UNITED STATES оf America, Plaintiff-Appellee, v. Juana Espericueta DE GROSS, Defendant-Appellant.
No. 87-5226
United States Court of Appeals, Ninth Circuit
Decided April 2, 1992
Argued En Banc and Submitted Sept. 26, 1991
960 F.2d 1433
Unlike the prison regulations in Kentucky Dep’t of Corrections, the regulations in this case contain explicit mandatory language. Prison officials may suspend visiting privileges only after a finding of guilt. Written notice shall be given. The regulations do not provide that the administrative staff “reserves the right” to allow or disallow visits. Thus, an inmate may reasonably form an objective expectation that visiting privileges will not be suspended without compliance with the applicable rules. Cf. Kentucky Dep’t of Corrections, 490 U.S. at 464-65, 109 S.Ct. at 1910-11.
F. What Process is Due?
To determine what process is due, it is necessary once again to turn to the factors set out in Mathews v. Eldridge.
Mendoza’s private interest in uninterrupted visits from his wife and children is relatively minor in this case. The suspension was limited to 90 days. It did not affect Mendoza’s rights to parole, good time credits, or privileges in the prison. Prison officials, on the other hand, have a strong interest in preventing visitors from smuggling drugs into the prison.
Finally, Mendoza was given an informal infraction hearing. He was initially found guilty of attempting to smuggle contraband into the prison, and his visitation privileges with his wife and children were suspended for 90 days. The infraction was subsequently dismissed, but the suspension of Mendoza’s visitation privileges with his wife and children was continued for the 90-day period. These visitation privileges were not reinstated because of the circumstances under which the balloon had been discovered, and Mrs. Mendoza’s prior conduct. The Mendoza children had been the only people in the area where the balloon was found, and Mrs. Mendoza had tried to smuggle contraband to her husband in the prison on prior occasions.
Mendoza argues that when the defendants refused to reinstate his visitation privileges after the infraction charge against him had been dismissed, they violated
Prison officials have the right to suspend the visiting privileges of a visitor who attempts to smuggle drugs into the prison regardless of the guilt or innocence of the prisoner being visited. See
AFFIRMED.7
William Braniff, U.S. Atty., San Diego, Cal., for plaintiff-appellee.
Judy Clarke, McKenna & Cuneo, Mario G. Conte and Sara Rapport, Federal Defenders of San Diego, Inc., San Diego, Cal., for amicus curiae Nat. Ass’n of Crim. Defense Lawyers.
Betty Wheeler, ACLU Foundation of San Diego, San Diego, Cal., for amicus curiae American Civil Liberties Union.
Before: WALLACE, Chief Judge, HUG, TANG, SCHROEDER, ALARCON, D.W. NELSON, REINHARDT, BEEZER, WIGGINS, RYMER, FERNANDEZ, Circuit Judges.
WIGGINS, Circuit Judge:
A jury convicted Juana Espericueta De Gross of aiding and abetting the transportation of an alien within the United States. De Gross appealed her сonviction. A panel of this court reversed her conviction. 913 F.2d 1417. The panel’s judgment was vacated, however, by our decision to rehear this case en banc. 930 F.2d 695. Now, after supplemental briefing and argument by the parties and by amicus curiae, we once again determine to reverse the judgment of the district court.
BACKGROUND
De Gross pled not guilty to three counts of aiding and abetting the transportation of an alien within the United States. During voir dire, the government objected to De Gross’ peremptory challenge of Wendell Tiffany, a male venireperson. At that point, De Gross had peremptorily struck1
De Gross also made an equal protection objection during voir dire. De Gross objected to the government’s challenge of Herminia Tellez, a Hispanic woman. Tellez was then the only Hispanic on the venire.2 The district court ruled that De Gross established a prima facie case of discrimination, and required the government to justify its challenge. Government counsel responded that his main reason for challenging Tellez was to achieve “a more representative community of men and women on the jury.”3 The court accepted the government’s explanation and struck Tellez.
The impaneled jury, consisting of three men, including Tiffany, and nine women, convicted De Gross of the crimes charged. De Gross timely appealed.
STANDARD OF REVIEW
Whether equal protection principles prohibit a party from peremptorily striking venirepersons on the basis of gender is a question of law that we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).
DISCUSSION
I. De Gross’ Challenge of Tiffany
De Gross argues that the district court erred in denying her peremptory challengе of Tiffany, a male venireperson. At trial, the government had objected to De Gross’ challenge on the ground that De Gross exercised it with discriminatory intent, and therefore, if the district court struck Tiffany, it would violate Tiffany’s equal protection rights. We first must decide whether the government has standing to make this objection. If so, we must decide whether equal protection principles prohibit a criminal defendant from peremptorily striking a venireperson on the basis of gender. If equal protection principles do prohibit such conduct, we must decide finally whether De Gross did exercise her peremptory challenge with discriminatory intent.
A. The Government’s Standing to Object to De Gross’ Peremptory Challenge
De Gross argues that the government lacks standing to object to her use of peremptory challenges. The government argues that it has standing based on its own injury and the injury to the venirepersons challenged. We find both of the government’s arguments persuasive.
Discriminatory practices in jury selection “cast[s] doubt on the integrity of the whole judicial process. Thеy create the appearance of bias in the decision of individual cases, and they increase the risk of actual bias as well.” Peters v. Kiff, 407 U.S. 493, 502-503, 92 S.Ct. 2163, 2168, 33 L.Ed.2d 83 (1972). The exclusion of cognizable groups from jury service limits community participation in the administration of the criminal justice system—participation which is “critical to public confidence in the fairness” of the system. Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 698, 42 L.Ed.2d 690 (1975).
As administrator of the criminal justice system, the government has an inter-
Furthermore, the government has standing to object to a defendant’s discriminatory peremptory challenge by asserting the equal protection rights of the venireperson sought to be excluded. Ordinarily, a party does not have standing to assert the legal rights or interests of another. Powers v. Ohio, — U.S. —, 111 S.Ct. 1364, 1370, 113 L.Ed.2d 411 (1991). There are, however, limited exceptions. A party may raise a third party’s rights or interests when (1) the party asserting the rights has suffered an injury in fact, giving him a sufficiently concrete interest in the outcome of the litigation, (2) there is a sufficiently close relationship between the litigant and the person whose rights are being asserted so that the litigant will be an effective proponent of the rights being litigated, and (3) there is some hindrance to the third party’s ability to protect his own interests. Id. 111 S.Ct. at 1370-1372. Using these three criteria, Powers established that a criminal defendant has standing to raise the equal protection rights of a juror who was improperly excluded even if the defendant is not of the same racial group as the juror. Id. at 1373.
In Powers, the Court held that the defendant had standing because the defendant is actually injured by the improper exclusion. Racial discrimination in the jury selection process casts doubt on the integrity of the judicial process and the fairness of the criminal proceeding. Id. at 1371. Second, the defendant will be as effective at advocating the juror’s rights as the juror himself would be because both have a common goal in eliminating racism, and the defendant will be motivated by the possibility of reversal of a conviction. Id. at 1372. Finally, the excluded juror is unlikely to have the opportunity or incentive to vindicate his or her own rights. Id. at 1372-73.
This reasoning is equally applicable when the government asserts standing to raise the equal protection rights of improperly excluded jurors. First, as we have stated above, violation of the venireperson’s rights injures the government by impugning the jury system.
Second, the government’s relationship to the venireperson is sufficient to ensure that it will vigorously defend his rights. See Singleton v. Wulff, 428 U.S. 106, 114-15, 96 S.Ct. 2868, 2874, 49 L.Ed.2d 826 (1976). The government has a direct interest in protecting the rights of its citizens, including potential jurors. Additionally, the government has an interest in a venireperson’s perception of the fairness and impartiality of the criminal justice system.
Finally, several obstacles hinder an excluded venireperson from asserting his own rights. See id. at 115-16, 96 S.Ct. at 2874-75. The venireperson may not be aware that he has been discriminated against. Such discrimination may not become apparent until a number of similarly situated venirepersons have been struck. Also, although the racially excluded juror may bring a challenge on his or her own behalf,4 the reality is that such suits are rarely brought. Powers, 111 S.Ct. at 1372. “The barriers to a suit by an excluded juror are daunting.” Id. at 1373. There are numerous procedural difficulties. Additionally, there is little incentive because of the small financial stakes and the expense of litigation. Id. Thus, the improperly excluded juror effectively lacks a remedy for his unconstitutional exclusion from the trial.
We therefore conclude that the government has standing to object to De Gross’ peremptory challenge of Tiffany under these circumstances.
B. Gender-Based Peremptory Challenges
In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the
A proseсutor’s sexually discriminatory peremptory strike also violates the defendant’s right to equal protection of the laws because the defendant is entitled to be tried by a jury chosen pursuant to nondiscriminatory criteria. Batson, 476 U.S. at 86-87, 106 S.Ct. at 1717-18.7
First, just as racial discrimination in the judicial system is a stimulant to community prejudice which impedes equal justice for racial minorities, Id. at 87-88, 106 S.Ct. at 1718, so too is gender discrimination in the judicial system a stimulant to community prejudice which impedes equal justice for women. See Personnel Administrator v. Feeney, 442 U.S. 256, 273, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1979) (like classifications based on race, gender classifications traditionally have been the touchstone for pervasive and often subtle gender discrimination).
The history of juries in the United States is one of pervasive, government sanctioned exclusion of women. At common law, women were excluded from juries based on the doctrine of propter defectum sexus, literally, the “defect of sex.” 2 William Blackstone, Commentaries * 362. In 1880, the Supreme Court declared the exclusion of blacks from jury service to be unconstitutional, but noted that such service might be limited to men. Strauder v. West Virginia, 100 U.S. 303, 310, 25 L.Ed. 664 (1880). In Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961), the Supreme Court held that excluding women from jury service was neither a due process nor an equal protection violation because there was a sufficient rational basis for it—that women are “still regarded as the center of home and family life.” Id. at 62, 82 S.Ct. at 162. It was not until 1975 that the Supreme Court held that systematically excluding women from juries violates defendants’
Furthermore, gender discrimination, like racial discrimination, violates the defendant’s equal protection rights. Under Batson, a defendant is entitled to be tried by a jury chosen in a nondiscriminatory manner.8
Additionally, full community participation in the administration of the criminal justice system, whether measured by race or gender, is critical to public confidence in the system’s fairness. See Taylor, 419 U.S. at 530, 95 S.Ct. at 697. A jury is not truly representative of the community unless both sexes have an equal opportunity to serve. See Ballard v. United States, 329 U.S. 187, 193-194, 67 S.Ct. 261, 264, 91 L.Ed. 181 (1946). The exclusion of men, or of women, is as incongruous with traditional notions of the jury as a representative body “composed of the peers or equals of the person whose rights it is selected or summoned to determine,” as exclusion of a racial minority. Batson, 476 U.S. at 86, 106 S.Ct. at 1717 (quoting Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664 (1880), overruled by Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)).
It is true that the constitution tolerates gender discrimination if it is substantially related to the achievement of important governmental objectives. Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976). Peremptory strikes are a necessary means for achieving the important governmental objective of impaneling a fair and impartial jury. See Swain v. Alabama, 380 U.S. 202, 211-12, 85 S.Ct. 824, 831, 13 L.Ed.2d 759 (1965); Batson, 476 U.S. at 123, 106 S.Ct. at 1737 (Burger, C.J., dissenting). A party is not always able to justify his sudden and immediate impression that a particular venireperson will be partial. See Batson, 476 U.S. at 123, 106 S.Ct. at 1737; Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011 (1892).
But challenges explained solely by a venireperson’s gender are not based on a party’s sudden impression of a particular venireрerson’s ability to be impartial. Rather, like racial challenges, they are based either on the false assumption that members of a certain group are unqualified to serve as jurors, Batson, 476 U.S. at 86, 106 S.Ct. at 1717 (citing Norris v. Alabama, 294 U.S. 587, 599, 55 S.Ct. 579, 584, 79 L.Ed. 1074 (1935)), or on the false assumption that members of certain groups are unable to consider impartially the case against a member or a nonmember of their group. Cf. Batson, 476 U.S. at 89, 106 S.Ct. at 1719 (assumption that members of a certain group are unable to consider a case against a member of their group is false). If the decision to exclude a juror is based solely on the sex of the juror, the decision to exclude must necessarily be based on these false assumptions and does not aid in achieving an impartial jury. See id. at 98-99, 106 S.Ct. at 1724 (prohibiting discriminatory peremptory challenges will not undermine the contribution of peremptory challenges to the administration of justice).
We conclude, therefore, that equal protection principles prohibit striking venirepersons on the basis of their gender.
C. Equal Protection Limits on Criminal Defendants’ Peremptory Challenges
Our conclusion that equal рrotection principles prohibit discriminatory strikes of venirepersons based on gender clearly applies to prosecutors. Id. at 89, 106 S.Ct. at 1719. Batson, however, explicitly left open the question whether equal protection principles limit a criminal defendant’s peremptory strikes. Id. at 89 n. 12, 106 S.Ct. at 1719 n. 12. A more recent Supreme Court decision, however, has set-
Whether the prosecutor or the defendant exercises the strike, the excluded venirepersons are harmed because discriminatory strikes are based on group membership whereas juror competence depends upon an individual’s qualifications. And whether the prosecutor or the defendant exercises the strike, public confidence in the judicial system’s fairness is undermined by discriminatory strikes. Thus, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his membership in a constitutionally cognizable group.9
De Gross argues, however, that even if Batson’s rationale logically applies to a criminal defendant’s peremptory strikes, such conduct is not fairly attributable to the state, and therefore, the Constitution’s guarantee of equal protection does not limit it. We are convinced, however, that a criminal defendant’s peremptory strike is state action. We believe that the Supreme Court has mandated such a conclusion in its recent Edmonson v. Leesville Concrete Co. decision.
Though Edmonson is a civil case, the reasoning is applicable to criminal cases. In Edmonson,10 the Court said that although the conduct of private parties usually is beyond the scope of the Constitution, the defendant’s use of peremptory challenges was pursuant to a course of state action and thus subject to constitutional limits. The defendant concrete company used two of its three peremptories to challenge blacks on the panel. When Edmonson, citing Batson, asked for a race neutral reason for striking the jurors, the district court denied the request, stating that Batson does not apply to civil proceedings.
The Supreme Court dеtermined that the exercise of peremptories was pursuant to a course of state action; thus, Batson and the Equal Protection Clause apply to civil litigants. The logic of the decision makes the holding applicable to criminal defendants exercising peremptories. The Court began by noting that “our cases have found state action when private parties make extensive use of state procedures with ‘the overt, significant assistance of state officials.’ ” Id. 111 S.Ct. at 2084 (quoting Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 486, 108 S.Ct. 1340, 1345, 99 L.Ed.2d 565 (1988)). Without the overt, significant participation of the government, the Court said, the entire jury system, including peremptories,11 could not exist or operate. The government sets up the panel selection procedures. Id. 111 S.Ct. at 2084-85. Peremptory challenges are not self-executing. A party seeking to exercise discriminatory peremptory challenges must necessarily rely upon the court to call citizens to serve as jurors, to begin the voir dire in a judicial proceeding, and to excuse challenged venirepersons. We conclude, as the Supreme Court did, that а party could not exercise its peremptories without significant government assistance. “The party who exercises a challenge invokes the formal authority of the court....” Id. at 2085. This is true whether the party is a civil defendant or a criminal defendant like De Gross.
Thus, the Court said, the selection of jurors through the use of peremptories constitutes state action. “The selection of jurors rеpresents a unique governmental function delegated to private litigants by the government and attributable to the government for purposes of invoking constitutional protections against discrimination....” Id. at 2086. This reasoning applies to all jury selection—including criminal defendants such as De Gross. The basic function of the jury and the manner of its selection do not change fundamentally simply because the case is criminal instead of civil. While it is true that De Gross has not voluntarily availed herself of the jury system, this is not grounds for distinguishing Edmonson. The defendant in Edmonson had no more chosen to be in court selecting a jury and exercising peremptories than De Gross. The fact is that De Gross, just like the concrete company in Edmonson, used her peremptories in an improperly discriminatory manner. Such use is impermissible because she is exercising her government delegated responsibility of selecting a governmental body.
Finally, the Edmonson Court noted that injury caused by discriminatory peremptories is exacerbated by the fact that the government allows it to occur in the courthouse—a traditional symbol of governmental authority. Id. at 2087. Suсh injury occurs whether the case involved is civil or criminal.
Here, peremptory challenges are exercised in a public federal building operated in the public interest. And if the trial judge were to accept a peremptory challenge without considering whether the challenge was exercised with discriminatory intent, the trial judge would effectively be abdicating his duty not to discriminate.
The concurrence notes a potential conflict in the logic of considering a defendant a state actor when the defendant is actually an adversary of the state. We find this conflict to be conceptual only. The “state” which the defendant opposes is not the same state actor whose powers he invokes in exercising a peremptory challenge. When exercising a peremptory challenge, the defendant has become a state actor for that limited purpose. If we saw no distinction between the state as the prosecutor and the state as the administrator of the system, we would always see a conflict in criminal cases between the courts and the prosecutor. But we do not see such a problem. While both are state actors, they are distinct entities with distinct and different roles.
The defendant exercising a peremptory challenge invokes the authority of the state as justice administrator. In so doing, the defendant becomes a state actor. But the defendant is still distinct from the state actor that compelled his presence in court and which opposes him. In a criminal prosecution such as this case, both sides may invoke state power and both may therefore be state actors. While it is true that a criminal defendant seeks to “thwart [the state’s] power at every stage of the proceedings”, see concurring opinion at 1445, it is the prosecutor’s power, not the court’s power, that he seeks to thwart. Here, it is the court’s power that the defendant invokes. The concurrence fails to note the distinction between the state as prosecutor and the state as court administrator. It is not true, as the concurrence asserts, that the “criminal defendant’s interests are diametrically opposed to those of the government.” See concurring opinion at 1446. The defendant’s interests are diametrically opposed to those of the prosecutor. The interests of the state actor administering the trial is to see that justice is done, an
D. De Gross’ Challenge of Tiffany was Gender-Based
A litigant establishes a prima facie case of purposeful discrimination first by showing that a peremptory challenge was exercised against a member of a constitutionally cognizable group. Batson, 476 U.S. at 96, 106 S.Ct. at 1723. Second, the litigant must demonstrate that this fact “and any other relevant circumstances raise an inference” that the offending party challenged the venireperson from the jury on account of their group membership. Id. The burden then shifts to the party exercising the peremptory challengе to articulate a nondiscriminatory reason related to the case at bar for challenging the venireperson. Id. at 97-98, 106 S.Ct. at 1723-24.13 The district court’s findings regarding purposeful discrimination in the jury selection process are findings which we will not set aside unless clearly erroneous. Id. at 98 n. 21, 106 S.Ct. at 1724 n. 21; United States v. Power, 881 F.2d 733, 739 (9th Cir.1989).
Here, we cannot say that the district court’s inference that De Gross challenged Tiffany on account of his gender was clearly erroneous. The challenged venireperson, Tiffany, is a male. Males are a constitutionally cognizable group. See Craig, 429 U.S. at 197-99, 97 S.Ct. at 457-58; Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253, 30 L.Ed.2d 225 (1971). DeGross used seven of her eight peremptory challenges against males. At the time De Gross challenged Tiffany, ten women and two men were seated in the jury box, and only one man remained in the venire.
Because the prosecutor established a prima facie case of gender discrimination, the burden shifted to De Gross to justify her challenge of Tiffany on neutral grounds. De Gross failed to carry her burden because she refused to explain her challenge. Thus, the district court properly disallowed De Gross’ challenge of Tiffany.
II. Prosecution’s Challenge of Tellez
De Gross also argues that the district court erred in allowing the prosecution’s peremptory challenge of Tellez, the only Hispanic on the venire. The district court found that DeGross established a prima facie case of race discrimination.
CONCLUSION
The district court properly refused to excuse Tiffany when De Gross challenged him because to have done so would have violated the Constitution. However, the district court’s acceptance of the government’s challenge of Tellez violated De Gross’
REVERSED and REMANDED.
REINHARDT, Circuit Judge, with whom Circuit Judges WALLACE, HUG, SCHROEDER and ALARCON, join, concurring in the judgment:
I agree with the majority that De Gross’s conviction must be reversed. However, I do not agree that a criminal defendant is a state actor. Accordingly, I do not join in the majority’s reasoning. To the contrary, I base my decision to reverse on the very proposition rejected by the majority in its opinion.
A
The majority holds that, under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the government may object to the exercise of peremptory challenges by criminal defendants. Central to the majority’s holding is its conclusion that those whom the state seeks to incarcerate (or possibly even execute)—the quintessential adversaries of the state—are state actors. If, as I believe, criminal defendants cannot be so charactеrized, then their actions cannot violate the Constitution, and the government may not assert, as it was permitted to do here, a Batson objection to a challenge of a prospective juror made by the defendant. See Edmonson v. Leesville Concrete Co., — U.S. —, 111 S.Ct. 2077, 2082, 114 L.Ed.2d 660 (1991). According to the majority, the Supreme Court’s decision in Edmonson “has settled the issue” in favor of the result they adopt. Opinion at 1439. In so concluding, my colleagues read too much into certain parts of Edmonson, ignore other portions, and as a result are led into error regarding Edmonson’s construction of the state action doctrine.
While I believe that a proper analysis of the state action doctrine will demonstrate that the majority’s reading of Edmonson is incorrect, it is not surprising that our en banc court is closely divided on the question before us. Support for either result can be found in the language of Edmonson. For example, in holding that when
Although various parts of Edmonson may lend support to one side or the other, the one thing the decision does not do is “settle the issue”. In holding that in certain civil cases, the exercise of peremptory challenges involves state action, the Supreme Court expressly contrasted the private civil litigants whose case it was deciding with criminal defendants—and even with private civil litigants involved in suits against the government. See 111 S.Ct. at 2086. The Court thus deliberately distinguished the case which now confronts us, and left open its resolution. In short, contrary to the majority’s view, the result in the present appeal can in no way be said to be “mandated” by Edmonson.
Despite its ambiguities, Edmonson does provide guidance in selecting the appropriate analytic framework for resolution of the state action issue. The applicable framework aсcording to Edmonson is that used by the Court in Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). See 111 S.Ct. at 2082. Under Lugar, state action is implicated when “the claimed constitutional deprivation resulted from the exercise of a right or privilege having its source in state authority,” and when “the private party charged with the deprivation could be described in all fairness as a state actor.” Edmonson, 111 S.Ct. at 2082-83 (citing Lugar, 457 U.S. at 939-42, 102 S.Ct. at 2755-56). Both conditions must be met in order to justify a finding of state action.
The first step—whether the actor asserts a right derived from state law—is easy; because the criminal defendant’s power to exercise peremptory challenges stems from
It cannоt be disputed that a criminal defendant’s relationship to the state is fundamentally different from that of a private
It is hard to imagine a more palpable example of the exercise of state power than a criminal prosecution. But, that state power is wielded by the prosecutor against the criminal defendant—not by thе defendant on his own behalf. The prosecutor adopts the mission of the state—to convict and incarcerate (or execute) the defendant—as his own, and attempts to further that mission throughout the criminal proceedings. When the prosecutor opposes suppression motions, cross-examines witnesses, or engages in any other trial-related activity, including jury selection, he does so with the object of advancing the state’s case and defeating the defendant’s efforts to obtain an acquittal.1
The defendant’s sole objective in a criminal proceeding is to overcome, by all possible adversarial means, the state’s effort to convict him. During each and every part of that proceeding, he is interested solely in the preservation of his life and liberty. Indeed, there is no circumstance in which
an individual will oppose the interests of the government with greater vigor, consistency, or single-mindedness than during his own criminal trial. Far from wielding state power, a criminal defendant attempts to thwart that power at every stage of the proceedings.
There is nothing about the process of jury selection that alters the criminal defendant’s fundamental adversary relationship to the state and allows us fairly to characterize him as a state actor. During the voir dire, the prosecution and defense do not work in harmony; each seeks to eliminate jurors it believes to be sympathetic to the other side and to retain jurors who may be sympathetic to it. Unlike private litigants in civil cases, criminal defendants, when challenging jurors, are inevitably brought into direct conflict with the interests of the state. While conceding that there is a direct conflict between the criminal defendant and the state in the guise of the prosecution2, the majority elects to ignore that conflict, choosing instead to ask whether another conflict exists—whether the interests of the criminal defendant and those of the court are antithetical. Even when answering that inconsequent question, the majority goes astray. My colleagues assert, naively, “the interests of the state actor administering the trial [the court] is to see that justice is done, an interest not at odds with the defendant’s position.” Opinion at 1441. The realities are to the contrary. The defendant’s interest is not “to see that justice is done” but to obtain an acquittal regardless of the interests of justice. Certainly, in at least a substantial percentage of our criminal proceedings, the defendant’s interest is directly contrary to the state’s—even if we close our eyes to the role of the prosecutor and view the state’s interest as being solely
I conclude that the fact that a criminal defendant’s interests are diametrically opposed to those of the government is dispositive of the state action question. When the Supreme Court found that doctors employed by government institutions are state actors, it did so because “[i]nstitutional physicians assume an obligation to the mission the State, through the institution, attempts to achieve.” Polk County v. Dodson, 454 U.S. 312, 320, 102 S.Ct. 445, 451, 70 L.Ed.2d 509 (1981) (explaining O’Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975), and Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). When it found that public defenders are not state actors, it did so because it is the function of public defenders to oppose the state’s mission in criminal trials. See id. When the Court found that private civil litigants engaged in lawsuits not involving the government are state actors for purposes of the jury selection process, it found their actions “attributable to the government” because “the government and private litigants work for the same end” during the voir dire. Edmonson, 111 S.Ct. at 2086. At the very least, it is plain that there is no substantial conflict between the government and the private litigant in civil cases in which the government is not a party. In complete contrast, when a criminal defendant exercises peremptory challenges, he works in direct opposition to the interests of the state; he seeks a jury that will be hostile to the government’s efforts to convict him. Unlike institutional physicians, a criminаl defendant does not “assume an obligation to the mission” of the state. And, unlike civil litigants in a non-governmental case, a criminal defendant does not “work for the same end” as the government.5 In sum, a
Because De Gross’s peremptory challenge to Wendell Tiffany did not involve state action, the district court should not have permitted the government to raise a Batson objection. Thus, the court erred in disallowing De Gross’s challenge and permitting Tiffany to serve on the jury. The district court’s error in seating Tiffany over De Gross’s objection is in and of itself sufficient to require reversal of De Gross’s conviction and a new trial before a properly selected jury.7
B
My belief that a criminal defendant’s exercise of his or her peremptory challenges cannot give rise to a violation of the Constitution does not mean that I lack empathy for the feelings of venire persons excluded from serving on the jury on the basis of raсe or gender. It is true, as the majority states, that the setting in which the voir dire occurs—in a courtroom under the supervision of a district judge—may give rise to a feeling of government-sponsored discrimination. However, that concern may be alleviated without discarding the state action doctrine or turning criminal defendants into government agents. I am confident that a district judge who fears, in a particular case, that venire persons are
The Constitution does not contemplate that prisoners shall be dependent upon government agents for legal counsel and aid, however conscientious and able those agents may be. Undivided allegiance and faithful, devoted service to a client are prized traditions of the American lawyer. It is this kind of service for which the
Sixth Amendment makes provision.
Id. at 725-26, 68 S.Ct. at 324 (footnote omitted). Accordingly, criminal defense lawyers, like their clients, are not state actors.
likely to be excluded on the basis of race or gender and that they may ascribe their exclusion to the actions of the state, can develop means of averting that misimрression. For example, district judges are free, prior to commencement of the voir dire, to explain to prospective jurors that the defendant is given the opportunity to exclude persons for any reason whatsoever—or for none—and that a decision to strike is that of the defendant’s alone and in no way represents the view of, or an action by, the court. In this way, even the appearance of state action that might arise from a defendant’s exercise of peremptory challenges could be avoided.
To the degree that an individual venire person may nonetheless be affronted by an arbitrary exclusion, the harm suffered must be weighed against the need of the criminal defendant to have the right to exercise peremptory challenges in any manner he chooses, whether as a result of instinct, logic, reason, unfounded suspicion, bias or a combination of any or all of those factors. In a criminal trial, it is the defendant’s rights with which we must be most concerned, to which we must pay the greatest heed: it is, after all, the defendant’s life or liberty that is at stake in the courtroom. The majority’s holding diminishes those rights by imposing constitutional constraints on a defendant’s ability to select the jury he believes will be most sympathetic to his cause.8
A paradox, A paradox,
A most ingenious paradox!
Later in the same refrain our authors observe,
How quaint the ways of Paradox!
At common sense she gaily mocks!
Conclusion
For the reasons explained above, I agree with the majority that the district court’s judgment must be reversed. For those same reasons, I concur in the judgment only.