The Supreme Court yesterday agreed to decide whether the Constitution allows prosecutors to use their automatic challenges to exclude minorities from sitting on juries whenever the defendant is of the same race.
The case involves a longstanding controversy over the traditional power of prosecutors and defense lawyers to remove a limited number of prospective jurors -- without stating any reason -- from sitting in a trial.
The court in 1965 said such peremptory challenges did not violate the constitutional guarantee of equal protection unless prosecutors systematically used that power to exclude blacks. But in a 1975 case, the court said that all defendants have a right to trial before a "fair cross-section of the community."
Two years ago, five of the nine justices indicated they would be willing to review the reasoning in the 1965 decision.
Justices Thurgood Marshall and William J. Brennan Jr. were ready to review the 1965 decision then. However, Justices John Paul Stevens, Harry A. Blackmun and Lewis F. Powell Jr. said they preferred to "allow the various states to serve as laboratories in which the issue receives further study before it is addressed by this court."
Yesterday's action indicates that at least two of those three justices believe that the time has come to decide the matter.
In the case accepted for review, an all-white jury convicted James Kirkland Batson of burglary. Four blacks were in the potential jury pool, but all four were removed by the prosecutor.
Batson argued that the prosecutor's exclusion of all blacks deprived him of his Sixth Amendment right to be tried by a fair cross-section of the community.
Kentucky, in response, said the traditional use of peremptory challenges by both the defense and prosecution was a proper way for each side to try to ensure a sympathetic jury.
The Kentucky Supreme Court upheld Batson's conviction, saying there was no proof of systematic exclusion of blacks by local prosecutors. The case, to be argued next fall, is Batson v. Commonwealth of Kentucky.
In other action yesterday:
* The justices agreed to hear an appeal that asks the court to clarify a 1982 ruling that restricted imposition of the death penalty on accomplices to murders committed during the course of another crime.
In a 5-to-4 ruling in Enmund v. Florida, the court said accomplices cannot be executed unless they intended or contemplated that a murder would be committed. The justices yesterday agreed to decide whether the 5th U.S. Circuit Court of Appeals correctly interpreted that ruling in a Mississippi case, Cabana v. Bullock.
* The court let stand a 9th U.S. Circuit Court of Appeals ruling that rock 'n' roll is a form of music protected by the First Amendment. The appeals court last year said Burbank, Calif., officials could not ban what they called "hard rock" from a city amphitheater. City officials said such rock concerts might attract drug users or homosexuals to the Los Angeles suburb.
The city had signed a contract with a promoter to have music concerts at the amphitheater, but then rejected six of the eight proposed concerts, including shows by Jackson Browne, Patti Smith and Todd Rundgren.
The promoter sued the city and won $144,000 in damages and attorneys' fees. The appeals court upheld, saying music "is a form of expression . . . protected by the First Amendment." The case isBurbank v. Cinevision Corp.
* The justices, without comment, let stand a 9th U.S. Court of Appeals decision that struck down an Idaho county policy requiring strip searches for persons held for minor traffic offenses. The case is Ackerman v. Giles.