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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 91-372
- --------
- GEORGIA, PETITIONER v. THOMAS McCOLLUM,
- WILLIAM JOSEPH McCOLLUM and
- ELLA HAMPTON McCOLLUM
- on writ of certiorari to the supreme court of
- georgia
- [June 18, 1992]
-
- Justice O'Connor, dissenting.
- The Court reaches the remarkable conclusion that
- criminal defendants being prosecuted by the State act on
- behalf of their adversary when they exercise peremptory
- challenges during jury selection. The Court purports
- merely to follow precedents, but our cases do not compel
- this perverse result. To the contrary, our decisions specifi-
- cally establish that criminal defendants and their lawyers
- are not government actors when they perform traditional
- trial functions.
- I
- It is well and properly settled that the Constitution's
- equal protection guarantee forbids prosecutors from exer-
- cising peremptory challenges in a racially discriminatory
- fashion. See Batson v. Kentucky, 476 U. S. 79 (1986);
- Powers v. Ohio, 449 U. S. ___, ___ (1991) (slip op., at 9).
- The Constitution, however, affords no similar protection
- against private action. -Embedded in our Fourteenth
- Amendment jurisprudence is a dichotomy between state
- action, which is subject to scrutiny under the Amendmen[t]
- . . . , and private conduct, against which the Amendment
- affords no shield, no matter how unfair that conduct may
- be.- National Collegiate Athletic Assn. v. Tarkanian, 488
- U. S. 179, 191 (1988) (footnote omitted). This distinction
- appears on the face of the Fourteenth Amendment, which
- provides that -No State shall . . . deny to any person within
- its jurisdiction the equal protection of the laws.- U. S.
- Const., Amdt. 14, 1 (emphasis added). The critical but
- straightforward question this case presents is whether
- criminal defendants and their lawyers, when exercising
- peremptory challenges as part of a defense, are state actors.
- In Lugar v. Edmondson Oil Co., 457 U. S. 922 (1982), the
- Court developed a two-step approach to identifying state
- action in cases such as this. First, the Court will ask
- -whether the claimed deprivation has resulted from the
- exercise of a right or privilege having its source in state
- authority.- Id., at 939. Next, it will decide whether, on the
- particular facts at issue, the parties who allegedly caused
- the deprivation of a federal right can -appropriately- and
- -in all fairness- be characterized as state actors. Ibid.;
- Edmonson v. Leesville Concrete Co., 500 U. S. ___, ___
- (1991) (slip op., at 5). The Court's determination in this
- case that the peremptory challenge is a creation of state
- authority, ante, at 8, breaks no new ground. See
- Edmonson, supra, at ___ (slip op., at 5-6). But disposing of
- this threshold matter leaves the Court with the task of
- showing that criminal defendants who exercise perempto-
- ries should be deemed governmental actors. What our
- cases require, and what the Court neglects, is a realistic
- appraisal of the relationship between defendants and the
- government that has brought them to trial.
- We discussed that relationship in Polk County v. Dodson,
- 454 U. S. 312 (1981), which held that a public defender does
- not act -under color of state law- for purposes of 42 U. S. C.
- 1983 -when performing a lawyer's traditional functions as
- counsel to a defendant in a criminal proceeding.- 454 U. S.,
- at 325. We began our analysis by explaining that a public
- defender's obligations toward her client are no different
- than the obligations of any other defense attorney. Id., at
- 318. These obligations preclude attributing the acts of
- defense lawyers to the State: -[T]he duties of a defense
- lawyer are those of a personal counselor and advocate. It
- is often said that lawyers are `officers of the court.' But the
- Courts of Appeals are agreed that a lawyer representing a
- client is not, by virtue of being an officer of the court, a
- state actor . . . .- Ibid.
- We went on to stress the inconsistency between our
- adversarial system of justice and theories that would make
- defense lawyers state actors. -In our system,- we said, -a
- defense lawyer characteristically opposes the designated
- representatives of the State.- Ibid. This adversarial
- posture rests on the assumption that a defense lawyer best
- serves the public -not by acting on behalf of the State or in
- concert with it, but rather by advancing `the undivided
- interests of his client.'- Id., at 318-319 (quoting Ferri v.
- Ackerman, 444 U. S. 193, 204 (1979)). Moreover, we
- pointed out that the independence of defense attorneys from
- state control has a constitutional dimension. Gideon v.
- Wainwright, 372 U. S. 335 (1963), -established the right of
- state criminal defendants to the guiding hand of counsel at
- every step in the proceedings against [them].- 454 U. S., at
- 322 (internal quotation marks omitted). Implicit in this
- right -is the assumption that counsel will be free of state
- control. There can be no fair trial unless the accused
- receives the services of an effective and independent
- advocate.- Ibid. Thus, the defense's freedom from state
- authority is not just empirically true, but is a constitution-
- ally mandated attribute of our adversarial system.
- Because this Court deems the -under color of state law-
- requirement that was not satisfied in Dodson identical to
- the Fourteenth Amendment's state action requirement, see
- Lugar, supra, at 929, the holding of Dodson simply cannot
- be squared with today's decision. In particular, Dodson
- cannot be explained away as a case concerned exclusively
- with the employment status of public defenders. See ante,
- at 11. The Dodson Court reasoned that public defenders
- performing traditional defense functions are not state actors
- because they occupy the same position as other defense
- attorneys in relevant respects. 454 U. S., at 319-325. This
- reasoning followed on the heels of a critical determination:
- defending an accused -is essentially a private function,- not
- state action. Id., at 319. The Court's refusal to acknowl-
- edge Dodson's initial holding, on which the entire opinion
- turned, will not make that holding go away.
- The Court also seeks to evade Dodson's logic by spinning
- out a theory that defendants and their lawyers transmogri-
- fy from government adversaries into state actors when they
- exercise a peremptory challenge, and then change back to
- perform other defense functions. See ante, at 11-12.
- Dodson, however, established that even though public
- defenders might act under color of state law when carrying
- out administrative or investigative functions outside a
- courtroom, they are not vested with state authority -when
- performing a lawyer's traditional functions as counsel to a
- defendant in a criminal proceeding.- 454 U. S., at 325.
- Since making peremptory challenges plainly qualifies as a
- -traditional function- of criminal defense lawyers, see
- Swain v. Alabama, 380 U. S. 202, 212-219 (1965); Lewis v.
- United States, 146 U. S. 370, 376 (1892), Dodson forecloses
- the Court's functional analysis.
- Even aside from our prior rejection of it, the Court's
- functional theory fails. -[A] State normally can be held
- responsible for a private decision only when it has exercised
- coercive power or has provided such significant encourage-
- ment . . . that the choice must in law be deemed to be that
- of the State.- Blum v. Yaretsky, 457 U. S. 991, 1004 (1982).
- Thus, a private party's exercise of choice allowed by state
- law does not amount to state action for purposes of the
- Fourteenth Amendment so long as -the initiative comes
- from [the private party] and not from the State.- Jackson
- v. Metropolitan Edison Co., 419 U. S. 345, 357 (1974). See
- Flagg Bros., Inc. v. Brooks, 436 U. S. 149, 165 (1978) (State
- not responsible for a decision it -permits but does not
- compel-). The government in no way influences the
- defense's decision to use a peremptory challenge to strike a
- particular juror. Our adversarial system of criminal justice
- and the traditions of the peremptory challenge vest the
- decision to strike a juror entirely with the accused. A
- defendant -may, if he chooses, peremptorily challenge `on
- his own dislike, without showing any cause;' he may
- exercise that right without reason or for no reason, arbi-
- trarily and capriciously.- Pointer v. United States, 151
- U. S. 396, 408 (1894) (quoting 1 E. Coke, Institutes 156b
- (19th ed. 1832)). -The essential nature of the peremptory
- challenge is that it is one exercised without a reason stated,
- without inquiry and without being subject to the court's
- control.- Swain, supra, at 220. See Dodson, supra, at
- 321-322; Lewis, supra, at 376, 378.
- Certainly, Edmonson v. Leesville Concrete Co. did not
- render Dodson and its realistic approach to the state action
- inquiry dead letters. The Edmonson Court distinguished
- Dodson by saying: -In the ordinary context of civil litigation
- in which the government is not a party, an adversarial
- relation does not exist between the government and a
- private litigant. In the jury-selection process, the govern-
- ment and private litigants work for the same end.-
- Edmonson, 500 U. S., at ___ (slip op., at 12). While the
- nonpartisan administrative interests of the State and the
- partisan interests of private litigants may not be at odds
- during civil jury selection, the same cannot be said of the
- partisan interests of the State and the defendant during
- jury selection in a criminal trial. A private civil litigant
- opposes a private counterpart, but a criminal defendant is
- by design in an adversarial relationship with the govern-
- ment. Simply put, the defendant seeks to strike jurors
- predisposed to convict, while the State seeks to strike jurors
- predisposed to acquit. The Edmonson Court clearly
- recognized this point when it limited the statement that -an
- adversarial relation does not exist between the government
- and a private litigant- to -the ordinary context of civil
- litigation in which the government is not a party.- Ibid.
- (emphasis added).
- From arrest, to trial, to possible sentencing and punish-
- ment, the antagonistic relationship between government
- and the accused is clear for all to see. Rather than squarely
- facing this fact, the Court, as in Edmonson, rests its finding
- of governmental action on the points that defendants
- exercise peremptory challenges in a courtroom and judges
- alter the composition of the jury in response to defendants'
- choices. I found this approach wanting in the context of
- civil controversies between private litigants, for reasons
- that need not be repeated here. See id., at ___ (O'Connor,
- J., dissenting). But even if I thought Edmonson was
- correctly decided, I could not accept today's simplistic
- extension of it. Dodson makes clear that the unique
- relationship between criminal defendants and the State
- precludes attributing defendants' actions to the State,
- whatever is the case in civil trials. How could it be other-
- wise when the underlying question is whether the accused
- -c[an] be described in all fairness as a state actor?- Id., at
- ___ (slip op., at 5). As Dodson accords with our state action
- jurisprudence and with common sense, I would honor it.
- II
- What really seems to bother the Court is the prospect
- that leaving criminal defendants and their attorneys free to
- make racially motivated peremptory challenges will
- undermine the ideal of nondiscriminatory jury selection we
- espoused in Batson, 476 U. S., at 85-88. The concept that
- the government alone must honor constitutional dictates,
- however, is a fundamental tenet of our legal order, not an
- obstacle to be circumvented. This is particularly so in the
- context of criminal trials, where we have held the prosecu-
- tion to uniquely high standards of conduct. See Brady v.
- Maryland, 373 U. S. 83 (1963) (disclosure of evidence
- favorable to the accused); Berger v. United States, 295 U. S.
- 78, 88 (1935) (-The [prosecutor] is the representative not of
- an ordinary party to a controversy, but of a sovereignty . . .
- whose interest . . . in a criminal prosecution is not that it
- shall win a case, but that justice shall be done-).
- Considered in purely pragmatic terms, moreover, the
- Court's holding may fail to advance nondiscriminatory
- criminal justice. It is by now clear that conscious and
- unconscious racism can affect the way white jurors perceive
- minority defendants and the facts presented at their trials,
- perhaps determining the verdict of guilt or innocence. See
- Developments in the Law-Race and the Criminal Process,
- 101 Harv. L. Rev. 1472, 1559-1560 (1988); Colbert, Chal-
- lenging the Challenge: Thirteenth Amendment as a Prohibi-
- tion against the Racial Use of Peremptory Challenges, 76
- Cornell L. Rev. 1, 110-112 (1990). Using peremptory
- challenges to secure minority representation on the jury
- may help to overcome such racial bias, for there is substan-
- tial reason to believe that the distorting influence of race is
- minimized on a racially mixed jury. See id., at 112-115;
- Developments in the Law, supra, at 1559-1560. As amicus
- NAACP Legal Defense and Educational Fund explained in
- this case:
- -The ability to use peremptory challenges to exclude
- majority race jurors may be crucial to empaneling a
- fair jury. In many cases an African American, or other
- minority defendant, may be faced with a jury array in
- which his racial group is underrepresented to some
- degree, but not sufficiently to permit challenge under
- the Fourteenth Amendment. The only possible chance
- the defendant may have of having any minority jurors
- on the jury that actually tries him will be if he uses his
- peremptories to strike members of the majority race.-
- Brief for NAACP Legal Defense and Educational Fund,
- Inc. as Amicus Curiae 9-10 (footnote omitted).
- See Brief for National Association of Criminal Defense
- Lawyers as Amicus Curiae 56-57; Edmonson, 500 U. S., at
- ___ (Scalia, J., dissenting). In a world where the outcome
- of a minority defendant's trial may turn on the misconcep-
- tions or biases of white jurors, there is cause to question
- the implications of this Court's good intentions.
- That the Constitution does not give federal judges the
- reach to wipe all marks of racism from every courtroom in
- the land is frustrating, to be sure. But such limitations are
- the necessary and intended consequence of the Fourteenth
- Amendment's state action requirement. Because I cannot
- accept the Court's conclusion that government is responsi-
- ble for decisions criminal defendants make while fighting
- state prosecution, I respectfully dissent.
-