Subject:  POWERS v. OHIO, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus


POWERS v. OHIO


certiorari to the court of appeals of ohio, franklin county

No. 89-5011.  Argued October 9, 1990 -- Decided April 1, 1991

During jury selection at his state-court trial for aggravated murder and
related offenses, petitioner Powers, a white man, objected to the State's
use of peremptory challenges to remove seven black venirepersons from the
jury.  Powers' objections, which were based on Batson v. Kentucky, 476 U.
S. 79, were overruled, the impaneled jury convicted him on several counts,
and he was sentenced to prison.  On appeal, he contended that the State's
discriminatory use of peremptories violated, inter alia, the Fourteenth
Amendment's Equal Protection Clause, and that his own race was irrelevant
to the right to object to the peremptories.  The Ohio Court of Appeals
affirmed his conviction.

Held: Under the Equal Protection Clause, a criminal defendant may object to
race-based exclusions of jurors through peremptory challenges whether or
not the defendant and the excluded jurors share the same race.  Pp. 3-16.

    (a) The Equal Protection Clause prohibits a prosecutor from using the
State's peremptory challenges to exclude otherwise qualified and unbiased
persons from the petit jury solely by reason of their race.  See, e. g.,
Batson, supra, at 84; Holland v. Illinois, 493 U. S. ---, ---.  Contrary to
Ohio's contention, racial identity between the objecting defendant and the
excluded jurors does not constitute a relevant precondition for a Batson
challenge, and would, in fact, contravene the substantive guarantees of the
Equal Protection Clause and the policies underlying federal statutory law.
Although Batson did involve such an identity, it recognized that the
State's discriminatory use of peremp tories harms the excluded jurors by
depriving them of a significant opportunity to participate in civil life.
476 U. S., at 87.  Moreover, the discriminatory selection of jurors has
been the subject of a federal criminal prohibition since Congress enacted
the Civil Rights Act of 1875.  Thus, although an individual juror does not
have the right to sit on any particular petit jury, he or she does possess
the right not to be excluded from one on account of race.  This Court
rejects, as contrary to accepted equal protection principles, the arguments
that no particular stigma or dishonor results if a prosecutor uses the raw
fact of skin color to determine a juror's objectivity or qualifications,
see Batson, supra, at 87, and that race-based peremptory challenges are
permissible when visited upon members of all races in equal degree, see
Loving v. Virginia, 388 U. S. 1.  Pp. 3-10.

    (b) A criminal defendant has standing to raise the third-party equal
protection claims of jurors excluded by the prosecution because of their
race.  Cf., e. g., Singleton v. Wulff, 428 U. S. 106, 112-116.  First, the
discriminatory use of peremptory challenges causes the defendant cognizable
injury, and he or she has a concrete interest in challenging the practice,
because racial discrimination in jury selection casts doubt on the
integrity of the judicial process and places the fairness of the criminal
proceeding in doubt.  Second, the relationship between the defendant and
the excluded jurors is such that he or she is fully as effective a
proponent of their rights as they themselves would be, since both have a
common interest in eliminating racial discrimination from the courtroom,
and there can be no doubt that the defendant will be a motivated, effective
advocate because proof of a discriminatorily constituted jury may lead to
the reversal of the conviction under Batson, supra, at 100.  Third, it is
unlikely that a juror dismissed because of race will possess sufficient
incentive to set in motion the arduous process needed to vindicate his or
her own rights.  Thus, the fact that Powers' race differs from that of the
excluded jurors is irrelevant to his standing to object to the
discriminatory use of peremptories.  Pp. 10-16.

Reversed and remanded.

Kennedy, J., delivered the opinion of the Court, in which White, Marshall,
Blackmun, Stevens, O'Connor, and Souter, JJ., joined.  Scalia, J., filed a
dissenting opinion, in which Rehnquist, C. J., joined.

------------------------------------------------------------------------------




Subject: 89-5011 -- OPINION, POWERS v. OHIO

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 89-5011



LARRY JOE POWERS, PETITIONER v. OHIO


on writ of certiorari to the court of appeals of ohio, franklin county

[April 1, 1991]



    Justice Kennedy delivered the opinion of the Court.
    Jury service is an exercise of responsible citizenship by all members
of the community, including those who otherwise might not have the
opportunity to contribute to our civic life.  Congress recognized this over
a century ago in the Civil Rights Act of 1875, which made it a criminal
offense to exclude persons from jury service on account of their race.  See
18 U. S. C. MDRV 243.  In a trilogy of cases decided soon after enactment
of this prohibition, our Court confirmed the validity of the statute, as
well as the broader constitutional imperative of race neutrality in jury
selection.  See Strauder v. West Virginia, 100 U. S. 303 (1880); Virginia
v. Rives, 100 U. S. 313 (1880); Ex parte Virginia, 100 U. S. 339 (1880).
In the many times we have confronted the issue since those cases, we have
not questioned the premise that racial discrimination in the qualification
or selection of jurors offends the dignity of persons and the integrity of
the courts.  Despite the clarity of these commands to eliminate the taint
of racial discrimination in the administration of justice, allegations of
bias in the jury selection process persist.  In this case, petitioner
alleges race discrimination in the prosecution's use of peremptory
challenges.  Invoking the Equal Protection Clause and federal statutory
law, and relying upon well-established principles of standing, we hold that
a criminal defendant may object to race-based exclusions of jurors effected
through peremptory challenges whether or not the defendant and the excluded
juror share the same race.

I
    Petitioner Larry Joe Powers, a white man, was indicted in Franklin
County, Ohio on two counts of aggravated murder and one count of attempted
aggravated murder.  Each count also included a separate allegation that
petitioner had a firearm while committing the offense.  Powers pleaded not
guilty and invoked his right to a jury trial.
    In the jury selection process, Powers objected when the prosecutor
exercised his first peremptory challenge to remove a black venireperson.
Powers requested the trial court to compel the prosecutor to explain, on
the record, his reasons for excluding a black person.  The trial court
denied the request and excused the juror.  The State proceeded to use nine
more peremptory challenges, six of which removed black venirepersons from
the jury.  Each time the prosecution challenged a black prospective juror,
Powers renewed his objections, citing our decision in Batson v. Kentucky,
476 U. S. 79 (1986).  His objections were overruled.  The record does not
indicate that race was somehow implicated in the crime or the trial; nor
does it reveal whether any black persons sat on petitioner's petit jury or
if any of the nine jurors the petitioner excused by peremptory challenges
were black persons.
    The impaneled jury convicted Powers on counts of murder, aggravated
murder, and attempted aggravated murder, each with the firearm
specifications, and the trial court sentenced him to a term of imprisonment
of 53 years to life.  Powers appealed his conviction to the Ohio Court of
Appeals, contending that the prosecutor's discriminatory use of
peremptories violated the Sixth Amendment's guarantee of a fair cross
section in his petit jury, the Fourteenth Amendment's Equal Protection
Clause, and Article I, 15 10 and 16, of the Ohio Constitution.  Powers
contended that his own race was irrelevant to the right to object to the
prosecution's peremptory challenges.  The Court of Appeals affirmed the
conviction, and the Supreme Court of Ohio dismissed Powers' appeal on the
ground that it presented no substantial constitutional question.
    Petitioner sought review before us, renewing his Sixth Amendment fair
cross section and Fourteenth Amendment equal protection claims.  While the
petition for certiorari was pending, we decided Holland v. Illinois, 493 U.
S. --- (1990).  In Holland it was alleged the prosecution had used its
peremptory challenges to exclude from the jury members of a race other than
the defendant's.  We held the Sixth Amendment did not restrict the
exclusion of a racial group at the peremptory challenge stage.  Five
members of the Court there said a defendant might be able to make the
objection on equal protection grounds.  See id., at --- (Kennedy, J.,
concurring); id., at --- (Marshall, J., dissenting, joined by Brennan and
Blackmun, JJ.); id., at --- (Stevens, J., dissenting).  After our decision
in Holland, we granted Powers' petition for certiorari limited to the
question whether, based on the Equal Protection Clause, a white defendant
may object to the prosecution's peremptory challenges of black
venirepersons.  493 U. S. --- (1990).  We now reverse and remand.

II
    For over a century, this Court has been unyielding in its position that
a defendant is denied equal protection of the laws when tried before a jury
from which members of his or her race have been excluded by the State's
purposeful conduct.  "The Equal Protection Clause guarantees the defendant
that the State will not exclude members of his race from the jury venire on
account of race, Strauder, [100 U. S.,] at 305, or on the false assumption
that members of his race as a group are not qualified to serve as jurors,
see Norris v. Alabama, 294 U. S. 587, 599 (1935); Neal v. Delaware, 103 U.
S. 370, 397 (1881)."  Batson, supra, at 86.  Although a defendant has no
right to a "petit jury composed in whole or in part of persons of [the
defendant's] own race," Strauder, 100 U. S., at 305, he or she does have
the right to be tried by a jury whose members are selected by
nondiscriminatory criteria.
    We confronted the use of peremptory challenges as a device to exclude
jurors because of their race for the first time in Swain v. Alabama, 380 U.
S. 202 (1965).  Swain involved a challenge to the so-called struck jury
system, a procedure designed to allow both the prosecution and the defense
a maximum number of peremptory challenges.  The venire in noncapital cases
started with about 35 potential jurors, from which the defense and the
prosecution alternated with strikes until a petit panel of 12 jurors
remained.  The defendant in Swain, who was himself black, alleged that the
prosecutor had used the struck jury system and its numerous peremptory
challenges for the purpose of excluding black persons from his petit jury.
In finding that no constitutional harm was alleged, the Court in Swain
sought to reconcile the command of racial neutrality in jury selection with
the utility, and the tradition, of peremptory challenges.  The Court
declined to permit an equal protection claim premised on a pattern of jury
strikes in a particular case, but acknowledged that proof of systematic
exclusion of black persons through the use of peremptories over a period of
time might establish an equal protection violation.  Id., at 222-228.
    We returned to the problem of a prosecutor's discriminatory use of
peremptory challenges in Batson v. Kentucky.  There, we considered a
situation similar to the one before us today, but with one exception:
Batson, the defendant who complained that black persons were being excluded
from his petit jury, was himself black.  During the voir dire examination
of the venire for Batson's trial, the prosecutor used his peremptory
challenges to strike all four black persons on the venire, resulting in a
petit jury composed only of white persons.  Batson's counsel moved without
success to discharge the jury before it was impaneled on the ground that
the prosecutor's removal of black venirepersons violated his rights under
the Sixth and Fourteenth Amendments.  Relying upon the Equal Protection
Clause alone, we overruled Swain to the extent it foreclosed objections to
the discrimi natory use of peremptories in the course of a specific trial.
476 U. S., at 90-93.  In Batson we held that a defendant can raise an equal
protection challenge to the use of peremptories at his own trial by showing
that the prosecutor used them for the purpose of excluding members of the
defendant's race.  Id., at 96.
    The State contends that our holding in the case now before us must be
limited to the circumstances prevailing in Batson and that in equal
protection analysis the race of the objecting defendant constitutes a
relevant precondition for a Batson challenge.  Because Powers is white, the
State argues, he cannot object to the exclusion of black prospective
jurors.  This limitation on a defendant's right to object conforms neither
with our accepted rules of standing to raise a constitutional claim nor
with the substantive guarantees of the Equal Protection Clause and the
policies underlying federal statutory law.
    In Batson, we spoke of the harm caused when a defendant is tried by a
tribunal from which members of his own race have been excluded.  But we did
not limit our discussion in Batson to that one aspect of the harm caused by
the violation.  Batson "was designed `to serve multiple ends,' " only one
of which was to protect individual defendants from discrimination in the
selection of jurors.  Allen v. Hardy, 478 U. S. 255, 259 (1986) (per
curiam) (quoting Brown v. Louisiana, 447 U. S. 323, 329 (1980)).  Batson
recognized that a prosecutor's discriminatory use of peremptory challenges
harms the excluded jurors and the community at large.  476 U. S., at 87.
    The opportunity for ordinary citizens to participate in the
administration of justice has long been recognized as one of the principal
justifications for retaining the jury system.  See Duncan v. Louisiana, 391
U. S. 145, 147-158 (1968).  In Balzac v. Porto Rico, 258 U. S. 298 (1922),
Chief Justice Taft wrote for the Court:

"The jury system postulates a conscious duty of participation in the
machinery of justice. . . .  One of its greatest benefits is in the
security it gives the people that they, as jurors actual or possible, being
part of the judicial system of the country can prevent its arbitrary use or
abuse."  Id., at 310.


    And, over 150 years ago, Alexis De Tocqueville remarked:

"[T]he institution of the jury raises the people itself, or at least a
class of citizens, to the bench of judicial authority [and] invests the
people, or that class of citizens, with the direction of society.

    . . . . .



    ". . . The jury . . . invests each citizen with a kind of magistracy;
it makes them all feel the duties which they are bound to discharge towards
society; and the part which they take in the Government.  By obliging men
to turn their attention to affairs which are not exclusively their own, it
rubs off that individual egotism which is the rust of society.

    . . . . .



    "I do not know whether the jury is useful to those who are in
litigation; but I am certain it is highly beneficial to those who decide
the litigation; and I look upon it as one of the most efficacious means for
the education of the people which society can employ."  1 Democracy in
America 334-337 (Schocken 1st ed. 1961).


    Jury service preserves the democratic element of the law, as it guards
the rights of the parties and insures continued acceptance of the laws by
all of the people.  See Green v. United States, 356 U. S. 165, 215 (1958)
(Black, J., dissenting).  It "affords ordinary citizens a valuable
opportunity to participate in a process of government, an experience
fostering, one hopes, a respect for law."  Duncan, supra, at 187 (Harlan,
J., dissenting).  Indeed, with the exception of voting, for most citizens
the honor and privilege of jury duty is their most significant opportunity
to participate in the democratic process.
    While States may prescribe relevant qualifications for their jurors,
see Carter v. Jury Comm'n of Greene County, 396 U. S. 320, 332 (1970), a
member of the community may not be excluded from jury service on account of
his or her race.  See Batson, supra, at 84; Swain, 380 U. S., at 203-204;
Carter, supra, at 329-330; Thiel v. Southern Pacific Co., 328 U. S. 217,
220-221 (1946); Neal v. Delaware, 103 U. S. 370, 386 (1881); Strauder, 100
U. S., at 308.  "Whether jury service be deemed a right, a privilege, or a
duty, the State may no more extend it to some of its citizens and deny it
to others on racial grounds than it may invidiously discriminate in the
offering and withholding of the elective franchise."  Carter, supra, at
330.  Over a century ago, we recognized that:

"The very fact that [members of a particular race] are singled out and
expressly denied . . . all right to participate in the administration of
the law, as jurors, because of their color, though they are citizens, and
may be in other respects fully qualified, is practically a brand upon them,
affixed by the law, an assertion of their inferiority, and a stimulant to
that race prejudice which is an impediment to securing to individuals of
the race that equal justice which the law aims to secure to all others."
Strauder, supra, at 308.


    Discrimination in the jury selection process is the subject of a
federal criminal prohibition, and has been since Congress enacted the Civil
Rights Act of 1875.  The prohibition has been codified at 18 U. S. C. MDRV
243, which provides:

    "No citizen possessing all other qualifications which are or may be
prescribed by law shall be disqualified for service as grand or petit juror
in any court of the United States, or of any State on account of race,
color, or pre vious condition of servitude; and whoever, being an officer
or other person charged with any duty in the selection or summoning of
jurors, excludes or fails to summon any citizen for such cause, shall be
fined not more than $5,000."


    In Peters v. Kiff, 407 U. S. 493 (1972), Justice White spoke of "the
strong statutory policy of MDRV 243, which reflects the central concern of
the Fourteenth Amendment."  Id., at 507 (concurring in judgment).  The
Court permitted a white defendant to challenge the systematic exclusion of
black persons from grand and petit juries.  While Peters did not produce a
single majority opinion, six of the Justices agreed that racial
discrimination in the jury selection process cannot be tolerated and that
the race of the defendant has no relevance to his or her standing to raise
the claim.  See id., at 504-505 (opinion of Marshall, J.); id., at 506-507
(White, J., concurring in judgment).
    Racial discrimination in the selection of jurors in the context of an
individual trial violates these same prohibitions.  A State "may not draw
up its jury lists pursuant to neutral procedures but then resort to
discrimination at `other stages in the selection process.' "  Batson,
supra, at 88 (quoting Avery v. Georgia, 345 U. S. 559, 562 (1953)).  We so
held in Batson, and reaffirmed that holding in Holland.  See 493 U. S., at
---.  In Holland, the Court held that a defendant could not rely on the
Sixth Amendment to object to the ex clusion of members of any distinctive
group at the peremptory challenge stage.  We noted that the peremptory
challenge procedure has acceptance in our legal tradition.  See id., at
---.  On this reasoning we declined to permit an objection to the
peremptory challenge of a juror on racial grounds as a Sixth Amendment
matter.  As the Holland Court made explicit, however, racial exclusion of
prospective jurors violates the overriding command of the Equal Protection
Clause, and "race-based exclusion is no more permissible at the individual
petit jury stage than at the venire stage."  Id., at ---.
    We hold that the Equal Protection Clause prohibits a prosecutor from
using the State's peremptory challenges to exclude otherwise qualified and
unbiased persons from the petit jury solely by reason of their race, a
practice that forecloses a significant opportunity to participate in civic
life.  An in dividual juror does not have a right to sit on any particular
petit jury, but he or she does possess the right not to be excluded from
one on account of race.
    It is suggested that no particular stigma or dishonor results if a
prosecutor uses the raw fact of skin color to determine the objectivity or
qualifications of a juror.  We do not believe a victim of the
classification would endorse this view; the assumption that no stigma or
dishonor attaches contravenes accepted equal protection principles.  Race
cannot be a proxy for determining juror bias or competence.  "A person's
race simply `is unrelated to his fitness as a juror.' "  Batson, supra, at
87 (quoting Thiel v. Southern Pacific Co., supra, at 227 (Frankfurter, J.,
dissenting)).  We may not accept as a defense to racial discrimination the
very stereotype the law condemns.
    We reject as well the view that race-based peremptory challenges
survive equal protection scrutiny because members of all races are subject
to like treatment, which is to say that white jurors are subject to the
same risk of peremptory challenges based on race as are all other jurors.
The suggestion that racial classifications may survive when visited upon
all persons is no more authoritative today than the case which advanced the
theorem, Plessy v. Ferguson, 163 U. S. 537 (1896).  This idea has no place
in our modern equal protection jurisprudence.  It is axiomatic that racial
classifications do not become legitimate on the assumption that all persons
suffer them in equal degree.  Loving v. Virginia, 388 U. S. 1 (1967).

III
    We must consider whether a criminal defendant has standing to raise the
equal protection rights of a juror excluded from service in violation of
these principles.  In the ordinary course, a litigant must assert his or
her own legal rights and interests, and cannot rest a claim to relief
premised on the legal rights or interests of third parties.  United States
Dept. of Labor v. Triplett, 493 U. S. ---, --- (1990); Singleton v. Wulff,
428 U. S. 106 (1976).  This fundamental restriction on our authority admits
of certain, limited ex ceptions.  We have recognized the right of litigants
to bring actions on behalf of third parties, provided three important
criteria are satisfied: the litigant must have suffered an
"injury-in-fact," thus giving him or her a "sufficiently concrete interest"
in the outcome of the issue in dispute, Singleton, supra, at 112; the
litigant must have a close relation to the third party, id., at 113-114;
and there must exist some hindrance to the third party's ability to protect
his or her own interests.  Id., at 115-116.  See also Craig v. Boren, 429
U. S. 190 (1976).  These criteria have been satisfied in cases where we
have permitted criminal defendants to challenge their convictions by
raising the rights of third parties.  See, e. g., Eisenstadt v. Baird, 405
U. S. 438 (1972); Griswold v. Connecticut, 381 U. S. 479 (1965); see also
McGowan v. Maryland, 366 U. S. 420 (1961).  By similar reasoning, we have
permitted litigants to raise third-party rights in order to prevent
possible future prosecution.  See, e. g., Doe v. Bolton, 410 U. S. 179
(1973).
    The discriminatory use of peremptory challenges by the prosecution
causes a criminal defendant cognizable injury, and the defendant has a
concrete interest in challenging the practice.  See Allen v. Hardy, 478 U.
S., at 259 (recognizing a defendant's interest in "neutral jury selection
procedures").  This is not because the individual jurors dismissed by the
prosecution may have been predisposed to favor the defendant; if that were
true, the jurors might have been excused for cause.  Rather, it is because
racial discrimination in the selection of jurors "casts doubt on the
integrity of the judicial process," Rose v. Mitchell, 443 U. S. 545, 556
(1979), and places the fairness of a criminal proceeding in doubt.
    The jury acts as a vital check against wrongful exercise of power by
the State and its prosecutors.  Batson, supra, at 86.  The intrusion of
racial discrimination into the jury selection process damages both the fact
and the perception of this guarantee.  "Jury selection is the primary means
by which a court may enforce a defendant's right to be tried by a jury free
from ethnic, racial, or political prejudice, Rosales-Lopez v. United
States, 451 U. S. 182, 188 (1981); Ham v. South Carolina, 409 U. S. 524
(1973); Dennis v. United States, 339 U. S. 162 (1950), or predisposition
about the defendant's culpability, Irvin v. Dowd, 366 U. S. 717 (1961)."
Gomez v. United States, 490 U. S. 858, 873 (1989).  Active discrimination
by a prosecutor during this process condones violations of the United
States Constitution within the very institution entrusted with its
enforcement, and so invites cynicism respecting the jury's neutrality and
its obligation to adhere to the law.  The cynicism may be aggravated if
race is implicated in the trial, either in a direct way as with an alleged
racial motivation of the defendant or a victim, or in some more subtle
manner as by casting doubt upon the credibility or dignity of a witness, or
even upon the standing or due regard of an attorney who appears in the
cause.
    Unlike the instances where a defendant seeks to object to the
introduction of evidence obtained illegally from a third party, see, e. g.,
United States v. Payner, 447 U. S. 727 (1980), here petitioner alleges that
the primary constitutional violation occurred during the trial itself.  A
prosecutor's wrongful exclusion of a juror by a race-based peremptory
challenge is a constitutional violation committed in open court at the
outset of the proceedings.  The overt wrong, often apparent to the entire
jury panel, casts doubt over the obligation of the parties, the jury, and
indeed the court to adhere to the law throughout the trial of the cause.
The voir dire phase of the trial represents the "jurors' first introduction
to the substantive factual and legal issues in a case."  Gomez, supra, at
874.  The influence of the voir dire process may persist through the whole
course of the trial proceedings.  Ibid.  If the defendant has no right to
object to the prose cutor's improper exclusion of jurors, and if the trial
court has no duty to make a prompt inquiry when the defendant shows, by
adequate grounds, a likelihood of impropriety in the exercise of a
challenge, there arise legitimate doubts that the jury has been chosen by
proper means.  The composition of the trier of fact itself is called in
question, and the irregularity may pervade all the proceedings that
follow.
    The purpose of the jury system is to impress upon the criminal
defendant and the community as a whole that a verdict of conviction or
acquittal is given in accordance with the law by persons who are fair.  The
verdict will not be accepted or understood in these terms if the jury is
chosen by unlawful means at the outset.  Upon these considerations, we find
that a criminal defendant suffers a real injury when the prosecutor
excludes jurors at his or her own trial on account of race.
    We noted in Singleton that in certain circumstances "the relationship
between the litigant and the third party may be such that the former is
fully, or very nearly, as effective a proponent of the right as the
latter."  428 U. S., at 115.  Here, the relation between petitioner and the
excluded jurors is as close as, if not closer than, those we have
recognized to convey third-party standing in our prior cases.  See, e. g.,
Griswold v. Connecticut, supra (Planned Parenthood official and a licensed
physician can raise the constitutional rights of contraceptive users with
whom they had professional relationships); Craig, supra (licensed beer
vendor has standing to raise the equal protection claim of a male customer
challenging a statutory scheme prohibiting the sale of beer to males under
the age of 21 and to females under the age of 18); Triplett, supra
(attorney may challenge an attorney's fees restriction by asserting the due
process rights of the client).  Voir dire permits a party to establish a
relation, if not a bond of trust, with the jurors.  This relation continues
throughout the entire trial and may in some cases extend to the sentencing
as well.
    Both the excluded juror and the criminal defendant have a common
interest in eliminating racial discrimination from the courtroom.  A
venireperson excluded from jury service because of race suffers a profound
personal humiliation heightened by its public character.  The rejected
juror may lose confidence in the court and its verdicts, as may the
defendant if his or her objections cannot be heard.  This congruence of
interests makes it necessary and appropriate for the defendant to raise the
rights of the juror.  And, there can be no doubt that petitioner will be a
motivated, effective advocate for the excluded venirepersons' rights.
Petitioner has much at stake in proving that his jury was improperly
constituted due to an equal protection violation, for we have recognized
that discrimination in the jury selection process may lead to the reversal
of a conviction.  See Batson, supra, at 100; Vasquez v. Hillery, 474 U. S.
254, 264 (1986); Rose v. Mitchell, supra, at 551; Cassell v. Texas, 339 U.
S. 282 (1949).  Thus, " `there seems little loss in terms of effective
advocacy from allowing [the assertion of this claim] by' the present jus
tertii champion."  Craig, supra, at 194 (quoting Singleton, supra, at
118).
    The final inquiry in our third-party standing analysis involves the
likelihood and ability of the third parties, the excluded venirepersons, to
assert their own rights.  See Singleton, supra, at 115-116.  We have held
that individual jurors subjected to racial exclusion have the legal right
to bring suit on their own behalf.  Carter, 396 U. S., at 329330.  As a
practical matter, however, these challenges are rare.  See Alschuler, The
Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the
Review of Jury Verdicts, 56 U. Chi. L. Rev. 153, 193-195 (1989).  Indeed,
it took nearly a century after the Fourteenth Amendment and the Civil
Rights Act of 1875 came into being for the first such case to reach this
Court.  See Carter, supra, at 320.
    The barriers to a suit by an excluded juror are daunting.  Potential
jurors are not parties to the jury selection process and have no
opportunity to be heard at the time of their exclusion.  Nor can excluded
jurors easily obtain declaratory or injunctive relief when discrimination
occurs through an individual prosecutor's exercise of peremptory
challenges.  Unlike a challenge to systematic practices of the jury clerk
and commissioners such as we considered in Carter, it would be difficult
for an individual juror to show a likelihood that discrimination against
him at the voir dire stage will recur.  See Los Angeles v. Lyons, 461 U. S.
95, 105-110 (1983).  And, there exist considerable practical barriers to
suit by the excluded juror because of the small financial stake involved
and the economic burdens of litigation.  See Vasquez, supra, at 262, n. 5;
Rose v. Mitchell, supra, at 558.  The reality is that a juror dismissed
because of race probably will leave the courtroom possessing little
incentive to set in motion the arduous process needed to vindicate his own
rights.  See Barrows v. Jackson, 346 U. S. 249, 257 (1953).
    We conclude that a defendant in a criminal case can raise the
third-party equal protection claims of jurors excluded by the prosecution
because of their race.  In so doing, we once again decline "to reverse a
course of decisions of long standing directed against racial discrimination
in the administration of justice."  Cassell v. Texas, 339 U. S. 282, 290
(1950) (Frankfurter, J., concurring in judgment).  To bar petitioner's
claim because his race differs from that of the excluded jurors would be to
condone the arbitrary exclusion of citizens from the duty, honor, and
privilege of jury service.  In Holland and Batson, we spoke of the
significant role peremptory challenges play in our trial procedures, but we
noted also that the utility of the peremptory challenge system must be
accommodated to the command of racial neutrality.  Holland, supra, at ---;
Batson, supra, at 98-99.
    The Fourteenth Amendment's mandate that race discrimi nation be
eliminated from all official acts and proceedings of the State is most
compelling in the judicial system.  Rose v. Mitchell, supra, at 555.  We
have held, for example, that prosecutorial discretion cannot be exercised
on the basis of race, Wayte v. United States, 470 U. S. 598, 608 (1985),
and that, where racial bias is likely to influence a jury, an inquiry must
be made into such bias.  Ristaino v. Ross, 424 U. S. 589, 596 (1976); see
also Turner v. Murray, 476 U. S. 28 (1986).  The statutory prohibition on
discrimination in the selection of jurors, 18 U. S. C. MDRV 243, enacted
pursuant to the Fourteenth Amendment's Enabling Clause, makes race
neutrality in jury selection a visible, and inevitable, measure of the
judicial system's own commitment to the commands of the Constitution.  The
courts are under an affirmative duty to enforce the strong statutory and
constitutional policies embodied in that prohibition.  See Peters v. Kiff,
407 U. S., at 507 (White, J., concurring in judgment); see also id., at 505
(opinion of Marshall, J.).
    The emphasis in Batson on racial identity between the defendant and the
excused prospective juror is not inconsistent with our holding today that
race is irrelevant to a defendant's standing to object to the
discriminatory use of peremptory challenges.  Racial identity between the
defendant and the excused person might in some cases be the explanation for
the prosecution's adoption of the forbidden stereotype, and if the alleged
race bias takes this form, it may provide one of the easier cases to
establish both a prima facie case and a conclusive showing that wrongful
discrimination has occurred.  But to say that the race of the defendant may
be relevant to discerning bias in some cases does not mean that it will be
a factor in others, for race prejudice stems from various causes and may
manifest itself in different forms.
    It remains for the trial courts to develop rules, without unnecessary
disruption of the jury selection process, to permit legitimate and
well-founded objections to the use of peremptory challenges as a mask for
race prejudice.  In this case, the State concedes that, if we find the
petitioner has standing to object to the prosecution's use of the
peremptory challenges, the case should be remanded.  We find that
petitioner does have standing.  The judgment is reversed, and the case is
remanded for further proceedings not inconsistent with our opinion.

It is so ordered.


------------------------------------------------------------------------------




Subject: 89-5011 -- DISSENT, POWERS v. OHIO

 


    SUPREME COURT OF THE UNITED STATES


No. 89-5011



LARRY JOE POWERS, PETITIONER v. OHIO


on writ of certiorari to the court of appeals of ohio, franklin county

[April 1, 1991]



    Justice Scalia, with whom The Chief Justice joins, dissenting.

    Since in my view today's decision contradicts well established law in
the area of equal protection and of standing, I respectfully dissent.

I


    The Court portrays its holding as merely the logical application of our
prior jurisprudence concerning equal-protection challenges to criminal
convictions.  It is far from that.
    Over a century ago, in Strauder v. West Virginia, 100 U. S. 303 (1880),
we held that a statute barring blacks from service on grand or petit juries
denied equal protection of the laws to a black man convicted of murder by
an all-white jury.  Interpreting the recently enacted Fourteenth Amendment,
we concluded that the statute violated the black defendant's equal
protection right for the following reason:

"It is not easy to comprehend how it can be said that while every white man
is entitled to a trial by a jury selected from persons of his own race or
color, or, rather, selected without discrimination against his color, and a
negro is not, the latter is equally protected by the law with the former.
Is not protection of life and liberty against race or color prejudice, a
right, a legal right, under the constitutional amendment?  And how can it
be maintained that compelling a colored man to submit to a trial for his
life by a jury drawn from a panel from which the State has expressly
excluded every man of his race, because of color alone, however well
qualified in other respects, is not a denial to him of equal legal
protection?"  Id., at 309.


It was not suggested in Strauder, and I am sure it was quite unthinkable,
that a white defendant could have had his conviction reversed on the basis
of the same statute.  The statute did not exclude members of his race, and
thus did not deprive him of the equal protection of the laws.
    Since Strauder, we have repeatedly invalidated criminal convictions on
equal protection grounds where state laws or practices excluded potential
jurors from service on the basis of race.  See Vasquez v. Hillery, 474 U.
S. 254 (1986); Castaneda v. Partida, 430 U. S. 482 (1977); Alexander v.
Louisiana, 405 U. S. 625 (1972); Sims v. Georgia, 389 U. S. 404 (1967) (per
curiam); Jones v. Georgia, 389 U. S. 24 (1967) (per curiam); Whitus v.
Georgia, 385 U. S. 545 (1967); Coleman v. Alabama, 377 U. S. 129 (1964);
Arnold v. North Carolina, 376 U. S. 773 (1964) (per curiam); Eubanks v.
Louisiana, 356 U. S. 584 (1958); Reece v. Georgia, 350 U. S. 85 (1955);
Williams v. Georgia, 349 U. S. 375 (1955); Hernandez v. Texas, 347 U. S.
475 (1954); Avery v. Georgia, 345 U. S. 559 (1953); Cassell v. Texas, 339
U. S. 282 (1950); Patton v. Mississippi, 332 U. S. 463 (1947); Hill v.
Texas, 316 U. S. 400 (1942); Smith v. Texas, 311 U. S. 128 (1940); Pierre
v. Louisiana, 306 U. S. 354 (1939); Hale v. Kentucky, 303 U. S. 613 (1938)
(per curiam); Hollins v. Oklahoma, 295 U. S. 394 (1935) (per curiam);
Norris v. Alabama, 294 U. S. 587 (1935); Rogers v. Alabama, 192 U. S. 226
(1904); Carter v. Texas, 177 U. S. 442 (1900); Bush v. Kentucky, 107 U. S.
110 (1883); Neal v. Delaware, 103 U. S. 370 (1881).  In all these cases,
the basis for our decision was that the State had violated the defendant's
right to equal protection, because it had excluded jurors of his race.  As
we said in Carter v. Texas: "Whenever by any action of a State, whether
through its legislature, through its courts, or through its executive or
administrative officers, all persons of the African race are excluded,
solely because of their race or color, from serving as grand jurors in the
criminal prosecution of a person of the African race, the equal protection
of the laws is denied to him, contrary to the Fourteenth Amendment of the
Constitution of the United States."  177 U. S., at 447 (emphasis added).
    Twenty-six years ago, in Swain v. Alabama, 380 U. S. 202 (1965), we
first considered an equal protection claim against peremptory challenges by
the prosecution.  In that case, a black man had been convicted and
sentenced to death by an all-white jury, the prosecutor having peremptorily
struck six prospective black jurors from the venire.  We rejected the
defendant's equal protection claim.  Our opinion set forth at length the
"very old credentials" of the peremptory challenge, id., at 212, see id.,
at 212-219, discussed the reasons for the "long and widely held belief"
that it is "a necessary part of trial by jury," id., at 219, see id., at
219-221, and observed that it is "frequently exercised on grounds normally
thought irrelevant to legal proceedings or official action, namely, the
race, religion, nationality, occupation or affiliations of people summoned
for jury duty," id., at 220.  To accept petitioner's equal protection
claim, we said, "would establish a rule wholly at odds with the peremptory
challenge system as we know it," id., at 222, a system in which "Negro and
white, Protestant and Catholic, are alike subject to being challenged
without cause," id., at 221.  But while permitting race-based challenges
for the traditional purpose of eliminating "irrational . . . suspicions and
antagonisms," id., at 224, "related to the case [the prosecutor] is trying,
the particular defendant involved and the particular crime charged," id.,
at 223, we strongly suggested that it would violate the Equal Protection
Clause to use race-based challenges as a surrogate for segregated jury
lists, employing them "in case after case, whatever the circumstances,
whatever the crime and whoever the defendant or the victim," ibid., in
order to "deny the Negro the same right and opportunity to participate in
the administration of justice enjoyed by the white population," id., at
224.
    Five years ago we revisited the issue, and overruled Swain.  In Batson
v. Kentucky, 476 U. S. 79 (1986), we held that "a defendant may make a
prima facie showing of purposeful racial discrimination in selection of the
venire by relying solely on the facts concerning its selection in his
case," id., at 95 (emphasis in original), whereupon the prosecution would
be required to justify its strikes on race-neutral grounds.  Batson,
however, like all our other cases upholding an equal protection challenge
to the composition of criminal juries, referred to -- indeed, it emphasized
-- the necessity of racial identity between the defendant and the excluded
jurors.  "[T]he defendant," we said, "first must show that he is a member
of a cognizable racial group, and that the prosecutor has exercised
peremptory challenges to remove from the venire members of the defendant's
race."  Id., at 96 (emphasis added, citation omitted).  This requirement
was repeated several times.  "The defendant initially must show that he is
a member of a racial group capable of being singled out for differential
treatment."  Id., at 94 (emphasis added).  "The Equal Protection Clause
guarantees the defendant that the State will not exclude members of his
race from the jury venire on account of race."  Id., at 86 (emphasis
added).  Justice White, concurring, concluded that the abandonment of Swain
was justified because "[i]t appears . . . that the practice of peremptorily
eliminating blacks from petit juries in cases with black defendants remains
widespread, so much so that I agree that an opportunity to inquire should
be afforded when this occurs."  Id., at 101 (emphasis added).  Today's
opinion for the Court is correct in noting that Batson asserted that "a
prosecutor's discriminatory use of peremptory challenges harms the excluded
jurors and the community at large," ante, at 5.  But there is no
contradiction, and Batson obviously saw none, between that proposition and
the longstanding and reiterated principle that no defendant except one of
the same race as the excluded juror is deprived of equal protection of the
laws.
    On only two occasions in the past have we considered claims by a
criminal defendant of one race that the prosecution had discriminated
against prospective jurors of another race.  Last Term, in Holland v.
Illinois, 493 U. S. --- (1990), we held that the prosecution's use of
peremptory strikes against black jurors did not deprive a white defendant
of his Sixth Amendment right to an impartial jury.  No equal protection
claim was made in that case.  Such a claim was made, however, in Peters v.
Kiff, 407 U. S. 493 (1972).  There the petitioner, a white man, contended
that the State, through its use of segregated jury lists, had excluded
blacks from his grand and petit juries, thus denying him due process and
equal protection.  The case produced no majority opinion, but it is
significant that no Justice relied upon the petitioner's equal protection
argument.  Justice Marshall, joined by Justice Douglas and Justice Stewart,
asserted that a defendant has a due process right not to be subjected "to
indictment or trial by a jury that has been selected in an arbitrary and
discriminatory manner."  Id., at 502.  Justice White, joined by Justice
Brennan and Justice Powell, concluded that "the strong statutory policy"
contained in the 1875 criminal statute prohibiting disqualification from
jury service on racial grounds, 18 U. S. C. MDRV 243, entitled the
petitioner to challenge the exclusion of blacks from the grand jury that
indicted him.  407 U. S., at 507.  Chief Justice Burger, joined by Justice
Blackmun and then-Justice Rehnquist, contended that there was no basis for
assuming that the petitioner had been injured in any way by the alleged
discrimination, and noted that "the Court has never intimated that a
defendant is the victim of unconstitutional discrimination if he does not
claim that members of his own race have been excluded."  Id., at 509.
    Alexander v. Louisiana, 405 U. S. 625 (1972), involved precisely the
sort of claim made here, in the context of an alleged denial of equal
protection on the basis of sex.  In that case, a black male defendant
contended that the State's manner of composing its jury lists had excluded
blacks and women from his grand jury, thereby denying him equal protection
of the laws.  We ultimately found it unnecessary to reach his claim
regarding the exclusion of women, but only after saying the following:


"This claim is novel in this Court and, when urged by a male, finds no
support in our past cases.  The strong constitutional and statutory policy
against racial discrimination has permitted Negro defendants in criminal
cases to challenge the systematic exclusion of Negroes from the grand
juries that indicted them. . . .  [T]here is nothing in past adjudications
suggesting that petitioner himself has been denied equal protection by the
alleged exclusion of women from grand jury service."  Id., at 633 (emphasis
added).


Similarly, in Castaneda v. Partida, 430 U. S. 482 (1977), in holding that
the respondent had successfully established a prima facie case of
discrimination against Mexican-Americans in the selection of grand jurors,
we said that "in order to show that an equal protection violation has
occurred in the context of grand jury selection, the defendant must show
that the procedure employed resulted in substantial underrepresentation of
his race or of the identifiable group to which he belongs."  Id., at 494
(emphasis added).
    Thus, both before and after Batson, and right down to the release of
today's opinion, our jurisprudence contained neither a case holding, nor
even a dictum suggesting, that a defendant could raise an equal-protection
challenge based upon the exclusion of a juror of another race; and our
opinions contained a vast body of clear statement to the contrary.  We had
reaffirmed the point just last Term in Holland, supra.  After quoting the
language from Batson requiring the defendant to show that he is a member of
the racial group alleged to have been removed from the jury, we contrasted
the requirements for standing under the Fourteenth Amendment's Equal
Protection Clause and the Sixth Amendment: "We have never suggested,
however, that such a requirement of correlation between the group
identification of the defendant and the group identification of excluded
venire members is necessary for Sixth Amendment standing.  To the contrary,
our cases hold that the Sixth Amendment entitles every defendant to object
to a venire that is not designed to represent a fair cross section of the
community, whether or not the systematically excluded groups are groups to
which he himself belongs."  493 U. S., at --- (emphasis added).
    Thus, today's holding cannot be considered in accordance with our prior
law.  It is a clear departure.

II


    In an apparent attempt to portray the question before us as a novel
one, the Court devotes a large portion of its opinion to third-party
standing -- as though that obvious avenue of rendering the Equal Protection
Clause applicable had not occurred to us in the many cases discussed above.
Granted, the argument goes, that this white defendant has not himself been
denied equal protection, but he has third-party standing to challenge the
denial of equal protection to the stricken black jurors.  The Court's
discussion of third-party standing is no more faithful to our precedent
than its description of our earlier equal-protection cases.  Before
reaching that point, however, there is a prior one: the first-party right
upon which the Court seeks to base third-party standing has not hitherto
been held to exist.
    All citizens have the equal-protection right not to be excluded from
jury service (i. e., not to be excluded from grand- and petit-jury lists)
on the basis of irrelevant factors such as race, Carter v. Jury Commission
of Greene County, 396 U. S. 320 (1970), or employment status, cf. Thiel v.
Southern Pacific Co., 328 U. S. 217 (1946).  As Swain suggested, this
principle would also prohibit the systematic exclusion of a particular race
or occupation from all jury service through peremptory challenges.  When a
particular group has been singled out in this fashion, its members have
been treated differently, and have suffered the deprivation of a right and
responsibility of citizenship.  But when that group, like all others, has
been made subject to peremptory challenge on the basis of its group
characteristic, its members have been treated not differently but the same.
In fact, it would constitute discrimination to exempt them from the
peremptorystrike exposure to which all others are subject.  If, for
example, men were permitted to be struck but not women, or fundamentalists
but not atheists, or blacks but not whites, members of the former groups
would plainly be the object of discrimination.
    In reply to this, it could be argued that discrimination is not
legitimated by being applied, so to speak, indiscriminately; that the
unlawfulness of treating one person differ ently on irrelevant grounds is
not erased by subjecting everyone else to the same unlawfulness.  The
response to this is that the stricken juror has not been "treated
differently" in the only pertinent sense -- that is, in the sense of being
deprived of any benefit or subjected to any slight or obloquy.  The strike
does not deprecate his group, and thereby "stigmatize" his own personality.
Unlike the categorical exclusion of a group from jury service, which
implies that all its members are incompetent or untrustworthy, a peremptory
strike on the basis of group membership implies nothing more than the
undeniable reality (upon which the peremptory strike system is largely
based) that all groups tend to have particular sympathies and hostilities
-- most notably, sympathies towards their own group members.  Since that
reality is acknowledged as to all groups, and forms the basis for
peremptory strikes as to all of them, there is no implied criticism or
dishonor to a strike.  Nor is the juror who is struck because of his group
membership deprived of any benefit.  It is obvious, as Strauder
acknowledged, that a defendant belonging to an identifiable group is
benefited by having members of that group on his jury, but it is impossible
to understand how a juror is benefited by sitting in judgment of a member
of his own group, rather than of another.  All qualified citizens have a
civic right, of course, to serve as jurors, but none has the right to serve
as a juror in a particular case.  Otherwise, we would have to permit
stricken jurors to complain not only of peremptory challenges that
supposedly deny them equal protection, but also of erroneously allowed
challenges for cause.
    To affirm that the Equal Protection Clause applies to strikes of
individual jurors is effectively to abolish the peremptory challenge.  As
discussed in Swain, "irrelevant" personal characteristics are by definition
the basis for using that device; relevant characteristics would produce
recusal for cause.  And as Swain also pointed out, the irrelevant
characteristics relied upon are frequently those that would promptly
trigger invalidation in other contexts -- not only race, but religion, sex,
age, political views, economic status.  Not only is it implausible that
such a permanent and universal feature of our jury-trial system is
unconstitutional, but it is unlikely that its elimination would be
desirable.  The peremptory challenge system has endured so long because it
has unquestionable advantages.  As we described in Holland, 493 U. S., at
---, it is a means of winnowing out possible (though not demonstrable)
sympathies and antagonisms on both sides, to the end that the jury will be
the fairest possible.  In a criminal-law system in which a single biased
juror can prevent a deserved conviction or a deserved acquittal, the
importance of this device should not be minimized.
    Until Batson, our jurisprudence affirmed the categorical validity of
peremptory strikes so long as they were not used as a substitute for
segregated jury lists.  Batson made an exception, but one that was narrow
in principle and hence limited in effect.  It announced an equal-protection
right, not of prospective jurors to be seated without regard to their race,
but of defendants not to be tried by juries from which members of their
race have been intentionally excluded.  While the opinion refers to "[t]he
harm" that "discriminatory jury selection" inflicts upon "the excluded
juror," 476 U. S., at 87, that is not a clear recognition, even in dictum,
that the excluded juror has his own cause of action -- any more than its
accompanying reference to the harm inflicted upon "the entire community,"
ibid., suggests that the entire community has a cause of action.  To the
contrary, an independent cause of action on the juror's part is quite
incompatible with the opinion's repeated insistence that the stricken juror
must be of the same race as the defendant.  It would be absurd to suppose
that a black juror has a right not to be discriminated against, through
peremptory strike, in the trial of a black defendant, but not in the trial
of a white defendant.
    In sum, we have never held, or even said, that a juror has an
equal-protection right not to be excluded from a particular case through
peremptory challenge; and the existence of such a right would call into
question the continuing existence of a centuries-old system that has
important beneficial effects.  Thus, even if the Court's discussion of
Powers' third-party standing to raise the rights of stricken jurors were
correct, it would merely replace the mystery of why he has a cause of
action with the mystery of why they do.

III


    In any event, the Court's third-party standing analysis is not correct.
The Court fails to establish what we have described as the very first
element of third-party standing: the requirement of "injury in fact."  See,
e. g., Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 623,
n. 3 (1989); Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.
S. 947, 954-955 (1984).  The Court's attempt at constructing an injury in
fact to petitioner goes as follows: When the prosecution takes race into
account in exercising its peremptory challenges, it "casts doubt on the
integrity of the judicial process," and "invites cynicism respecting the
jury's neutrality and its obligation to adhere to the law," ante, at 11
(internal quotations omitted), as a result of which "[t]he verdict will not
be accepted or understood [as fair]," ante, at 12.  The Court must, of
course, speak in terms of the perception of fairness rather than its
reality, since only last Term we held categorically that the exclusion of
members of a particular race from a jury does not produce an unfair jury,
and suggested that in some circumstances it may increase fairness.  See
Holland, supra, at ---.  But in any event, how do these alleged perceptions
of unfairness, these "castings of doubt" and "invitations to cynicism,"
establish that the defendant has been injured in fact?  They plainly do
not.  Every criminal defendant objecting to the introduction of some piece
of evidence or to some trial procedure on the ground that it violates the
rights of a third party can claim a similar "perception of unfairness," but
we deny standing.  "Injury in perception" would seem to be the very
antithesis of "injury in fact."  As the very words suggest, the latter sort
of injury must be "distinct and palpable," Warth v. Seldin, 422 U. S. 490,
501 (1975) (emphasis added), "particular [and] concrete," United States v.
Richardson, 418 U. S. 166, 177 (1974) (emphasis added), "specific [and]
objective," Laird v. Tatum, 408 U. S. 1, 14 (1972) (emphasis added).
Today's opinion makes a mockery of that requirement.  It does not even
pretend that the peremptory challenges here have caused this defendant
tangible injury and concrete harm -- but rather (with careful selection of
both adjectives and nouns) only a "cognizable injury," producing a
"concrete interest in challenging the practice."  Ante, at 10 (emphasis
added).  I have no doubt he now has a cognizable injury; the Court has made
it true by saying so.  And I have no doubt he has a concrete interest in
challenging the practice at issue here; he would have a concrete interest
in challenging a mispronunciation of one of the jurors' names, if that
would overturn his conviction.  But none of this has anything to do with
injury in fact.
    In response, however, it could be asserted that the requirement of
injury in fact -- and, more specifically, that element of the requirement
which demands that the cause-andeffect relationship between the illegality
and the alleged harm be more than speculative, see Allen v. Wright, 468 U.
S. 737, 750-752 (1984); Simon v. Eastern Kentucky Welfare Rights
Organization, 426 U. S. 26, 40-46 (1976) -- has never been applied to a
litigant's claim of illegality relating to an aspect of criminal or civil
procedure.  The available concrete injury in such cases, of course, is the
conviction or judgment -- or more precisely, the punishment that attends
the conviction and the economic or other loss that attends the judgment.
But courts have never required that injury to be connected with the alleged
procedure-related illegality by anything more than speculation.  If, for
example, one of the elements of criminal due process has been denied, or
one of the constitutionally specified attributes of a prosecution has been
omitted, we do not require the defendant to establish, by more than
speculation, that he would not otherwise have been convicted.  To the
contrary, standing is accorded, and relief will be granted unless the
government can establish beyond a reasonable doubt that the error was
harmless.  See, e. g., Rose v. Clark, 478 U. S. 570 (1986).
    We do not, however, extend this special treatment of injury in fact in
the litigation context to third-party standing.  Indeed, we do not even
recognize third-party standing in the litigation context -- that is, permit
a civil or criminal litigant to upset an adverse judgment because the
process by which it was obtained involved the violation of someone else's
rights -- even when the normal injury-in-fact standard is amply met.  If,
for example, the only evidence supporting a conviction (so that the
causality is not remotely speculative) consists of the fruit of a search
and seizure that violated a third party's Fourth Amendment rights, we will
not permit those rights to be asserted by the defendant.  See, e. g.,
Rawlings v. Kentucky, 448 U. S. 98 (1980); United States v. Payner, 447 U.
S. 727 (1980); Rakas v. Illinois, 439 U. S. 128 (1978).  We would reach the
same result with respect to reliable evidence obtained in violation of
another person's Fifth Amendment right against self-incrimination, cf. id.,
at 140, n. 8.  Likewise (assuming we follow the common law) with respect to
evidence introduced in violation of someone else's confidentiality
privilege.  See, e. g., Commonwealth v. McKenna, 206 Pa. 317, 322, 213 A.
2d 223, 226 (1965); Butz v. State, 221 Md. 68, 73, 156 A. 2d 423, 426
(1959); see generally Annot., 2 A. L. R. 2d 645 (1948).  These cases can,
to be sure, be explained on the basis that the rights in question are
"personal," rather than on the basis of lack of third-party standing, but
the result comes to the same.  It is difficult to accept the proposition
that, even though introduction of the fruits of a third party's illegally
obtained confession, which unquestionably produces the defendant's
conviction, is not a ground for reversal, racial discrimination against a
prospective juror, which only speculatively produces the conviction, is.
There is, in short, no sound basis for abandoning the normal injuryin-fact
requirements applicable to third-party standing, and supplanting them with
an "interest in challenging the practice" standard, simply because a
trial-related violation is at issue.  If anything, that consideration
should lead to the conclusion that there is no third-party standing at
all.

IV


    Last Term, in Holland, we noted that "[t]he tradition of peremptory
challenges for both the prosecution and the accused was already venerable
at the time of Blackstone, . . . was reflected in a federal statute enacted
by the same Congress that proposed the Bill of Rights, . . . was recognized
in an opinion by Justice Story to be part of the common law of the United
States, . . . and has endured through two centuries in all the States. . .
."  493 U. S., at ---.  We concluded from this that "[a]ny theory of the
Sixth Amendment leading to [the] result" that "each side may not . . . use
peremptory challenges to eliminate prospective jurors belonging to groups
it believes would unduly favor the other side" is "implausible."  Ibid.
What is true with respect to the Sixth Amendment is true with respect to
the Equal Protection Clause as well.
    Batson was, as noted earlier, a clear departure from our jurisprudence,
and the precise scope of the exception it has created remains to be
determined.  It is unclear, for example, whether it applies to government
peremptories in civil cases; whether it applies to peremptories by parties
other than the government; and whether it applies to peremptories based on
the defendant's sex, religion, age, economic status and any other personal
characteristic unrelated to the capacity for responsible jury service.  All
these extensions are arguably within the logic of the decision.  This case,
however, involves not a clarification of Batson, but the creation of an
additional, ultra-Batson departure from established law.  Petitioner seeks
not some further elaboration of the right to have his racial identity
disregarded in the selection of his jury, but rather the announcement of a
new right to have his jury immune from the exclusion of people of any race;
or the announcement of a new power to assert a new right of jurors never to
be excluded from any jury on the basis of their race.  Not only does this
exceed the rationale of Batson, but it exceeds Batson's emotional and
symbolic justification as well.  Notwithstanding history, precedent, and
the significant benefits of the peremptory-challenge system, it is
intolerably offensive for the State to imprison a person on the basis of a
conviction rendered by a jury from which members of that person's minority
race were carefully excluded.  I am unmoved, however, and I think most
Americans would be, by this white defendant's complaint that he was sought
to be tried by an all-white jury, or that he should be permitted to press
black jurors' unlodged complaint that they were not allowed to sit in
judgment of him.
    The Court's decision today is unprecedented in law, but not in
approach.  It is a reprise, so to speak, of Miranda v. Arizona, 384 U. S.
436 (1966), in that the Court uses its key to the jail-house door not to
free the arguably innocent, but to threaten release upon the society of the
unquestionably guilty unless law enforcement officers take certain steps
that the Court newly announces to be required by law.  It goes beyond
Miranda, however, in that there, at least, the mandated steps related to
the defendant's own rights, if not to his guilt.  Here they relate to
neither.  The sum and substance of the Court's lengthy analysis is that,
since a denial of equal protection to other people occurred at the
defendant's trial, though it did not affect the fairness of that trial, the
defendant must go free.  Even if I agreed that the exercise of peremptory
strikes constitutes unlawful discrimination (which I do not), I would not
understand why the release of a convicted murderer who has not been harmed
by those strikes is an appropriate remedy.
    Judging from the Court's opinion, we can expect further, wide-ranging
use of the jailhouse key to combat discrimination.  Convictions are to be
overturned, apparently, whenever "race is implicated in the trial" -- "by
casting doubt upon the credibility or dignity of a witness, or . . . upon
the standing or due regard of an attorney who appears in the cause," or
even by suggesting "an alleged racial motivation of the defendant or a
victim."  Ante, at 11.  To me this makes no sense.  Lofty aims do not
justify every step intended to achieve them.  Today's supposed blow against
racism, while enormously self-satisfying, is unmeasured and misdirected.
If for any reason the State is unable to reconvict Powers for the double
murder at issue here, later victims may pay the price for our extravagance.
Even if such a tragedy, in this or any case, never occurs, the
prosecutorial efforts devoted to retrials will necessarily be withheld from
other endeavors, as will the prosecutorial efforts devoted to meeting the
innumerable Powers claims that defendants of all races can be relied upon
to present -- again with the result that crime goes unpunished and
criminals go free.
    I respectfully dissent.
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