Prosecutors can't exclude jurors for race, court says

April 02, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The SunWashington Bureau of The Sun Lynda Robinson of the Sun's metropolitan staff contributed to this article.

WASHINGTON -- White individuals on trial for crime have a constitutional right to protest when prosecutors keep blacks from serving on the jury, the Supreme Court ruled 7-2 yesterday.

In a broad expansion of a 5-year-old ruling curbing prosecutors' attempts to shape the makeup of juries along racial lines, the court said those tactics may be protested by accused individuals even if they are of a different race from the excluded jurors.

Race-based exclusions of jurors, the court declared, raise "legitimate doubts that the jury has been chosen by proper means," and that puts in doubt the fairness of the entire trial -- no matter what the race of the barred jurors or of the person standing trial.

If it is clear that the jurors were in fact kept off because of their race, then any guilty verdict that resulted from such a trial has to be thrown out, the court has made clear.

The ruling also means that prosecutors may be forced to justify exclusion of whites from sitting on juries that will try blacks. But that circumstance apparently does not arise as often as challenges to blacks called for jury duty.

In a series of rulings going back to 1986, the court has been spelling out new constitutional limits on prosecutors' use of automatic (technically, "peremptory") challenges to blacks who are potential jurors in criminal cases. Automatic challenges exclude a juror from service, with no justification necessary.

Both sides are allowed such challenges in picking juries for criminal trials, but the limits the court has imposed so far have been applied only to prosecutors, not defense lawyers.

Baltimore County State's Attorney Sandra A. O'Connor said the decision will not eliminate racially biased juries because it does not bar defense attorneys from striking jurors on the basis of their race. The ruling would allow lawyers for the four white youths who chased a black man to his death on a highway in New York City's Howard Beach in 1986 to strike blacks from the jury, but the prosecution would not be able to strike white jurors, Ms. O'Connor said.

"The defense can strike anybody they want to, but the prosecution cannot," she said. "It's interesting to me that it only applies one way."

Both she and Howard County State's Attorney William R. Hymes said they did not expect the court's decision to change the way their prosecutors select juries.

"To my knowledge, we've never done that anyway," Mr. Hymes said. "I can't see where that's going to be a problem for us."

The court's first ruling on the issue, in 1986, allowed blacks on trial for crime to protest prosecutors' exclusions of blacks from the jury. The court said then that, when the defense wanted to mount such a protest, it had to show first that the person on trial and the excluded jurors were of the same race.

Yesterday, the court dropped that same-race requirement and said the constitutional problem of discrimination against black jurors is the same, regardless of the race of the accused person who will face that jury.

Both the excluded jurors and the persons on trial, Justice Anthony M. Kennedy wrote for the majority, "have a common interest in eliminating racial discrimination from the courtroom."

The ruling put in doubt the conviction of a Columbus, Ohio, man for a double-murder nearly six years ago. The justices sent the case back to Ohio courts to examine whether race was the reason why prosecutors kept seven blacks off the jury.

Justice Kennedy's ruling was supported by Justices Harry A. Blackmun, Thurgood Marshall, Sandra Day O'Connor, David H. Souter, John Paul Stevens and Byron R. White. Justice Antonin Scalia, joined by Chief Justice William H. Rehnquist, dissented.

The case

Larry Joe Powers, serving a maximum prison sentence of 70 years for a 1985 double murder, now has the opportunity overturn his conviction with an argument that seven blacks were wrongly blocked from serving on his jury. The Supreme Court gave him that opportunity yesterday (Powers vs. Ohio, No. 89-5011).

He was put on trial for killing two of his drinking companions and for attempting to kill the wife of one of those companions.

At the trial, defense lawyers for Powers, who is white, objected when prosecutors used seven of their 10 automatic jury-selection challenges to keep blacks from serving. The defense asked the trial judge to require an explanation for each such gesture, but the trial judge refused.

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