Tactic of excluding jurors by race gets court review

November 05, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The Supreme Court agreed yesterday to consider cutting back sharply on defense lawyers' use of a key tactical weapon they employ frequently to defend individuals accused of interracial crimes: their power to shape the racial makeup of the jury.

In a brief order, the court indicated that it is ready to settle a key constitutional question that has lingered for five years around defense lawyers' use of automatic challenges to try to block the sitting of jurors of a particular race.

Automatic challenges -- lawyers call them "peremptory strikes" -- allow a lawyer to block a particular individual as a juror without giving a reason. Both sides, prosecutors and defense lawyers, are allowed a set number of those automatic strikes in every criminal case.

Because lawyers on both sides tend to think that race can have a strong influence on jury verdicts, especially when the accused person and the victim are of different races, both sides have long used peremptory strikes to exclude jurors of a particular race.

If jurors could not be barred solely because of race, that ruling would apply to all criminal cases, not just those involving crimes where the accused person and the victim are different races. But is in those interracial crimes that the tactic is most often used.

Five years ago, the Supreme Court ruled unconstitutional the use by prosecutors of such a strike when the only reason for doing so was the race of a potential juror. That did not take away prosecutors' peremptory striking power altogether, but it did force them to show they had used it for non-racial reasons any time it was clear that jurors of one race had been targeted by the striking power.

Since that 1986 ruling, the court has edged closer to the issue of whether to put defense lawyers in the same position. Some justices have predicted that the court sooner or later would put defense lawyers in the same spot as prosecutors.

The question reached the court in a case growing out of a racial incident in Albany, Ga., last year, when three white owners of a dry cleaning store allegedly beat up a young black couple with a baseball bat after the couple had come to pick up their clothing.

Prosecutors, apparently fearing that the whites' defense lawyers would try to make sure that no blacks got on the jury to act sympathetically toward the beating victims, asked the judge to forbid the defense to use any of its automatic strikes to exclude black jurors.

Race was considered a potent factor in the case because the black community had followed up the alleged incident by calling for a boycott of the dry cleaners.

But the trial judge refused to issue the order against the defense counsel, and prosecutors then took the issue on to the Georgia SupremeCourt. The state's highest court said in July that it would not block the defense's use of peremptories against blacks on the jury panel.

The state then took the case to the Supreme Court, which granted review yesterday. The justices are expected to hold a hearing on the case of Georgia vs. McCollum (No. 91-372) early

next year and issue a decision by next summer.

Other Supreme Court actions

Cases rejected:

* Death penalty. The Supreme Court turned aside yesterday, without comment, the first constitutional challenge to the military services' death penalty in its present form. The death sentence, imposed by Congress but put into effect under rules written by former President Ronald Reagan in January 1984, has been given to four members of the military. One of those, former Marine Lance Cpl. Ronnie A. Curtis, was sentenced to die by a military court for slaying his commanding officer and the officer's wife at Camp Lejeune, N.C., in April 1987. The officer and his wife were white; Curtis is black. Curtis allegedly grew resentful when his commander gave him racial nicknames. After his conviction and sentence, Curtis challenged the death penalty but lost in the military's supreme court, the U.S. Court of Military Appeals, last April. Since taking that issue on to the Supreme Court, Curtis has gained a new hearing on his case in lower military courts. He could go back to the Supreme Court if his sentence were again upheld. Curtis vs. U.S. (No. 91-99).

* The homeless. The court also declined to hear a constitutional challenge to city governments' power to control privately owned housing so as to assure the homeless some places to live. An owner of a San Francisco hotel sought unsuccessfully to overturn a city ordinance there sharply restricting the right of low-rent hotel owners to offer their rooms to tourists instead of people who had occupied them for several weeks. California courts upheld the ordinance. Sparks vs. Superior Court (No. 91-85).

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