US SUPREME COURT DECISIONS

467 U.S. 1261

Wesley Eric HARRIS
v.
TEXAS.
No. 83-6211.

Supreme Court of the United States

June 25, 1984.

On petition for writ of certiorari to the Court of Criminal Appeals of Texas.

The petition for writ of certiorari is denied.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

A grand jury in Harris County, Tex., indicted petitioner for the sexual assault of a white woman. Petitioner, a Negro with no

Page 467 U.S. 1261 , 1262

previous criminal record, denied the charge and maintained that he was at home at the time of the crime. There were no witnesses to the assault, and no physical evidence linking petitioner to the offense. From the nature of the State's case, it was clear that petitioner's fate would turn on whether the jury accepted the identification of the white victim or believed the sworn denial of a Negro defendant. After an extensive voir dire and for-cause challenges, eight Negroes were left in the jury panel. The prosecution then used eight peremptory challenges to remove these Negroes. With its two remaining peremptories, the prosecution removed the two members of the venire with Hispanic surnames. Over defense counsel's objection, an all-white jury proceeded to convict petitioner of the offense charged. Petitioner was sentenced to 12 years in the Texas Department of Corrections.

This petition presents what I consider to be a prima facie violation of the Sixth and Fourteenth Amendments. Petitioner's defense rested entirely on the jury's assessment of the credibility of two witnesses, one Negro and one white. Under these circumstances, when the prosecution challenges every Negro member of the venire, the inescapable implication is that the prosecutor proceeded on the assumption that Negro jurors would be more likely than white jurors to believe a Negro defendant's version of the facts. In Taylor v. Louisiana, 419 U.S., 522, 528, 696 (1975), the wrurt held that criminal defendants are entitled to a jury drawn from a "representative cross section of the community." When the prosecution employs its peremptory challenges to remove from jury participation all Negro jurors, the right guaranteed in Taylor is denied just as effectively as it would be had Negroes not been included on the jury rolls in the first place.

Over the past year, I have repeatedly urged my colleagues to grant certiorari in similar cases in which state prosecutors have blatantly employed peremptory challenges to remove Negro jurors. See Williams v. Illinois, 466 U.S. 981 (1984) (MARSHALL, J., dissenting); Gilliard v. Mississippi, 464 U.S. 867, 78 L. Ed.2d 179 (1983) (MARSHALL, J., dissenting); McCray v. New York, 461 U.S. 961, 963, 2439 (1983) (MARSHALL, J., dissenting). The Court, however, remains satisfied that Swain v. Alabama, 380 U.S. 202 (1965), adequately protects criminal defendants against prosecutorial misuse of peremptory challenges. As the facts of this case reveal, the Court's reliance on Swain is grossly misplaced. If Swain protects anyone, it is the prosecution. [467 U.S. 1261 , 1263]

Full Text of Opinion