in showing threshold "adequate must be one of case). capital justification.” Duren, S.Ct. at 670 n. 26. (Justice concurring) Justice Brennan Marshall This is not material in the Swain context where allowing challenge has noted that for cause in a question showing was whether a threshold capital requirements case where the of Wither- had been made. spoon have not been met violates the cross- It also be noted that this Court has like- cases, stating: "Though section these cases in- long wise principle. been sensitive to the cross-section systematic jury pool volve exclusion from the opinions See the various in Rabinow- particular jury, death-qualifica- and not from a 34, 57-58, 77-79, v. United itz equivalent tion is the functional of exclusion (5th J.; Cir.1966) (Rives, Brown, J.; concurring; pool. from the has unlimited Bell, J., dissenting part). pre- This has not ability challenge prospective jurors for cause applying vented us from Swain to federal cases and uses the to remove all members post-1968 state habeas cases. segment community of an identifiable —Witt, suggested Witherspoon 18. It been pool." Wainwright U.S. from Illinois, -, 20 L.Ed.2d n. L.Ed.2d (1968), (1985) added). (dissenting opinion) (emphasis indicates that the cross-section re- ty thereby reasonably rep- fail to be White, citing (1972), Justice thereof.” 95 L.Ed.2d resentative Swain, added). stated: (emphasis forbids, how- the Constitution “All that And, Missouri, Duren v. exclusion of ever, identifia- systematic Justice community segments ble again speaking for White the Court ob- juries from the ultimate-

jury panels and served: panels; a from those defendant ly drawn prima “In order to establish a facie not, example, challenge for the violation the re- of fair-cross-section jury merely no makeup of a because (1) quirement, the must show jury, of his race are on the but members defendant group alleged that to be a the excluded is sys- his race has prove that been must (2) group community; in the ‘distinctive’ Ala- tematically excluded. See Swain v. representation that 202,208-209, 824, group the this bama, S.Ct. juries from which are selected (1965) venires is 829, (Empha- 13 L.Ed.2d ....” added.) and reasonable in relation not sis fair persons such in the communi- number of Similarly, in wrote Taylor, Justice White (3) ty; underrepresenta- that for the Court: systematic tion is due exclusion govern “If rule is to the fair-cross-section process. group jury-selection in the juries, as we con- the selection of have must, be system- it women cannot cluded It jury panels atically excluded from “Finally, prima in order to a establish juries are drawn. petit which

from case, petitioner necessary facie it was for underrepresentation to show that the emphasized that “It should also be venire, women, on his generally and juries drawn holding petit that must be systematic exclusion in the due to their fairly representative of from a source Id., process.” jury-selection at impose require- community we added). (emphasis 668-69 actually petit chosen juries ment States, 366 also v. United See Rabinowitz community mirror must reflect (“The 34, Cir.1966) (5th focus F.2d groups in the various distinctive jury list which the is law is on the entitled Defendants are not population. composition drawn and not any particular composition to a jury----”). particular names, wheels, pools but then, theory the cross-section Plainly, panels, juries or venires from use speak systematically ex- does are drawn must not challenges part variety. II groups in the communi- clude distinctive obviously acceptable, though inapplicable that has adverse Obviously, remarks are these Ohio, See Lockett v. challenges. "cross-sectional” effects. 586, Further, ground particular 98 S.Ct. 57 L.Ed.2d 973 of chal- where a Witt, (1978); Wainwright supra. (such v. See also lenge opposition to death cause as for Balkcom, 573, law, Smith 660 F.2d 578-83 penalty) recognized this has v. is state denied, reh’g banc present respects, en inherently systematic other effect not modified denied, (5th Cir.), cert. exercised on an individu- (1982); Spink (i.e., variety). al of the Swain II case basis Wainwright, Moreover, 578 F.2d 594-95 Witherspoon’s ellink v. reliance denied, (5th Cir.1978), deemphasized, cert. approach has been cross-section Sonnier, (1979); juries 720 F.2d 60 L.Ed.2d afforded while the broad discretion 407-08; Garrison, 742 F.2d has seen at Keeten penalty at that time been death cases Cir.1984). clearly (4th rejected We have important Wither- 133-34 particularly factor Blackburn, Witt, Grigsby. 756 F.2d See Watson v. spoon. Wainwright See (5th 1985); Knighton Mag Cir. 1056-57 852 n. 5. Cir.), (5th cause, gio, Finally, With- even as to — U.S.-, 83 L.Ed.2d recognized erspoon progeny and its have is “Witherspoon-excludables” the exclusion of systematic, They they do not cognizable group, excludes a the exclusion the formation of the relate to venires. necessarily represents official judg- society generally ment is argument been made re- adversary inferior. Under the framework stricting requirement cross-section trial, however, neutral; society is nei- process meaningless, selection venire favored, side speaks ther neither juries because decide cases while venires society. nothing. peremptorily challenged by To be McCray, decide F.2d at contention, however, ignores bespeaks This one side or the other hence purpose the vast difference in function judgment which neither nor societal even normative, between selection for a venire and selection merely reflects the tactical jury. for a Exclusion from the venire sum- contesting litigant’s determination of one process implies government mons is, challenged person counsel that the un- legislative branch), (usually judicial der discrete facts of that capacity in its as the neutral structurer of case, likely more to favor the other side. justice system, the overall has made the Moreover, operative the effects of the general determination that those excluded equated be cannot to try are to any unfit case. Exercise of the general those of the exclusion from venire by contrast, repre- peremptory challenge, pools. peremptory challenges All have a decision, sents the discrete made one of “price” in peremptories foregone. other opposed litigants two or in more the trial jury The representa- drawn a venire phase system our adversary justice, of of cognizable tive of all groups, but from challenged venireperson that the likely will one group has been eliminated litigant be more unfavorable to that in that prosecution group-based peremptory chal- particular case others than on the same lenges, generally likely is more to be ac- venire. quittal prone jury than a drawn from an Thus, excluding particular a cognizable happens otherwise venire similar that to group pools all stigmatizing from venire is include no group. members that same discriminatory in several interrelated instance, former, In the latter unlike the ways peremptory challenge is not. prosecution the could eliminate the most singles the group, former out excluded prone acquittal by using the per- venire groups equally while individuals of all are emptory challenges it otherwise would subject peremptory challenge any to on have used to eliminate individuals affiliated basis, including group their affiliation. group question. Therefore, the with in- Further, venire-pool bespeaks exclusion group clusion of a in the venire is not priori unfitness, total across-the-board “meaningless” simply the end to result be- peremptory-strike while merely exclusion may cause that group be eliminated from suggests potential partiality in particular jury by trial peremptory challenge. the isolated case. Exclusion from venires fo- Further, general systematic exclusion from cuses on the inherent attributes of the ex- pools greater ability pre- venire allows to inferiority, cluded and infers its but dict, in prose- advance the decision to the peremptory To suggest does not. cute, composition the jury which will particular race judge any is unfit to try the cognizable group case. If no is necessarily racially insulting. case To pro- excluded from venire formation suggest may that each race have its own cess, prosecute to normally decision concerns, special may or even tend to favor cannot made with assurance that own, instance, its not. says For it noth- given group represented will not be so adverse, ing racial, truly or even about which the venire from trial they infer blacks to more will jury be drawn that it cannot be elimi- likely greater antipathy to have to the Ku (or by peremptory challenges can be Finally, Klux Klan than nated whites. the role played by unacceptable significant. the decision maker is eliminated cost If system peremptories foregone). the neutral structurer terms of other case, example, (1972), L.Ed.2d necessarily bespeak strength limited princi- of the cross-section advance not have known could ple systematic as applied here would even to the struc- twenty-eight venirepersons blacks, turing jury. six of six Juries of included nine instead have pros- obviously likely minority much less others whom have six and three blacks twelve, juries imperative representation it than felt ecution would have unanimity obviously increases the peremptorily strike. minority. plainly The Court was aware Further, community’s mirroring of the Williams, considerations. these “cognizable” groups at of all mixture This S.Ct. at 1906 & nn. 46-47. is not to “be all and is not the trial-jury level actual say that cross-section considerations were have system as we jury end all” systematic deemed irrelevant to such struc- were, steps take we would it. If it known turing, they merely were con- composition nearly ensure that the to more trolling. respect five-person roughly mirrored jury individual of each Georgia system, the Court in Ballew re- group mixture with community’s Georgia, female, “Anglo,” spect, say, male and 55 L.Ed.2d stated that Obviously, and “Black.”19 “Hispanic,” question representation “the does consti- however, approach completely any such that, tute factor of several when com- one we system as under- contrary bined, problem create constitutional throughout our employed stand and have significance under Sixth and Four- Indeed, Supreme Court’s deci- history. Nevertheless, teenth Amendments.” Bal- requires that the sixth amendment sions Williams, to de- lew refused retreat from larger nor juries than six unani- neither recognition ten-percent spite that minorities verdicts, despite general practice mous wholly “representation” would be without jury of long history of a unanimous and six-person juries, of in over half as con- twelve, Florida, 399 U.S. Williams v. percent thirty of trasted to less than 1898-1900, 26 L.Ed.2d Ballew, juries. twelve-person 98 S.Ct. at Louisiana, (1970); Johnson v. 1037.20 1620, 1623, 1625, 356, 92 32 L.Ed.2d S.Ct. relating (1972) (due That than those to process); Apodaca factors other v. Ore- important principle 32 the are to gon, 406 cross-section U.S. given figures that example, sacrificing The in Ballew indicate a 19. For without random 20. minority ten-percent no members in would have summonsing, process the venire formation randomly fifty-three percent of the selected six- be structured to ensure that each venire could only thirty-six juries, person one member roughly presence relative such reflected the of juries, percent or more mem of such and two community; jury panels groups in the and respect percent; with to twelve- bers in eleven person juries, by drawing be filled from the venire’s could such there would be none of a way groups in such a as to continue this several juries, twenty-eight percent minority of the jury; approximate division on each trial further percent only thirty-eight of the one member slightly chang- possible by would be refinement thirty-four per two or more members time and given juries ing a the mix in a fraction of on connection, this it should cent of the time. Generally speaking, or similar basis. rotation however, following cases the Wheeler also be noted that we have made little effort even approach held that strikes have (as that each venire distin- ensure per explanation required of guished period from venires as whole over a eliminating only, emptory strikes strike or time) nothing say of each trial of actual —to two, panel. only the venire blacks on or community’s jury approximates mixture — Crespin, 612 P.2d 716 94 N.M. State v. Indeed, Missouri, "cognizable” groups. Duren v. Rousseau, (1980) (one); People v. 129 Cal. supra, that the sixth amendment’s indicates (1982) (two). Cal.Rptr. App.3d But requirement, applied even as cross-section DiMatteo, Mass.App. see Commonwealth selecting presently conventional method of the venires, (1981) (no refusing error in N.E.2d 754 systematic be diluted on a basis can attempted peremptory chal counsel’s defense lenge significant provided "a state interest venire, that where the black of the thereby. manifestly primarily advanced” defense’s nonracial did not credit the trial court explanation). at 670. jury concept the criminal likewise same conclusion is be drawn from passage in Taylor reflected Baldwin v. Justice White’s reference to the York, Jury Selection and New Federal Service Act (Pub.L. 90-274, 101, No. 26 Li.Ed.2d437 which describes “the 82 Stat. § as primary purpose jury” seq.) embodying as U.S.C. et follows: § recognition proper implementation interposes jury between the ac- “[T]he principle requirements “that judgment cused and his accuser the being jury’s chosen a fair cross sec- tutored, laymen perhaps who less community tion of the fundamental judge panel judges, than a or who system justice.” the American likely at the time are same less to func- expressly provides at Act 697. The that tion as arm appear but another person persons “no or class of shall be proceeded against Government excused, disqualified, excluded, exempt (Footnote omitted.) him.” jurors: provided, from service as Similarly, Apodaca states: person jury summoned for service purpose pre- is to “[T]he (3) upon ... excluded oppression by vent Government ____” law, provided by 28 U.S.C. ‘safeguard against providing a the cor- 1866(e). Taylor opinion also refers § rupt prosecutor or overzealous Act, legislative history of this includ- biased, against compliant, or eccen- ing the House and Senate Re- Committee Louisiana, judge.' tric Duncan v. 391 ports. following at 697 Id. nn. 7-8. The U.S., S.Ct., at at ‘Given Report from the House Committee is hence purpose, the essential feature of a significant: jury obviously interposition lies in the guarantees only “The act between the accused his accuser of ‘selected shall be at random from a fair judgment of a commonsense community.’ cross section of the It does ’ Florida, laymen supra, Williams v. require any stage beyond that at U.S., S.Ct., at 1906.” 92 process initial source list the selection S.Ct. at 1632-33. . produce groups shall accurately mir- Thus, community ror makeup. no chal- The United States Constitution does not lenge on lies that basis. speak “representa- of a “cross section” or similarly jury. tive” or described Of U course, jury this does not mean that our noted, however, “... It should be that system does embrace cross-section val- change the bill does not the method of ues. But it mean does that such values are jurors challenging dire. par- voir of, embraced the context and are limited ticular, bill leaves undisturbed the by, concept jury. overall of right litigant per- a to exercise his clear, concept,

That makes Swain in- emptory challenges jurors to eliminate peremptory challenges, cludes both for in- purely subjective reasons.” H.R. for characteristics, group dividual and when 1076, Sess., Rep. Cong., 90th No. 2d re- purposes made for the printed Cong. 1968 Ad. U.S.Code & being case tried. This is likewise added). evident (emphasis News 1794-95 Williams, White, where Justice re- legislation This was enacted three sponding argument jury Swain, years right per- after and the impermissibly six community diluted cross- emptorily challenge purposes representation, section observed: being case tried on the basis race jury rep- “Even the 12-man insure cannot was then well- group other characteristic every prosecutions. resentation distinct voice in the Thus the settled in federal community, particularly given must have real- Taylor use challenge.” Congress in included the ized that 1968 Wil- liams, (emphasis added). type II within 90 at 1907 S.Ct.

557 formed,” ideal previously nevertheless the Congress “provided law” which those jurors perfectly who will “stand to leave “undisturbed.” remains intended parties” indifferent between and “who does, of The sixth amendment Queen Hep way.” no bias either fe[el] course, “impartial” jury. This require an burn, (11 290, 297-98, U.S.) 3 7 Cranch impartiality applicable to is requirement of (1813). Hence, challenge 350 L.Ed. jury, in dis- each particular, each individual may properly cause be sustained in instanc however, not, imply It does crete case. absolutely is es such action re where any representa- party is entitled that a connection, it is Id. quired. In this also jury,21 “group” his her on tive i.e., impartial recognized that lack of bias— group significant is a one where that even may ity in the referenced arise be community the trial takes where sense— See, e.g., characteristic. cause of a venire is drawn. place and from which the States, Aldridge v. United 283 U.S. (“[N]o requirement Taylor, at 702 S.Ct. 1-3, nn. 75 L.Ed. S.Ct. 472-73 & juries actually must petit chosen States, (1930)22; Miles v. United 13 OTTO groups in the reflect the various distinctive (1881); Queen U.S.) 304, (103 L.Ed. are not entitled population. Defendants Hepburn, supra; Car Ham South particular composition____”). olina, 850-51, S.Ct. requirement impartiality What (1973).23 excusing jur Though L.Ed.2d 46 each of whose mem imply is a does ors for such bias reduce the cross-sec the case willing and able decide bers jury, recog we have tionalization intro solely the basis of the evidence on fair nized that cross-section and “[a] instructions of the at trial duced impartial than a fair more desirable Yount, Patton v. court. prejudiced cross-section and biased.” 2892 n. L.Ed.2d Balkcom, Smith v. (“The (1984) standard constitutional [is] respects, reh’g in other (1981), modified lay impartial only if he juror can denied, (5th Cir.), en banc F.2d 858 render a verdict based aside his 882, 103 court.”). presented evidence L.Ed.2d 148 normally only demonstrated al While however, put Plainly, for cause complete inability to aside extra most requires inadequate for the elimination of chal is an tool considerations neous with, along begin sustained, bias exists is often bias. To lenge for cause be degree; place strength or its possible jurors “whose continuum of “scarcely to avoid” impossible that-continuum will often entirely opinions minds are uninfluenced anything Lopez country anal- v. United 21. This has not utilized procedure ogous common-law these later to the ancient 68 L.Ed.2d recognize an alien was entitled a under which composed not infre- nonetheless the decisions of and half of citizens. half aliens quent desirability though the inflexi- less often — Wood, v. 57 S.Ct. See United States possible necessity inquiry into ble absolute —of 177, 185, 81 L.Ed. 78 Ristaino, group jurors. prejudice (“wiser generally” is to at 1022 n. 9 course Aldridge formally the jurors, 22. While involved issue inquire); Rosales-Lopez, 101 S.Ct. at 1636-37 race, it is defendant’s of the the unlikely against prejudice (approving inquiry into question prejudice against that the aliens). desirability the of such an A caveat to arise re- in issue there —would with blacks—as inquiry expressed concurring in the Indeed, juror. spect to a the Court there black Justice, Rehnquist, joined by in Justice the Chief jury were noted that "the members Rosales-Lopez is that it "could well the concern Moreover, support in at white.” 51 S.Ct. 471. might prejudice with- exist exacerbate whatever expressly a holding, Aldridge on relied of its aiding exposing it.” 101 substantially out juror's group affiliation —mem- where the case bership Rosales-Lopez dissen- Know-Nothing Party three at is- S.Ct. at 1638. The in the —was necessity the for view of Id. at 472-73. ters took broader sue. jur- prejudice inquiry possible into reject- Though been extensions of Ham have ors. Id. at 1638-41. Ross, S.Ct. v. ed in Ristaino 1017, 1020, (1976), and L.Ed.2d 258 Rosales- assurance, roughly gauge gious to even may, with sexual biases even where frequently depend exist, will on the circumstanc- such do not juror biases alienate a particular es of both impracti- case. It is against position.” counsel and his lay cal and undesirable to down the sort of at N.Y.S.2d 443 N.E.2d at 918.24 general implicit concept rule of chal- Thus, challenge plays lenge for but the cause clearest important parties’ quest role in the for the not, strongest ahd cases. This does how- “impartial” jury jury of the sixth —the ever, mean bias of a “lesser” kind has amendment, composed those who are tendency undesirably inhibit juror willing and able to the case solely decide on deciding solely the task of the case on the evidence and the law. As Swain and the charge. evidence court’s Cf. states: Queen Hepburn, supra. function challenge “The is not Moreover, even juror if the has a bias partiality to eliminate extremes of give proper would rise to a challenge which sides, on parties both but to assure the cause, may this fact not be demonstra jurors they try before whom recognized Swain, ble. This case will decide on basis of the evi- S.Ct. at as well as in a host of other them, placed dence before and not other- See, Missouri, e.g., Hayes decisions. wise.” 85 S.Ct. at 835. 350, 351, U.S. 30 L.Ed. 578 Lewis, (“essential See also 13 S.Ct. at 138 (1887). As the Appeals New York Court of jury”); fairness Hayes, stated in People McCray, N.Y.2d (“to S.Ct. at 351 secure the impartiality 441, 444, 457 N.Y.S.2d N.E.2d jurors”); States, Singer v. U.S. 783, 790, (1965) S.Ct. 13 L.Ed.2d 630 (1983): result”). (“likely produce a fair “First, jurors may be reluctant to admit juror's extent circumstances prejudices their spectators before or oth- may impartiality depends affect his present during ers the courtroom likelihood inference bias and the Second, prospective voir dire. certain inferred, strength of the bias under the jurors may evade full disclosure of their trial, not, se, per facts of a prejudices in an effort avoid being potential whether the source of bias jury. Finally, struck pro- from other “cognizable” affiliation with a group as spective jurors may simply be unaware distinguished possible other all of the existence of biases prej- certain potential sources. The for bias of Catholic they udices harbor.” against Klux Klan Ku member is not inevi- Further, availability of the peremptory tably every less in trial than of one protects by protect- for cause long against police. with hair25 ing against juror hostility resulting from Swain, 836; inquiry. Lewis argued It party’s per- has been that one v. United emptories may minority of a exclude all 36 L.Ed.1011 As ex- group, peremptories while other’s will pressed People v. McCray: majority, be insufficient to exclude the with questions resulting minority “Pointed directed at an party. area as unfairness to the potential racial, Soares, juror’s sensitive as reli- See N.E.2d at 516. To the (1981) (Justice judge may Rehnquist 24. the While conduct voir dire L.Ed.2d 22 concur- potential hostility, ("could reduce it ring; joined by Burger) the for will not Chief Justice Sanders, remove it. See Commonwealth v. 383 might prejudice well exacerbate whatever exist (1981) (question- Mass. 421 N.E.2d 439 it”). substantially aiding exposing without ing along ‘‘‘may this line latent activate racial prospective jurors may bias in or certain insult length suggests 25. Wheeler that hair is an uncovering others without evidence of bias in characteristic the basis of “individual” on which bigots acknowledge hard-core their who refuse to challenge properly peremptory may be exer- ’’); prejudice’ Rosales-Lopez v. United Cal.Rptr. 583 P.2d at 760. cised. 148 at minority” subject is also other that the re- rationale to reasoning implies this extent actually “Cognizable” group objections. unfair to the minor- classifica- sulting jury is great- any minority no to such unfairness tions are not limited those of ity party, less, to be for calculated rather classifica- majority, indeed and include er —and that previously noted —than gender, ancestry, reasons the tions such as national lack the of minori- might status, exist where religion possibly which economic re- from com- results venire representation ty specting given which the divisions in a com- chance or to the due to position either munity approximately equal.26 Nor may be in the commu- minority residents paucity suggested group-based it been that cause, for or from challenge nity, from peremptories permissible against are ma- challenge “individual” rea- Moreover, the jorities but not minorities.27 argument the To the extent sons. to prohibition presumably would extend cases, analogy cross-section on rests peremptories minority-group on affil- based or equal protection in their in their either minority group, iation ei- even where rationales, amendment does sixth “overrepresenta- its chance ther because of previously noted dif- into account the take particular on venire or some other tion” the between the venire-formation ferences reason, wholly would not be eliminated processes. peremptory-challenge significant- panel from or even reduced the ly proportion community.28 below its prohibiting per- all justification As a Indeed, minority might “cognizable” not be reduced challenges on emptory based on the affiliation, proportion “elimination of the below its venire.29 group jury pool required Certainly "cognizable" groups reversal at are not earners from the 26. Taylor; party race. is included. Du- not shown to be a mem- Sex instance of limited approach following Plainly, Wheeler so group. Cases ren. recognize. ber of there will be numer- Reid, See, e.g., Commonwealth v. "majority” eco- ous instances there where (1981) (female nomic, social, Mass. 424 N.E.2d 495 given geographical group in a charged proper- with murder male defendant ly prohibited community. using her chal- venire). lenges See, Soares, to strike all six males e.g., at 517 n. 35 27. N.E.2d generally groups likewise covered. (black Other are may racially based make defendant Gagnon, Mass.App. See Commonwealth descent); against jurors challenge of Italian ("French" (1983) sounding N.E.2d Booker, (black per- use of defendant’s at 772-74 “Roberts,” “Christian,” names, including Soares, last emptories venirepersons); Ro- white to strike (“sex, “Roy”); N.E.2d at and race, Abrams, F.Supp. 639-40 man at color, origin”), n. creed or national peremptories (prosecution’s exclude use of descent”); Wheeler, (includes those Italian “of venirepersons). white Cal.Rptr. (prohibit- at P.2d at Further, there is no reason to assume “racial, religious, ing peremptory ethnic, on only group-based uti- grounds”). Obviously, there or similar wholly challenged group be lized can where minority majority There real "sexes.” are no proportionately significantly re- eliminated or frequently instances where no sin- will also gle be setting, given example, duced. For (or ethnic) religious origin or national considerations, though present and group-based majority, and all are minori- can be said may challenges, not be or two decisive as to one (or community aspects ties others, particular "indi- decisive as to where possible intergroup the case which relate may significant. vidual” characteristics be more minority groups). may involve two biases occasionally also be the case This will at least minority argued is "enti- may 28. It groups. racial with “overrepresentation” tled” to its chance cognizable groupings extend even fur- But "overrep- just jury, chance entitled its as it is Co., ther. Theil Southern Pacific however, Again, the venire. resentation” on (1946) often re- 90 L.Ed.1181 —so process, argument not for fairness is an for a II, see, opposed to Swain lied on those argument process, it given for a As an case. 1127; Booker, 768; McCray, e.g., 750 F.2d at previously noted account the fails to take into Wheeler, cogni- 583 P.2d at 755-56—defines the venire-formation differences between systematically groups not be zable processes. peremptory-strike “prospective jurors" pool of excluded from the economic, social, religious, being “all panel twenty-eight-person has ten venire racial, If a groups political geographical (about thirty-six percent of "minority" Theil, members community.” at 985. Theil was a peremptory chai- panel), wage six daily the exclusion civil case which Finally, minority” the “elimination of analogous point the A somewhat is made in Peremptory Challenges Note, and the argument prosecution that if the assumes Meaning Jury Representation, minority group strikes on the ba- members 89 Yale of affiliation, group majority sis of their then writing L.J. 1177 This student con- group likely vincingly inevitably argues members must be as group- prone minority to be as conviction as péremptories the based exercise of will tend to This, group acquittal prone. are juries members from away distort the mean of turn, community’s assumes such situation the relevant attitudes minority majority equally the are ho- such asymmetrically when attitudes are mogeneous poles stand opposite community distributed about the mean and from respect challenged one another with their atti- group comprises the acquit- an concerning However, tudes the case. more tal extreme distant from the mean necessarily contrary, is not so. To the as In than the conviction extreme. other situ- applied ations, given feelings to a prosecution’s situation the use group- of among any group strong will enhance the tend- may peremptories one be based unanimous, nearly while among ency another the trial jury to reflect the mean of group may substantially community attitudes, there be both while still others it intensity more diversity less of atti- way will have no effect or one the other on tude.30 tendency.31 Significantly, “[tjhere 24(b) lenges reputation among, allowed used poten- Fed.R.Crim.P. have whatever or against minority over, members will leave four of the any significant portion influence tial for minority. perempto- If defense uses its ten might of the whites. While dire voir disclose against majority, resulting jury ries will this, some nevertheless some of the venire thirty-three percent minority, approximately be might not realize until later that this was the panel. the same as the they about, previously favorably had man heard presence panel those on with “indi- out, might speak be reluctant to or would be vidually” potential leanings way based one susceptible neighbor’s more to a chance com- may produce the other a similar result. If there during trial ments or the like. minority twenty-eight-per- are six of the on the panel, prosecution may son use three of its Note, Challenges Peremptory Meaning and the peremptories majority on based members on Jury Representation, (1980): 89 Yale L.J. 1177 characteristics, remaining “individual” and its distribution, "Suppose correctly that the social peremptories minority three on members based venire, reproduced asymmetrical on their affiliation. If the defense uses about the mean—that the extremes in favor of against peremptories its ten members of the acquittal away are farther the mean majority, resulting jury slightly will have than the favor of extremes in conviction. (three higher twelve) minority percentage Suppose acquittal further that the extreme is (six panel twenty-eight). than did the occupied by subgroup. some members of example, given community 30. For in a the atti- operation peremp- this case the normal may tudes of toward blacks the Ku Klux Klan tory disproportionate impact will have a on adverse, nearly strongly well be unanimous and subgroup. important- members of that More may while the attitudes whites well be much ly, jury’s it will distort the mean in favor of generally more diverse and less intense across conviction, prosecution’s because the removal spectrum. subgroup fully not be members will bal- that, apparent And it would seem at least in anced the defense’s elimina- situations, likely most blacks are more have a pro-conviction tion of jurors____ strong negative attitude to a shown witness hand, "On the other social distribution epithets use anti-black than whites are to have mean, might symmetrical about with equally strong positive to such a attitude equally away. extremes on both sides far If Nevertheless, theory witness. the Wheeler again subgroup supposed of a members prevent party relying been held to such extremes, occupy dispropor- one of the making racially witness from based subgroup tionate removal of will have venirepersons belonging absolutely jury’s no effect on the mean im- Johnson, group. People insulted 22 Cal.3d pact. The effect removals would of these Cal.Rptr. 583 P.2d 774 jurors fully offset at the ,, removal Again, prominent an individual who is case, protect- other extreme. In such a rule community, ap- appellant local black Leslie was, limiting ing subgroups by parently may enjoy generally well favor- ' away reputation among, jury's potential able shift the from that of or have would society, mean over, area, pro- influence blacks of that toward the at which the extreme as to based the that currently empirical evidence determination such unfet no any use, giv- exists in including tered group distribution consideration of attitudes] [of any range of cases.” Id. community affiliation, for en is an essential element of the at 1196. peremptory challenge itself has con sistently recognized been as a im proper, holdings prior reaffirm our that We portant integral part by jury. of trial peremptory challenge of group-based the challenges For us to forbid such in essence kind II is the considered “amounts to a of substitution individual constitutional, the equal not under judgment controlling the for of decisions” the protection clause but under sixth Supreme prior panels the the of well. as This conclusion amendment this Court. Payner, S.Ct. at understanding the that such premised on As the Second Circuit said in to, United States challenges do not run counter but rath Newman, (2d of, recognized part the mix of Cir. er form 1977), concept “unprecedented of trial it would be an as inherent values provided sumption as for the sixth amend jury power.” of III, ment and article section clause 3. In Hasting, United States v. 1974, 1978-79, L.Ed.2d Supervisory Power Court, the rejecting use of the We decline invitation achieve power supervisory the to avoid harm- guise result of em a different under rule, explained: less error begin To ploying supervisory power. our purposes underlying “The use of the su- with, support that same considerations pervisory powers imple- are threefold: to oppose the constitutional remedy recog- ament for violation of oppose employ such equally support rights omitted]; pre- nized [citations supervisory power. ment of the “The val judicial integrity by ensuring serve that assigned competing ues interests do appropriate conviction rests on consid- change has elected to because court validly jury erations before the [citations supervisory analyze question under the omitted]; finally, remedy as de- the” power instead of sixth amendment. signed illegal to deter conduct [citation Payner, States v. omitted].” 2439, 2446-47, significant- None of these considerations Moreover, the numerous decisions that ly implicated is no here. There violation prosecution’s have left intact the and de instead, recognized rights; suggested peremptory fense’s use of chal unfettered supervisory would vio- exercise lenges for purposes case long recognized rights litigants late the being theory tried were not decided on group utilizing per- affiliation racially challenges consider although that based are purposes emptory they illegal undesirable or even neverthe free being judicial case tried and do so egregious to be less are not so unconsti And, Rather, as such exercise inquiry decisions were and control. tutional. those symmetrical subgroups these but have tected clustered. Under circum- stances, evenly throughout, limiting both the nor- would cause distributed unrepresentative. Only will distort the if mal and limited to be asymme- nearer extreme. There subgroup of an mean toward is at extreme currently limiting empirical evidence as to which per- trical social distribution will given community any representation exists emptory protect commu- distribution Otherwise, range absence nity. cases. such would dis- a limitation knowledge distribution for community as to the actual tort mean. jury is geographic community drawn, which a "Numerous other distributions verdict nor the limited imagined. the normal impact society neither can be In those systematic ef- predictable, peremptory has a symmetrical that are that do have a end, impact as jury’s verdict mean subgroup both the nor- fect compared clustered one society.” Id. at 1193-96 sys- will have no mal and limited (footnotes omitted). jury’s In those tematic effect on the mean. Co., Sibbach v. Wilson & peremptories plainly legal, use of supervisory power prevent to not be 85 L.Ed. 479 As justified deterring illegal on the basis of noted, previously Congress in though conduct. Nor does such a use super- of the obviously well aware of Swain and the visory power any way implicate in “the long application principles of its in the fed- validly jury.” considerations before courts, eral considered but elected “not [to] Gatto, also United States v. change the challenging method of jurors” (9th Cir.1985) (exercise super- particular” and “in determined to “leave[ ] visory power proper “only recog- when a right litigant undisturbed the of a to exer- right violated,” nized has been and even peremptory cise his challenges.” H.R.Rep. caution). suggesting then supra. Sess., Cong., No. 90th 2d Ad- Apart from the foregoing, other consid- dressing prohib- cross-section concerns and against erations likewise militate such use iting any the exclusion jury class from supervisory power. of the service, Congress excepted nevertheless has been entitled to challenges, challenges prohibi- equivalent, continuously or their since the affirmatively tion and juror authorized ex- nation, formation of our as well as for pursuant clusion thereto. 28 U.S.C. prior centuries thereto under the common 1866(c). Nevertheless, we are asked to § right express law. This has had statutory which, procedure order a as characterized recognition continuously from 1865 until its Swain, in change a radical in the “entail[s] 24(b) in inclusion Rule of the Federal Rules operation nature challenge” and of the and of Criminal Procedure effective directly contrary to its where to “essential na- this date it has remained un- ture,” changed any particular.32 “wholly relevant at odds per- Such with the a rule “has the force of a federal emptory challenge statute.” system.”33 super- Advisory 32. As reflected Committee “require[ “[T]he procedure for and evidence the rules cededly ‘procedural,’ may great be of as only in the federal courts exists absence of litigants importance many to a ‘sub- There, Congress.” Act of the a relevant doctrine, and stantive’ which arises in a production expand to the Court declined jurisdiction of federal where field nation- Act, requirements provided by the Jenks uniformity not, traditionally always wide has though in even that “statute does so exclusive, words, state that it is the many highly been esteemed. production. compelling” limiting means pecu- “The then one problem is which

Id., at 1223. The same considera- 79 S.Ct. exacting liarly calls for observance the Proce- apply tions to Rules Criminal statutory procedures surrounding the dure, statutory which have effect. Sib- Court, rule-making powers of the see 28 Moreover, back, at 426. the Su- 61 S.Ct. 331, (advisory 28 U.S.C.A. 331 U.S.C. § § emphasized the value preme Court Conference), function of Judicial 28 by reservation placed Congress on “the 2073, (prior 28 2073 U.S.C. U.S.C.A. § § rules, proposed examine laws power to report proposed Congress), rule to de- they become effec- regulations before signed procedural to insure that basic applies plainly Id. at This to tive.” 427. innovations shall be introduced after procedure. pre-verdict rules of criminal opinion of informed mature consideration 32, supra. We should not make See note quarters all from all relevant with Indeed, process. an end run around comprehensive and inte- opportunities within an area even where the matter not grated treatment which such considera- concerning Congress has made such which procedural affords.”34 power, basic tion reservation and 28 U.S.C. 2071 authorize dis- specifically § Hall v. United Crim.P. 57 we cited Carlton governing practice States, (D.C.Cir.), courts to make rules 334 trict 168 F.2d 161 courts, 853, 1509, (1948), cases their there in criminal in S.Ct. 92 L.Ed. 1775 U.S. 68 pre delegation to courts of holding, express support and were of our Swain governing practice sumably express appeals re to make rules aware of Hall dissent’s Indeed, 47). Carlton, Fed.R.App.P. power. supervisory district courts 456 liance icf. stating by expressly that "in 57 concludes Rule at 208. rule, by provided for the district cases not all Supreme refused to sus- practice 34. In Miner the Court may regulate judges ... their tain, Admiralty Rule 44 under former General with these rules or inconsistent manner rule-making granted general Here, expressly they in which act.” those of the district courts, authority rule authoriz- to district a local supervisory power require district courts our discovery depositions, ing which theretofore regulate peremptory in a certain admiralty. not been authorized by implication. had way In that circum- must arise stance, appro- particularly caution is Battin, 149, the Miner Colgrove v. 413 U.S. 93 S.Ct. Finally, matter of priate. do consider we (1973), 37 L.Ed.2d 522 peremptory chal- the exercise of freedom in providing local district court rule sustained a being lenges purpose case tried as holding for the jury, six-person that was civil importance "great something to liti- which is of Court dis- 83. The authorized Fed.R.Civ.P. That, indeed, is clear from Justice ground gants.” tinguished that whether Miner on the S.Ct. at See 85 in Swain. not a matter of White’s six or twelve was States, 151 U.S. litigants.” v. United importance at also Pointer “great 93 S.Ct. (1894); Lewis 38 L.Ed. Colgrove inapposite two rea- S.Ct. here for n. 23. 136, 138, States, First, 13 S.Ct. Colgrove 146 U.S. dealt with exercise sons. Missouri, (1892); Hayes rule-making power delegated L.Ed. 68, expressly under L.Ed. 578 7 S.Ct. 2071. While Fed.R. § Rule 83 and 28 U.S.C. against United States v. also Isthmian whom should its Co., Steamship strikes purpose be exercised for the of a (1959)(“if the law is to particular States, case. Glasser v. United change rulemaking it should or legis- 86 L.Ed. decision”). lation and (1942), is inapposite for all the same rea- sons.35 Co., Neither Thiel Southern Pac. (1946), nor S.Ct. Ballard v. United Moreover, appellant the rule asks us to L.Ed. adopt will either eviscerate the defense’s supports contrary fairly analy- peremptories use of improperly tilt the Ballard, Thiel, sis. expressly, implic- justice against prosecution. scales itly, proposition practic- rest on the course, Of is entitled to a es depar- there condemned “a constituted fair trial and defense is not entitled Ballard, ture statutory from the scheme.” partial Challenges its favor. (also 264). at 265 See also one means end. See Wainwright v. Thiel, (nothing 66 S.Ct. at in “federal —Witt, U.S.-, 844, 851-52, justifies prac- or state law” the condemned (1985); Balkcom, 83 L.Ed.2d 841 v. Smith tice). very opposite Here the is the case: 579; 660 F.2d Spinkellink at v. Wain what arewe asked to decree is “a radical 582, wright, (5th Cir.1978), 578 F.2d 596 from, change” “wholly with, and at odds” denied, 976, 1548, cert. 59 right the “essential expressly nature” of prosecution L.Ed.2d 796 is no by authorized the Federal Rules Crimi- to less entitled the unfettered use of its 1866(c). nal Procedure 28 U.S.C. § peremptories allotted than the defense. As Further, supported Ballard Thiel are Supreme Hayes Court said in v. Mis by American tradition of trial “[t]he souri, 68, 120 7 U.S. S.Ct. 30 Thiel, 985;

jury.” Ballard, S.Ct. at 67 (1887), L.Ed. 578 in such matters “the S.Ct. at 263. Here we asked to are enact a evenly scales are to pros held” between practice directly flies the face of ecution and defense. This view re Finally, that tradition. Thiel and Ballard respecting affirmed in Swain the same judicial supervision judi- involved of the proffered on ciary restriction exer supervising Court —the peremptories cise lower that is at issue here. federal court-formulated venire sum- Here, contrast, practice. mons Similarly, we S.Ct. at 835. in Singer 24, asked to intrude into decisions committed United branch, law to the namely, (1965), executive 13 L.Ed.2d 630 a unanimous Eight supervisory cases), stated, 35. The Circuit's deci it has in all other such persuade sions continue, context do not practices us prosecutors’ "Should the contrary. They involve claims that the chal judges we are sure that the district in the West- lenges part variety, were of the Swain III appropriate ern District of will Missouri take Eighth arise out of the Circuit’s "concern be action." frequency cause with which we have been McDaniels, Similarly, in United States v. upon practic prosecutor’s called to examine the F.Supp. (E.D.La.1974), a new trial was regard es in this in the Western District of granted on basis of Swain III claim Jackson, Missouri.” United States v. 696 F.2d supported by analysis pros- which was of the (8th Cir.1982), denied, cert. past peremptory challenges ecution’s over the 75 L.Ed.2d 952 See years underrepresen- two combined with black Greene, also United States 76-77 tation on venire Id. at 1248-49. This lists. (8th Cir.), denied, cert. U.S. specifically distinguished McDanieb (1980) (”[0]n previ 66 L.Ed.2d 98 several Mchaurin, ground in United States ous occasions black defendants have attacked at F.2d 1077 n. 19. We adhere to that distinc- prosecutor’s conduct office in the tion. exercising per Western District of Missouri in proof prior prac- only no Here there is not emptory challenges against prospective black use, noncase-specific tice or there is no such Thus, jurors.”). Nelson, in United States v. claim; indeed, appellant admits that "there is (8th Cir.), F.2d pattern practice in United States District the Court Court for the Eastern District of Louisiana.” (as affirmed the conviction in reliance on Swain Court, (“[B]oth state through Chief Justice War- and the defense speaking ren, may challenge allegedly improper use stated: state, peremptories. no less than a recognizes an adver- “The Constitution defendant, impartial jury” is entitled to an proper method sary system as the (footnote Jabe, omitted).); Booker v. su- Government, determining guilt, pra, (“[W]e at 772 hold that under the legitimate interest in litigant, as a has a Amendment, prosecutor neither Sixth nor seeing that cases which it believes a may systematically counsel defense exer- is warranted are tried before conviction challenges cise excuse mem- which the Constitution re- tribunal cognizable group bers of a from service on likely produce gards as most fair petit jury.”).- a criminal also recognition Govern- This

result. Clark, (7th States v. litigant an analo- interest as a ment’s Cir.1984) (“It argue rules, would be hard to 24(b) gy in Rule federal only a defendant should be allowed to to chal- chal- permits which the Government lenge racially motivated chal- lenge jurors peremptorily.” lenges____ prosecutor would be al- [T]he 24(b) by its nor its histo- Rule neither terms object making lowed to to the defendant’s pros- ry makes distinction between racial if the defend- respect and defense with ecution object prosecutor’s doing ant could peremptory challenges reasons for so.”).36 then, right, By be exercised. what n may we do so? Accordingly, adoption position con by appellant likely tended seems every jurisdiction We which has note matter, ultimately weakening result in a serious prohibited prose- spoken to the Supreme justly what Court has case-specific peremptory challenges de cution “ affiliation, important group scribed as ‘one of the cognizable most basis accused,’ rights secured to the likewise Pointer that the defense must be held States, v. 151 408 Wheeler, P.2d U.S. prohibited. at so See [14 n. (“[T]he People ho less than indi- S.Ct. 410, 414, 38 L.Ed. 208] ... ^[1894] ... impairment by are entitled to a denial ... is vidual defendants [t]he [which] showing impartial jury representa- prej reversible error without drawn cross-section____[W]hen udice, States, a white supra; de- v. Harri tive Lewis United States, charged against with a crime son v. United fendant [16 victim, community as a S.Ct. L.Ed. black black 104] [1896].” Swain, then, legitimate longer, partici- has a interest in 85 S.Ct. at 835. No whole ____[Tjhat “peremptorily interest could the defendant chal pating will be defeated ”; lenge power longer if the ‘on his dislike’ prosecutor does have own rule attempt to strike all would we follow the that whatever thwart defense full, “prevents or embarrasses the unre blacks____”); Soares, 387 N.E.2d at 517 n. 35; Reid, by the v. 384 Mass. stricted exercise accused Commonwealth (1981); right be Pointer v. 424 N.E.2d 495 must condemned.” Common- DiMatteo, Mass.App. wealth v. 427 United Neil, (1894).37 (1982); L.Ed. 208

N.E.2d 754 v. 457 So.2d State gained flexibility inevitably jurisdictions following be in Wheeler have in will lost 36. Some difficulty apparently directly question. uncertainty ruled this of administration. Indeed, difficulty Crespin, has been a v. 612 P.2d at 718. of administration State major Wheeler line of cases. criticism of the See, (dissenting by e.g., McCray, F.2d at 1140 all 37. Our concerns are not at alleviated Clark, opinion); case-by-case type approach suggested United States (7th Cir.l984)'("making dire a Title panel majority. the voir Such a re- 759 F.2d miniature”); Roman v. peremptories proceeding VII part striction on Swain II sub- (S.D.N.Y.1985) Abrams, F.Supp. ject virtually objections as the all the-same Soares, ("The litigating Wheeler, apparently rigid costs involved transactional more ‘pretextual’ thereby will vast approach. the reasons are McCray Whatever little is whether III. Supreme the United States Court in Batson Kentucky, argued Dec. Conclusion L.W. En 3445. The Banc Court uses the persuaded We are or Leslie case as a vehicle to confirm on this defense issue the Court’s holding seminal variety II are constitutional Alabama, Swain v. notwithstanding and lawful they may part by be motivated whole or in But that is not the narrow posed by issue challenged race, venireperson’s gender, or panel this case. See the opinion, United affiliation, other and that such moti- Leslie, States (5th proper subject vation is not the judicial Cir.1985). The case which is before us is a inquiry in cases of this kind where there is poor carry vehicle to load a reexami- suspect no claim or reason to Indeed, nation of that fundamental issue. challenges are not purposes made for the constitutional issue of Swain was not securing favorable to the ease at even raised the defendant in this case. hand. We further change decline to this Simply stated, appellant’s claim is that be- settled rule supervisory exercise of cause the defendant power, prosecu- federal which we conclude would be both tion possible raised the issue of unwarranted invidious and unwise. Hence we reject prosecutor’s discrimination in the appellant complaints Leslie’s chal- respecting the lenges, the prosecution’s judge district properly exercise of its should inquired have case, into that challenges in this issue under and his conviction is exercise power of his justice affirmed. insure that prosecutions. done in federal Because AFFIRMED. goes for the Court beyond far claim, this narrow and because the district WILLIAMS, JERRE Judge, S. Circuit judge erroneously having any power denied BROWN, with whom JOHN R. ALVIN B. to make inquiry such an when such RUBIN, JOHNSON, TATE and Circuit present, I am constrained to dissent. Judges, join, dissenting: prosecutor broadly ranging in this case scholarly opin- have had acceptable ion for and the En Banc valid largely reasons to have fo- focuses upon the cused his peremptory challenges upon issue of whether it violates the United States prosecutor Constitution for a members of the black race. The error was in a state or federal that peremptory judge case to use the district inquire refused to challenges racially discriminatory prosecutor’s into the pur- sweep- reasons on the poses unless there pattern practice ing ground is a simply that he power had no of invidious discrimination shown in a num- under the law to do so. It is this assertion ber of cases. This is an exceedingly impor- by judge legal the that authority he had no tant worthy issue. It is of en banc inquire consid- to which only is the issue in the Court, eration in this and it is now before case opin- before the Court. Insofar as the reliability uncertain."); rule, so, and by or, the suggested of the results covered the if what Salamack, supra (approximately Schreiber v. groups any such are. Nor is there indication Roman, result); opposite same King facts as suggested whether the rule extends to defend- Nassau, County (E.D.N. F.Supp. ants or to civil cases. The inevitable result Y.1984). lawyers, judges, would be that no or liti- one — gants peremptories know which were difficulty necessarily greatly Such will be ex- —would not, virtually allowed and which were all by approach panel acerbated taken "peremptory" challenges subject be would to majority suggests which that where race is tak- question. uncertainty there would making en And with into account in a chal- lenge purposes being also come the less-than-candid and the self-de- of the case tried this in likely ceptive explanations. may justified some A further conse- instances and in others not, may suggesting quence no criteria would then be a transition to the more for deter- mining justification. any guidance rigid approach, encompassing Nor is of- also de- Wheeler cognizable groups fered on whether other fendants it does. denying Attorney repre- can be read as The United States is a for the Court ion court, ordinary to I insist that power party the district sentative of an to the that controversy, established well-devel- sovereignty is incorrect as but of a whose recognized legal principles. oped and obligation govern impartially to is as compelling obligation govern as its to at clear, suppose in this To make issue all; interest, therefore, and whose in a upon judge the district inquiry case criminal is not that it shall something said prosecutor had case, justice awin but that shall be done. challenged the be- that he blacks effect such, peculiar he very As a blacks, did not he did not like he cause law, servant definite sense the case, any they are fit to sit think twofold aim of which is guilt shall he had regardless of nature of case escape or innocence He challenges engage intentionally to used the suffer. may prosecute vig- with earnestness and analy- in racial discrimination. Under indeed, But, he should do while so. majority judge of the district or— sis blows, he strike hard is not at he Court, holding would be that this liberty to strike ones. foul It as much judge power to take district had duty improper his remedy this blatant racial discrim- action refrain produce wrong- methods calculated a particular de- A fair trial to this ination. every legit- conviction as it is to use would sacrificed on the altar fendant ful bring just imate means about a one. practice requiring pattern of discrimi- statistically proved over a number nation added). (emphasis at 633 Id. I later to follow. cannot conceive cases panel quotation set out hold majority of this Court would that the quote and then went on to from several made such statement prosecutor if a example, cases of this Court. For other explaining his chal- open court Corona, States v. acting right. that he within his lenges (5th Cir.1977), prosecu- we said criminal panel opinion made clear it was not tor must “conduct trials with justice.” dire of fairness and Then barring all consideration in voir acute sense racial Beckett, use of F.2d and in the United States examination (5th Cir.1983), Leslie, we challenges. 759 521 n. 5 said that United States Attorney” is was no of a title “United States negation at 374. There cherished hunting exempts license which its prosecutor and the discretion not a from the ethical constraints of advo- judge in the district allow holder have seemingly cacy. racial basis explanations. It stressed must be rational in- important other and well-known One issue arises because again must Al- troductory proposition be stated. position district took the

federal court though perempto- roots of the historical inquiry make such of power it had no challenge system American ry prosecutor. deep, peremptory run justice by the United States Con- of the not commanded It is well here to reminded York, 461 McCray v. prosecutor’s federal stitution. See New definition of the classic 2438, 7, 961, 77 2442 n. Supreme in the S.Ct. given by the Court U.S. role J., (Marshall, States, dissenting from 295 U.S. L.Ed.2d Berger v. United case certiorari); Rosales-Lopez v. (1935). 78, 629, In denial of 79 L.Ed. 6, n. con- 451 U.S. a federal United case the Court reversed (1981); 1634 n. 68 L.Ed.2d government that the S.Ct. ground viction Swain, at S.Ct. at 380 U.S. overstepped had the bounds prosecutor Yet, challenges do while propriety fairness foundation, princi- explained constitutional Supreme The Court have the case. competes with the ple duty and prosecutor’s the nature case, prohibition duty designed to effect: values the discrimination, against solidly panel. racial proposition Each discussed turn. grounded in the We Constitution. should wary exalting procedure at least be First, appellate the federal pos courts protected by the Constitution over a sess broad supervisory powers. super The clearly principle. constitutional established visory power doctrine was articulated over clearly stands the proposi- Even Swain ago four decades in McNabb v. United peremptory challenges are

tion that not States, 87 L.Ed. wholly implica- immune from constitutional (1943). notes, As the en banc majority peremp- tions. holds that the use of supervisory power allows courts to tory challenges racially discriminatory “preserve judicial integrity by insuring that pattern practice purposes as a violates upon a conviction rests appropriate consid The peremptory validly the Constitution. chal- jury.” erations before the untouchable, lenge 499, 505, Hasting, is not an as the States v. basic (1983). opinion thrust of the en banc would 76 L.Ed.2d have power This has been in “surpris invoked us believe. ing variety of situations. The commenta preliminary With this statement of the uniformly tors have marveled at how flexi Court, actually issue which is before this I ble and supervisory power extensive the my turn attention to now whether the su- Imwinkelried, is.” Pay United States v. pervisory power courts, of the federal Questions ner and the Still Unanswered upon long based history, and honorable About the Federal Supervisory Courts’ fairly support proposition can be said to Justice, Power Over Criminal 7 J.Crim. trial, that in order to insure a fair we can (1981); Beale, Def. see also Reconsid direct a district court inquire into the ering Supervisory Power in Criminal prosecutors motives of exercising per- Cases: Constitutional Statutory emptory challenges when claim is made Authority Limits on the the Federal they may exercising power Courts, (1984); Hill, 84 Colum.L.Rev. 1433 racially with invidious discriminatory mo- Rights The Bill Supervisory tives. Power, (1969); 69 Colum.L.Rev. 181 Com The remainder of this is directed ment, Judicially Required Rulemaking as showing panel that the properly acted Fourth Policy: Applied Amendment An justifiably in invoking supervisory Analysis Supervisory Power power of this Court. The role and the Courts, Federal 72 Nw.U.L.Rev. scope of supervisory power are deline- (1977); Note, Judge-Made Supervisory by establishing ated proposi- four basic Courts, Power the Federal 53 Geo.L.J. together, tions. Taken propositions, these view, in my clearly demonstrate the cor- applied pow- Courts have the supervisory holding rectness of the panel majori- er to announce new selection stan- First, ty. possesses this Court broad su- actions, dards for civil and even to estab- pervisory powers over lower courts. Sec- lish hearings. standards for administrative ond, there is no doubt supervisory Co., See Thiel v. Southern Pacific powers of federal courts be used to (1946); 90 L.Ed. 1181 injustices correct which do not amount to I.N.S., Woodby v. constitutional or statutory violations. 483, Third, supervisory power encompass- supervisory — has used its ing broadly several forms of deterrence of supported by reverse false convictions evi- prosecutorial appropriate misconduct—is dence, practices improper to curtail fed- present Fourth, facts of the case. attorneys, suppress eral to evidence although Congress undoubtedly has the government agents gained through miscon- right to supervisory power override rulings duct, preserve a criminal contemner’s through legislation, Congress spo- trial, has not right jury protect to a and to a de- ken with respect holding to the narrow fendant from an district court overzealous Leslie, possesses supervisory power v. This Court States judge. See United over district courts coextensive with opinion citing extensive (panel F.2d at cases). possessed by Supreme “[E]very Court. The courts have also used list Appeals Court that has confronted power to control conduct supervisory room, supervisory the issue” has laid claim to the e.g. see grand within the States, power. (2d Cir.1983), Burton v. United 712 F.2d 757 Hogan, States (9th Cir.1973)(citing numerous prosecu- the conduct of both and to control decisions); federal Cupp see also room. police outside court tors and 141, 146, Naughten, Martin, F.Supp. United States (1973)(recognizing (S.D.Tex.1979). Supreme Court has supervisory lower courts’ exercise of the prevent supervisory power to also used the Imwinkelried, 3; power); Beale, supra at service members the exclusion supra (“[B]oth Supreme at 1455 Court groups community. of distinctive generally and the lower federal courts have Thiel, at 328 U.S. at possess supervi- assumed that these courts earners); (daily wage L.Ed. at 1181 Bal- sory authority in their own circuits or dis- lard v. United Supreme tricts like that wielded (1946) (women).1 261, 91 L.Ed. 181 level.”). Court on a nationwide examples supervisory pow- These show Thus, beyond it must be concluded dis- any attempt er so broad and extensive that pute proposition the first is estab- at an all-inclusive definition must necessar- possesses lished. This Court a broad au- Note, 53 at 1050 ily fail. See Geo.L.J. thority procedures lower court correct (“The variety in which of situations [the supervisory power. under our supervisory power] has been invoked defies any attempt proposition super- to construct a definition of The second is that the power compre- visory power injustices is at exists to supervisory which once correct accurate____ statutory The sole com- which do not amount to or consti- hensive usage of its is a desire to tutional violations. There is no serious mon denominator play Supreme develop standards of fair doubt that this is the case. The maintain exacting scope than held in of our in the federal courts more Court McNabb: “[T]he requirements reviewing power brought over convictions the minimum constitutional The reason for such a here from the federal courts is not confined process.”). of due power validity. is that the courts must be to ascertainment of Constitutional broad preserve integrity supervision of the administration given ability Judicial judicial justice of criminal in the federal courts ... system. Hasting, Thus, merely by at 1978. it is no not satisfied observance of at [is] un- minimal safe- wonder that [constitutional] “[t]he doubtedly possesses power guards____” 318 U.S. at 63 S.Ct. at an historical courts; supervision steadfastly inferior 613. The Court has adhered to over its action, power supervisory power notion that the is an legislative absence of its procedures appropriate injustices tool to correct correct lower federal court or statu- unjust subject unfair seem to no do not amount to constitutional deemed Note, See, Super- tory e.g., Hasting, violations. substantial limitations.” Courts, (“[F]ederal at 1978 courts the Federal visory Power of limits, procedural may, formulate within Harv.L.Rev. 1656 (The holding upon distinguish majority rested majority attempts that its The en banc stated theory practices supervision "the there over the administra- Thiel on the "our departure courts"). from the condemned constituted 'a justice The dis- tion in the federal Ballard). (quoting statutory At scheme.”’ "problem judicial agreed is one of sent "distinction” is that the Ballard, The flaw in this asserted 329 U.S. at administration.” In expressly supervi- made on decision in Thiel was Thiel the Court also stated that S.Ct. at grounds, statutory grounds. sory power power grounds. supervisory rested on Thiel, U.S. at 66 S.Ct. at specifically required by legislative by noted rules not the Con- override. As Profes- Beale: sor Congress preserve to stitution or the ... integrity____”); Cupp, employing supervisory power 414 U.S. at

judicial Courts generally relatively felt free (“[T]he appellate court have to 94 S.Ct. at 400 adopt promote rules intended to what the may require to likewise [the court] identify justice courts as the ends of and procedures deemed desirable follow good public policy. Supervisory power viewpoint judicial practice al- of sound proven to attractive vehicle for though by commanded statute or no-wise rulings might the federal courts Constitution.”).2 by the ground hesitant have been more to on a proposition This is critical to an under- theory. Supervisory pow- constitutional standing of the difference between this dis- rulings pose no er risk of friction be- majority. and the en banc The basic sent tween the federal and state courts since majority appears to thrust of the en banc rulings by apply only definition such inquiry court defense into the be that Moreover, proceedings. if a federal su- prosecutor’s making peremp- reasons for pervisory power ruling proves im- to be right. tory strike is not a constitutional undesirable, practical or otherwise it is supervisory power separate Since the far easier to alter than a constitutional law, arguments body of constitutional Supervisory power rulings decision. dispositive. Nor this distinction are not freely by revised the courts rights supervi- constitutional themselves, between they subject are also to sory power rulings merely a distinction result, by legislation. revision As a su- a difference. Unlike constitutional pervisory power rulings without em- have been decisions, supervisory power rulings affect ployed impose rigorous more stan- courts, proceedings only subject the federal and are dards federal than the supervisory power is used in In both 2. The fact that L.Ed.2d 258 cases black injustices killing police the federal courts to correct amounting defendant was accused of a white graphi- to constitutional violations is requested, officer. In both cases the defendant cally by comparing refused, illustrated Marshall v. Unit- but was voir dire examination directed States, ed 3 L.Ed.2d prejudice. to racial The Court reversed the con- Florida, (1959) Murphy v. U.S. with Aldridge; viction of the federal defendant In of the state defendant in affirmed conviction jurors exposed newspa- both cases had been again made was the Ristaino. distinction defendant, relating per did stories that the who supervi- constitutional difference between testify, previously had been convicted sory jurisprudence: exposed serious offenses. both cases the Although questioning we hold that voir dire jurors judge swore to the satisfaction of prejudice was directed to racial not constitu- they would not be influenced the news arti- tionally generally required, the wiser course cles and would decide the case on the questions designed propound appropriate evidence. In Marshall the Court reversed the identify prejudice requested if racial conviction, Murphy, but in federal defendant’s supervisory power defendant. Under our we later, years decided 15 the Court affirmed the required a federal would have as much of Murphy opin- conviction. The state defendant's circumstances here. court faced with the ion made the distinction clear. The Court said Ristaino, 424 U.S. at n. 96 S.Ct. at supervisory power applies only to feder- n. 9. prosecutions. al Court reversed " prosecution, a state Because Swain was [its] Marshall’s conviction the exercise of ‘[i]n supervisory power on the was not available supervisory apply prop- to formulate and Thus, the that Swain facts of that case. fact er standards for enforcement of the criminal prosecutor’s inquiry motives held that into the courts,’ law in the federal and not as a matter constitutionally compelled gave an- was not compulsion____ constitutional We cannot question a federal of whether swer at all to the agree beyond application that Marshall has moderating attempt to effect some court should Murphy, the federal courts." 421 U.S. at practice resort to its author- influence S.Ct. at 2035. prop- application of ity in "the formulation contrasting involving pair A similar cases the enforcement er standards for federal juror Aldridge fairness is v. United McNabb, courts.” law in the criminal federal (1931) and 75 L.Ed. 1054 S.Ct. at 613. U.S. at Ross, Ristaino v. imposed by minimal standards the Con- the concept judicial of a fair system. As stitution. one commentator has noted: A challenge exercised on the Beale, Moreover, 84 Colum.L.Rev.at 1434. ground sole group sug- affiliations supervisory power designed is pro gests particular juror that a is unfit to recognizable goals tect institutional in the give trial, the defendant a fair not be- courts. “The use of supervisory federal cause of idiosyncratic her own preju- powers supports two goals: institutional dices, but rather as the inevitable conse- deterring prosecutorial future misconduct quence antagonism. This as- maintaining integrity judicial of the sumption perpetuates stereotypes that process. goals These separate longer are no tolerated in other area goal protecting a defendant’s consti of the law. right Note, tutional a fair trial.” The Note, The Right to Object to Supervisory Exercise Defendant’s Powers to Dis Prosecutorial Misuse the Peremptory Jury miss a Grand Indictment —A Basis Challenge 92 Harv.L.Rev. Curbing Misconduct, Prosecutorial (1979); Texas, see also Smith v. 311 U.S. (1984); Ohio St.L.J. see also 128, 130, 61 S.Ct. 85 L.Ed. 84 Sears, Co., United States Roebuck (1940) (“For racial discrimination to result (9th Cir.1983) (Norris, J. exclusion from service of other- dissenting part), qualified groups wise ... is at war with our concepts basic of a democratic society clear, therefore, It is pos- that this Court representative government.”). and. supervisory power sesses the to correct The supervisory power has been used injustices which are neither constitutional countless myriad times to deter instances statutory nor violations. The use of the prosecutorial misconduct. e.g., supervisory power does not constitute an Leslie, United States v. 759 F.2d at 371 Constitution, “end run” around the (citing examples several of use supervi- upon policy grounds rather rests the firm sory power prosecutors). over In our crim- allowing preserve integ- the Court to justice system, inal prosecutor “is both rity judicial system of the federal without justice an administrator of and an advo- making ruling carrying baggage of a ____ duty cate justice, seek [His] constitutional decision.3 merely ABA, to convict.” I Standards proposition The supervi- third is that the 3-1.1(b) (c) (1980); Criminal Justice & sory power appropriately applied to the Berger see also v. United above, facts of present case. As noted 79 L.Ed. 1314 Ob- supervisory power broadly available viously, place there is no for invidious ra- integrity judicial pro- insure the of the cial discrimination in the administration of cess. seriously It cannot be doubted that justice. supervisory power ap- is an excluding juries blacks from motivated propriate insuring prose- vehicle for that a purely discrimination, by invidious racial cutor carries out obligations. his ethical reason, and for no other is an e.g., Serubo, anathema to See United States v. majority 3. The en banc cites United Payner majority States v. 100 S.Ct. at 2446. The distin- Payner, guished supervisory power 65 L.Ed.2d cases cited " proposition ground for the val- dissent on the '[t]he that “none of those cases assigned competing ues interests do not involved criminal defendants who were not change analyze challenged a court has practic- because elected themselves the victims of the question supervisory power under the in- es.” Id. at 735 n. 100 S.Ct. at 2446 n. 8. In case, (quot- present At involving stead of the’ sixth amendment.” there is no issue decision, however, ing Payner). Payner supervisory powers parties use of to aid nothing scope supervi- Payner specifically does to limit the before this Court. The sory power present Pay- today available in the case. stated that "our decision does not limit supervisory power scope supervisory power ner held could the traditional " any way, not be invoked to exclude evidence seized from nor does it render that ‘su- party perfluous’ a third not before the court. Id. at ". Id. ed). nothing (3d Cir.1979). to do with the We cannot know prosecutor’s Indeed, motives the supervisory power what were the of this Court.5 Swain, judge did not present case because the the Court could not facts precisely reason that inquire. That the upon supervisory pow- have had effect power panel supervisory held that our the Swain was because a jurisprudence, er from compel an answer must be used supervisory prosecution, pow- and the state prosecutor on the facts of this ease.4 the pointed applies already er as has been out prosecutions. Cupp, majority mis-characterizes The en banc federal argues holding panel the when the at 94 S.Ct. at 38 L.Ed.2d 368. supervisory power the this use of that super Other courts have exercised their a “radi- because it constitutes inappropriate visory authority to ensure federal sup- change preexisting from law. As cal” employ peremptory prosecutors do not assertion, port majori- the en banc for that challenges engage in racial discrimina Swain, See ty cites Swain. at 562. how- United States example, tion. For ever, motives of inquiry held that into the McDaniels, (E.D.La. F.Supp. was not a constitutional prosecutor the 1974), Rubin, my then district brother Swain, at right. 380 U.S. at granted new under Rule 33 judge, trial the Constitu- (“[W]e cannot hold that justice” “in the interest of because the tion prose- examination of the requires an prosecutor used all six of his for the exercise of his chal- cutor’s reasons Likewise, case.”)' against blacks.6 any given (emphasis add- lenges in example, majority majority’s argument For n. 33 of the en banc su- 4. The en banc power appropriate pervisory is not on the facts reads: explains subject of the this case this case involves use such chal- of power against because Swain also that to namely, lenges scrutiny appellant the executive to the kind branch — against judicial prosecutor added) than (emphasis here demands of the district —rather supervisory power unpersuasive. officer is The change court "would entail a radical against has been used countless times executive challenge operation nature and of the ...” fact, super- McNabb itself used the officers. visory ). (quoting Swain suppress evidence in order to majority’s quotation en from Swain The banc officials. deter unlawful conduct of executive omits the first few words of the sentence. The As one commentator has noted: actually subject entire reads "To sentence challenge any particular McNabb cannot be confined within defini- prosecutor’s case supervisory power tion which does not standards the demancb and traditional elementary judicial transcend notions of equal protection clause would entail a radical housekeeping. invoked The behavior which change operation in the nature and of the chal- officers, judicial exclusion was not that of Thus, lenge.” quotation was dis- in Swain Furthermore, police. it occurred that of the cussing clause, equal protection under the substantially prior to the trial itself. at a time power. supervisory See not the use of 1661; Hill, Note, at see also 76 Harv.L.Rev. 613; Note, McNabb, at 318 U.S. at ("It disingenuous at 203 to as- Colum.L.Rev. (constitutional challenge Ohio St.LJ. at 1084 infringement upon pre- sert that no rogatives executive power challenge). supervisory distinct from when the courts do no is involved process that is invoked more than withhold undertaking majority’s The en banc to distin- 6. prosecution."). the executive in a criminal adequate. guish The McDaniels is far short of Space do not allow a citation to limitations majority "a new trial states that in McDaniels every supervisory power case in which execu- granted part III a Swain was on the basis of tive, being judicial, rather than misconduct [i.e., systematic blacks] claim exclusion of Leslie, e.g. United States v. deterred. supported by evidence].” which was [statistical cited). (several cases at 371 Judge specifically the Swain Yet Rubin held that McDaniels, F.Supp. test had not been met. extensively majority quotes 5. from The en banc show failed to at 1248: "The defendant here has supervisory power Swain in its discussion of the prohibited ‘systematic of blacks exclusion’ quotations 562 n. 33. Several Swain granted new Judge Rubin in Swain." way impression might be used in such a despite fail- justice” trial "in the interest given supervi- that Swain held that the use of challenge. Id. at ure of the Swain sory panel opinion power in the of the manner say that "this Court majority goes on change pre-existing would entail a radical preemptory challenge distinguished specifically McDaniels Swain did not so law. McLaurin, F.2d at ground States in United hold. Jackson, apparent 696 F.2d 578 attempt States It is that an to elimi- (8th Cir.1982), ugly spectre nate the of invidious racial discrimination from the federal courts is an appropriate use supervisory power. judge granting issued an order prevent defendant’s motion “to the use of premise Congress fourth is that has peremptory challenges by spoken on the narrow issue which was minority holding to strike black or other panel. members The en banc majority Congress contends that government through from the ... unless the contrary legislation effectively preclud- good why can show reason a black or other stricken____” ed our use of the supervisory power in a minority should member be peremptory challenge case. The en banc Eighth Appeals specif Circuit Court of 24(b) opinion cites Rule of the Federal ically approved supervisory this use of the Rules of Criminal Procedure and the Feder- power. Id. at 592-93.7 Jury al Selection and Service Act of Also relevant is the recent case of Unit- seq. 28 U.S.C. 1861 et Neither of these § (1st Campbell, ed States v. congressional actions discusses the issue of Cir.1985). objection This case involved an judge power whether the has the to make prosecu- the defendant to the federal inquiry prosecutor’s of the reasons for peremptory challenge tor’s use of a to striking requested blacks when by the de- jury. strike a black from his District fendant. The opinion erroneously en banc Judge hearing Keeton at the trial held a on attempts panel to characterize the holding objection, personally defendant’s he broadly creating right for the defend- —as questioned prosecutor as to his motives prevent prosecutor ant to taking exercising challenge. The district racial perempto- factors into account in his judge government’s pur- ry concluded that the proceeds strikes—and then to strike pose congressional down this “straw challenge racially was not moti- man” with congres- enactments.8 Neither of these Appeals, spe- vated. The Court of without enactments, however, remotely sional even cifically approving disapproving the dis- whether per- mentions a defendant judge’s procedure, upheld trict the convic- inquire prosecutor’s mitted to into a motive ground finding tion on the of the striking jury panel. for all blacks from a judge exonerating prosecutor district challenge by mo- from misuse racial 24(b) speaks only Rule number supported tivation was well in the record. challenges. goes It no further holding inquiry applica- This made into the by “per- and does not define what is meant unnecessary. emptory,” peremptories might tion of the rule Swain whether not McLaurin, majority example, 1077 n. 19." In held that this Court 8. For the en banc cites Miner Atlass, did the district court not abuse its discretion in L.Ed.2d ordering a not new trial "in the interest of proposition for the that rules of justice.” There was no statistical evidence but "great importance litigants” should be re- there a failure “to also demonstrate —or congressional majority served for decision. The govern- even to offer to demonstrate —that the peremptory challenge sys- then states that the potential jurors ques- ment had excluded the great litigants. importance tem is a matter of tion for racial reasons.” F.2d at 1064. holding, disagree. panel’s I do not Given the While the Court did make reference to the aid given Judge however, proper question is whether the evidence, Rubin statistical no- give right to refuse to a reason when invidious distinguish where does McLaurin McDaniels exercising suspected racial discrimination is resting upon grounds. Swain III "great impor- peremptory strikes is a matter of majority again attempts 7. The en banc to distin- litigants.” tance to I submit that no one has guish resting upon Jackson as a successful furthering legitimate interest in invidious racial challenge. part III At 564 n. 35. It is provide A a non-in- discrimination. refusal to clear, hpwever, upon did rest that Jackson not intrinsically "of vidious reason must be a matter (de- grounds. See 696 F.2d at n. 9 Swain fendant did not even great importance” litigant. ato attempt to make a Swain showing). III supervi- panel majority narrowly and limited review and held subject to requested precisely that when a defend- court, might nor whether there by the sion power ant court to ask the district had beyond which the exer- point be some prosecutor striking his all reasons for beyond passes “arbi- peremptories cise jury panel. is all. This blacks from a That Congress has trary” into “intolerable”. undoubtedly supervi- has the broad peremp- legislatively defined what a never sory require inquiry power such an system. federal It tory is in the proper instances. use appropriate This is a 24(b) speaks only to the clear that Rule supervisory power it will on because allowed, and strikes number justice. promote its the interests of face re- absolutely no substantive content has Congress spoken question. on this or use of garding definition therefore, dissenting, I adhere to strikes.9 panel. broad holding of the I find the Jury does the Selection and Nor Federal majority sweep uncalled congression- Act constitute of 1968 Service justified I further this case. find panel’s preemption of the use of al precise supervisory insist use of supervisory power. primary function inquire into sus- a district court can prevent law to discrimination of that pected use of racial discrimination in the thus, panels; the Act jury focuses government by jury juror compiling lists and on means prosecutors. Ugly practice in its and insid- provides “exclu- qualifications, and effects, ious in discrimi- its invidious racial challenge shuts mechanism for sive” protection area nation deserves no begins.” once examination down “voir dire all in society, least of the administration 1867(a). Peremptory justice chal- 28 U.S.C. in the federal courts. § lenges challenges for cause men- are only incidentally, and are reaffirmed

tioned “provided the act operating as outside of as words,

by says law.” In other the act law,

nothing all substantive at about the definition, practice, the outer the peremptory challenge.11

limits of shown____" 24(b) party good (emphasis Rule sub- cause 9. The conclusion that has no for added). by apparent examining stantive content is Rule 24(a) 24(a) jurisprudence. specifies Rule who dire, H.R.Rep. may judge No. The en banc refers 11. conduct the voir if the Sess., so, Cong., reprinted 2d in 1968 supplemental questions 90th chooses to how do Cong. for U.S.Code & by parties jurors. Admin.News to be asked are to the view, following quotation: un- majority's bill leaves Congress "[T]he Under the certainly en banc right litigant exercise his disturbed the peremptory challenges "legislated” just in the area of voir dire comment adds ...” This "legislated" as it has in the area of by strikes, nothing "provided law" power substantive what supervisory so be would not peremptory practices. could This dissent But so. available either instance. this is not following equally passage House cite the supervisory has used its yet Report, advance Committee questions require that voir dire my legal argument either: prejudice Aldridge racial States, asked. 75 L.Ed. Jury performance as well will be enhanced approved practice This in Ristaino approximation sectional of the cross closer Ross, n. goal It the bill. must be remembered under 1022 n. L.Ed.2d 258 designed to under- case, commu- but also to reflect the stand nity’s long (4) justice deciding (3) provision it. As sense of in 28 Subsections significant departures 1866(c) specify any persons are § U.S.C. as there "[t]hat (3) goal, jurors re- are the biased summoned service ex- cross sectional they reflect upon provided in the sense that cluded sult—biased sup- law, community they (4) pursuant proce- slanted view posed excluded represent. specified challenge by upon dure law notes Swain likewise states that to an ex- ] 24(b), pertaining to Rule prosecutor’s rule embodies "[t]his amination of the reasons for the existing (with exceptions case,” law” certain any given here exercise of his material). Negroes even where "all were removed from the they Negroes,” "pre-verdict” ... because were is to "es- These rules must be submitted to wholly Congress during regular perempto- tablish a rule ry challenge system at odds with the session and are not ninety days as we effective until know it.” Id. at 837 after such submis- added). (emphasis sion. 18 U.S.C. § 3771. This contrasts with "post-verdict” similarly any The Swain dissent rules eschewed which need not be so sub- prosecutor’s rule under which "a motives are § mitted. Id. subject question judicial inquiry to when he peremptory challenge 33. Swain describes the Negroes excludes other from sit- " arbitrary capricious right 'an [that] ting Only on a in a case. where freedom, must be exercised with full or it fails shown, systematic exclusion has been would the purpose.”' (quoting its full 85 S.Ct. at 835 upon justify peremp- State be called to its use Lewis, 139), ____” 13 S.Ct. at and states that: Id. at 849. tories "The essential nature of the chal- Decisions of this Court are in accord. See lenge States, ("The is that it is one exercised without a Davis v. United 374 F.2d at 5 essen- stated, inquiry reason without peremptory challenge without tial nature of the is that it being subject stated, to the court's control." 85 S.Ct. is one exercised without a reason with- added). (emphasis at 836 inquiry being subjected out and without explains subject control.”); Pearson, Swain also that to such chal- Court’s United States v. lenges scrutiny appellant to the kind of (questioning prosecutor F.2d at 1216 as to his here exercising demands of the district peremptories court reasons for "would be change "would entail a peremptory challenge radical sys- the nature inconsistent with the operation challenge. tem"); Carlton, of the The chal- States 456 F.2d at 208 tanto, lenge, pro (“The longer peremp- subjective thought would no process prosecu- of the tory, every challenge being open each and deciding prospective jurors tor in examination, given either at the time beyond inquiry of the chal- strike in a case is lenge hearing prose- Court, ...."). or at a appellate afterwards. The Surely trial or in these judgment cases, underlying cutor's challenge many appeals each and in the other direct subject scrutiny would be for reasonable- federal criminal convictions where we and oth- Swain, sincerity.” (emphasis ample ness and added). Id. at applied 836-37 er Circuits have there was Indeed, supervisory power. awareness of the great importance simply does not extend to innovations liti- visory power magni- changes of that nature and making gants, suggested change per- as the in the by Congress system established tude is, emptory certainly most call rule-making process. statutory and the statutory rule-making exercise Palermo United process. Supreme theAs Court observed 1217, 1225 n. 3 L.Ed.2d 1287 Atlass, in Miner v. Court observed that 1305-06, (1960): prescribe power of this Court “[t]he which, though matter one con-

Case Details

Case Name: United States v. Eugene Leslie

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Feb 20, 1986

Citation: 783 F.2d 541

Docket Number: 83-3719

Court Abbreviation: 5th Cir.