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State v. Gilmore

Decided: July 16, 1986.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 199 N.J. Super. 389 (1985).

For affirmance -- Chief Justice Wilentz, and Justices Handler, Pollock, O'Hern, Garibaldi and Stein. For remandment -- Justice Clifford. The opinion of the Court was delivered by Garibaldi, J. O'Hern, J., concurring. Clifford, J., dissenting. O'Hern, J., concurring in the result.


[103 NJ Page 516] This appeal presents the issue whether a prosecutor's use of peremptory challenges to exclude every black potential petit

juror violates a defendant's constitutional right to trial by an impartial jury drawn from a representative cross-section of the community. This is a question of first impression for us. We hold that Article I, paragraphs 5, 9, and 10 of the New Jersey Constitution forbid a prosecutor to exercise peremptory challenges to remove potential petit jurors who are members of a cognizable group on the basis of their presumed group bias; the State, however, may peremptorily challenge such venirepersons on grounds of situation-specific bias. Moreover, we determine that the defendant here has established that the prosecutor impermissibly excluded all black potential petit jurors.


In a single jury trial, defendant was found guilty of three first-degree robberies of two Hispanic attendants at a gasoline station in Union, New Jersey. He was sentenced to three concurrent fifteen-year custodial terms with five years of parole ineligibility.

Defendant, who is black, was tried by an all-white jury made up of six males and six females. Defense counsel was black and the assistant prosecutor was white. During the jury selection, nine black potential jurors were seated in the jury box at different times. All nine were excused -- the assistant prosecutor challenged two for cause, and peremptorily challenged the remaining seven. All told, the assistant prosecutor exercised eleven of the twelve peremptory challenges allowed him by Rule 1:8-3(d), while defense counsel exhausted the twenty permitted him.

After the jury selection, but before the jury was sworn, defense counsel moved for a mistrial, contending that the assistant prosecutor had used his peremptory challenges unconstitutionally to excuse the remaining seven black venirepersons on the basis of race. The assistant prosecutor responded: "It's my understanding of the rules that I can exercise my peremptory challenges as I see fit." The trial judge, relying heavily on

Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), and State v. Smith, 55 N.J. 476, 479-84, cert. denied, 400 U.S. 949, 91 S. Ct. 232, 27 L. Ed. 2d 256 (1970), rejected defendant's constitutional argument and accordingly denied the motion. On defendant's appeal following his conviction, the Appellate Division -- pointing out that in Swain the majority conceded that circumstances might arise where "[t]he purposes of the peremptory challenge are being [perverted]," 380 U.S. at 224, 85 S. Ct. at 838, 13 L. Ed. 2d at 774, and heeding the strong recommendation of Justices Stevens, Blackmun and Powell (as well as Justices Marshall and Brennan) respecting the denial of certiorari in McCray v. New York, 461 U.S. 961, 963, 103 S. Ct. 2438, 2439, 77 L. Ed. 2d 1322, 1323 (1983), that state courts should serve "as laboratories in which the issue receives further study before it is addressed by [the United States Supreme] Court" -- remanded the case to the Law Division to conduct a hearing "to establish the identity of the black prospective jurors and to afford the assistant prosecutor an opportunity to establish his motive or reasons for excusing each of the seven prospective black jurors." State v. Gilmore, 195 N.J. Super. 163, 166 (1984).

At the remand hearing, the parties stipulated to the identity of six of the seven Blacks peremptorily challenged, and agreed that the seventh was either of two persons. Then the assistant prosecutor articulated both his general criteria for exercising peremptory challenges and his specific reasons for excluding each black prospective juror in this case. First, he stated that he wanted jurors who were (1) able to ignore theatrics; (2) more intelligent and of the professional type; and (3) without maternal family instincts. And second, relying upon the transcript of the jury selection and notes he had made after the trial judge denied defendant's motion for a mistrial, he applied these criteria (as well as a residual criterion of "gut reaction" based upon "my life experience") to explain each peremptory challenge of a black venireperson.

On March 8, 1985, the Appellate Division issued its second opinion, interpreting the New Jersey Constitution as "proscribing the use of peremptory challenges to exclude prospective jurors solely by virtue of their membership in, or affiliation with, a cognizable group, a practice designed to defeat the purpose of the representative cross section rule." State v. Gilmore, 199 N.J. Super. 389, 405-06 (1985). After defining guidelines for the permissible exercise of peremptory challenges and establishing the procedure and burden of proof for allegations of their improper use, the Appellate Division evaluated the assistant prosecutor's explanations of his reasons for excusing every one of the black jury members. It concluded that they were "'sham excuses belatedly contrived to avoid admitting acts of group discrimination against all the black prospective jurors.'" Id. at 412-13 (quoting People v. Wheeler, 22 Cal. 3d 258, 148 Cal.Rptr. 890, 583 P. 2d 748, 765 (Cal.1978)). Hence, the court reversed the conviction, remanding the case to the Law Division for a new trial.

We granted certification, 101 N.J. 285 (1985), and now affirm the judgment rendered in the well-reasoned opinion of the Appellate Division.


Subsequent to the Appellate Division's decision to serve as a laboratory in federalism by resting its opinion on independent state constitutional grounds, the United States Supreme Court overruled Swain v. Alabama in Batson v. Kentucky, 476 U.S. , 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). In Swain, the first case to address directly the federal constitutional validity of the use of peremptory challenges to discriminate on the basis of race, a closely divided Supreme Court had concluded: "[W]e cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws." 380 U.S. at 221, 85 S. Ct. at 836, 13 L. Ed. 2d at 773. In dictum, four members of the Court indicated that if the defendant could show that the

prosecutor had systematically excluded all Blacks in case after case over a period of time, the presumption protecting the exercise of peremptory challenges "may well be overcome." Id. at 224, 85 S. Ct. at 838, 13 L. Ed. 2d at 774. The Court opined that this presumption was not overcome in Swain itself, although the defendant offered evidence that no Black had ever served on a petit jury in Talladega County, Alabama. Yet if ever there were a case in which it would appear that Swain 's standard of proof could be met, Swain itself surely was the one. Indeed, as of 1977, no defendant had ever surmounted this burden, despite proof in many instances that created a reasonable if not unmistakable inference of racial discrimination. See Annot., "Use of Peremptory Challenge to Exclude from Jury Persons Belonging to a Class or Race," 79 A.L.R. 3d 14 (1977) (collecting the federal and state cases in a sixty-page annotation); J. Van Dyke, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels 156 n. 83-98 (1977) (listing more than fifty cases). By 1984, the Second Circuit indicated in McCray v. Abrams, 750 F.2d 1113, 1120 (1984), that Swain 's "mission impossible" had been accomplished in only one instance, involving a prosecutor who admitted the practice of striking Blacks and whose use of peremptory challenges had been repeatedly appealed by black defendants. State v. Brown, 371 So. 2d 751 (La.1979), and State v. Washington, 375 So. 2d 1162 (La.1979).

Before the Supreme Court threw off Swain 's "crippling burden of proof" in Batson supra, 476 U.S. at , 106 S. Ct. at 1720, 90 L. Ed. 2d at 85, Swain had effectively immunized prosecutors' exercise of peremptory challenges from federal constitutional scrutiny and hence had been "the subject of almost universal and often scathing criticism." McCray v. New York, supra, 461 U.S. at 964, 103 S. Ct. at 2440, 77 L. Ed. 2d at 1324 (Marshall, J., dissenting from the denial of certiorari). This prompted leading state courts to look to their state constitutions as sources of fundamental rights surpassing those guaranteed by the federal constitution. People v. Wheeler,

supra, 22 Cal. 3d 258, 148 Cal.Rptr. 890, 583 P. 2d 748 (Cal.1978); Commonwealth v. Soares, 377 Mass. 461, 387 N.E. 2d 499, cert. den., 444 U.S. 881, 100 S. Ct. 170, 62 L. Ed. 2d 110 (1979); State v. Neil, 457 So. 2d 481 (Fla.1984); State v. Crespin, 94 N.M. 486, 612 P. 2d 716 (Ct.App.1980). The Appellate Division here followed their lead, concluding that Article I, paragraphs 5, 9, and 10 of the New Jersey Constitution provide greater protection against a prosecutor's discriminatory use of peremptory challenges than the United States Supreme Court had afforded under the Equal Protection Clause of the United States Constitution. 199 N.J. Super. at 397.

Furthermore, between Swain and Batson, the United States Supreme Court had issued Taylor v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975), and Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979), decisions interpreting the Sixth Amendment right to trial by an impartial jury that were at least implicitly in tension with Swain 's interpretation of the Equal Protection Clause. This moved some federal courts to resolve this tension in favor of construing the Sixth Amendment right more expansively. See McCray v. Abrams, supra, 750 F.2d 1113; Booker v. Jabe, 775 F.2d 762 (6th Cir.1985); see also United States v. Leslie, 759 F.2d 366, 373 (5th Cir.1985)*fn1 (resorting not to the Sixth Amendment but to the court's "supervisory power to assure a minimum level of protection against the use of peremptory challenges to practice invidious discrimination in individual cases").

In the midst of these developments, the Supreme Court decided Batson, rejecting the heavy burden of proof that Swain had imposed on the defendant to establish that the peremptory challenge system as a whole was being perverted. Instead, the Court held that the Equal Protection Clause of the Fourteenth Amendment forbids a prosecutor from exercising

peremptory challenges to remove jurors on the basis of their race, and that a defendant may make a prima facie showing of purposeful racial discrimination in the selection of the jury by relying solely on the facts concerning his or her particular case. In deciding Batson, the Court relied on the application of equal protection principles, expressing "no view on the merits of any of petitioner's Sixth Amendment arguments." 476 U.S. at n. 4, 106 S. Ct. at 1716 n. 4, 90 L. Ed. 2d at 79 n. 4. We observe that under Batson 's interpretation of the Equal Protection Clause of the Fourteenth Amendment, and McCray v. Abrams ' interpretation of the Sixth Amendment, the United States Constitution would compel the result that we reach on independent state grounds.

That the United States Supreme Court has overruled Swain in Batson does not mean that the laboratories operated by leading state courts should now close up shop. For one thing, Batson rests on federal grounds of equal protection, whereas Wheeler and its progeny rest on state constitutional rights to trial by an impartial jury. For another, Batson is not the final word in this area -- as the majority recognized, and as Justice White emphasized in concurrence, "[m]uch litigation will be required to spell out the contours of the Court's Equal Protection holding. . . ." 476 U.S. at n. 24 & , 106 S. Ct. at 1724 n. 24 & 1725, 90 L. Ed. 2d at 90 n. 24 (majority) & 91 (White, J., concurring).

Accordingly, we base our decision on the New Jersey Constitution, which protects fundamental rights independently of the United States Constitution. See "Symposium: The Emergence of State Constitutional Law," 63 Tex.L.Rev. 959 (1985) (especially Pollock, "Adequate and Independent State Grounds as a Means of Balancing the Relationship Between State and Federal Courts," id. at 977; and Utter, "Swimming in the Jaws of the Crocodile: State Court Comment on Federal Constitutional Issues when Disposing of Cases on State Constitutional Grounds," id. at 1025); Pollock, "State Constitutions as [103 NJ Page 523] Separate Sources of Fundamental Rights," 35 Rutgers L.Rev. 707 (1983); Handler, "Expounding the State Constitution," 35 Rutgers L.Rev. 202 (1983); Brennan, "State Constitutions and the Protection of Individual Rights," 90 Harv.L.Rev. 489 (1977). We previously have construed our state constitution as providing greater protection to our citizens' individual rights than accorded them under the federal constitution. State v. Williams, 93 N.J. 39 (1983); State v. Hunt, 91 N.J. 338, 353 (1982); State v. Schmid, 84 N.J. 535, 537 (1980), appeal dism'd. sub nom. Princeton Univ. v. Schmid, 455 U.S. 100, 102 S. Ct. 867, 70 L. Ed. 2d 855 (1982). We do so here as well. In this regard, the Appellate Division tersely and aptly summarized the history of our state constitutional right to trial by an impartial jury drawn from a representative cross-section of the community. 199 N.J. Super. at 398.*fn2 We refer to federal constitutional law

only as establishing the floor of minimum constitutional protection. Furthermore, when we cite federal or other state court opinions in construing the provisions of our Constitution, we rely upon them merely for the purpose of guidance, not as compelling the result we reach on independent state grounds.


First, we must analyze the defendant's constitutional right to trial by an impartial jury under Article I of the New Jersey Constitution. Paragraph 5 provides that "[n]o person shall be denied the enjoyment of any civil . . . right, nor be discriminated against in the exercise of any civil . . . right, . . . because of religious principles, race, color, ancestry or national origin." Furthermore, we have interpreted paragraph 1 as prohibiting such discrimination on the basis of sex. Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 79 (1978). Paragraph 9 provides that "[t]he right of trial by jury shall remain inviolate. . . ." Finally, paragraph 10 provides that "[i]n all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury. . . ." Read together, these provisions guarantee that in all criminal prosecutions the defendant is entitled to trial by an impartial jury without discrimination on the basis of religious principles, race, color, ancestry, national origin, or sex.

This right to trial by an impartial jury, in our heterogeneous society where a defendant's "peers" include members of many diverse groups, entails the right to trial by a jury drawn from a representative cross-section of the community. The principal rationale for this entailment, expressed best by the California Supreme Court in People v. Wheeler, supra, 22 Cal. 3d 258, 148 Cal.Rptr. 890, 583 P. 2d 748, 755 (Cal.1978),

is that in our heterogeneous society jurors will inevitably belong to diverse and often overlapping groups defined by race, religion, ethnic or national origin, sex, age, education, occupation, economic condition, place of residence, and political affiliation; that it is unrealistic to expect jurors to be devoid of opinions, preconceptions, or even deep-rooted biases derived from their life experiences in such groups; and hence that the only practical way to achieve an overall impartiality is to encourage the representation of a variety of such groups on the jury so that the respective biases of their members, to the extent they are antagonistic, will tend to cancel each other out.

In short, the main point of the representative cross-section rule is "to achieve an overall impartiality by allowing the interaction of diverse beliefs and values the jurors bring from their group experiences," Wheeler, supra, 583 P. 2d at 761, and in this manner to vindicate the defendant's right to trial by an impartial jury in our heterogeneous society. The point is not to guarantee proportional representation of every diverse group on every jury, let alone to mandate disproportional representation by setting aside a spot for every discrete group on every jury.

Article I, paragraph 5 implicates not only the defendant's civil rights but also those of citizens generally -- and, historically, one of the rights and obligations of citizenship has been to participate in the administration of justice by serving on grand and petit juries. Concomitantly, the representative cross-section rule not only promotes the overall impartiality of the deliberative process but also enhances the legitimacy of the judicial process in the eyes of the public by serving the following "other essential functions": "legitimating the judgments of the courts, promoting citizen participation in government, and preventing further stigmatizing of minority groups." Wheeler, supra, 583 P. 2d at 755 n. 6. See Note, "Limiting the Peremptory Challenge: Representation of Groups on Petit Juries," 86 Yale L.J. 1715, 1725-31, 1736 (1977).

Along these lines, both federal and state courts have often repeated the seminal language of Smith v. Texas, 311 U.S. 128, 130, 61 S. Ct. 164, 165, 85 L. Ed. 84, 86 (1940) (footnote omitted):

It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.

For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government.

See Thiel v. Southern Pac. Co., 328 U.S. 217, 220, 66 S. Ct. 984, 985, 90 L. Ed. 1181, 1185 (1946); Ballard v. United States, 329 U.S. 187, 192-94, 67 S. Ct. 261, 263-65, 91 L. Ed. 181, 185-86 (1946); Peters v. Kiff, 407 U.S. 493, 503-04, 92 S. Ct. 2163, 2168-69, 33 L. Ed. 2d 83, 94 (1972); Taylor v. Louisiana, supra, 419 U.S. at 530-31, 95 S. Ct. at 697-98, 42 L. Ed. 2d at 698 (1975).

Recognizing this, we have noted that "no one may be disqualified from service as a grand or petit juror because of 'race, color, creed, national origin, or ancestry'" (citing former N.J.S.A. 2A:72-7), and held that "[t]he methods of selection must be so designed as to insure that juries are impartially drawn from community cross-sections." State v. Rochester, 54 N.J. 85, 88 (1969). The present N.J.S.A. 2A:72-7 provides that "[n]o citizen possessing all other qualifications prescribed by law shall be disqualified for service as a grand or petit juror in any court on account of race, color, creed, national origin, ancestry, marital status or sex." The statute thus is congruent with Article I, paragraph 5, taken together with Article I, paragraph 1, as to the impermissible bases of discrimination in the exercise of civil rights. The State's specific obligation to afford trial by an impartial jury under the representative cross-section rule therefore accords with its general obligation to govern impartially under equal protection principles.

The representative cross-section rule, if it is to be adequate to serve its principal and subsidiary functions, must at least prohibit discrimination against these discrete, cognizable groups.*fn3 Moreover, it must apply not merely to methods of

selection of the jury venire but as well to methods of selecting the petit jurors from the jury venire, and so to the stage of exercising challenges for cause and peremptory challenges.

That is, the constitutional right to trial by an impartial jury -- which of necessity is the right to trial by an impartial petit jury -- is not merely the right to an impartial jury venire drawn from a representative cross-section of the community. In McCray v. Abrams, the Second Circuit incisively drained the distinction between ...

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