Summary
holding that a Batson challenge can be raised "regardless of whether jury selection has been completed"
Summary of this case from Mooney v. StateOpinion
Argued January 14, 1992
Decided April 3, 1992
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Frederic S. Berman, J.
Steven R. Bernhard for appellant in the first above-entitled action.
Robert M. Morgenthau, District Attorney (Christina Welykyj and Mark Dwyer of counsel), for respondent in the first above-entitled action.
Nancy E. Little for appellant in the second above-entitled action.
Robert M. Morgenthau, District Attorney (Donna Krone of counsel), for respondent in the second above-entitled action.
These appeals, involving application of the rules developed in Batson v Kentucky ( 476 U.S. 79), raise two questions: (1) whether a prima facie showing of discrimination may be established before completion of the jury selection process and (2) whether defense counsel established a prima facie case that the prosecution had violated the Equal Protection Clauses of the Federal and State Constitutions by exercising peremptory challenges for discriminatory purposes (US Const 14th Amend; NY Const, art I, § 11). In People v Bolling, we hold that defense counsel established a prima facie case and, inasmuch as the prosecutor failed to provide racially neutral reasons for his challenges, the judgment must be modified. In People v Steele, we hold that a prima facie case was not established and consequently affirm the order of the Appellate Division.
In Batson v Kentucky (supra) the prosecutor used peremptory challenges to strike four African-Americans from the jury so that defendant, an African-American, was tried by an all-Caucasian jury. The Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment forbids the use of peremptory challenges solely for discriminatory purposes. Finding that a prima facie case of discrimination had been established, the Court remanded the case to enable the prosecutor to provide racially neutral reasons for the strikes or, in the absence thereof, for a new trial. The Court set forth three steps for establishing prima facie that the prosecutor used peremptory challenges to discriminate in selecting the petit jury. The defendant must show (1) that he or she is a member of a cognizable racial group, (2) that the prosecutor's use of peremptory challenges resulted in the exclusion of members of defendant's race from the jury, and (3) facts and other relevant circumstances sufficient to raise an inference that the prosecutor used the challenges for discriminatory purposes (Batson v Kentucky, supra, at 96; People v Jenkins, 75 N.Y.2d 550, 555-556; People v Scott, 70 N.Y.2d 420, 423). Once the defendant makes a prima facie showing of discrimination, the burden shifts to the prosecution to present racially neutral explanations for the challenges. It cannot rebut defendant's prima facie case, however, by merely alleging its good faith or by claiming that the stricken jurors would be biased because they shared defendant's race (Batson v Kentucky, supra, at 97-98; People v Scott, supra, at 423). We have held that the discriminatory use of peremptory challenges also violates the Equal Protection Clause of the State Constitution (see, People v Kern, 75 N.Y.2d 638).
In the matters before us, defendants satisfied the first two requirements by showing that they are African-Americans and that the prosecution struck several African-American jurors. To satisfy the third, and raise an inference of discrimination, defendants allege a "pattern" of strikes used by the prosecution against African-Americans during the jury selection process (see, Batson v Kentucky, supra, at 97).
In People v Bolling, defense counsel's challenge came after counsel had questioned the first 12 prospective jurors. Five African-Americans were examined and all were dismissed, four by the prosecution. In People v Steele, defendant bases her claim on strikes made during selection of the first 21 jurors. At that time, six African-Americans had been examined and the prosecution had removed three by peremptory challenges.
We conclude that a defendant may assert a claim that peremptory challenges are being used for discriminatory purposes when those challenges are exercised, regardless of whether jury selection has been completed. Although Batson addressed the harm caused when a defendant is tried by a tribunal from which members of his own race have been excluded, that was only one of the "'multiple ends'" the decision was designed to serve (see, Allen v Hardy, 478 U.S. 255, 259 [quoting from Brown v Louisiana, 447 U.S. 323, 329]). The Supreme Court recognized, as have we, that a prosecutor's discriminatory use of peremptory challenges violates the Equal Protection Clause not only because it violates the defendant's rights but also because it harms excluded jurors and the community-at-large (see, Powers v Ohio, 499 US ___, ___, 113 L Ed 2d 411, 422 [Caucasian defendants have standing to object to prosecutor's strikes against African-American jurors]; People v Jenkins, 75 N.Y.2d 550, 557, supra; People v Kern, 75 N.Y.2d 638, 652, supra). The purpose of the Batson rule is to eliminate discrimination, not minimize it and, therefore, it is inconsequential that, after defense counsel voiced their objections, these prosecutors permitted African-Americans to sit on the jury. "[T]he exclusion of any blacks solely because of their race" is constitutionally forbidden (People v Jenkins, 75 N.Y.2d 550, 559, supra [emphasis in original]). The wrong may occur after only one strike and the prosecution cannot defer the objection and later overcome it with evidence that the jury, as finally selected, contained a proportionate number of African-Americans (see, United States v Johnson, 873 F.2d 1137, 1139-1140; United States v Clemons, 843 F.2d 741, 747, cert denied 488 U.S. 835; People v Jenkins, 75 N.Y.2d 550, 557, supra). Accordingly, the motions were appropriate when made and we focus on whether defendants established a prima facie case of discrimination in the cases before us. The question is one of law reviewable by this Court (People v Scott, 70 N.Y.2d 420, 425, supra). People v Bolling
Jury selection began with the court excusing a number of disqualified persons on the venire. The court then filled the jury box with 16 potential jurors. Five of the first 12 were African-American and, after counsel had examined them, challenges were exercised. No jurors were excused for cause. The prosecution struck five jurors peremptorily, four African-Americans and one of Asian ancestry. Defense counsel struck the one remaining African-American and three non-African-Americans. Defense counsel then objected to the prosecution's use of peremptories to exclude the four African-Americans. The court failed to rule on the objection and jury selection continued until the end of the day. The remaining four potential jurors in the original panel of 16 were then chosen without objection. Two of the four were African-American.
The next day, defense counsel renewed his objection, amplifying his claim of discrimination by asserting that two of the African-Americans the prosecution excluded were "pro-prosecution" because they had ties to law enforcement: one was the girlfriend of a police officer and a crime victim and the other was a security supervisor in charge of preventing crime. The Assistant District Attorney did not deny counsel's statement but noted two African-Americans had been selected to sit from the four jurors questioned after the objection had been made. Based upon this, the court determined that there had been no attempt to systematically exclude African-Americans. Defense counsel did not renew his Batson objection thereafter and ultimately it appears that five of the selected jurors were African-American, with an additional African-American person sitting as an alternate.
The Appellate Division, First Department, affirmed, noting that the jury as chosen consisted of at least five African-Americans and finding that defendant had failed to establish a prima facie case that the prosecutor exercised peremptory challenges in a purposefully discriminatory manner (People v Bolling, 166 A.D.2d 203).
People v Steele
The same process was used for jury selection in Steele. Of the first 12 prospective jurors seated, nine were Caucasian and three were African-American. After the prosecution peremptorily challenged two of the three African-Americans, defense counsel objected that the prosecution was discriminating in the exercise of its challenges because defendant was an African-American female and the two prospective jurors stricken by the prosecution were also African-American females. He offered no other evidence that the strikes were exercised for discriminatory purposes. The court found that, inasmuch as they were only talking about two jurors, no pattern had been established but instructed defense counsel that he could renew his application if a pattern developed. The next four prospective jurors included one African-American. The prosecution exercised no peremptory challenges, while defense counsel exercised three against Caucasians. The next three jurors included two African-Americans and the prosecution and defense each excluded one of them. At this point, defense counsel again objected to the prosecution's exclusion of African-Americans. The court overruled the objection, noting that two of the jurors selected were African-American and stating that it could see no pattern of discrimination. Two Hispanic women were then considered, with each side peremptorily striking one. Defense counsel objected for the third time because the prosecution had used its challenge to exclude another "non-white." The court merely noted the objection. Thus, at the conclusion of the first day of jury selection, 21 prospective jurors had been examined, six African-Americans and 15 non-African-Americans. The prosecution struck three African-Americans and one non-African-American peremptorily. Jury selection was concluded the next day.
On appeal, the Appellate Division affirmed the judgment, finding defendant had failed to establish a prima facie case of purposeful discrimination. The court emphasized that, although three African-Americans were excluded, three others were not challenged by the prosecution (People v Steele, 171 A.D.2d 599).
Defendant Steele rests her claim of discrimination on the selection process prior to the third objection, after 21 prospective jurors had been examined. At this point, the prosecution had exercised three of four peremptory challenges to exclude three of six African-Americans.
There are no fixed rules for determining what evidence will give rise to an inference sufficient to establish a prima facie case of discrimination. In Batson the Supreme Court listed, as examples, a pattern of strikes or questions and statements made by the prosecutor during voir dire suggesting discriminatory motives (see, Batson v Kentucky, 476 U.S. 79, 97, supra; see also, People v Jenkins, 75 N.Y.2d 550, 556, supra). The defendant may also raise an inference of discrimination by making a record comparing Caucasians accepted with similarly situated African-Americans challenged, or by establishing objective facts indicating that the prosecutor has challenged members of a particular racial group who might be expected to favor the prosecution because of their backgrounds (see, e.g., United States v Jordan, 893 F.2d 182, 184, vacated on other grounds 496 U.S. 902; People v Scott, 70 N.Y.2d 420, 425, supra). The mere inclusion of some members of defendant's ethnic group will not defeat an otherwise meritorious motion (United States v Clemons, 843 F.2d 741, 747, supra; People v Jenkins, supra, at 557). Although the racial distribution of those on the jury, as compared to the population generally, is not relevant to establish a prima facie case (see, Holland v Illinois, 493 U.S. 474, 482-483; People v Jenkins, supra, at 558), a disproportionate number of strikes challenging members of a particular racial group within a venire may be sufficient to create an inference establishing a prima facie claim (see, Batson v Kentucky, supra, at 97; People v Jenkins, supra, at 556). Generally, however, percentages will not be conclusive of the issues (see, United States v Jordan, 893 F.2d 182, 184, supra; United States v Lewis, 892 F.2d 735, 736; but see, United States v Alvarado, 923 F.2d 253, 255-256 ). Finally, when a Batson objection has been made, defendant is entitled to the benefit of the proposition that peremptory challenges permit those inclined to discriminate to do so (see, Batson v Kentucky, supra, at 96; and see generally, 2 LaFave and Israel, Criminal Procedure § 21.3 [1991 Pocket Part]).
Because we have no record of the questions posed during voir dire in these cases, our determination must rest upon the claimed discriminatory pattern of strikes as they relate to the prospective jurors examined and the few facts developed during colloquy.
In Bolling, the prosecution exercised five peremptory challenges, four to exclude African-American members of the venire. African-Americans comprised 42% of the 12 prospective jurors, and 80% of them were excluded by the prosecution. This disproportionate number of challenges to African-American prospective jurors coupled with defendant's uncontested assertion that two of the four jurors excused by the Assistant District Attorney had proprosecution backgrounds was sufficient to raise an inference that the Assistant District Attorney had used his peremptories to discriminate. Accordingly, the court should have required the prosecutor to give reasons establishing that the strikes were for racially neutral reasons. If he was unable to do so, the court should have sustained the objection, and seated the juror notwithstanding the prosecutor's challenge (see, People v Kern, 75 N.Y.2d 638, supra). The reasons given for denying the motion, that the prosecution had subsequently accepted two African-American jurors, was legally irrelevant.
This is not to say that if the strikes were proportionate to the number of African-Americans on the venire that there could be no pattern of strikes. Disproportionality is only one indicia of the discriminatory use of peremptory challenges.
Defendant Steele also relies on a pattern of strikes. In her case, the prosecution struck three of the six African-Americans available. While the prosecutor exercised three of her four challenges against African-Americans, that alone is not sufficient to establish a pattern of exclusion of African-Americans. In the absence of a record demonstrating other facts or circumstances supporting a prima facie case, the defendant failed to establish a pattern of purposeful exclusion sufficient to raise an inference of discrimination.
We have considered the remaining issues raised by defendants and find none is a ground for reversal.
Accordingly, in People v Bolling the order of the Appellate Division should be modified by remitting to Supreme Court, New York County, for a hearing to afford the People an opportunity to provide racially neutral reasons for the exercise of their peremptory strikes. In the absence of such explanation, the judgment of conviction should be vacated and a new trial ordered. Should satisfactory explanation be provided by the People, the judgment of conviction should be amended to show that result (see, Batson v Kentucky, 476 U.S. 79, 100, supra; People v Jenkins, 75 N.Y.2d 550, 560, supra). In People v Steele the order should be affirmed.
We concur in the result and in Judge Simons' opinion, but write separately to express a broader concern and perspective.
We agree that "[t]he purpose of the Batson [Batson v Kentucky, 476 U.S. 79] rule is to eliminate discrimination, not minimize it" (majority opn, at 321). The Court's conclusions are correct — in this case, Bolling, the prosecutor should have been required to give racially neutral reasons to rebut defendant's prima facie case of discriminatory peremptory strikes, and in Steele the defendant failed to establish a prima facie case. We agree with these results because People v Jenkins ( 75 N.Y.2d 550) could not be more explicit in its guidance: "For the purposes of equal protection, the constitutional violation is the exclusion of any blacks solely because of their race. If any blacks are so excluded, it is of no moment that the jury nevertheless contains a token number of blacks" (supra, at 559 [emphasis in original]).
The rationale of Bolling, however, along with the eight-year experience in this State with the effectiveness — or lack of same — of the Batson remedy, and the proliferation and permutation of problems in the appellate pipeline, point inexorably to the need for a broader remedy: the elimination of the peremptory challenge process. If the purpose, quoted above, is to be honored and achieved, then the euphemisms and the rationalizations should be ended. Peremptories have outlived their usefulness and, ironically, appear to be disguising discrimination — not minimizing it, and clearly not eliminating it. The time and circumstances warrant the Legislature addressing these important issues.
The process that requires courts to sift through counsel's words for patterns or pretexts of discrimination has not served the goal of cutting the discriminatory weeds out of the jury selection process. Indeed, "[a]s much as and perhaps more than the decision in Swain [v Alabama, 380 U.S. 202], Batson brings to the surface and appears to ratify crude and unbecoming ways of classifying human beings" and "to disapprove some invidious discrimination while apparently validating much more" (Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U Chi L Rev 153, 201 [1989]).
Analytically, peremptories and race-neutral articulations present a quintessential and untenable dualism. A peremptory challenge by its nature should not have to be explained. CPL 270.25 opens with this sentence: "A peremptory challenge is an objection to a prospective juror for which no reason need be assigned." Batson, of course, necessarily changed that. Yet, the Batson approach has proved unworkable and, in the State judicial laboratories, has rather quickly proved wrong the Batson Court's confidence that Judges "will be able to decide if the circumstances concerning the prosecutor's use of peremptory challenges creates a prima facie case of discrimination" ( 476 U.S. 79, 97, supra), and — after asserted rationalizations are proffered — "to determine if the defendant has established purposeful discrimination" by the prosecutor, or vice versa (id., at 98 [emphasis added]).
Perversely, many varieties of discrimination, except the most overt, flagrant manifestations, appear to be surviving the scrutiny of the half-step Batson remedy. Time and experience with many cases have proven the prescience of Justice Marshall's observations, concurring separately in Batson, that "[m]erely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges in individual cases will not end the illegitimate use of the peremptory challenge" because Batson leaves prosecutors "free to discriminate against blacks in jury selection provided that they hold that discrimination to an 'acceptable' [or nonascertainable] level" (Batson v Kentucky, supra, at 105 [emphasis added]). Recognizing the inherent inadequacy of the remedy adopted in Batson to "eliminate" discrimination, Justice Marshall emphasized that "[a]ny prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill equipped to second-guess those reasons" (id., at 105-106). More troubling, "[e]ven if all parties approach the Court's mandate with the best of conscious intentions, that mandate requires them to confront and overcome their own racism on all levels" (id., at 106). Justice Marshall doubted they could meet that challenge, emphatically concluding that Batson would "not end the racial discrimination that peremptories inject into the jury-selection process" and that this goal will only be realized "by eliminating peremptory challenges entirely" (id., at 102-103). From the experience with our cases we, too, now see how correct Justice Marshall was.
Our Court, of course, has recognized and embraced the Supreme Court's historic half-step Batson remedy (see, People v Jenkins, 75 N.Y.2d 550, supra; People v Kern, 75 N.Y.2d 638; People v Hernandez, 75 N.Y.2d 350, affd 500 US ___, 111 S Ct 1859). In Kern, we evenhandedly condemned discriminatorily motivated peremptory strikes by defense lawyers. We have recognized that discrimination in the jury selection process "undermines public confidence in the fairness of our system of justice * * * and is repugnant to the just operation of a free society" (People v Jenkins, supra, at 558). Indeed, jury service — a "privilege [and duty] of citizenship" — is a civil right established by our State Constitution (NY Const, art I, §§ 1, 11; Civil Rights Law § 13) and a means of participating in government (People v Kern, supra, at 651-652).
The untenable duality of "arbitrary and capricious" peremptories (4 Blackstone, Commentaries, at 353; see, Batson v Kentucky, 476 U.S. 79, 102, supra [Marshall, J., concurring]) and the constitutionally required assertion of "adequate" neutral reasons, combined with the ease with which purportedly neutral reasons can be articulated, recently evoked a call that the Legislature reexamine the existing peremptory system (see, People v Hernandez, 75 N.Y.2d 350, 359, supra [Titone, J., concurring]; see also, 1990 Report of Advisory Comm on Crim Law and Procedure, reprinted in 1990 McKinney's Session Laws of NY, at 2856-2857; 1976-1977 Interim Report of Sub-committee on Jury System). The Legislature's attention has been summoned to many bias-related crime victim bills that are being debated this Session (see, e.g., S3576 and A5921; S3695 and A6235; S3696 and A6234), and for that reason also, we believe the call to attention and action with respect to the peremptory challenges problems becomes all the more urgent at this time.
The United States Supreme Court's effort at a "middle ground" remedy in Batson, which establishes the goal of eliminating discriminatory jury selection while simultaneously preserving the common-law peremptory process, appears therefore to be disserving both interests (Serr and Maney, Racism, Peremptory Challenges, and the Democratic Jury: The Jurisprudence of a Delicate Balance, 79 J Crim L Criminology 1, 2, 62 [1988]; see, Note, Batson v. Kentucky: A Half Step in the Right Direction, 72 Cornell L Rev 1026, 1038, 1046 [1987]). Considerable secondary, scholarly authorities since the Batson decision have focused on the inadequacy of its remedy and the need to eliminate or substantially alter the existing peremptory challenge system. Commentators have catalogued the veritable mine field of litigation generated by Batson, demonstrating that the effort to have it both ways has resulted in an "enforcement nightmare" (Pizzi, Batson v. Kentucky: Curing the Disease but Killing the Patient, 1987 Sup Ct Rev 97, 134).
The proliferation of Batson-generated trial court colloquies, counterproductive diversions and appellate cases have confirmed William Pizzi's observation: "If one wanted to understand how the American trial system for criminal cases came to be the most expensive and time-consuming in the world, it would be difficult to find a better starting point than Batson" (Pizzi, Batson v. Kentucky: Curing the Disease but Killing the Patient, 1987 Sup Ct Rev 97, 155; see, Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U Chi L Rev 153, 170-201 [1989]).
Moreover, the further procedural fragmentation of the already unduly lengthened jury selection process (see, People v Boulware, 29 N.Y.2d 135, cert denied 405 U.S. 995; CPL 270.25), by arithmetic and percentile calculations and intermittent persistent interruptions reflected in the remittal order in Bolling for a hearing (see, majority opn, at 325), is counterproductive and unwise. Further, in a relatively short time span, our Court and the Appellate Division have been grappling with Batson case after Batson case, raising a seemingly endless variety of issues and permutations, manifesting the intractable struggle of the lower courts to implement the unmanageable and self-contradictory Batson remedy (see, e.g., People v Simmons, 171 A.D.2d 1053, affd 79 N.Y.2d 1013; People v Brooks, 176 A.D.2d 812, lv granted 79 N.Y.2d 853; People v Hernandez, 176 A.D.2d 481, lv granted 79 N.Y.2d 858; People v Hawthorne, 175 A.D.2d 880, lv granted 79 N.Y.2d 858; People v McArthur, 178 A.D.2d 612, lv denied 79 N.Y.2d 950; People v Childress, 177 A.D.2d 498, lv denied 79 N.Y.2d 945). It has become virtually impossible for appellate courts or trial courts to discern proper gradations and variations and to provide meaningful procedural guidance guaranteeing some measure of consistent application. The Bolling case dramatically demonstrates the practical and intractable nature of these procedural diversions and digressions.
Indeed, considerable commentary analyzing the inadequacies of the Batson remedy has similarly concluded that the existing peremptory challenge system needs reexamination with a view toward purging the jury process of this device which preserves and hides considerable invidious discrimination (see, McMillian and Petrini, Batson v. Kentucky: A Promise Unfulfilled, 58 U Mo KC L Rev 361, 374 [1990]; Gurney, The Case for Abolishing Peremptory Challenges in Criminal Trials, 21 Harv CR-CL L Rev 227, 244, 283 [1986]; Massaro, Peremptories or Peers? — Rethinking Sixth Amendment Doctrine, Images, and Procedures, 64 NC L Rev 501, 560-561 ; Brown, McGuire and Winters, The Peremptory Challenge as a Manipulative Device in Criminal Trials: Traditional Use or Abuse, 14 New Eng L Rev 192, 233-234 [1978]; see also, Note, Redefining the Harm of Peremptory Challenges, 32 Wm Mary L Rev 1027, 1029 [1991]; Note, The Elimination of Racism from Jury Selection: Challenging the Peremptory Challenge, 32 BC L Rev 433, 485 [1991]; Note, Due Process Limits on Prosecutorial Peremptory Challenges, 102 Harv L Rev 1013, 1014, 1032 [1989]; Note, Moving Closer to Eliminating Discrimination in Jury Selection: A Challenge to the Peremptory, 7 [Part 1] N Y L Sch J Hum Rts 204, 234, 239-242 [1989]; Comment, Jury Discrimination: The Peremptory Challenge as a Racially Discriminatory Device, 12 S U L Rev 189 [1986]; Comment, Curbing Prosecutorial Abuse of Peremptory Challenges — The Available Alternatives, 3 W New Eng L Rev 223, 245-246 [1980]). Unfortunately, the Batson procedural hurdles have become "less obstacles to racial discrimination than they are road maps" to disguised discrimination (Serr and Maney, Racism, Peremptory Challenges, and the Democratic Jury: The Jurisprudence of a Delicate Balance, 79 J Crim Law Criminology 1, 59 [1988]).
The United States Supreme Court's continuing efforts to combat the corrosive problem of jury selection bias are instructive and demonstrate the dynamic nature of the remedial situation. Swain v Alabama ( 380 U.S. 202, supra) tolerated discriminatorily motivated peremptory challenges (see also, CPL 270.25). In 1983, despite its denial of certiorari in McCray v New York ( 461 U.S. 961), the United States Supreme Court exhibited its disquietude with the status quo by extraordinary dissenting and concurring expressions in that case predicting — almost promising — imminent change. The change came in 1985 in Batson — the partial fulfillment of that promise ( 476 U.S. 79, supra). Since then, in a series of rulings, the United States Supreme Court has continued to struggle with the Batson half-step remedy and has continued to push the stone up the mountain, paving the way towards eventual elimination of the peremptory process. The United States Supreme Court's recent expressions, relegating responsibility for implementation of this unworkable remedy to the trial courts, evince the impracticality and woeful unevenness of its application (see, e.g., Powers v Ohio, 499 US ___, ___, 111 S Ct 1364, 1374 ["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"]; Edmonson v Leesville Concrete Co., 500 US ___, ___, 111 S Ct 2077, 2089 ["The same approach applies in the civil context, and we leave it to the trial courts in the first instance to develop evidentiary rules for implementing our decision"]; see also, Ford v Georgia, 498 US ___, 111 S Ct 850). This inverted rule-making delegation merely postpones the day of reckoning.
We are persuaded to urge this fundamental reexamination of the peremptory challenge system because, even under Batson, we find peremptories to be "probably the single most significant means by which such prejudice and bias [are] injected into the jury selection system" (Imlay, Federal Jury Reformation: Saving a Democratic Institution, 6 Loy LA L Rev 247, 270 [1973]), which creates a great paradox and semantical subterfuge. To be sure, the peremptory system evolved to ensure a fair trial and impartial jury. But when such challenges "are perverted and transformed into tools of bias and racism, the reasons for peremptory challenges no longer exist, and they should be eliminated" (McMillian and Petrini, Batson v. Kentucky: A Promise Unfulfilled, 58 U Mo KC L Rev 361, 374 [1990]).
When a peremptory strike is no longer peremptory, by definition, because an explanation is required by Batson, and when a remedy is not a remedy because the remedy ironically defeats or suppresses the stated purpose, then strong measures — stronger measures than Batson — are needed (see and compare, Shelley v Kraemer, 334 U.S. 1, and Brown v Board of Educ., 349 U.S. 294). It is time for the Legislature to come to terms with the undisputed fact that "peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate'" (Batson v Kentucky, supra, at 96, quoting Avery v Georgia, 345 U.S. 559, 562), and that the Batson effort has failed to fulfill its stated goal of eradicating invidious discrimination from the jury selection process.
Chief Judge WACHTLER and Judges KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur with Judge SIMONS; Judge BELLACOSA concurs in a separate opinion in which Chief Judge WACHTLER and Judge TITONE also concur.
In People v Bolling: Order modified and case remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.
In People v Steele: On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed.