Daniel Heller, a Miami lawyer who is Jewish, was convicted in November 1983 of income tax evasion. Ordinarily, an attorney found guilty of such a crime would be suspended from the practice of law. In this case, however, the Dade County Bar Association has refused to impose this penalty pending appeal because of charges that the jury that convicted Mr. Heller was anti-Semitic. James Barber, convicted in Massachusetts on drug charges, won a reversal on the grounds that people between the ages of 18 and 34 had been systematically excluded from his jury. And James Batson, a black man convicted of burglary in Kentucky, will have his case reviewed by the Supreme Court next term because all prospective jurors who were black were rejected by the prosecutor at his trial.
There are substantial differences among these cases but the essential issue in each is jury bias. Mr. Heller's case involves allegations of specific prejudicial statements and is the most easily decided on the facts. But in the other cases the method of choosing the jury is said to be so biased -- though the individual jurors selected were not necessarily so -- that the result is automatically tainted. The U.S. Court of Appeals for the First Circuit, which sits in Boston, is the only federal appellate court to hold that systematic underrepresentation of young adults in jury pools is unconstitutional, but in every circuit, systematic exclusion based on race would be grounds for reversal. Mr. Batson's case, however, moves the question one step further. The exclusion of blacks from juries is not systematic in Kentucky, nor in the county where he was tried. It was incidental to his case in which the prosecutor used his limited preemptory challenges -- those requiring no explanation -- to remove blacks from the panel.
Twenty years ago, the Supreme Court ruled that such a practice is only unconstitutional if "the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or victim may be, is responsible for the removal of Negroes." The fact that the court has agreed to hear the Batson appeal is an indication that at least four justices are now ready to reassess that doctrine.
The system cannot guarantee every defendant an ethnically and racially balanced jury. It can't assure every defendant that the jury will contain members of his nationality. Nor should it impose rigid rules that would bind defense attorneys in a way that might limit a defendant's rights. Defense attorneys often use preemptory challenges to exclude types -- military officers, mom-and-pop store owners, relatives of policemen -- thought to be unsympathetic to the defense. But it is also clear that the cause of justice is not served when people are excluded from jury service because of race. The difficult task of devising rules to prevent this abuse while retaining some desirable flexibility in jury selection now confronts the high court.