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03/24/95 EX PARTE STATE ALABAMA (RE BOBBY RAY

March 24, 1995

EX PARTE STATE OF ALABAMA (RE: BOBBY RAY JESSIE, WILLIE JAMES HENRY, AND GERALD DEMETRIUS REED
v.
STATE)



PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS. (Mobile Circuit Court, CC-93-197, Court of Criminal Appeals, CR-92-1999). Robert G. Kendall, TRIAL JUDGE.

Released for Publication August 8, 1995.

Ingram, Almon, Shores, Kennedy, and Cook, JJ., concur. Maddox and Butts, JJ., Dissent.

The opinion of the court was delivered by: Ingram

INGRAM, JUSTICE.

WRIT DENIED.

Almon, Shores, Kennedy, and Cook, JJ., concur.

Maddox and Butts, JJ., Dissent.

MADDOX, JUSTICE (dissenting).

The Court of Criminal Appeals reversed the convictions of these three defendants on the ground that the State had violated their rights to a fair trial, in the State's exercise of its peremptory strikes, even though the trial Judge specifically found that the defendants had failed to make a prima facie showing of racial discrimination in the jury selection process. These reversals, for the reasons stated, show why I believe the appellate courts are failing to apply the proper standard of review initially laid down in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), as further explained in Hernandez v. New York, 500 U.S. 352, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991).

There is still too much confusion in both the trial courts and the appellate courts regarding the application of Batson, and this is unfortunate. Much of that confusion exists because of a misunderstanding of the basic holding in Batson, which was to prohibit "purposeful discrimination," a factual determination that Batson left to the trial court.

In Batson, the "purposeful discrimination" was practiced by the prosecution in a case involving a black defendant; in Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (1991), the Batson principle was applied to a white defendant; in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 114 L. Ed. 2d 660, 111 S. Ct. 2077 (1991), Batson was applied to parties in civil cases; in Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992), Batson was extended to apply to defendants in criminal cases; and, as I had predicted, in J.E.B. v. Alabama, ___ U.S. ____, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994), Batson was extended to apply to gender-based strikes.

Through this evolution of Batson, the fundamentalobject of Batson did not change -- it was to prevent purposeful discrimination in the jury selection process, to protect the integrity of the jury system, and to foster public confidence in that system. Batson specifically recognized that ensuring the elimination of "purposeful discrimination" was the duty of the trial court.

The Supreme Court of the United States, in Hernandez, not only restated this purpose of Batson, but also restated the three-pronged test that trial Judges should apply and restated the scope of appellate review. Regarding the showing of "purposeful discrimination," the Court said:

"In Batson, we outlined a three-step process for evaluating claims that a prosecutor has used peremptory challenges in a manner violating the Equal Protection Clause. 476 U.S. at 96-98. The analysis set forth in Batson permits prompt rulings on objections to peremptory challenges without substantial disruption of the jury selection process. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Id., at 96-97. Second, if therequisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Id., at 97-98. Finally, the trial court must determine ...


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