GARWOOD, Circuit Judge:
Appellant Leslie appeals his conviction for conspiring to distribute narcotics and possessing narcotics with intent to distribute them, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Rejecting his other complaints, a divided panel of this Court sustained Leslie's contention that the district court erred by failing to inquire into the prosecutor's motives for peremptorily challenging black venirepersons, although there was no claim or showing that the challenges were made for purposes unrelated to the outcome of the particular case being tried or were any part of a systematic practice of excluding blacks from jury service. 759 F.2d 366 (5th Cir.1985). The panel majority rested its holding in this respect "upon our supervisory power over federal district courts and federal prosecutors." Id. at 374. This Court, en banc, disagreeing with the panel's resolution of the peremptory challenge issue, affirms Leslie's conviction.
We hold that where in a given trial the prosecutor's peremptory challenges are made for the purpose of procuring a jury more likely than otherwise to convict in that particular case, and are not made for purposes unrelated to the case being tried or as any part of a systematic practice of attempting to exclude blacks from jury service, the challenges are not rendered improper because they are made in whole or in part on the basis of the group affiliations, including race, of the challenged venirepersons. We further hold that where, as here, there is neither claim nor prima facie showing that the prosecutor's peremptory challenges were exercised either as any part of a systematic practice of attempting to exclude blacks from jury service or other than for purposes of the particular case being tried, it is a misuse of whatever supervisory authority we may have in the premises to require judicial inquiry into the prosecution's reasons or motives for its peremptory challenges.
The facts of this case, and the Supreme Court's opinion in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), constitute the framework of our analysis.
Appellant Leslie was tried in New Orleans, along with Fernando Giron, a Honduran, on charges of distributing and conspiring to distribute cocaine. After the first day of trial, Giron pleaded guilty and testified
The record contains no transcript of the voir dire or jury selection process, although it does include the jury list showing those removed for cause and by peremptory challenge. When the court completed excusing venirepersons for cause, the jury panel had been reduced to twenty-eight, of whom six were black. The government used its six peremptory challenges to remove these six blacks, and the defense used its ten peremptory challenges to remove ten whites. Of the four persons comprising the alternate pool, one was black; the government used its alternate peremptory to remove this individual, and the defense used its alternate peremptory to remove a white from the alternate pool. The procedure and order of exercising peremptory strikes are not reflected in the record.
After the peremptories were completed, Leslie's counsel moved for a mistrial. He complained that the government used its peremptories to remove all the blacks from the jury and alternate pools. The Assistant United States Attorney stated that those challenged were "not struck on the basis of race" and offered to give "an in camera reason," which the trial court declined. The trial court then inquired of Leslie's counsel why he was entitled to mistrial, to which counsel responded:
The trial court denied the motion for mistrial, and Leslie's counsel objected stating, "there is no apparent reason, other than race, for the striking."
The matter was not raised again in the trial court, either by motion for new trial or otherwise. No attempt was ever made to analyze or comment on the voir dire. Nothing was said concerning the composition of the venire panel except in terms of who on it was black and who was white. Leslie never claimed that anything similar had ever before occurred or would likely occur again, or that there was any attempt to utilize peremptory strikes for purposes other than the outcome of the case being tried.
In his initial appellant's brief, Leslie casts his complaint in the following context:
Fairly construed then, Leslie has not complained that the prosecution's exercise of peremptory challenges here was motivated by anything other than an attempt to enhance the chances that the verdict in this case would be favorable to it. There is no allegation or suggestion that these strikes were any part of an effort to prevent black citizens from serving on criminal juries, or were motivated by any personal desire on the part of the Assistant United States Attorney not to associate with blacks. Rather, Leslie complains that, because of the peculiar factual setting of this case, he needed one or more black jurors to "translate" his speech and conduct to the rest of the jury; in effect, to vouch for his explanation of the suspicious conversations and activities.
Accordingly, the question here is not whether the prosecution may peremptorily challenge blacks in an effort to deny citizens of that race the right and privilege of serving on criminal juries. Nor is it what character of proof suffices to sustain such a claim, prima facie or otherwise. No such claim has been fairly presented. Rather, the issue here is whether the prosecution may take race or similar group characteristics into account when it exercises a peremptory challenge for the sole purpose of procuring a jury least likely to be partial to the defense, in light of the discrete facts of the particular case being tried.
Swain v. Alabama
The resolution of this issue is controlled by the analysis in part II of the Supreme Court's opinion in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). As in this case, the prosecution in Swain peremptorily struck all six black venirepersons on the jury panel, with the result that the black defendant was tried by an all-white jury.
So far as it concerned peremptory challenges by the prosecution based on race or similar group membership, Swain distinguished between and dealt separately with two types of such challenges: first, those made for the purpose of prevailing in the particular case being tried, which it addressed in part II; second, those made "for reasons wholly unrelated to the outcome of the particular case on trial ... to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population" (id. 85 S.Ct. at 838), which it considered in part III. The distinction between the two categories of racially based peremptory challenges is likewise reflected in the description of the second type as being the kind the prosecution would make "whatever the circumstances, whatever the crime and whoever the defendant or the victim may be." Id. at 837. In Swain part II, the Court held that racially based peremptory challenges of the first kind were a proper and a traditional part of the jury system as known to the common law and American jurisprudence. In its part III, the Swain Court strongly intimated that racially based peremptory challenges of the second kind were improper, but did not expressly so rule since it held that no sufficient showing had been made that the challenges in question were of that kind.
Justice Goldberg, joined by Chief Justice Warren and Justice Douglas, dissented. Id. at 840-50.
The Eighth Circuit has observed, "The very heavy burden of proof set forth in Swain has been extensively criticized by commentators." United States v. Childress, 715 F.2d 1313, 1316 (8th Cir.1983) (en banc), cert. denied, 464 U.S. 1063, 104 S.Ct. 744, 79 L.Ed.2d 202 (1984). Relatedly, it has been said that "Swain obviously furnishes no protection whatever to the first defendant who suffers such discrimination in any given court." People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 909, 583 P.2d 748, 767 (1978).
The opinion traces the over 600-year-old history of the peremptory challenge at common law, observing that in one form or another "[p]eremptories on both sides became the settled law of England" and that "[t]his common law provided the starting point for peremptories in this country." Id. at 832. The opinion further traces the continuous existence, from the beginnings of this nation, of some form of peremptory challenge, in all trials of serious offense, by both prosecution and defense in the federal system and in all or nearly all of the states. Id. at 832-34. The majority took note of the existence of explicit statutory recognition of the government's right of peremptory challenge in federal courts ever since 1865. Id. at 832-33. Although he observed that the United States Constitution does not mandate the availability of peremptory challenges,
The opinion continues by noting:
It also explains that "the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable" than is required for challenges for cause. Id. at 836.
As to use of peremptories on the basis of the racial or other group-related, as opposed to individual, characteristics of the challenged venireperson, Swain states that:
This language is, of course, wholly at odds with the theory of such cases as People v. Wheeler, supra, and Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, 514-15 cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979), that a venireperson may not properly be peremptorily challenged because of characteristics thought to be peculiarly common to any "cognizable" group of which she is a member, as distinguished from her assumed uniquely individual (or noncognizable group) characteristics. Plainly, the Supreme Court in Swain has held that a prosecutor may peremptorily challenge on racial (or similar group) grounds so long as he does so on "considerations related to the case he is trying, the particular defendant involved and the particular crime charged." Swain, 85 S.Ct. at 837.
In sum, as the Eighth Circuit said in United States v. Carter, 528 F.2d 844, 850 (8th Cir.1975), cert. denied, 425 U.S. 961, 96 S.Ct. 1745, 48 L.Ed.2d 206, (1976), "the Supreme Court in Swain made it clear that race or other group affiliation is in fact a legitimate ground for challenge in an individual case.
It has been suggested that Swain is no longer authoritative, or at least is not authoritative with respect to cases in which the sixth amendment is implicated, because it was decided some three years before it was first held, in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), that the sixth amendment applied to the states.
We reject this analysis. This Court has consistently applied Swain in federal prosecutions where the sixth amendment has obviously always been fully applicable. Thus, we stated in United States v. Williams, 446 F.2d 486, 488 (5th Cir.1971):
Other decisions of this court applying Swain in federal prosecutions include: Davis v. United States, 374 F.2d 1, 5 (5th Cir.1967); United States v. Pearson, 448 F.2d 1207, 1213-14 (5th Cir.1971); United States v. Carlton, 456 F.2d 207, 208 (5th Cir.1972) (per curiam). We have continued with like holdings after Taylor. See e.g., United States v. Durham, 587 F.2d 799, 801 (5th Cir.1979); United States v. McLaurin, 557 F.2d 1064, 1076 (5th Cir.), cert. denied sub nom. Hamilton v. United States, 434 U.S. 1020, 98 S.Ct. 743, 54 L.Ed.2d 767 (1977). In affirming the conviction in McLaurin, we stated:
Likewise, we have continued to apply Swain to our consideration of habeas corpus applications arising from state convictions in trials after Duncan and Taylor. See Easter v. Estelle, 609 F.2d 756, 759-60 (5th Cir.1980); Prejean v. Blackburn, 743 F.2d 1091, 1103-04 (5th Cir.1984), reh'g en banc denied, 765 F.2d 482 (1985). In Prejean we followed this course despite explicit recognition of the opinions on the denial of certiorari in McCray v. New York, 461 U.S. 961, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983). We cited with approval the Eleventh
These holdings are consistent with a vast host of decisions by other Circuits which have applied the Swain analysis in federal prosecutions, and in habeas cases for state trials after Duncan and Taylor. No useful purpose would be served by citing all of these cases. Some pre-date Swain itself, such as Hall v. United States, 168 F.2d 161 (D.C.Cir.), cert. denied, 334 U.S. 853, 68 S.Ct. 1509, 92 L.Ed. 1775 (1948), where the dissent was expressly grounded on the theory that the jury must be drawn from a cross section, with no cognizable group intentionally excluded, and that the federal courts should ensure this by use of supervisory powers over peremptory challenges. Id. at 165-66. Hall was cited with approval in Swain, 85 S.Ct. at 836 n. 26, and also by this Court in Carlton, 456 F.2d at 208. Some of the more recent federal appellate decisions to the same effect are collected in the dissent in McCray v. Abrams, 750 F.2d at 1136.
Before the 1978 decision in People v. Wheeler, the state courts had been unanimous in following the principle of Swain. See Annot., 79 A.L.R.3d 14 (1977). Wheeler itself, though it gives extensive consideration to decisions of the United States Supreme Court, is ultimately based on the California Constitution. The California Supreme Court stated:
Other states that have followed Wheeler have likewise based their decisions on local law. See Commonwealth v. Soares, supra; State v. Neil, 457 So.2d 481, 486 (Fla.1984); Riley v. State, 496 A.2d 997 (Del.1985); State v. Gilmore, 199 N.J.Super. 389, 489 A.2d 1175 (1985). See also State v. Crespin, 94 N.M. 486, 612 P.2d 716, 718 (1980).
However, the Swain approach remains the overwhelming majority rule among the states. Justice Marshall, dissenting from the denial of certiorari in Gilliard v. Mississippi, 464 U.S. 867, 104 S.Ct. 40, 43, 78 L.Ed.2d 179 (1983), observed:
Moreover, when Swain was decided the cross-section principle already had long been established, and was indisputably applicable to the states at least as it pertained to the Swain context, namely, a black defendant challenging his conviction on the ground that the jury selection procedures tended to reduce the presence of blacks in the venire and on the jury below the level of a representative cross section. Thus, Justice White stated for the court in Taylor:
Moreover, the cross-section principle is inapplicable to the kind of group-based peremptory challenge dealt with in Swain part II. To begin with, the cross-section cases are largely couched in terms of systematic exclusion. Further, the cross-section principle is applied to the formation of the venires, not the individual juries selected from them.
Similarly, in Taylor, Justice White wrote for the Court:
And, in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), Justice White again speaking for the Court observed:
See also Rabinowitz v. United States, 366 F.2d 34, 59 (5th Cir.1966) ("The focus of the law is on the list from which the jury is drawn and not on the composition of a particular jury....").
Plainly, then, the cross-section theory does not speak to the use of peremptory challenges of the Swain part II variety.
The argument has been made that restricting the cross-section requirement to the venire selection process is meaningless, because juries decide cases while venires decide nothing. See McCray, 750 F.2d at 1128. This contention, however, ignores the vast difference in function and purpose between selection for a venire and selection for a jury. Exclusion from the venire summons process implies that the government (usually the legislative or judicial branch), in its capacity as the neutral structurer of the overall justice system, has made the general determination that those excluded are unfit to try any case. Exercise of the peremptory challenge, by contrast, represents the discrete decision, made by one of two or more opposed litigants in the trial phase of our adversary system of justice, that the challenged venireperson will likely be more unfavorable to that litigant in that particular case than others on the same venire.
Thus, excluding a particular cognizable group from all venire pools is stigmatizing and discriminatory in several interrelated ways that the peremptory challenge is not. The former singles out the excluded group, while individuals of all groups are equally subject to peremptory challenge on any basis, including their group affiliation. Further, venire-pool exclusion bespeaks a priori across-the-board total unfitness, while peremptory-strike exclusion merely suggests potential partiality in a particular isolated case. Exclusion from venires focuses on the inherent attributes of the excluded group and infers its inferiority, but the peremptory does not. To suggest that a particular race is unfit to judge in any case necessarily is racially insulting. To suggest that each race may have its own special concerns, or even may tend to favor its own, is not. For instance, it says nothing adverse, or even truly racial, about blacks to infer that they may be more likely to have greater antipathy to the Ku Klux Klan than whites. Finally, the role played by the decision maker is significant. If the neutral structurer of the system excludes a cognizable group, the exclusion necessarily represents the official judgment of society that the group is generally inferior. Under the adversary framework of a trial, however, society is neutral; neither side is favored, neither speaks for society. To be peremptorily challenged by one side or the other hence bespeaks a judgment which is neither societal nor even normative, but merely reflects the tactical determination of one contesting litigant's counsel that the challenged person is, under the discrete facts of that particular case, more likely to favor the other side.
Moreover, the operative effects of the peremptory challenge cannot be equated to those of the general exclusion from venire pools. All peremptory challenges have a "price" in other peremptories foregone. The jury drawn from a venire representative of all cognizable groups, but from which one group has been eliminated by prosecution group-based peremptory challenges, generally is more likely to be acquittal prone than a jury drawn from an otherwise similar venire that happens to include no members of that same group. In the latter instance, unlike the former, the prosecution could eliminate the most acquittal prone of the venire by using peremptory challenges it otherwise would have used to eliminate individuals affiliated with the group in question. Therefore, inclusion of a group in the venire is not "meaningless" to the end result simply because that group may be eliminated from the trial jury by peremptory challenge. Further, general systematic exclusion from venire pools allows greater ability to predict, in advance of the decision to prosecute, the composition of the jury which will try the case. If no cognizable group is excluded from the venire formation process, the decision to prosecute normally cannot be made with assurance that any given group will not be so represented on the particular venire from which the trial jury will be drawn that it cannot be eliminated by peremptory challenges (or can be eliminated only at unacceptable cost in terms of other peremptories foregone).
Further, mirroring of the community's mixture of all "cognizable" groups at the actual trial-jury level is not the "be all and end all" of the jury system as we have known it. If it were, we would take steps to more nearly ensure that the composition of each individual jury roughly mirrored the community's group mixture with respect, say, to male and female, "Anglo," "Hispanic," and "Black."
That factors other than those relating to the cross-section principle are important to
Similarly, Apodaca states:
The United States Constitution does not speak of a "cross section" or "representative" or similarly described jury. Of course, this does not mean that our jury system does not embrace cross-section values. But it does mean that such values are embraced in the context of, and are limited by, the overall concept of trial by jury. That concept, as Swain makes clear, includes peremptory challenges, both for individual and group characteristics, when made for the purposes of the particular case being tried. This is likewise evident from Williams, where Justice White, responding to the argument that the jury of six impermissibly diluted community cross-section representation, observed:
The same conclusion is to be drawn from Justice White's reference in Taylor to the Federal Jury Selection and Service Act of 1968 (Pub.L. No. 90-274, § 101, 82 Stat. 54, 28 U.S.C. § 1861 et seq.) as embodying a proper recognition and implementation of the principle "that the requirements of a jury's being chosen from a fair cross section of the community is fundamental to the American system of justice." 95 S.Ct. at 697. The Act expressly provides that "no person or class of persons shall be disqualified, excluded, excused, or exempt from service as jurors: provided, that any person summoned for jury service may be ... (3) excluded upon peremptory challenge as provided by law, ...." 28 U.S.C. § 1866(c). The Taylor opinion also refers to the legislative history of this Act, including the House and Senate Committee Reports. Id. at 697 nn. 7-8. The following from the House Committee Report is hence significant:
This legislation was enacted only three years after Swain, and the right to peremptorily challenge for purposes of the case being tried on the basis of race or other group characteristic was then well-settled in federal prosecutions. Thus the Supreme Court in Taylor must have realized that Congress in 1968 included the Swain part II type peremptory within
The sixth amendment does, of course, require an "impartial" jury. This requirement of impartiality is applicable to each particular, individual jury, in each discrete case. It does not, however, imply that a party is entitled to any representative of his or her "group" on the jury,
What the impartiality requirement does imply is a jury each of whose members is willing and able to decide the case solely on the basis of the evidence introduced at trial and the instructions of the court. See Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 2892 n. 12, 81 L.Ed.2d 847 (1984) ("The constitutional standard [is] that a juror is impartial only if he can lay aside his opinion and render a verdict based on the evidence presented in court."). While normally only demonstrated and almost complete inability to put aside extraneous considerations requires that a challenge for cause be sustained, and it is often "scarcely possible to avoid" jurors "whose minds are entirely uninfluenced by opinions previously formed," nevertheless the ideal remains jurors who will "stand perfectly indifferent between the parties" and "who fe[el] no bias either way." Queen v. Hepburn, 7 Cranch (11 U.S.) 290, 297-98, 3 L.Ed. 348, 350 (1813). Hence, challenge for cause may properly be sustained in instances where such action is not absolutely required. Id. In this connection, it is also recognized that bias — i.e., lack of impartiality in the referenced sense — may arise because of a group characteristic. See, e.g., Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 472-73 & nn. 1-3, 75 L.Ed. 1054 (1930)
Plainly, however, the challenge for cause is an inadequate tool for the elimination of bias. To begin with, bias exists along a continuum of strength or degree; its place on that continuum will often be impossible
Moreover, even if the juror has a bias which would give rise to a proper challenge for cause, this fact may not be demonstrable. This was recognized in Swain, 85 S.Ct. at 836, as well as in a host of other decisions. See, e.g., Hayes v. Missouri, 120 U.S. 68, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1887). As the New York Court of Appeals stated in People v. McCray, 57 N.Y.2d 542, 457 N.Y.S.2d 441, 444, 443 N.E.2d 915, 918 (1982), cert. denied, 461 U.S. 961, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983):
Further, the availability of the peremptory protects the challenge for cause by protecting against juror hostility resulting from the inquiry. Swain, 85 S.Ct. at 836; Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 138, 36 L.Ed.1011 (1892). As expressed in People v. McCray:
Thus, the peremptory challenge plays an important role in the parties' quest for the "impartial" jury — the jury of the sixth amendment, composed of those who are willing and able to decide the case solely on the evidence and the law. As Swain states:
See also Lewis, 13 S.Ct. at 138 ("essential to the fairness of trial by jury"); Hayes, 7 S.Ct. at 351 ("to secure the impartiality of jurors"); Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965) ("likely to produce a fair result"). The extent to which a juror's circumstances may affect his impartiality depends on the likelihood of the inference of bias and the strength of the bias inferred, under the facts of a particular trial, but not, per se, on whether the source of the potential bias is affiliation with a "cognizable" group as distinguished from all other possible sources. The potential for bias of Catholic against Ku Klux Klan member is not inevitably less in every trial than that of one with long hair
It has been argued that one party's peremptories may exclude all of a minority group, while the other's peremptories will be insufficient to exclude the majority, with resulting unfairness to the minority party. See Soares, 387 N.E.2d at 516. To the
As a justification for prohibiting all peremptory challenges based on "cognizable" group affiliation, the "elimination of the minority" rationale is also subject to other objections. "Cognizable" group classifications are not limited to those of minority and majority, but rather include classifications such as gender, national ancestry, religion and possibly economic status, respecting which the divisions in a given community may be approximately equal.
A somewhat analogous point is made in Note, Peremptory Challenges and the Meaning of Jury Representation, 89 Yale L.J. 1177 (1980). This student writing convincingly argues that prosecution group-based exercise of peremptories will tend to distort trial juries away from the mean of the community's relevant attitudes only when such attitudes are asymmetrically distributed about the community mean and the challenged group comprises an acquittal extreme more distant from the mean than the conviction extreme. In other situations, the prosecution's use of group-based peremptories will enhance the tendency of the trial jury to reflect the mean of community attitudes, while in still others it will have no effect one way or the other on that tendency.
We reaffirm our prior holdings that the group-based peremptory challenge of the kind considered in Swain part II is constitutional, not only under the equal protection clause but under the sixth amendment as well. This conclusion is premised on the understanding that such challenges do not run counter to, but rather form a recognized part of, the mix of values inherent in the concept of trial by jury as provided for in the sixth amendment and article III, section 2, clause 3.
We decline the invitation to achieve a different result under the guise of employing our supervisory power. To begin with, the same considerations that support or oppose the constitutional challenge equally support or oppose such employment of the supervisory power. "The values assigned to the competing interests do not change because a court has elected to analyze the question under the supervisory power instead of the" sixth amendment. United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 2446-47, 65 L.Ed.2d 468 (1980). Moreover, the numerous decisions that have left intact the prosecution's and defense's unfettered use of peremptory challenges for purposes of the particular case being tried were not decided on the theory that although racially based challenges are undesirable or even illegal they nevertheless are not so egregious as to be unconstitutional. Rather, those decisions were based on the determination that such unfettered use, including consideration of group affiliation, is an essential element of the peremptory challenge itself and has consistently been recognized as a proper, important and integral part of trial by jury. For us to forbid such challenges in essence "amounts to a substitution of individual judgment for the controlling decisions" of the Supreme Court and the prior panels of this Court. See Payner, 100 S.Ct. at 2447. As the Second Circuit said in United States v. Newman, 549 F.2d 240, 250 (2d Cir.1977), it would be an "unprecedented assumption of power."
In United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 1978-79, 76 L.Ed.2d 96 (1983), the Supreme Court, rejecting use of the supervisory power to avoid the harmless error rule, explained:
None of these considerations is significantly implicated here. There is no violation of recognized rights; instead, the suggested exercise of supervisory power would violate the long recognized rights of litigants to consider group affiliation in utilizing peremptory challenges for purposes of the case being tried and to do so free of judicial inquiry and control. And, as such exercise
Apart from the foregoing, other considerations likewise militate against such use of the supervisory power. The prosecution has been entitled to peremptory challenges, or their equivalent, continuously since the formation of our nation, as well as for centuries prior thereto under the common law. This right has had express statutory recognition continuously from 1865 until its inclusion in Rule 24(b) of the Federal Rules of Criminal Procedure effective in 1946, where to this date it has remained unchanged in any relevant particular.
Neither Thiel v. Southern Pac. Co., 66 S.Ct. 984 (1946), nor Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946), fairly supports a contrary analysis. Ballard, expressly, and Thiel, implicitly, rest on the proposition that the practices there condemned constituted "a departure from the statutory scheme." Ballard, 67 S.Ct. at 265 (also at 264). See also Thiel, 66 S.Ct. at 987 (nothing in "federal or state law" justifies the condemned practice). Here the very opposite is the case: what we are asked to decree is "a radical change" from, and "wholly at odds" with, the "essential nature" of a right expressly authorized by the Federal Rules of Criminal Procedure and 28 U.S.C. § 1866(c). Further, Ballard and Thiel are supported by "[t]he American tradition of trial by jury." Thiel, 66 S.Ct. at 985; Ballard, 67 S.Ct. at 263. Here we are asked to enact a practice that flies directly in the face of that tradition. Finally, Thiel and Ballard involved judicial supervision of the judiciary — the Supreme Court supervising the lower federal court-formulated venire summons practice. Here, by contrast, we are asked to intrude into decisions committed by law to the executive branch, namely, against whom should its peremptory strikes be exercised for the purpose of a particular case. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), is inapposite for all the same reasons.
Moreover, the rule appellant asks us to adopt will either eviscerate the defense's use of peremptories or improperly tilt the scales of justice against the prosecution. Of course, the prosecution is entitled to a fair trial and the defense is not entitled to a jury partial in its favor. Challenges are one means to this end. See Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 851-52, 83 L.Ed.2d 841 (1985); Smith v. Balkcom, 660 F.2d at 579; Spinkellink v. Wainwright, 578 F.2d 582, 596 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979). The prosecution is no less entitled to the unfettered use of its allotted peremptories than the defense. As the Supreme Court said in Hayes v. Missouri, 120 U.S. 68, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1887), in such matters "the scales are to be evenly held" between prosecution and defense. This view was reaffirmed in Swain respecting the same proffered restriction on prosecution exercise of peremptories that is at issue here. 85 S.Ct. at 835. Similarly, in Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965), a unanimous
Rule 24(b) neither by its terms nor its history makes any distinction between the prosecution and defense with respect to the reasons for which peremptory challenges may be exercised. By what right, then, may we do so?
We note that every jurisdiction which has spoken to the matter, and prohibited prosecution case-specific peremptory challenges on the basis of cognizable group affiliation, has held that the defense must likewise be so prohibited. See Wheeler, 583 P.2d at 765 n. 29 ("[T]he People no less than individual defendants are entitled to a trial by an impartial jury drawn from a representative cross-section.... [W]hen a white defendant is charged with a crime against a black victim, the black community as a whole has a legitimate interest in participating .... [T]hat interest will be defeated if the prosecutor does not have the power to thwart any defense attempt to strike all blacks...."); Soares, 387 N.E.2d at 517 n. 35; Commonwealth v. Reid, 384 Mass. 247, 424 N.E.2d 495 (1981); Commonwealth v. DiMatteo, 12 Mass.App. 547, 427 N.E.2d 754 (1982); State v. Neil, 457 So.2d at 487 ("[B]oth the state and the defense may challenge the allegedly improper use of peremptories. The state, no less than a defendant, is entitled to an impartial jury" (footnote omitted).); Booker v. Jabe, supra, at 772 ("[W]e hold that under the Sixth Amendment, neither prosecutor nor defense counsel may systematically exercise peremptory challenges to excuse members of a cognizable group from service on a criminal petit jury."). See also United States v. Clark, 737 F.2d 679, 682 (7th Cir.1984) ("It would be hard to argue that only a defendant should be allowed to challenge racially motivated peremptory challenges.... [T]he prosecutor would be allowed to object to the defendant's making racial peremptory challenges if the defendant could object to the prosecutor's doing so.").
Accordingly, adoption of the position contended for by appellant seems likely to ultimately result in a serious weakening of what the Supreme Court has justly described as "`one of the most important of the rights secured to the accused,' Pointer v. United States, 151 U.S. 396, 408 [14 S.Ct. 410, 414, 38 L.Ed. 208] ...  ... [t]he denial or impairment of ... [which] is reversible error without a showing of prejudice, Lewis v. United States, supra; Harrison v. United States, 163 U.S. 140 [16 S.Ct. 961, 41 L.Ed. 104] ... ." Swain, 85 S.Ct. at 835. No longer, then, could the defendant "peremptorily challenge `on his own dislike'"; no longer would we follow the rule that whatever "prevents or embarrasses the full, unrestricted exercise by the accused of that right must be condemned." Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894).
We are persuaded that prosecution or defense peremptory challenges of the Swain part II variety are constitutional and lawful notwithstanding that they may be motivated in whole or in part by the challenged venireperson's race, gender, or other group affiliation, and that such motivation is not the proper subject of judicial inquiry in cases of this kind where there is no claim or reason to suspect that the challenges are not made for purposes of securing a jury favorable to the case at hand. We further decline to change this settled rule by the exercise of supervisory power, which we conclude would be both unwarranted and unwise. Hence we reject appellant Leslie's complaints respecting the prosecution's exercise of its peremptory challenges in this case, and his conviction is affirmed.
JERRE S. WILLIAMS, Circuit Judge, with whom JOHN R. BROWN, ALVIN B. RUBIN, TATE and JOHNSON, Circuit Judges, join, dissenting:
The broadly ranging and scholarly opinion for the En Banc Court focuses largely upon the issue of whether it violates the United States Constitution for a prosecutor in a state or federal case to use peremptory challenges for racially discriminatory purposes unless there is a pattern or practice of invidious discrimination shown in a number of cases. This is an exceedingly important issue. It is worthy of en banc consideration in this Court, and it is now before the United States Supreme Court in Batson v. Kentucky, argued Dec. 11, 1985, 54 U.S.L.W. 3445. The En Banc Court uses the Leslie case as a vehicle to confirm on this issue the Supreme Court's seminal holding in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).
But that is not the narrow issue posed by this case. See the panel opinion, United States v. Leslie, 759 F.2d 366, 373 (5th Cir.1985). The case which is before us is a poor vehicle to carry the load of a reexamination of that fundamental issue. Indeed, the constitutional issue of Swain was not even raised by the defendant in this case. Simply stated, appellant's claim is that because the defendant in this federal prosecution raised the issue of possible invidious discrimination in the prosecutor's jury challenges, the district judge properly should have inquired into that issue under the exercise of his power to insure that justice be done in federal prosecutions. Because the opinion for the Court goes far beyond this narrow claim, and because the district judge erroneously denied having any power to make such an inquiry when such power is present, I am constrained to dissent.
The prosecutor in this case may have had valid and acceptable reasons to have focused his peremptory challenges upon members of the black race. The error was that the district judge refused to inquire into the prosecutor's reasons on the sweeping ground that he simply had no power under the law to do so. It is this assertion by the judge that he had no legal authority to inquire which is the only issue in the case before the Court. Insofar as the opinion
To make the issue clear, suppose in this case that upon inquiry by the district judge the prosecutor had said something to the effect that he challenged the blacks because he did not like blacks, he did not think they are fit to sit in any case, and regardless of the nature of the case he had intentionally used the challenges to engage in racial discrimination. Under the analysis of the district judge and the majority of this Court, the holding would be that the district judge had no power to take any action to remedy this blatant racial discrimination. A fair trial to this particular defendant would be sacrificed on the altar of requiring a pattern or practice of discrimination proved statistically over a number of cases later to follow. I cannot conceive that the majority of this Court would hold if a prosecutor made such a statement in open court explaining his peremptory challenges that he was acting within his right.
The panel opinion made clear it was not barring all racial consideration in voir dire examination and in the use of peremptory challenges. United States v. Leslie, 759 F.2d at 374. There was no negation of a power in the prosecutor and the discretion in the district judge to allow challenges seemingly on a racial basis which have rational explanations. It must be stressed again that the only issue arises because the federal district court took the position that it had no power to make such an inquiry of a prosecutor.
It is well here to be reminded of the classic definition of the federal prosecutor's role given by the Supreme Court in the case of Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). In that case the Court reversed a federal conviction on the ground that the government prosecutor had overstepped the bounds of propriety and fairness in the prosecution of the case. The Supreme Court explained the nature of the prosecutor's duty and the values the duty is designed to effect:
Id. at 88, 55 S.Ct. at 633 (emphasis added). The panel opinion set out this quotation and then went on to quote from several other cases of this Court. For example, in United States v. Corona, 551 F.2d 1386, 1391 (5th Cir.1977), we said that a prosecutor must "conduct criminal trials with an acute sense of fairness and justice." Then in United States v. Beckett, 706 F.2d 519, 521 n. 5 (5th Cir.1983), we said that the cherished title "United States Attorney" is not a hunting license which exempts its holder from the ethical constraints of advocacy.
One other important and well-known introductory proposition must be stated. Although the historical roots of the peremptory challenge in the American system of justice run deep, peremptory challenges are not commanded by the United States Constitution. See McCray v. New York, 461 U.S. 961, 103 S.Ct. 2438, 2442 n. 7, 77 L.Ed.2d 1322 (Marshall, J., dissenting from denial of certiorari); Rosales-Lopez v. United States, 451 U.S. 182, 188 n. 6, 101 S.Ct. 1629, 1634 n. 6, 68 L.Ed.2d 22 (1981); Swain, 380 U.S. at 219, 85 S.Ct. at 835. Yet, while peremptory challenges do not have constitutional foundation, the principle which competes with the peremptory challenge in this case, the prohibition
With this preliminary statement of the issue which is actually before this Court, I now turn my attention to whether the supervisory power of the federal courts, based upon a long and honorable history, can fairly be said to support the proposition that in order to insure a fair trial, we can direct a district court to inquire into the motives of prosecutors in exercising peremptory challenges when claim is made that they may be exercising that power with invidious racially discriminatory motives.
The remainder of this opinion is directed at showing that the panel acted properly and justifiably in invoking the supervisory power of this Court. The role and the scope of the supervisory power are delineated by establishing four basic propositions. Taken together, these propositions, in my view, clearly demonstrate the correctness of the holding of the panel majority. First, this Court possesses broad supervisory powers over lower courts. Second, there is no doubt that the supervisory powers of federal courts may be used to correct injustices which do not amount to constitutional or statutory violations. Third, the supervisory power — encompassing broadly several forms of deterrence of prosecutorial misconduct — is appropriate on the facts of the present case. Fourth, although Congress undoubtedly has the right to override supervisory power rulings through legislation, Congress has not spoken with respect to the narrow holding of the panel. Each proposition is discussed in turn.
First, the federal appellate courts possess broad supervisory powers. The supervisory power doctrine was articulated over four decades ago in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). As the en banc majority notes, the supervisory power allows courts to "preserve judicial integrity by insuring that a conviction rests upon appropriate considerations validly before the jury." United States v. Hasting, 461 U.S. 499, 505, 103 S.Ct. 1974, 1978, 76 L.Ed.2d 96 (1983). This power has been invoked in a "surprising variety of situations. The commentators have uniformly marveled at how flexible and extensive the supervisory power is." Imwinkelried, United States v. Payner and the Still Unanswered Questions About the Federal Courts' Supervisory Power Over Criminal Justice, 7 J.Crim.Def. 1, 9 (1981); see also Beale, Reconsidering Supervisory Power in Criminal Cases: Constitutional and Statutory Limits on the Authority of the Federal Courts, 84 Colum.L.Rev. 1433 (1984); Hill, The Bill of Rights and the Supervisory Power, 69 Colum.L.Rev. 181 (1969); Comment, Judicially Required Rulemaking as Fourth Amendment Policy: An Applied Analysis of the Supervisory Power of Federal Courts, 72 Nw.U.L.Rev. 595, 596 (1977); Note, The Judge-Made Supervisory Power of the Federal Courts, 53 Geo.L.J. 1050, 1078 (1965).
Courts have applied the supervisory power to announce new jury selection standards for civil actions, and even to establish standards for administrative hearings. See Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946); Woodby v. I.N.S., 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966). The Supreme Court has used its supervisory power to reverse convictions supported by false evidence, to curtail improper practices by federal attorneys, to suppress evidence government agents gained through misconduct, to preserve a criminal contemner's right to a jury trial, and to protect a defendant from an overzealous district court
These examples show a supervisory power so broad and extensive that any attempt at an all-inclusive definition must necessarily fail. See Note, 53 Geo.L.J. at 1050 ("The variety of situations in which [the supervisory power] has been invoked defies any attempt to construct a definition of supervisory power which is at once comprehensive and accurate.... The sole common denominator of its usage is a desire to maintain and develop standards of fair play in the federal courts more exacting than the minimum constitutional requirements of due process."). The reason for such a broad power is that the courts must be given the ability to preserve the integrity of the judicial system. Hasting, 461 U.S. at 505, 103 S.Ct. at 1978. Thus, it is no wonder that "[t]he Supreme Court undoubtedly possesses an historical power of supervision over its inferior courts; in the absence of legislative action, its power to correct lower federal court procedures deemed unfair or unjust seem subject to no substantial limitations." Note, The Supervisory Power of the Federal Courts, 76 Harv.L.Rev. 1656 (1963).
This Court possesses supervisory power over district courts coextensive with that possessed by the Supreme Court. "[E]very Court of Appeals ... that has confronted the issue" has laid claim to the supervisory power. Burton v. United States, 483 F.2d 1182, 1187 (9th Cir.1973) (citing numerous federal decisions); see also Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973) (recognizing the lower courts' exercise of the supervisory power); Imwinkelried, supra at 3; Beale, supra at 1455 ("[B]oth the Supreme Court and the lower federal courts have generally assumed that these courts possess supervisory authority in their own circuits or districts like that wielded by the Supreme Court on a nationwide level.").
Thus, it must be concluded beyond dispute that the first proposition is established. This Court possesses a broad authority to correct lower court procedures under our supervisory power.
The second proposition is that the supervisory power exists to correct injustices which do not amount to statutory or constitutional violations. There is no serious doubt that this is the case. The Supreme Court held in McNabb: "[T]he scope of our reviewing power over convictions brought here from the federal courts is not confined to ascertainment of Constitutional validity. Judicial supervision of the administration of criminal justice in the federal courts ... [is] not satisfied merely by observance of ... minimal [constitutional] safeguards...." 318 U.S. at 340, 63 S.Ct. at 613. The Court has steadfastly adhered to the notion that the supervisory power is an appropriate tool to correct injustices which do not amount to constitutional or statutory violations. See, e.g., Hasting, 461 U.S. at 505, 103 S.Ct. at 1978 ("[F]ederal courts may, within limits, formulate procedural
This proposition is critical to an understanding of the difference between this dissent and the en banc majority. The basic thrust of the en banc majority appears to be that court or defense inquiry into the prosecutor's reasons for making a peremptory strike is not a constitutional right. Since the supervisory power is a separate body of law, the constitutional arguments are not dispositive. Nor is this distinction between constitutional rights and supervisory power rulings merely a distinction without a difference. Unlike constitutional decisions, supervisory power rulings affect only the federal courts, and are subject to legislative override. As noted by Professor Beale:
Beale, 84 Colum.L.Rev. at 1434. Moreover, the supervisory power is designed to protect recognizable institutional goals in the federal courts. "The use of supervisory powers supports two institutional goals: deterring future prosecutorial misconduct and maintaining the integrity of the judicial process. These goals are separate from the goal of protecting a defendant's constitutional right to a fair trial." Note, The Exercise of Supervisory Powers to Dismiss a Grand Jury Indictment — A Basis for Curbing Prosecutorial Misconduct, 45 Ohio St.L.J. 1077, 1084 (1984); see also United States v. Sears, Roebuck Co., 719 F.2d 1386, 1394 (9th Cir.1983) (Norris, J. dissenting in part), cert. denied, 465 U.S. 1079, 104 S.Ct. 1441, 79 L.Ed.2d 762 (1984).
It is clear, therefore, that this Court possesses the supervisory power to correct injustices which are neither constitutional nor statutory violations. The use of the supervisory power does not constitute an "end run" around the Constitution, but rather rests upon the firm policy grounds of allowing the Court to preserve the integrity of the federal judicial system without making a ruling carrying the baggage of a constitutional decision.
The third proposition is that the supervisory power is appropriately applied to the facts of the present case. As noted above, the supervisory power is broadly available to insure the integrity of the judicial process. It cannot seriously be doubted that excluding blacks from juries motivated purely by invidious racial discrimination, and for no other reason, is an anathema to the concept of a fair judicial system. As one commentator has noted:
Note, The Defendant's Right to Object to Prosecutorial Misuse of the Peremptory Challenge 92 Harv.L.Rev. 1770, 1781 (1979); see also Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 (1940) ("For racial discrimination to result in the exclusion from jury service of otherwise qualified groups ... is at war with our basic concepts of a democratic society and a representative government.").
The supervisory power has been used countless times to deter myriad instances of prosecutorial misconduct. See e.g., United States v. Leslie, 759 F.2d at 371 (citing several examples of use of supervisory power over prosecutors). In our criminal justice system, a prosecutor "is both an administrator of justice and an advocate.... [His] duty ... is to seek justice, not merely to convict." I ABA, Standards for Criminal Justice 3-1.1(b) & (c) (1980); see also Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). Obviously, there is no place for invidious racial discrimination in the administration of justice. The supervisory power is an appropriate vehicle for insuring that a prosecutor carries out his ethical obligations. See e.g., United States v. Serubo, 604 F.2d 807,
The en banc majority mis-characterizes the holding of the panel when it argues that this use of the supervisory power is inappropriate because it constitutes a "radical" change from preexisting law. As support for that assertion, the en banc majority cites Swain. See at 562. Swain, however, held that inquiry into the motives of the prosecutor was not a constitutional right. Swain, 380 U.S. at 222, 85 S.Ct. at 837 ("[W]e cannot hold that the Constitution requires an examination of the prosecutor's reasons for the exercise of his challenges in any given case.") (emphasis added). Swain has nothing to do with the supervisory power of this Court.
Other courts have exercised their supervisory authority to ensure that federal prosecutors do not employ peremptory challenges to engage in racial discrimination. For example, in United States v. McDaniels, 379 F.Supp. 1243 (E.D.La.1974), my brother Rubin, then a district judge, granted a new trial under Rule 33 "in the interest of justice" because the prosecutor used all six of his peremptory challenges against blacks.
Also relevant is the recent case of United States v. Campbell, 766 F.2d 26 (1st Cir.1985). This case involved an objection by the defendant to the federal prosecutor's use of a peremptory challenge to strike a black from his jury. District Judge Keeton at the trial held a hearing on defendant's objection, and he personally questioned the prosecutor as to his motives in exercising the challenge. The district judge concluded that the government's purpose in the challenge was not racially motivated. The Court of Appeals, without specifically approving or disapproving the district judge's procedure, upheld the conviction on the ground that the finding of the district judge exonerating the prosecutor from misuse of the challenge by racial motivation was well supported in the record. This holding made inquiry into the application of the Swain rule unnecessary.
It is apparent that an attempt to eliminate the ugly spectre of invidious racial discrimination from the federal courts is an appropriate use of the supervisory power.
The fourth premise is that Congress has not spoken on the narrow issue which was the holding of the panel. The en banc majority contends that Congress through contrary legislation has effectively precluded our use of the supervisory power in a peremptory challenge case. The en banc opinion cites Rule 24(b) of the Federal Rules of Criminal Procedure and the Federal Jury Selection and Service Act of 1969, 28 U.S.C. § 1861 et seq. Neither of these congressional actions discusses the issue of whether the judge has the power to make inquiry of the prosecutor's reasons for striking blacks when requested by the defendant. The en banc opinion erroneously attempts to characterize the panel holding broadly — as creating a right for the defendant to prevent the prosecutor from taking racial factors into account in his peremptory strikes — and then proceeds to strike down this "straw man" with congressional enactments.
Rule 24(b) speaks only to the number of peremptory challenges. It goes no further and does not define what is meant by "peremptory," whether peremptories might not
Nor does the Federal Jury Selection and Service Act of 1968 constitute congressional preemption of the panel's use of the supervisory power. The primary function of that law is to prevent discrimination in jury panels; thus, the Act focuses on the means of compiling jury lists and on juror qualifications, and it provides an "exclusive" mechanism for challenge which shuts down once "voir dire examination begins." 28 U.S.C. § 1867(a). Peremptory challenges and challenges for cause are mentioned only incidentally, and are reaffirmed as operating outside of the act as "provided by law."
The panel majority held narrowly and precisely that when requested by a defendant the district court had the power to ask a prosecutor for his reasons for striking all blacks from a jury panel. That is all. This Court undoubtedly has the broad supervisory power to require such an inquiry in appropriate instances. This is a proper use of the supervisory power because it will on its face promote the interests of justice. Congress has not spoken on this question. In dissenting, therefore, I adhere to the holding of the panel. I find the broad sweep of the majority opinion uncalled for in this case. I further find justified the precise use of supervisory power to insist that a district court can inquire into suspected racial discrimination in the use of peremptory challenges by government prosecutors. Ugly in its practice and insidious in its effects, invidious racial discrimination deserves no protection in any area of society, least of all in the administration of justice in the federal courts.
See also United States v. Newman, 549 F.2d 240, 248-49 (2d Cir.1977) (quoting Swain dissent and discussing common strains in the majority and dissenting opinions); United States v. Childress, 715 F.2d 1313, 1315 (8th Cir.1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 744, 79 L.Ed.2d 202 (1984) (comparing the majority and dissenting opinions, and the extent to which they agree).
Two opinions of district courts in the Second Circuit have strongly criticized its opinion in McCray. See Roman v. Abrams, 608 F.Supp. 629, 638-42 (S.D.N.Y.1985) (Brieant, J.); Schreiber v. Salamack, 619 F.Supp. 1433 (S.D.N.Y.1985) (Goettel, J.).
It may also be noted that this Court has likewise long been sensitive to the cross-section principle. See the various opinions in Rabinowitz v. United States, 366 F.2d 34, 57-58, 77-79, 83 (5th Cir.1966) (Rives, J.; Brown, J.; concurring; Bell, J., dissenting in part). This has not prevented us from applying Swain to federal cases or post-1968 state habeas cases.
To begin with, we have consistently held that in capital cases peremptory challenges may be used to exclude those who express hesitancy about imposing the death penalty but whose exclusion for cause is forbidden by Witherspoon. See Jordan v. Watkins, 681 F.2d 1067, 1070 & n. 2 (5th Cir.1982) (citing Swain); Sonnier v. Maggio, 720 F.2d 401, 406-07, reh'g en banc denied, 723 F.2d 907 (5th Cir.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1331, 79 L.Ed.2d 726 (1984) (citing Swain). See also Dobbert v. Strickland, 718 F.2d 1518, 1525 (11th Cir.1983), cert. denied, 468 U.S. 1220, 104 S.Ct. 3591, 82 L.Ed.2d 887 (1984) (same). Cf. Grigsby v. Mabry, 758 F.2d 226 (8th Cir.) cert. granted sub nom. Lockhart v. McCree, 474 U.S. 816, 106 S.Ct. 59, 88 L.Ed.2d 48 (1985) (challenge for cause, but not peremptory challenge, of Witherspoon excludables violates the cross-section requirement on the guilt or innocence issue in capital case).
Justice Brennan (Justice Marshall concurring) has noted that allowing challenge for cause in a capital case where the requirements of Witherspoon have not been met violates the jury cross-section cases, stating: "Though these cases involve systematic exclusion from the jury pool and not from a particular jury, death-qualification is the functional equivalent of exclusion from the pool. The prosecution has unlimited ability to challenge prospective jurors for cause and uses the challenges to remove all members of an identifiable segment of the community from the pool." Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 870 n. 10, 83 L.Ed.2d 841 (1985) (dissenting opinion) (emphasis added). Obviously, these remarks are inapplicable to peremptory challenges.
Further, where a particular ground of challenge for cause (such as opposition to the death penalty) is recognized by state law, this has an inherently systematic effect not present in the peremptory challenge exercised on an individual case basis (i.e., of the Swain part II variety).
Moreover, Witherspoon's reliance on the cross-section approach has been deemphasized, while the broad discretion afforded juries in death penalty cases at that time has been seen as a particularly important factor in Witherspoon. See Wainwright v. Witt, 105 S.Ct. at 851, 852 n. 5.
Finally, even as to challenges for cause, Witherspoon and its progeny have recognized that the exclusion of "Witherspoon-excludables" is acceptable, though obviously that has adverse "cross-sectional" effects. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 2960, 57 L.Ed.2d 973 (1978); Wainwright v. Witt, supra. See also Smith v. Balkcom, 660 F.2d 573, 578-83 (1981), modified in other respects, reh'g en banc denied, 671 F.2d 858 (5th Cir.), cert. denied, 459 U.S. 882, 103 S.Ct. 181, 74 L.Ed.2d 148 (1982); Spinkellink v. Wainwright, 578 F.2d 582, 592, 594-95 (5th Cir.1978), cert. denied, 441 U.S. 937, 99 S.Ct. 2064, 60 L.Ed.2d 667 (1979); Sonnier, 720 F.2d at 407-08; Keeten v. Garrison, 742 F.2d 129, 133-34 (4th Cir.1984). We have clearly rejected Grigsby. See Watson v. Blackburn, 756 F.2d 1055, 1056-57 (5th Cir.1985); Knighton v. Maggio, 740 F.2d 1344, 1346, 1351 (5th Cir.), cert. denied, 469 U.S. 924, 105 S.Ct. 306, 83 L.Ed.2d 241 (1985).
But the cognizable groupings extend even further. Theil v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed.1181 (1946) — so often relied on by those opposed to Swain part II, see, e.g., Booker, at 768; McCray, 750 F.2d at 1127; Wheeler, 583 P.2d at 755-56 — defines the cognizable groups which may not be systematically excluded from the pool of "prospective jurors" as being "all the economic, social, religious, racial, political and geographical groups of the community." Theil, 66 S.Ct. at 985. Theil was a civil case in which the exclusion of daily wage earners from the jury pool required reversal at the instance of a party not shown to be a member of that group. Plainly, there will be numerous instances where there is no "majority" economic, social, or geographical group in a given community.
Further, there is no reason to assume that group-based peremptory challenges are only utilized where the challenged group can be wholly eliminated or proportionately significantly reduced. For example, in a given trial setting, group-based considerations, though present and decisive as to one or two challenges, may not be decisive as to any others, where particular "individual" characteristics may be more significant.
The presence of those on the panel with "individually" based potential leanings one way or the other may produce a similar result. If there are six of the minority on the twenty-eight-person panel, the prosecution may use three of its peremptories on majority members based on "individual" characteristics, and its remaining three peremptories on minority members based on their group affiliation. If the defense uses its ten peremptories against members of the majority, the resulting jury will have a slightly higher minority percentage (three of twelve) than did the panel (six of twenty-eight).
And it would seem apparent that, at least in most situations, blacks are more likely to have a strong negative attitude to a witness shown to use anti-black epithets than whites are to have an equally strong positive attitude to such a witness. Nevertheless, the Wheeler theory has been held to prevent the party relying on such a witness from making racially based peremptory challenges of venirepersons belonging to the insulted group. See People v. Johnson, 22 Cal.3d 296, 148 Cal.Rptr. 915, 583 P.2d 774 (1978).
Again, an individual who is prominent in the local black community, as appellant Leslie apparently was, may well enjoy a generally favorable reputation among, or have potential for influence over, blacks of that area, but may have no reputation whatever among, or potential for influence over, any significant portion of the whites. While voir dire might disclose some of this, nevertheless some of the venire might not realize until later that this was the man they had previously heard favorably about, or might be reluctant to speak out, or would be more susceptible to a neighbor's chance comments during trial or the like.
These "pre-verdict" rules must be submitted to Congress during a regular session and are not effective until ninety days after such submission. 18 U.S.C. § 3771. This contrasts with "post-verdict" rules which need not be so submitted. Id. § 3772.
Swain also explains that to subject such challenges to the kind of scrutiny that appellant here demands of the district court
Swain likewise states that to "require[ ] an examination of the prosecutor's reasons for the exercise of his challenges in any given case," even where "all Negroes were removed from the jury ... because they were Negroes," is to "establish a rule wholly at odds with the peremptory challenge system as we know it." Id. at 837 (emphasis added).
The Swain dissent similarly eschewed any rule under which "a prosecutor's motives are subject to question or judicial inquiry when he excludes Negroes or any other group from sitting on a jury in a particular case. Only where systematic exclusion has been shown, would the State be called upon to justify its use of peremptories...." Id. at 849.
Decisions of this Court are in accord. See Davis v. United States, 374 F.2d at 5 ("The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subjected to the Court's control."); United States v. Pearson, 448 F.2d at 1216 (questioning of prosecutor as to his reasons for exercising peremptories "would be inconsistent with the peremptory challenge system"); United States v. Carlton, 456 F.2d at 208 ("The subjective thought process of the prosecutor in deciding which prospective jurors to strike in a given case is beyond inquiry of the Court, trial or appellate...."). Surely in these cases, and in the many other direct appeals of federal criminal convictions where we and other Circuits have applied Swain, there was ample awareness of the supervisory power. Indeed, in Carlton we specifically cited Hall v. United States, 168 F.2d 161 (D.C.Cir.), cert. denied, 334 U.S. 853, 68 S.Ct. 1509, 92 L.Ed. 1775 (1948), in support of our Swain holding, and were presumably aware of the Hall dissent's express reliance on the supervisory power. Carlton, 456 F.2d at 208.
In Colgrove v. Battin, 413 U.S. 149, 93 S.Ct. 2448, 37 L.Ed.2d 522 (1973), the Supreme Court sustained a local district court rule providing for a six-person civil jury, holding that it was authorized by Fed.R.Civ.P. 83. The Court distinguished Miner on the ground that whether the jury was six or twelve was not a matter of "great importance to litigants." 93 S.Ct. at 2456 n. 23. Colgrove is inapposite here for two reasons. First, Colgrove dealt with the exercise of expressly delegated rule-making power under Rule 83 and 28 U.S.C. § 2071. While Fed.R.Crim.P. 57 and 28 U.S.C. § 2071 authorize district courts to make rules governing the practice in criminal cases in their courts, there is no express delegation of power to the courts of appeals to make rules governing the practice in district courts (cf. Fed.R.App.P. 47). Indeed, Rule 57 concludes by expressly stating that "in all cases not provided for by rule, the district judges ... may regulate their practice in any manner not inconsistent with these rules or those of the district in which they act." Here, our supervisory power to require district courts to regulate peremptory challenges in a certain way must arise by implication. In that circumstance, the Miner caution is particularly appropriate. Finally, we do consider the matter of freedom in the exercise of peremptory challenges for the purpose of the case being tried as something which is of "great importance to litigants." That, indeed, is clear from Justice White's opinion in Swain. 85 S.Ct. at 835. See also Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894); Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 138, 36 L.Ed. 1011 (1892); Hayes v. Missouri, 120 U.S. 68, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1887).
Similarly, in United States v. McDaniels, 379 F.Supp. 1243 (E.D.La.1974), a new trial was granted on the basis of a Swain part III claim which was supported by an analysis of the prosecution's peremptory challenges over the past two years combined with black underrepresentation on venire lists. Id. at 1248-49. This Court specifically distinguished McDaniels on that ground in United States v. McLaurin, 557 F.2d at 1077 n. 19. We adhere to that distinction.
Here there is not only no proof of prior practice or noncase-specific use, there is no such claim; indeed, appellant admits that "there is no pattern or practice in the United States District Court for the Eastern District of Louisiana."
Such difficulty will necessarily be greatly exacerbated by the approach taken by the panel majority which suggests that where race is taken into account in making a peremptory challenge for purposes of the case being tried this in some instances may be justified and in others may not, but suggesting no criteria for determining justification. Nor is any guidance offered on whether other cognizable groups are covered by the suggested rule, or, if so, what such groups are. Nor is there any indication whether the suggested rule extends to defendants or to civil cases. The inevitable result would be that no one — judges, lawyers, or litigants — would know which peremptories were allowed and which were not, and virtually all "peremptory" challenges would be subject to question. And with the uncertainty there would also come the less-than-candid and the self-deceptive explanations. A likely further consequence would then be a transition to the more rigid Wheeler approach, also encompassing defendants as it does.
A similar pair of contrasting cases involving juror fairness is Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931) and Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976). In both cases the black defendant was accused of killing a white police officer. In both cases the defendant requested, but was refused, voir dire examination directed to racial prejudice. The Court reversed the conviction of the federal defendant in Aldridge; it affirmed the conviction of the state defendant in Ristaino. The distinction again made was the difference between constitutional and supervisory jurisprudence:
Because Swain was a state prosecution, the supervisory power was not available on the facts of that case. Thus, the fact that Swain held that inquiry into the prosecutor's motives was not constitutionally compelled gave no answer at all to the question of whether a federal court should attempt to effect some moderating influence on the practice by resort to its authority in "the formulation and application of proper standards for the enforcement of the federal criminal law in the federal courts." McNabb, 318 U.S. at 341, 63 S.Ct. at 613.
Note, 76 Harv.L.Rev. at 1661; see also Hill, 69 Colum.L.Rev. at 203 ("It is disingenuous to assert that no infringement upon executive prerogatives is involved when the courts do no more than withhold the process that is invoked by the executive in a criminal prosecution."). Space limitations do not allow a citation to every supervisory power case in which executive, rather than judicial, misconduct was being deterred. See e.g. United States v. Leslie, 759 F.2d at 371 (several cases cited).
For example, n. 33 of the en banc majority reads:
The en banc majority's quotation from Swain omits the first few words of the sentence. The entire sentence actually reads "To subject the prosecutor's challenge in any particular case to the demands and traditional standards of the equal protection clause would entail a radical change in the nature and operation of the challenge." Thus, the quotation in Swain was discussing the challenge under the equal protection clause, not the use of supervisory power. See McNabb, 318 U.S. at 340, 63 S.Ct. at 613; Note, 45 Ohio St.L.J. at 1084 (constitutional challenge distinct from supervisory power challenge).
The majority goes on to say that "this Court specifically distinguished McDaniels on that ground in United States v. McLaurin, 557 F.2d at 1077 n. 19." In McLaurin, this Court held that the district court did not abuse its discretion in not ordering a new trial "in the interest of justice." There was no statistical evidence but also there was a failure "to demonstrate — or even to offer to demonstrate — that the government had excluded the potential jurors in question for racial reasons." 557 F.2d at 1064. While the Court did make reference to the aid given Judge Rubin by statistical evidence, nowhere does McLaurin distinguish McDaniels as resting upon Swain part III grounds.