State ex rel. Macy v. Bragg

2000 OK CR 21, 13 P.3d 503, 71 O.B.A.J. 2931, 2000 Okla. Crim. App. LEXIS 21, 2000 WL 1610630

• Court: Court of Criminal Appeals of Oklahoma
• Decided: October 27, 2000
• Docket: No. PR-2000-1122
• Status: Published

Opinions

ORDER

11 On August 30, 2000, Petitioner filed an Application to Assume Original Jurisdiction and a Petition for Writ of Prohibition and/or Writ of Mandamus, requesting an Order from this Court reversing Respondent's order striking the jury panel which had been summoned in Oklahoma County District Court Case No. CF-98-7353. Petitioner asserted Respondent lacked authority to strike the jury panel based on its racial make-up. On August 31, 2000, this Court directed a Response from Respondent, or a designated representative. The Response was filed on September 6, 2000, and oral argument on this matter was heard September 7, 2000. At the conclusion of that hearing, this Court, by a vote of four (4) to one (1) found merit with Petitioner's Application. We now render the following opinion.

Background

T2 On August 28, 2000, Respondent met with both parties privately in her chambers, while a prospective jury panel was assembled in her courtroom. At that time, defense counsel interposed an objection to the panel, stating "I looked out over the courtroom and in the jury box and there is one black prospective juror in the entire courthouse or in the courtroom." (Tr. 4). Counsel argued such lack of potential black jurors in the panel did not fairly represent the defendant's peers and moved the court to strike the panel and declare a mistrial.¹

13 After hearing the State's objection, the court sustained the motion and struck the jury panel. In so ruling, the court stated,

The jury panel is going to be stricken. Batson, you know, you are supposed to show a-a pattern.² In this particular case, the fact that there is no-she is entitled to at least, have the opportunity. And if this is-I'm amazed that this is the only African American person in the panel, in the whole jury pool.

I did the Exeuse Docket Friday and it never entered my mind that there were no other African Americans because, I mean, we had Asians and Latinos, but no. No. The law is, is that she must-not even on a Batson challenge, but she must have the opportunity to have jurors of her peers because it's fundamentally unfair, otherwise. And if, in fact, he is the only African-American in the whole pool and then because of some possible criminal contacts is to be challenged, I find that fundamentally unfair.

I'm going to strike that panel. And it wouldn't miatter what kind of case it is. That's just-I mean, I have ruled against a Batson challenge before, but I've actually never had someone-I can't recall whether I've had a case where there were no minorities available as prospective jurors. I may have, but it doesn't come to mind if in fact-because I've had one. There were none in the prospective jurors that came over.

4 The following morning, the parties appeared again in chambers where the following record was made,

Yesterday there was a Motion to Strike the Jury Panel, which was sustained, on behalf of the Defendant on the basis that the panel that came over had one African-the Defendant is an African-American female. There was one African-American, who is a male, in the jury panel that came over, and the information was that the State was probably going to challenge that person. But be that as it may, and that was the only African-American that was in the pool.

So, I struck the jury panel because the court felt that it was fundamentally unfair and since there was not a sufficient number of availability of African-American within the total panel from which to have a jury of her peers. But, anyway, and so what we decided was that I would call this jury, prospective jury panel back and request 85 more jurors and just exchange them from the jury assembly room. However, when I arrived today the State advised that they wish to argue Reconsideration of the Motion to Strike the Jury panel.

Thereafter, the State objected arguing no evidence had been offered to the court establishing the process of selecting prospective jurors in Oklahoma County was discriminatory. The following colloquy transpired,

[The court]: Well, you know, I didn't base my ruling on Batson. I know what Batson says.

[The prosecutor]: I understand, Judge, that you basically said that the selection process yesterday was fundamentally unfair.

[The court]: Yes, that's correct.

[The prosecutor]: And there's been no court require that we do anything different than what we did, that the way that it's been done this week. And the State could find nothing that said that it was fundamentally unfair.

{The court]: Nor could I. I didn't base it on Batson, and I could be wrong as rain but I'm not changing my ruling. And the reason why is, is that I have experienced a jury panel with a minority defendant, person charged, and the outcome has been based upon race of the defendant. On the jury panel there were no African-Americans. There was, I think I said yesterday, one Latino and two Indians. Neither one of them ever made it. And I felt that it was fundamentally unfair at the time of trial and I do as we sit here, and even though Batson says what it says, though I didn't base my ruling on Batson, and I as I said, Mr. Dills, I can be just as wrong as rain. I am not changing my ruling. I am striking that jury panel.

Analysis

15 Arguments regarding the demographic composition of jury pools are not new, nor is the rule of law. In Taylor v. State of Louisiana, 419 U.S. 522, 526-531, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), the Supreme Court considered whether systematic exclusion of women during the jury-selection process, resulting in jury pools not reasonably representative of the community, denied a criminal defendant the right to a petit jury selected from a fair cross section of the community. In Taylor, the discrepancy between females eligible for jury service and those actually included in the venire resulted from the operation of Louisiana constitutional and statutory provisions which excluded women from jury service selection unless a woman had previously filed a written declaration of her desire to be subject to jury service.

1 6 In reversing the decision of the Louisiana Supreme Court, the Supreme Court held that a jury selection system which operates to exclude from jury service an identifiable class of citizens of eligible jurors in the community violates the Sixth and Fourteenth Amendments. 419 U.S. at 527, 95 S.Ct. 692. The Court observed the American concept of a jury trial contemplates a jury drawn from a fair cross section of the community.³ Id.

T7 Further, the Court found its duty to protect the constitutional rights of all did not mean it should impose on the States its conception of the proper source of jury lists, so long as the source used reasonably re-fleets a cross-section of the population suitable in character and intelligence for that civic duty.⁴ In that regard, the Court did not impose any requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Rather, the Court noted defendants are not entitled to a jury of any particular composition; but the jury wheels, pools of names, panels, or venires from which Juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof. Id. at 538, 95 S.Ct. 692.

T8 In the case at bar, there was no evidence presented to the trial court that the current method of jury selection in Oklahoma County systematically excludes distinctive groups within the community. In striking the jury panel, the trial court believed the defendant was not being given an opportunity to have a jury of her peers. However, there is no constitutional right to a jury of one's so-called peers. As stated by the Supreme Court, defendants are not entitled to a Jury of any particular composition, nor is there any requirement juries reflect the various distinctive groups in the population. Lacking any evidence of systematic exclusion of distinctive groups in the community, there was no legal justification for the trial court to strike this particular jury panel.

T9 Later, in Duren v. State of Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the issue before the Supreme Court was a Missouri law granting women an automatic exemption from jury service at their request. Duren was convicted by an all-male jury which was selected from a 53 person panel on which there were five women. The Supreme Court reversed, finding the statute's exemption of women from jury service on request violated a defendant's Sixth and Fourteenth Amendment rights because it failed to ensure jurors in criminal cases were drawn from a fair cross section of the community.

110 In so holding, the Supreme Court provided the elements a defendant must prove in order to establish a prima facie violation of the fair cross section requirement. Those elements are:

1. the group alleged to be excluded is a distinctive group in the community;

2. the representation of this group in ve-nires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and

8. this under-representation is due to systematic exelusion of the group in the jury selection process.

439 U.S. at 364, 99 S.Ct. 664. The Court found Duren had met his burden of proof by establishing with statistical evidence the system by which juries had been selected violated his constitutional right to a jury drawn from a fair cross section of the community.⁵

{11 Again, in the case at bar no such evidence of systematic exclusion was presented to the trial court. Indeed, the record is void of any evidence the jury panel assembled in Respondent's courtroom on the morning of August 28, 2000, was not drawn from a fair cross section of the community. While it may be true only one black person was in the defendant's prospective jury pool, without , any evidence of a discriminatory juror selection mechanism, the result can only be attributed to chance.

T 12 For a writ of prohibition to issue, a petitioner has the burden of establishing (1) a court, officer or person has or is about to exercise judicial or quasi-judicial power; (2) the exercise of said power is unauthorized by law; and (8) the exercise of said power will result in injury for which there is no other adequate remedy. Rule 10.6(A), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (1999). As this Court previously ruled, we find Petitioner has met its burden.

1 13 IT IS SO ORDERED.

(14 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 27th day of October, 2000.

/s) Reta M. Strubhar RETA M. STRUBHAR, Presiding Judge Specially Concurring (with writing)

/s Gary L. Lumphin GARY L. LUMPKIN, Vice Presiding Judge Specially Coneurs by joining in Judge Lile's Separate Vote

1s! Charles A. Johnson CHARLES A. JOHNSON, Judge

/s/ Charles S. Chapel . CHARLES S. CHAPEL, Judge, Dissenting (with writing attached)

/s) Steve Lile STEVE LILE, Judge, Specially Concurring (Writing attached)

1 . The State had indicated it would challenge the one Black juror due to that juror's previous contacts with law enforcement.

2 . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

3 . Interestingly, the Court observed the purpose of a jury is to guard against the exercise of arbitrary power-to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge.

4 . The Court found the States remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions so long as it may be fairly said the jury lists or panels are representative of the community.

5 . Duren established that while 54% of the adults in the forum county were women, only 26.7% of those summoned from the jury wheel were women, and only 14.5% of the persons on the weekly venires during the period in which his jury was chosen were women.