filed: December 31, 1992; As Corrected January 7, 1993.
On Appeal from the United States District Court for the District of New Jersey. (D.C. Civ. No. 88-3948).
Before: Mansmann, Cowen and Roth, Circuit Judges. Before, Sloviter, Chief Judge, and Stapleton, Mansmann, Greenberg, Hutchinson, Scirica, Cowen, Nygaard, Alito, and Roth, Circuit Judges.
During the selection of the grand jury which indicted appellant, Thomas Ramseur, the assignment Judge, through statements and actions, treated certain African-American members of the venire differently because of their race. There is, however, nothing in the record to indicate any actual exclusion from appellant's grand jury of African-American jurors on account of their race. This appeal requires us to address the difficult question of whether these events comprise a constitutional violation. We must also determine whether the grand and petit juries that tried and convicted the appellant were drawn from lists that unconstitutionally underrepresented African-Americans and whether the procedures used in Essex County, New Jersey, to select grand jury forepersons violated the Equal Protection Clause of the Fourteenth Amendment or the Sixth Amendment's guarantee of a trial by a jury drawn from a cross-section of the community. Finally, we must determine whether misconduct by the prosecutor in this case denied appellant his constitutional right to a fair trial. Appellant, Thomas Ramseur, has advanced these grounds in his petition for a writ of habeas corpus. The district court denied his petition. For the reasons that follow, we will affirm the denial of the petition but will do so for the reasons we state below.
On May 12, 1983, a jury found Thomas Ramseur guilty of the murder of Asaline Stokes, his former girlfriend. He was convicted on all counts charged in the indictment against him: (1) murder (N.J.S.A. 2C:11-3); (2) unlawful possession of a knife under circumstances not manifestly appropriate for lawful use (N.J.S.A. 2C:39-5d); and (3) unlawful possession of a knife with the purpose of using it against another (N.J.S.A. 2C:39-4d). Following the sentencing phase of the bifurcated trial, the jury rendered a sentence of death that was imposed by the trial court on June 17, 1983.
On March 5, 1987, the New Jersey Supreme Court affirmed Ramseur's convictions on all counts but reversed his death sentence. See State v. Ramseur, 106 N.J. 123, 524 A.2d 188 (1987). Ramseur then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the U.S. District Court for the District of New Jersey.*fn1 On March 14, 1990, the district court denied Ramseur's petition for a writ of habeas corpus. This appeal followed. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 2241. Our scope of review of a district court's Conclusions of law with regard to a state prisoner's petition for a writ of habeas corpus is plenary. See Humanik v. Beyer, 871 F.2d 432, 435 (3d Cir. 1989), cert. denied, 493 U.S. 812, 107 L. Ed. 2d 25, 110 S. Ct. 57 (1989).
The crux of Ramseur's complaint is that the procedure used to empanel grand jurors in Essex County violated his right to equal protection of the laws under the Fourteenth Amendment. Resolving this issue requires a close examination of the procedure used to empanel grand juries in the county prior to and at the time of Ramseur's indictment.
We will describe in Part III how the juror source lists were created in Essex County, panels of qualified jurors selected from those lists, and summonses sent to persons randomly designated for the grand jury panels. Many potential jurors, upon receipt of the summons to jury service and the realization that grand jury service would last for a six week period, would submit a written request for an excuse. The clerk's office would screen these excuses and meritorious requests would be granted before the jurors actually appeared for service. Prior to the assembly of the venire, the assignment Judges for Essex County would review the letters and questionnaires received. At the actual selection, the assignment Judges would question each juror and reconsider the excuses previously requested but denied. The assignment Judge who empaneled Ramseur's grand jury used the following procedure once the venire was assembled: First, the Judge briefly interviewed each juror. Then he did one of three things: excused the juror for cause, asked the juror to take a seat in the body of the courtroom for the time being, or asked the juror to take a seat on the panel. Those he asked to sit in the body of the courtroom fell into one of two groups. The first group consisted of those persons who had asked to be excused but whose excuses had been denied. They were asked to sit in the body of the courtroom with the understanding that they might be called upon to serve later, after all of the other prospective jurors had been questioned. The second group consisted of persons who proffered no excuse, stated they were willing to serve, but were nonetheless asked to sit aside.
In the course of empaneling Ramseur's grand jury, the Judge announced that he was attempting to "pick a cross section of the community" to serve on the grand jury. App. at 2429. Later, he asked Esther Catagen, app. at 2447, and George Smith, app. at 2438, to sit in the body of the courtroom although both had stated they were willing to serve. When the assignment Judge reached Betty Patrick, the forty-third prospective juror in the selection of Ramseur's grand jury, Ms. Patrick indicated that she was willing to serve. However, the Judge asked her to take a seat in the body of the courtroom and stated:
I don't mind telling you, ladies and gentlemen of the jury or the panel of the grand jury, I am trying to get a cross-section; and as you've probably noticed, I have asked two of the blacks who have indicated a willingness to serve to sit in the body of the courtroom. I am deliberately trying to get an even mix of people from background and races, and things like that. And if any of you think that I am in any way being sneaky about it, please understand that I am not. I am telling you like it is, and that is the reason I have done what I have done.
App. at 2449-2450.*fn2 Following this announcement, the Judge asked two other panel members who expressed a willingness to serve, Francena Hardwick, app. at 2453, and Orro Ikena, app. at 2454, to sit in the body of the courtroom.
After panel members one through twenty-two had been selected, but prior to voir dire, the assignment Judge asked Ms. Catagen to come up from the body of the courtroom and take seat number twenty-three. The Judge then embarked on voir dire of the jurors assembled. One of the jurors explained that she was "prejudiced against certain people, certain races." The Judge excused that juror, explaining, "I appreciate your honesty, and we don't want people like you to serve on the Grand Jury." App. at 2464. That juror was replaced by Orro Ikena. At that point Mr. Ikena proffered an excuse which the court accepted. Ms. Patrick was then asked to take the seat to which Mr. Ikena had been assigned. Ultimately, George Smith, the fifth juror who had expressed a willingness to serve but was initially asked to sit in the body of the courtroom, also found his way onto the panel although the transcript does not reflect how this came about. Ms. Hardwick, who had expressed a willingness to serve but was nonetheless asked to sit in the body of the courtroom, was never chosen as a grand juror. The record does not clearly establish the race of Mr. Ikena, Mr. Smith, or Ms. Hardwick.
N.J.S.A. 2A:73-1 provides:
If from any grand jury panel, more persons remain available for service, after excuses have been allowed, than are necessary to constitute the grand jury, the persons whose names are first drawn and not excused, not to exceed twenty-three in number, shall constitute the grand jury.
The random selection procedure set forth in the New Jersey statute was routinely ignored by the assignment Judges of Essex County at the time Ramseur's grand jury was chosen.*fn3 At a hearing regarding Ramseur's allegations in 1983, one assignment Judge stated that rather than selecting jurors randomly "it may be on the basis of my observation of them that I feel that they should not be selected." App. at 3883-3884. Asked if his choices were made as a result of his "discretionary judgment about each person," the Judge responded, "There is no question about that." Id. The record in this case contains many similar statements that show that Essex County assignment Judges used subjective criteria to select grand jurors and often considered race, "a racial balance" or a "cross section" of black and white jurors when assembling grand juries.*fn4
Based upon the protections of the Equal Protection Clause of the Fourteenth Amendment, the United States Supreme Court "gradually has abolished race as a consideration for jury service." Georgia v. McCollum, 120 L. Ed. 2d 33, 112 S. Ct. 2348, 2352 (1992). "Racial discrimination in the qualification or selection of jurors offends the dignity of persons and the integrity of the courts." Powers v. Ohio, 113 L. Ed. 2d 411, 111 S. Ct. 1364, 1366 (1991). Discrimination on the basis of race in the selection of grand jurors is unacceptable and "'strikes at the fundamental values of our judicial system and our society as a whole.'" Vasquez v. Hillery, 474 U.S. 254, 262, 88 L. Ed. 2d 598, 106 S. Ct. 617 (1986) (quoting Rose v. Mitchell, 443 U.S. 545, 556, 61 L. Ed. 2d 739, 99 S. Ct. 2993 (1979)).
Discrimination in the jury selection process harms the defendant, prospective and actual jurors, and the community as a whole. The defendant has an "interest in neutral jury selection procedures . . . because racial discrimination in the selection of jurors casts doubt on the integrity of the judicial process, and places the fairness of a criminal proceeding in doubt." Powers, 111 S. Ct. at 1371. Jurors have the right to be unmarred by public discrimination in the Justice system. In Edmonson v. Leesville Concrete Co., 114 L. Ed. 2d 660, 111 S. Ct. 2077, 2087 (1991), the Court explained that the harm of discriminatory peremptory challenges includes the danger that "persons could be required by summons to be put at risk of open and public discrimination as a condition of their participation in the Justice system." Discrimination in the jury selection process undermines the Justice system, and, thereby, the whole of our society.
The injury caused by the discrimination [in the jury selection process] is made more severe because the government permits it to occur within the courthouse itself. Few places are a more real expression of the constitutional authority of the government than a courtroom, where the law itself unfolds. Within the courtroom, the government invokes its laws to determine the rights of those who stand before it. In full view of the public, litigants press their cases, witnesses give testimony, juries render verdicts, and Judges act with the utmost care to ensure that Justice is done.
Race discrimination within the courtroom raises serious questions as to the fairness of the proceedings conducted there. Racial bias mars the integrity of the judicial system and prevents the idea of democratic government from becoming a reality.
Edmonson, 111 S. Ct. at 2077.
The Court has ruled that a determination of racial discrimination in the selection of grand jurors will support the quashing of a resulting indictment and reversal of the conviction.*fn5
Intentional discrimination in the selection of grand jurors is a grave constitutional trespass, possible only under color of state authority, and wholly within the power of the state to prevent. Thus, the remedy we have embraced for over a century--the only effective remedy for this violation--is not disproportionate to the evil that it seeks to deter. If grand jury discrimination becomes a thing of the past, no conviction will ever again be lost on account of it.
Vasquez, 474 U.S. at 262.*fn6
In order to establish an equal protection violation, a party must show that there has been some actual "purposeful discrimination" in the jury selection process. See Batson v. Kentucky, 476 U.S. 79, 96, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). The crucial question at issue in the present case is whether such purposeful discrimination has been demonstrated. In Batson, which involved the discriminatory use of peremptory challenges by the prosecution in choosing a petit jury, the Court held that "a single invidiously discriminatory governmental act" is sufficient to constitute a constitutional violation. See id. at 95-96. In Batson this meant that, rather than having to show a systematic race-based exclusion of petit jurors through the use of peremptory challenges, a criminal defendant could show that in his case alone the prosecutor exercised peremptory challenges to exclude members of the defendant's race from the jury. See id.
"The basic principles prohibiting exclusion of persons from participation in jury service on account of their race 'are essentially the same for grand juries and for petit juries.'" Id. at 84 n.3 (quoting Alexander v. Louisiana, 405 U.S. 625, 626, 31 L. Ed. 2d 536, 92 S. Ct. 1221 n.3 (1972)). Therefore, the analog to Batson in the context of grand jury selection is that, to establish a Fourteenth Amendment violation, a defendant must demonstrate purposeful discrimination in the selection of the grand jury panel that indicted him.
The present case, however, presents a rather unusual factual situation. Here, it cannot be said that any prospective grand jurors were actually excluded from grand jury service on the basis of their race. The record indicates that two African-American prospective grand jurors were asked to sit in the body of the courtroom, for possible later selection, because they were African-American. These two prospective jurors were eventually empaneled. While an additional prospective grand juror was asked to sit in the body of the courtroom and was not subsequently empaneled, it is impossible to discern from the record either her race or whether she was initially passed over because of her race of because of some other factor such as her "background." Therefore, this case presents the difficult question of whether purposeful discrimination may be shown absent proof of the actual exclusion from jury service of someone on the basis of her race.
Under the rationale articulated in Batson and its progeny,*fn7 it is necessary to establish three elements to raise an inference of discrimination in the context of grand jury selection. First, the prospective juror allegedly discriminated against must be a member of a cognizable racial group. See Batson, 476 U.S. at 96 (prohibiting use of peremptory challenges to strike members of defendant's racial group); Powers, 111 S. Ct. at 1368 (extending Batson to prohibit use of peremptory challenges to strike jurors on the basis of their race regardless of whether their race is the same as the defendant's race). Second, there must be "a jury selection practice that permits 'those to discriminate who are of a mind to discriminate.'" Batson, 476 U.S. at 96 (quoting Avery v. Georgia, 345 U.S. 559, 562, 97 L. Ed. 1244, 73 S. Ct. 891 (1953)). Finally, the defendant must show that the "opportunity for discrimination" was utilized. See Batson, 476 U.S. at 96-97 (in peremptory challenge context, the "defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race"); Whitus v. Georgia, 385 U.S. 545, 552, 17 L. Ed. 2d 599, 87 S. Ct. 643 (1967) (discrimination in the selection of a jury venire found when names of prospective black and white jurors were separated on the list used to select jurors and there existed a substantial disparity between the percentage of blacks in the population and that in the jury venire).
In the present case, the first criterion is clearly met. The assignment Judge's statement, after three jurors were passed over for service, that he had asked two African-Americans to sit in the body of the courtroom in his effort to create a cross section of the community on the grand jury panel demonstrates that two prospective jurors, treated in this manner, were members of a cognizable racial group. Moreover, the second criterion is met. The practices employed by the assignment Judges in the Essex County grand jury selection processes provided an opportunity for discrimination. As documented by the assignment Judge's statements during the grand jury selection at issue and by his later testimony, the practice permitted the Judge subjectively to include or exclude jurors and provided the opportunity for discrimination based upon race. Cf. Vasquez, 474 U.S. at 256 (subjective judicial selection of grand jurors provided an opportunity for discrimination); Cassell v. Texas, 339 U.S. 282, 287, 94 L. Ed. 839, 70 S. Ct. 629 (1950) (jury commissioners' subjective selection of jury venire provided an opportunity for discrimination); Smith v. Yeager, 465 F.2d 272, 280 (3d Cir. 1972) (same); see also United States v. Calabrese, 942 F.2d 218, 227 (3d Cir. 1991) (procedures which allowed courts subjectively to add categories for juror exclusion to the Jury Selection and Service Act of 1988 provided an opportunity for discrimination).
The real problem here is whether that opportunity for discrimination was utilized absent the actual exclusion of a juror from the panel on the basis of race. The previous case law dealing with discrimination in the context of jury selection involves exclusion on account of race. See, e.g., McCollum, 112 S. Ct. at 2352 (defendant's use of peremptory challenges to exclude African-Americans); Batson, 476 U.S. at 83 (prosecutor's use of peremptory challenges to exclude blacks); Vasquez, 474 U.S. at 256 (grand jury assignment Judge's exclusion of blacks from grand jury service); Castaneda v. Partida, 430 U.S. 482, 493-94, 51 L. Ed. 2d 498, 97 S. Ct. 1272 (1977) (jury list's substantial underrepresentation of Mexican-Americans); Cassell, 339 U.S. at 286-87 (jury commissioners' proportional limitation of blacks on grand jury). Moreover, an analytical focus of discriminatory jury selection claims is upon the opportunity of our citizens to deliberate as jurors. As the Supreme Court has recently stated in Powers :
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. . . . 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. . . . 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.
Powers, 111 S. Ct. at 1368-69.
The Court has also recently emphasized that, in general, discrimination in the grand jury selection process could "impermissibly infect" court proceedings to the detriment of the defendant, prospective and actual jurors, and the community. See Vasquez, 474 U.S. at 263 (infection of proceedings could deny the defendant a fair trial); see also Edmonson, 111 S. Ct. at 2087 (noting the "risk of open and public discrimination as a condition of [jurors'] participation in the Justice system"); Powers, 111 S. Ct. at 1373 ("race neutrality in jury selection [is] a visible, and inevitable, measure of the judicial system's own commitment to the commands of the Constitution").*fn8
Viewing the facts of the present case in the light of precedent, we conclude that the statements and actions of the assignment Judge in the present case did not impermissibly infect the proceedings at issue and do not comprise an equal protection violation. First, there was no actual exclusion of a prospective juror on account of her race. The two jurors who were initially passed over based upon their race were eventually empaneled. Moreover, we are not willing to accept appellant's invitation to speculate, absent supporting evidence in the record, that Francena Hardwick, who was passed over and not seated, was both African-American and passed over on account of her race.*fn9 Therefore, no prospective juror's opportunity to deliberate was impermissibly denied for a tainted reason.
Second, we do not believe that the assignment Judge's statements and actions short of actual exclusion comprised an equal protection violation. The assignment Judge mentioned that he employed race as a factor in his effort to "pick a cross section of the community" and "get an even mix of people from background and races, and things like that." App. at 2429, 2449. He also temporarily asked two African-American prospective jurors to sit in the body of the courtroom until they were belatedly empaneled. While we find objectionable this subjective sorting of the jury members and the Judge's statements about balancing the jury according to race, we cannot conclude that these activities violated the Equal Protection Clause. While subjectively rigging the jury to represent his vision of the appropriate representation of Essex County's population was ill-conceived, it apparently was not motivated by a desire to discriminate purposefully against African-Americans, nor was it apparently an attempt expressly to limit the number of African-Americans who could serve on an Essex County grand jury.
These factors distinguish the present case from Cassell, 339 U.S. at 288-89. Cassell involved jury commissioners' limitation of African-Americans on grand jury panels to one African-American per panel. The jury commissioners expressed both their belief in the legitimacy of proportionally limiting the number of African-Americans on grand jury panels to their representation in the general population and their opinions that they did not know any African-Americans who were qualified to serve as grand jurors. See id. The Court inferred, based upon such statements, that the jury commissioners had purposefully discriminated against African-Americans and engaged in "proportional limitation" of African-Americans on grand jury panels. See id. at 287. Here, the assignment Judges' statements demonstrate no such desire proportionally to limit the number of blacks to some cutoff figure, nor do they indicate the presence of purposeful manifestations of invidious discrimination. The Judge in the present case apparently wished the non-invidious objective of a representative jury. We are reluctant to infer an invidious discriminatory purpose when the record does not support such an inference. See, e.g., United States v. Bedonie, 913 F.2d 782, 795 (10th Cir. 1990), cert. denied, 115 L. Ed. 2d 1059, 111 S. Ct. 2895 (1991) (refusing to infer that use of peremptory strike of Native American prospective juror was racially motivated).
Moreover, the Judge who empaneled Ramseur's grand jury explicitly rebuked the legitimacy of racial discrimination in grand jury proceedings. When a juror had expressed that she was prejudiced against "certain people, certain races," the Judge, in excusing her, stated, "I appreciate your honesty, we don't want people like you to serve on the Grand Jury and I will be just as honest with you." See App. at 2464. To the extent that prospective jurors and the public might have interpreted the assignment Judge's jury sorting as purposeful discrimination, this rebuke of juror prejudice would countermand such an interpretation.*fn10 Unlike Batson and its peremptory challenge progeny, the present case involves no instances of the imprimatur of the state being given to discriminatory actions, such as exclusions. Rather, the present case involves statements and conduct, which although objectionable, simply do not warrant an inference of "purposeful" discrimination. Indubitably, we seek to eradicate discrimination from the grand jury selection process. However, the record here does not justify our finding either an invidious purpose to discriminate or a communication to the public by the assignment Judge that the state countenanced racial prejudice.*fn11
We will next address Ramseur's challenge to the juror source lists used in Essex County. Ramseur contends that, because it underrepresents the African-American community in Essex County, the composition of the juror source list and resulting qualified pool of jurors violates his Fourteenth Amendment right to Equal Protection of the laws and his Sixth Amendment right to a grand and petit jury drawn from a cross-section of his community.*fn12 We will first set forth the factual basis for his claim and then explore the legal framework within which these facts must be examined.
Since 1979, grand and petit juries in Essex County have been chosen from a source list consisting of the names found on the Department of Motor Vehicles licensed driver list and the voter registration list. From this source list, which is arranged by municipality, there is derived a "master" list consisting of the names of all people to whom qualifying questionnaires may be sent. Jury managers decide the number of questionnaires to be sent based on the anticipated need for jurors and past experience regarding the rate of return expected from the questionnaire mailing. The appropriate number of questionnaires are then sent to people selected randomly from the source list. This method is designed to ensure that prospective jurors are selected from each street in each municipality without choosing more than one person from any one household.
Twenty to twenty-eight percent of the questionnaires sent are completed and returned. Those questionnaires are then screened for eligibility. Those who have served on a jury within the past seven years or who have received a questionnaire within the past four years are not eligible. If the response to the questionnaire indicates extreme hardship, the potential juror is excused. The remaining names are placed on the "qualified" list. Once the qualified list is completed, jury managers make a random selection of grand jurors from it. Those who are not chosen as grand jurors are designated as petit jurors. The resulting lists are divided into panels and summonses are sent to the jurors on the panels, ordering them to report for jury duty.
The 1980 census figures indicated that African-American adults in Essex County comprised 35.9 percent of the population of those between the ages of eighteen and seventy-four. Defense experts in this case conducted three separate surveys between 1981 and 1982 in order to determine the percentage of African-Americans on the jury lists. Two were telephone surveys -- one conducted in May 1981, the other in May 1982. The third was a geographic inference survey, a study in which the race of each juror is inferred from census information regarding the racial makeup of the area of Essex County in which the juror lives. See Ramseur, 106 N.J. at 214 n.41; 524 A.2d at 233 n.41. By averaging the results of the telephone surveys and the geographic inference study, defense experts concluded that only 21.2% of the persons on the source list and 21.8% of those on the qualified list were African-American.
The Equal Protection Clause of the Fourteenth Amendment requires the eradication of "racial discrimination in the procedures used to select the venire from which individual jurors are drawn." Batson v. Kentucky, 476 U.S. 79, 86, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). The Sixth Amendment requires that jurors be drawn from pools that represent a "fair cross-section" of the community. "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." Duren v. ...