The opinion of the court was delivered by: BRIEANT
On December 4th of last year, breaking with long standing precedent, the Second Circuit, in McCray v. Abrams, 750 F.2d 1113 (2d Cir. 1984), rehearing en banc den., 756 F.2d 277 (2d Cir. 1985), petition for cert. filed March 4, 1985, 53 U.S.L.W. 3671, "spell[ed] the end of the peremptory challenge as an effective jury selection tool," in state criminal trials (Meskill, J., dissenting). The Court held that: "[T]he Sixth Amendment's guarantee of trial by an impartial jury . . . forbids the exercise of [peremptory] challenges to excuse jurors solely on the basis of their racial affiliation." 750 F.2d at 1131. It also turned the jury selection process into a possibility of twenty mini- trials within a Class A felony trial in New York, as the court deter- mines whether the prosecutor's "reasons" for exercising peremptories are "genuine" or merely "pretextual". Id. at 1132. Defendants, because their exercise of peremptory challenges are not "state action," and because a "reason" to challenge a juror which originates with the client will be a privileged communication, will be subject to no such mini- trial. The inequality produced thereby must lead to abolition or severe reduction of peremptories. We discuss McCray and its predecessors more fully infra p. 15. In the meantime, we consider how the rule of McCray is to be applied to this white petitioner.
Petitioner Michael Roman, a white person, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Roman challenges his conviction in the New York State Supreme Court, Bronx County first, on the ground that he was deprived of his Sixth Amendment right to a trial before a fair and impartial jury comprised of a cross-section of the community, due to the prosecutor's use of his peremptory challenges to exclude white venire persons solely because of their race. He also makes the customary assertion that he was denied his Sixth Amendment right to effective assistance of counsel. This latter contention need not detain us; counsel so maligned had the foresight to anticipate McCray almost three years before it came down.
On December 18, 1981, petitioner was convicted by a jury in Supreme Court, Bronx County, along with his co-defendant, Harold Schreiber, of conspiracy in the fourth degree, arising out of an arson-for-hire agreement. Petitioner appealed his conviction and on December 8, 1984, the Appellate Division, First Department, affirmed without opinion. See People v. Roman, 106 A.D.2d 259, 484 N.Y.S.2d 389 (1st Dept., Dec. 6, 1984). Petitioner then sought leave to appeal to the Court of Appeals of the State of New York. The application was denied on January 28, 1985. In this state appeals, petitioner raised the contentions presented here. See Ex. 1 to Answering Affidavit of Allen H. Saperstein (sworn to February, 1985). Since these federal claims were both fairly presented to the state courts, defendant has exhausted his state court remedies as required by 28 U.S.C. § 2254. See Daye v. Attorney General of State of New York, 696 F.2d 186, 192-94 (2d Cir. 1982). Having exhausted his appeals at the state level, petitioner filed his petition in this Court on January 29, 1985, proceeding by order to show cause. The execution of petitioner's judgment of conviction was stayed pending consideration of the petition, he was enlarged or continued on his existing state bail, and an evidentiary hearing was held before me on the jury selection claim.
Decision was reserved. Set forth below are the findings of fact and conclusions of law of this Court following its evidentiary hearing.
The prosecution's chief witness was one Ernest Brooks, a Black man with a criminal record. Mr. Brooks had been arrested on July 3, 1980 on a charge of burglary. He negotiated with the prosecutor in exchange for leniency on his burglary charge, to furnish information concerning his participation in an ongoing conspiracy to blow up a building in the Bronx. According to Mr. Brooks, the explosion was to take place the following day at the Hunts Point Taxi Exchange, a building owned by Harold Schreiber at which petitioner was employed.
On July 4, 1980, and on three other occasions in July, Brooks, acting as an undercover equipped with a tape recorder, engaged petitioner Michael Roman in several conversations.
Brooks testified at length at trial, both on direct and cross-examination, as to his activities and concerning the context in which the taped conversations had taken place. During the trial, only one and part of another of the taped conversations were introduced by the prosecution for consideration by the jury. Although many of the words on tape are apparently unintelligible (see Ex. 4A, Tr. of July 15, 1980 tape), there are words spoken by Roman on July 15, 1980 which could support the inference that he did intend that the building be destroyed. He was heard discussing a procedure to be effected on the roof of the Taxi Exchange, to block the vents, in order that a gas explosion in the building might be enhanced.
In addition to the tape recording and Brooks' testimony as to the details of the conspiracy, the prosecution presented other witnesses who testified as to Schreiber's financial difficulties, (Trial Tr. at 981-83), that Schreiber had obtained recent increases in the insurance coverage for the building (Trial Tr. at 864-65, 876-70), and that the alleged scheme to blow up the building was feasible. (E.g., Trial Tr. at 837-38, 911-12, 914, 922-24, 926).
The evidence at trial, including Brooks' testimony, was sufficient to support a conviction, notwithstanding evidence or argument submitted by the defense that talk of the conspiracy was just a "joke." (Trial Tr. at 1146).
Violation of Petitioner's Right to an Impartial Jury
We consider first whether petitioner was denied his right to a fair trial as guaranteed by the Sixth Amendment to the United States Constitution, made applicable to the states since 1968 through the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968).
During the jury selection process, both counsel for the defendants complained vociferously to the trial judge that the prosecutor was deliberately utilizing his peremptory challenges to exclude whites from the panel of proposed jurors in order to obtain a petit jury comprised of as many minority panel members as possible. Petitioner through his trial counsel claimed, and now claims, that these actions on the part of the prosecutor to exclude white jurors deprived him, as a Caucasian, of his right to a jury trial before an impartial jury comprised of a fair cross-section of the relevant community. We consider first the jury selection procedures as revealed from the trial transcript itself.
The challenges were exercised in rounds, the prosecutor acting first, all in conformity with New York Criminal Proc. Law § 270.15. Because it was a Class C felony case, each side was entitled to fifteen peremptory challenges. New York Crim. Proc. Law § 270.25.
On August 17, 1981, a panel of twelve potential jurors was drawn at random from a panel of venire persons and seated as follows:
Juror No. 1 Bertha Hammons
No. 9 Camille Viscargllio *
No. 11 Lindrina Rosario *
After extensive questioning of the panel by both the trial court and counsel, giving rise to no challenges for cause, counsel were each given their opportunity to exercise peremptory challenges. The prosecutor challenged six persons peremptorily. They were panel members Nos. 4, 5, 8, 9, 10 and 11, indicated by an asterisk, above.
Defense counsel raised an immediate objection, pointing out clearly to the trial court that the prosecutor had exercised these six challenges so as to exclude every white juror then seated. (Voir Dire Tr. at 51-52). The prosecutor responded lamely that only four of his challenges were against white jurors, and that the other two challenged were Hispanic. (Id. at 52). Defense counsel continued this high level discourse by observing that the two Hispanics were "light-skinned." It is clear from colloquy in the record that no white jurors remained in the box at the conclusion of the prosecutor's peremptory challenges in Round 1. (Id.). After defense counsel, acting jointly as required by local practice, had exercised four peremptory challenges, the two remaining panel members, Yvonne Bumpers and Carmen Valez, were seated as jurors Nos. one and two. (Id. at 54). As such, each was immune from further peremptory challenges. It is clear from the context of the trial record that neither of these two jurors was white, and I so find.
A group of ten replacements was drawn from the venire and seated in the jury box for further questioning by counsel, as follows:
Juror No. 3 Doreen Williams
No. 4 Bernard Ryan (Harry ...