ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF ALABAMA. Reported below: 543 So. 2d 704.
Rehnquist, Brennan, White, Marshall, Blackmun, Stevens, O'Connor, Scalia, Kennedy
The petition for a writ of certiorari is denied.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.
Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth And Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 231 (1976) (MARSHALL, J., dissenting), I would grant the petition for certiorari and vacate the death sentence in this case. Even if I did not hold this view, I would grant the petition to determine whether a prosecutor's reliance on a nonracial criterion in exercising his peremptory jury challenges violates the Equal Protection Clause where that criterion is highly correlated to race and the
bias that the prosecutor seeks to exclude through the use of that criterion could easily have been discovered on voir dire.
Petitioner Frederick Lynn, an Afro-American, was convicted of murder by an all-white jury and sentenced to death. During voir dire, the prosecutor exercised 11 of his 14 peremptory challenges to remove all of the potential Afro-American jurors. The crime occurred in Barbour County, Alabama, a small community with approximately equal white and Afro-American populations. General Population Characteristics, Alabama, Census of Population 2-15 (1980) (13,693 whites, 11,003 Afro-Americans). Certain neighborhoods within the community are populated predominately by people of color.
While Lynn's appeal was pending, this Court lowered the threshold showing required for a criminal defendant to establish a prima facie case of purposeful discrimination in jury selection. Batson v. Kentucky, 476 U.S. 79, 97 (1986). To make out such a case, a defendant must establish first that he is a member of a cognizable racial group and that the prosecutor has acted to remove members of that group from the venire; second, that the procedure used by the State permits those "who are of a mind to discriminate" to do so; and third, that the facts and circumstances of the case raise the inference that the State acted in a discriminatory manner. Id., at 96. To rebut a prima facie case of racial discrimination, the prosecutor must offer a "'clear and reasonably specific' explanation of his 'legitimate reasons' for exercising the challenges." Id., at 98, n. 20 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 258 (1981)). We subsequently determined that the ruling in Batson applies retroactively to state convictions pending on direct review at the time of the Batson decision. Griffith v. Kentucky, 479 U.S. 314 (1987).
The Alabama Court of Criminal Appeals remanded Lynn's case to the trial court to conduct an evidentiary hearing on his Batson claim. At that hearing, the prosecutor gave a juror-by-juror explanation of his peremptory strikes. The prosecutor stated that he exercised his fourth strike to exclude an Afro-American juror that "live[d] on the Gammage Road in an area where the defendant, Frederick Lynn, was living at the time of this crime, and also where . . . the defendant's grandmother and aunt . . . have lived for numerous years. I felt that friendship would possibly be there that would bias [the juror], and for that reason struck him."
App. 5 to Pet. for Cert. 7. The prosecutor indicated that he struck ...