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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 Thomas, concurring in the judgment.
- As a matter of first impression, I think that I would have
- shared the view of the dissenting opinions: A criminal
- defendant's use of peremptory strikes cannot violate the
- Fourteenth Amendment because it does not involve state
- action. Yet, I agree with the Court and The Chief Justice
- that our decision last term in Edmonson v. Leesville
- Concrete Co., 500 U. S. --- (1991), governs this case and
- requires the opposite conclusion. Because the respondents
- do not question Edmonson, I believe that we must accept its
- consequences. I therefore concur in the judgment reversing
- the Georgia Supreme Court.
- I write separately to express my general dissatisfaction
- with our continuing attempts to use the Constitution to
- regulate peremptory challenges. See, e.g., Batson v.
- Kentucky, 476 U. S. 79 (1986); Powers v. Ohio, 499 U. S.
- --- (1991); Edmonson, supra. In my view, by restricting a
- criminal defendant's use of such challenges, this case takes
- us further from the reasoning and the result of Strauder v.
- West Virginia, 100 U. S. 303 (1880). I doubt that this
- departure will produce favorable consequences. On the
- contrary, I am certain that black criminal defendants will
- rue the day that this court ventured down this road that
- inexorably will lead to the elimination of peremptory
- strikes.
- In Strauder, as the Court notes, we invalidated a state
- law that prohibited blacks from serving on juries. In the
- course of the decision, we observed that the racial composi-
- tion of a jury may affect the outcome of a criminal case. We
- explained: -It is well known that prejudices often exist
- against particular classes in the community, which sway
- the judgment of jurors, and which, therefore, operate in
- some cases to deny to persons of those classes the full
- enjoyment of that protection which others enjoy.- Id., at
- 309. We thus recognized, over a century ago, the precise
- point that Justice O'Connor makes today. Simply stated,
- securing representation of the defendant's race on the jury
- may help to overcome racial bias and provide the defendant
- with a better chance of having a fair trial. Post, at 7.
- I do not think that this basic premise of Strauder has
- become obsolete. The public, in general, continues to
- believe that the makeup of juries can matter in certain
- instances. Consider, for example, how the press reports
- criminal trials. Major newspapers regularly note the
- number of whites and blacks that sit on juries in important
- cases. Their editors and readers apparently recognize that
- conscious and unconscious prejudice persists in our society
- and that it may influence some juries. Common experience
- and common sense confirm this understanding.
- In Batson, however, this Court began to depart from
- Strauder by holding that, without some actual showing,
- suppositions about the possibility that jurors may harbor
- prejudice have no legitimacy. We said, in particular, that
- a prosecutor could not justify peremptory strikes -by stating
- merely that he challenged jurors of the defendant's race on
- the assumption-or his intuitive judgment-that they
- would be partial to the defendant because of their shared
- race.- 476 U. S., at 97. As noted, however, our decision in
- Strauder rested on precisely such an -assumption- or
- -intuition.- We reasonably surmised, without direct evi-
- dence in any particular case, that all-white juries might
- judge black defendants unfairly.
- Our departure from Strauder has two negative conse-
- quences. First, it produces a serious misordering of our
- priorities. In Strauder, we put the rights of defendants
- foremost. Today's decision, while protecting jurors, leaves
- defendants with less means of protecting themselves.
- Unless jurors actually admit prejudice during voir dire,
- defendants generally must allow them to sit and run the
- risk that racial animus will affect the verdict. Cf. Fed. Rule
- Evid. 606(b) (generally excluding juror testimony after trial
- to impeach the verdict). In effect, we have exalted the right
- of citizens to sit on juries over the rights of the criminal
- defendant, even though it is the defendant, not the jurors,
- who faces imprisonment or even death. At a minimum, I
- think that this inversion of priorities should give us pause.
- Second, our departure from Strauder has taken us down
- a slope of inquiry that had no clear stopping point. Today,
- we decide only that white defendants may not strike black
- veniremen on the basis of race. Eventually, we will have to
- decide whether black defendants may strike white venire-
- men. See, e.g., State v. Carr, 261 Ga. 845, 413 S.E. 2d
- 192 (1992). Next will come the question whether defen-
- dants may exercise peremptories on the basis of sex. See,
- e.g., United States v. De Gross, 960 F. 2d 1433 (CA9 1992).
- The consequences for defendants of our decision and of
- these future cases remain to be seen. But whatever the
- benefits were that this Court perceived in a criminal
- defendant's having members of his class on the jury, see
- Strauder, 100 U. S., at 309-310, they have evaporated.
-