either killed, or attempted to kill, or intended that a killing take place or that lethal force be employed. Id., at 797. Here, the jury made no explicit finding that petitioner engaged in the conduct or possessed the intent which, under Enmund, is required for a valid death sentence. Rather, the Illinois Supreme Court supplied this finding.

The action taken by the Illinois Supreme Court contradicts this Court's insistence, articulated in Enmund, that capital punishment be tailored to a defendant's own personal responsibility and moral guilt. That tailoring was forsaken here when the jury returned a general verdict that failed to reveal whether petitioner had been convicted for murders he had actually committed himself or whether he had been convicted solely on the basis of his vicarious responsibility for the crimes of his accomplice. The "remedy" the Illinois Supreme Court created to address the ambiguity of the jury's verdict-setting itself up as a finder of fact on the issue of intent-contravenes a related tenet of this Court's death penalty jurisprudence: that the uniquely harsh consequence entailed by capital punishment demands the greatest possible exactitude in the factfinding process. See, e. g., Beck v. Alabama, 447 U. S. 625 (1980); Godfrey v. Georgia, 446 U. S. 420 (1980). The ruling of the Illinois Supreme Court mocks this standard by attempting to derive from a cold paper record a subtle factual determination best left in the hands of juries or trial courts that have had the opportunity to view witness demeanor and other delicate nuances that cannot be captured by written transcipts. Confronted with "a level of uncertainty [in] the factfinding process that cannot be tolerated in a capital case," Beck v. Alabama, supra, at 643, this Court should either vacate petitioner's sentence and remand with instructions that he be resentenced in a fashion that excludes the imposition of capital punishment or grant certiorari and give plenary consideration to petitioner's claim. I therefore respectfully dissent.

No. 83-6211. HARRIS v. TEXAS.

HARRIS v. TEXAS. Ct. Crim. App. Tex. Certiorari denied. Reported below: 658 S. W. 2d 180.

JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.

A grand jury in Harris County, Tex., indicted petitioner for the sexual assault of a white woman. Petitioner, a Negro with no

MARSHALL, J., dissenting

467 U. S.

previous criminal record, denied the charge and maintained that he was at home at the time of the crime. There were no witnesses to the assault, and no physical evidence linking petitioner to the offense. From the nature of the State's case, it was clear that petitioner's fate would turn on whether the jury accepted the identification of the white victim or believed the sworn denial of a Negro defendant. After an extensive voir dire and for-cause challenges, eight Negroes were left in the jury panel. The prosecution then used eight peremptory challenges to remove these Negroes. With its two remaining peremptories, the prosecution removed the two members of the venire with Hispanic surnames. Over defense counsel's objection, an all-white jury proceeded to convict petitioner of the offense charged. Petitioner was sentenced to 12 years in the Texas Department of Corrections.

This petition presents what I consider to be a prima facie violation of the Sixth and Fourteenth Amendments. Petitioner's defense rested entirely on the jury's assessment of the credibility of two witnesess, one Negro and one white. Under these circumstances, when the prosecution challenges every Negro member of the venire, the inescapable implication is that the prosecutor proceeded on the assumption that Negro jurors would be more likely than white jurors to believe a Negro defendant's version of the facts. In Taylor v. Louisiana, 419 U. S. 522, 528 (1975), the Court held that criminal defendants are entitled to a jury drawn from a "representative cross section of the community." When the prosecution employs its peremptory challenges to remove from jury participation all Negro jurors, the right guaranteed in Taylor is denied just as effectively as it would be had Negroes not been included on the jury rolls in the first place.

rors.

Over the past year, I have repeatedly urged my colleagues to grant certiorari in similar cases in which state prosecutors have blatantly employed peremptory challenges to remove Negro juSee Williams v. Illinois, 466 U. S. 981 (1984) (MARSHALL, J., dissenting); Gilliard v. Mississippi, 464 U. S. 867 (1983) (MARSHALL, J., dissenting); McCray v. New York, 461 U. S. 961, 963 (1983) (MARSHALL, J., dissenting). The Court, however, remains satisfied that Swain v. Alabama, 380 U. S. 202 (1965), adequately protects criminal defendants against prosecutorial misuse of peremptory challenges. As the facts of this case reveal, the Court's reliance on Swain is grossly misplaced. If Swain protects anyone, it is the prosecution.

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Under Swain it is presumed that prosecutors use peremptory challenges to obtain a fair and impartial jury. Id., at 222. That a prosecutor excludes all Negro jurors in a particular case does not rebut this presumption. To establish a Swain violation, a criminal defendant must demonstrate that the State has systematically excluded Negro jurors in case after case over an extended period of time. Id., at 223-224. In this case, petitioner's attorney gamely attempted to satisfy Swain's burden of proof. Defense counsel set out to show that prosecutors in Harris County routinely employ peremptory challenges to exclude Negro jurors in cases involving the credibility of a white complainant and a Negro defendant. At a hearing held before the trial court, Judge Joseph Guarino, a Texas District Judge with 28 years of experience in the county's criminal justice system, testified on behalf of petitioner. Judge Guarino stated he could not recall a single instance in which a Negro juror sat on a petit jury in a criminal case in which the complainant was white and the defendant Negro. Judge Miron Love, another judge from the county, agreed that in "most of those cases" the prosecution "would eliminate most of the black jurors' through the exercise of peremptory challenges." The testimony of Judge Guarino and Judge Love was corroborated by a variety of informed witnesses. Craig Washington, a defense attorney in the county, testified that in the past decade he had participated in roughly 140 criminal cases in which the complaining witness was white and the defendant Negro. In only two of these cases did Negroes ultimately sit on the jury, and in these cases it was only because the prosecution ran out of peremptory challenges. Jacquelyn Miles, a court reporter in Harris County, stated that over the last four years she had transcribed testimony in 20 to 25 criminal cases with white complaining witnesses and Negro defendants, and she could not recollect a single case in which a prospective Negro juror had been empaneled. Other witnesses for petitioner, including lawyers who had served under the county's District Attorney, confirmed that in this class of cases, the exclusion of Negro jurors was "the general rule."

In the face of this well-marshaled evidence, the county brazenly denied that it had a policy of excluding Negro jurors. A supervising attorney for the County District Attorney claimed that he had never advised prosecutors to exclude Negro jurors. In support of the county's claim, several Assistant District Attorneys testified under oath as to trials in which Negroes had served on the jury

even though the case involved Negro defendants and white complainants. A judge testifying on behalf of the county recalled numerous occasions on which Negroes had served on juries. The thrust of the county's rebuttal was that petitioner's witnesses were familiar with only a sampling of the county's criminal docket whereas the county's witnesses were exposed to the District Attorney's entire docket. Apparently, the trial judge found this line of argument convincing because he ruled that petitioner had failed to establish a constitutional violation under Swain v. Alabama.

The lesson to be drawn from petitioner's case is that Swain is an insurmountable hurdle for criminal defendants. The prosecution will always be able to claim that it has greater familiarity with prosecutorial practices than defense counsel, and the prosecution will always deny that it has a policy of excluding Negro jurors. In even the most discriminatory jurisdictions, there will always be cases in which Negro jurors have at one time or another served on jury panels. If, therefore, an official denial of prosecutorial misuse buttressed by vague recollections of a few Negro jurors who have actually been empaneled is enough to rebut evidence of the quality presented by petitioner in this case, then as a practical matter it is impossible to satisfy the Swain standard. Cf. United States v. Childress, 715 F. 2d 1313, 1316 (CA8 1983) (en banc) (finding only two reported cases in which defendants had prevailed under Swain since 1965), cert. denied, 464 U. S. 1063 (1984).

In the 19 years since Swain was handed down, prosecutorial abuse of peremptory challenges has grown to epidemic proportions in certain regions of the country. See also Williams v. Illinois, supra. I respectfully dissent.

No. 83-6213. EVANS v. MISSISSIPPI. Sup. Ct. Miss.; and No. 83-6419. DELAP v. FLORIDA. DELAP v. FLORIDA. Sup. Ct. Fla. Certiorari denied. Reported below: No. 83-6213, 441 So. 2d 520; No. 836419, 440 So. 2d 1242.

JUSTICE BRENNAN and JUSTICE MARSHALL, dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases.

No. 83-6454.

SANSON v. UNITED STATES. C. A. 7th Cir. Certiorari denied. Reported below: 727 F. 2d 1113.

In Ohio v. Roberts, 448 U. S. 56 (1980), the Court held that the introduction of hearsay statements against a criminal defendant will not violate the Confrontation Clause if two requirements are satisfied. First, the prosecution must ordinarily demonstrate the unavailability of the declarant; second, the statements must bear sufficient “indicia of reliability." Id., at 65-66. The Court noted that "[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." Id., at 66. The question presented in this case is whether statements that satisfy Federal Rule of Evidence 801(d)(2)(E), which provides for the admissibility of statements of co-conspirators, necessarily satisfy the requirements of the Confrontation Clause.

The Circuits are divided on the question whether co-conspirator statements fall within the "firmly rooted hearsay exception" language of Roberts or whether, instead, a case-by-case inquiry into reliability is required. In this case, the Court of Appeals for the Seventh Circuit in an unpublished order held that Rule 801(d)(2)(E) provides adequate assurances of reliability. Likewise, the First, Fourth, and Fifth Circuits have also held that the Rule 801(d)(2)(E) requirements are identical to the requirements of the Confrontation Clause. See Ottomano v. United States, 468 F. 2d 269, 273 (CA1 1972), cert. denied, 409 U. S. 1128 (1973); United States v. Lurz, 666 F. 2d 69, 80-81 (CA4 1981), cert. denied, 455 U. S. 1005 (1982); United States v. Peacock, 654 F. 2d 339, 349-350 (CA5 1981), cert. denied, 464 U. S. 965 (1983). On the other hand, the Second, Third, Eighth, and Ninth Circuits have held that the requirements are not identical and that courts must assess the circumstances of each case to determine whether the statements carry with them sufficient indicia of reliability. See United States v. Wright, 588 F. 2d 31, 37-38 (CA2 1978), cert. denied, 440 U. S. 917 (1979); United States v. Ammar, 714 F. 2d 238, 254-257 (CA3), cert. denied sub nom. Stillman v. United States, 464 U. S. 936 (1983); United States v. Kelley, 526 F. 2d 615, 620-621 (CA8 1975), cert. denied, 424 U. S. 971 (1976); United States v. Perez, 658 F. 2d 654, 660, and n. 5 (CA9 1981). Because of the substantial confusion surrounding this frequently recurring issue, I would grant certiorari to resolve the conflict.

No. 83-6567.

No. 83-6575.

Certiorari denied.

ARNOLD v. SOUTH CAROLINA; and

PLATH V. SOUTH CAROLINA. Sup. Ct. S. C.

Reported below: 281 S. C. 1, 313 S. E. 2d 619.