464 U.S. 867 (1983)

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U.S. Supreme Court

GILLIARD v. MISSISSIPPI , 464 U.S. 867 (1983)

464 U.S. 867

Robert C. GILLIARD, Jr.
No. 82-6775

Supreme Court of the United States

October 3, 1983

On petition for writ of certiorari to the Supreme Court of Mississippi.

The petition for writ of certiorari is denied.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting from denial of certiorari.

Adhering to my view that the death penalty is under all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the judgment of the Supreme Court of Mississippi insofar as it left undisturbed the death sentence imposed in this case. Gregg v. Georgia, 428 U.S. 153, 231, 2973, 49 L. Ed.2d 859 (1976) (MARSHALL, J., dissenting). However, even if I believed that the death penalty could constitutionally be imposed under certain circumstances, I would grant certiorari and vacate the death sentence imposed here.

For the third time this year, this Court has refused to review a case in which an all-white jury has sentenced a Negro defendant to death after the prosecution used peremptory challenges to remove all Negroes from the jury. See Miller v. Illinois and Perry

Page 464 U.S. 867 , 868

v. Louisiana decided together with McCray v. New York, 461 U.S. ___ (1983) (MARSHALL, J., dissenting from denial of certiorari). The facts of each case follow a now familiar pattern: For-cause challenges by both defense counsel and the prosecution leave an integrated jury panel. The prosecution then resorts to peremptory challenges to remove Negro members of the panel. Despite defense counsel efforts to show that the prosecution has excluded jurors on the basis of race, the trial court rules that defendant has failed to establish systematic exclusion in the manner required by this Court in Swain v. Alabama, 380 U.S. 202 (1965). The all-white jury proceeds to hear the case and sentence the Negro defendant to death.

The present case does not deviate from this pattern in any material respect. Petitioner, who is a Negro, pleaded guilty to killing Grady Chance during an armed robbery of Mr. Chance's store. In accordance with Miss.Code Ann. 99-19-101 (Supp.1982), a sentencing trial was then held. After for-cause challenges, the prosecution was presented a jury panel including seven Negroes. The prosecution peremptorily challenged the seven Negroes. After defense counsel exercised its peremptory challenges, the panel contained one Negro. The prosecution then used an additional peremptory challenge to remove the Negro. During a hearing held to consider petitioner's motion to quash the jury, the prosecutor took the stand, and offered reasons for three of his peremptory challenges but could not remember why he exercised the other five. Although the prosecutor had used peremptory challenges to remove all the Negro jurors and only the Negro jurors,1 the trial court nevertheless denied petitioner's motion, and the Mississippi Supreme Court affirmed, relying on Swain v. Alabama, supra, and two of its own precedents that, in turn, had relied on Swain: Gaines v. State, 404 So.2d 557, 560 (Miss.1981); Coleman v. State, 378 So.2d 640, 645 (Miss.1979). An all-white jury then heard the evidence and sentenced petitioner to death.

Last Term, when the Court denied petitions for certiorari in the two cases mentioned above, I outlined my objections to the [464 U.S. 867 , 869]

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