Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, April 2, 1991 TAG: 9104020090
SECTION: NATIONAL/INTERNATIONAL PAGE: A-2 EDITION: METRO
SOURCE: The Washington Post
DATELINE: WASHINGTON LENGTH: Medium
Voting 7 to 2, the court said prosecutors' discriminatory use of peremptory challenges against blacks also violates the constitutional guarantee of equal protection of the law when whites are on trial. Peremptory challenges are those used by both sides to get rid of potential jurors without having to persuade the judge they are not qualified to serve.
Justice Anthony Kennedy, writing for the majority in Powers vs. Ohio, said allowing blacks, but not whites, to challenge prosecutors' exclusion of blacks from juries "would be to condone the arbitrary exclusion of citizens from the duty, honor and privilege of jury service."
The ruling came in the case of Larry Joe Powers, a white Ohio man who was convicted of the 1985 murder of two whites. At Powers' trial, the prosecutor used seven of his 10 peremptory challenges against black potential jurors.
Although the prosecutor did not explain the reason for his actions, some prosecutors believe that blacks generally are more likely to be sympathetic to defendants.
The Ohio courts rejected Powers' argument that his rights were violated by the exclusion of the black jurors, saying the Supreme Court's 1986 ruling in Batson vs. Kentucky applied only when prospective jurors of the same race as the defendant were kept off.
In reversing that holding Monday, Kennedy said the constitutional guarantee of equal protection "prohibits a prosecutor from using the State's peremptory challenges to exclude otherwise qualified and unbiased persons from the . . . jury solely by reason of their race. . . . An individual juror does not have a right to sit on any particular jury, but he or she does possess the right not to be excluded from one on account of race."
He said defendants of any race have legal standing to raise such claims on behalf of those who were unfairly excluded from serving on juries their cases.
The decision drew a sharp dissent from Justice Antonin Scalia, joined by Chief Justice William Rehnquist. Scalia accused the majority of engaging in a "reprise" of the 1966 Miranda ruling "in that the Court uses its key to the jail-house door not to free the arguably innocent, but to threaten release upon the society of the unquestionably guilty unless law enforcement officers take certain steps that the Court newly announces to be required by law."
Scalia said that it is "intolerably offensive" for blacks to be convicted by juries from which members of their own race were deliberately excluded, but that he was "unmoved" by white defendant's pleas that their rights were violated because they were tried by an all-white jury.
He said the court's "supposed blow against racism, while enormously self-satisfying, is unmeasured and misdirected."
The ruling does not mean that Powers is automatically entitled to a new trial. Instead, there will be a hearing at which the prosecutor can offer alternative explanations for why he excluded the black prospective jurors.
In other action Monday, the court said it would hear a case from Louisiana that raises the question of whether people who are acquitted of crimes by reason of insanity may be denied release from mental hospitals after they regain their sanity on the grounds that they remain a danger to themselves or to the community. The case is Foucha vs. Louisiana.
by CNB