Court Rules Right to Fair Trial Does Not Limit Prosecutors’ Jury Selection Power

The Supreme Court, limiting the rights of defendants to contest the fairness of their juries, ruled Monday that prosecutors may continue to remove potential jurors because of their profession, religion, gender or ethnic background.

On a 5-4 vote, the court said that a defendant’s constitutional right to a fair trial does not flatly prohibit a prosecutor from excluding members of any specific group from the jury.

One exception to this rule still stands. In a landmark 1986 ruling, the court said that a prosecutor may not arbitrarily exclude blacks from a black defendant’s jury, and the high court affirmed that decision Monday.

Cites 6th Amendment

The 1986 ruling relied on the Constitution’s ban on racial discrimination: the 14th Amendment’s guarantee of the “equal protection of the laws.” But in the case before the court Monday, a white defendant from Chicago contended that his Sixth Amendment rights to “public trial by an impartial jury” were violated when the only two blacks in the jury pool were removed from his jury.

Under the current system of jury selection, both the prosecutor and the defense lawyer are entitled to disqualify a fixed number of potential jurors without stating a reason. The number is typically six, but it varies from state to state.

Except in the case of black jurors for a black defendant, the prosecution and defense lawyers may use this power to affect the racial makeup of the jury. Monday’s case challenged the prosecutor’s power to disqualify potential jurors, because it is the defendant whom the Constitution guarantees a fair trial.

Justice Antonin Scalia, writing for the court, said a defendant’s right to a fair trial did not confer a right to be tried by a “fair cross section” of the community.

The current system of selecting jurors is “a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial jury (which it does),” Scalia said. Giving both sides an equal chance to exclude possibly biased jurors is the best way “of assuring the selection of a qualified and unbiased jury,” he said.

The court’s four liberals, in dissent, said Scalia’s ruling would permit racial discrimination. Justice Thurgood Marshall said the ruling “insulates an especially invidious form of racial discrimination . . . from Sixth Amendment scrutiny.”

Scalia shot back that “race as such has nothing to do with the legal issue in this case.” He criticized Marshall for having “rolled out the ultimate weapon, the accusation of insensitivity to racial discrimination--which will lose its intimidating effect if it continues to be fired so randomly.”

Scalia said that the defendant, Daniel Holland, should have challenged the prosecutor’s action under the 14th Amendment if he wanted to raise the race issue. His opinion was joined by Chief Justice William H. Rehnquist and Justices Byron R. White, Sandra Day O’Connor and Anthony M. Kennedy.

In a concurring statement, Kennedy sided, in part, with Marshall, saying that all defendants--white as well as black--have a right under the 14th Amendment to be free from racial discrimination in the selection of their juries. The case was Holland vs. Illinois, 88-5050.

Conservatives’ Concern

When the court heard arguments on the case in October, the conservatives, led by Rehnquist and Scalia, said the case raised the specter that juries would be required to reflect their communities by having appropriate proportions of Protestants, Catholics and Jews, an equal percentage of women and men and a balance of white-collar and blue-collar workers.

A trial jury is selected in two stages. First, a large number of citizens are called to jury duty, and they generally reflect “a fair cross section” of the community. Second, both the prosecutor and defense lawyer have the right to remove several potential jurors they suspect of harboring biases against their client.

In practice, lawyers often select juries that do not mirror the community. For example, in the trial of former White House aide Oliver L. North, defense lawyers sought to remove jurors who had closely followed the scandal in the news. The result was a jury that was entirely unrepresentative of Washington: 12 adults who had barely heard of the Iran-Contra case.

In its ruling Monday, the court said that it found nothing unconstitutional about an unrepresentative jury.

Ruling on Drug Tests

In other actions, the court:

--Made clear again that public employees may be randomly tested for drug use if their jobs involve safety, drugs or highly sensitive information.

Justice Department employees who hold top-secret clearances and Army drug counselors have been subjected to random testing, which they say violates their privacy rights. That requirement was upheld by lower courts, and the justices refused without comment to hear their appeal. (National Federation of Federal Employees vs. Cheney, 89-635, and Bell vs. Thornburgh, 89-679.)

--Agreed to decide whether a newspaper can be forced to pay damages for a columnist’s charge that a public figure lied.

In the past, the court has drawn a line between defamatory statements involving “facts” and those stating “opinions.” The press can be forced to pay damages for a false statement about a public figure that is maliciously published, the court has held, but it cannot be punished for publishing a “false opinion.”

In April, in a case that may yield a precise distinction between these two forms of journalism, the justices will consider a 15-year old libel suit filed by an Ohio wrestling coach. A sports columnist accused him of having “lied at a hearing” before state officials, but on a 4-3 vote, the Ohio Supreme Court said this was an opinion, not a statement of fact. (Milkovich vs. Lorain Journal, 89-645.)

--Agreed to decide whether the owners of pleasure boats may use the nation’s maritime laws to shield themselves from liability.

The case concerns a yacht docked on Lake Michigan south of Chicago that caught fire and burned a marina. Under the maritime laws, the ship’s owner would be responsible for the damage only to his vessel, but an appeals court said the yacht could not rely on the immunity provisions of the maritime laws. (Sisson vs. Ruby, 88-2041.)