Amicus Curiae Brief — Alabama v. Cox

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No. 88-630

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Supreme Court of the United States

OCTOBER TERM, 1988

MOTION FILED

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STATE OF ALARAMA,

Petitioner,

—_vV.—

BENJAMIN F. Cox and BENNIE J. HAYS,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

ALABAMA COURT OF CRIMINAL APPEALS |

MOTION OF NATIONAL DISTRICT ATTORNEYS

ASSOCIATION, INC., FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

AND

BRIEF AMICUS CURIAE IN SUPPORT OF THE PETITION

FOR CERTIORARI FOR ELIZABETH HOLTZMAN, DISTRICT

ATTORNEY, KINGS COUNTY, NEW YORK AND THE

NATIONAL DISTRICT ATTORNEYS

ASSOCIATION, INC.

FRED L. FOREMAN ELIZABETH HOLTZMAN

President District Attorney

JACK E. YELVERTON BARBARA D. UNDERWOOD

Executive Director Assistant District Attorney

National District Attorneys Counsel of Record

Association, Inc. PETER A. WEINSTEIN

1033 North Fairfax Street VICTOR BARALL

Suite 200 Assistant District Attorneys

Xx ia, Virginia 22 a Le

Alexandria, Virginia 22314 Kings County District

Attorney’s Office

210 Joralemon Street

Brooklyn, New York 11201

(718) 802-2156

November 28, 1988 Counsel for Amici Curiae

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-630

/-

TATE OF ALABAMA,

Petitioner,

—_vV.—

BENJAMIN F. Cox and BENNIE J. HAYS,

Respondents

ON PETITION FOR A WRIT OF CERTIORARI TO THE ;

ALABAMA COURT OF CRIMINAL APPEALS

MOTION OF NATIONAL DISTRICT ATTORNEYS

ASSOCIATION, INC., FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

Elizabeth Holtzman, District Attorney of Kings County,

New York, has authority to file the attached brief amicus curiae

pursuant to Rule 36.4, because she is the authorized law officer

of a political subdivision of a state.

The National District Attorneys Association, Inc., moves for

leave to file the attached brief amicus curiae, pursuant to Rule

3€.1. Counsel for petitioner has consented to the filing of this

brief. Consent was sought from counsel for respondents, but

was not obtained.

>

Respectfully submitted,

BARBARA D. UNDERWOOD

Counsel of Record for

District Attorney Elizabeth

Holtzman and for

the National District

Attorneys Association, Inc.

210 Joralemon Street

Brooklyn, New York 1120]

(718) 802-2156

November 28, 1988

QUESTION PRESENTED

Whether the equal protection clause of the fourteenth

amendment prohibits judicial enforcement of race-based

peremptory challenges by criminal defendants and their attor-

neys.

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED .......-.- cece eee eee eeee i

TABLE OF AUTHORITIES. .......2.0cccssccccceee iil

STATEMENT OF INTEREST OF AMICI CURIAE... l

REASONS FOR GRANTING THE WRIT .........-. 3

JUDICIAL ENFORCEMENT OF PEREMP-

TORY CHALLENGES MADE BY DEFENSE

COUNSEL TO EXCLUDE POTENTIAL

JURORS ON THE BASIS OF RACE RAISES

A SUBSTANTIAL CONSTITUTIONAL

QUESTION OF GREAT PUBLIC IMPOR-

TANCE WHICH SHOULD BE PROMPTLY

RESOLVED BY THIS COURT.............. 3

A. THE ISSUE ARISES FREQUENTLY AND

DEMANDS PROMPT RESOLUTION.... 4

B. THE CONSTITUTIONAL QUESTION IS

8) 3 85 eg YS ee i ere eee 7

1. The Constitutional Rights of Jurors and

the Public are Violated............5.. 7

to

Judicial Enforcement of Defense Coun-

sel’s Challenges Constitutes State Action 10

3. The Prosecutor has Standing to Assert

the Equal Protection Rights of Excluded

Jurors and Members of the Public..... 13

Ce Oe a oe eee ane ene 16

ill

TABLE OF AUTHORITIES

Cases: PAGE

Adickes v. S.H. Kress Co., 398 U.S. 144 (1970) ....... 12

Andrews v. State, 438 So.2d 480 (Fla. Dist. Ct. App.

POND: ko 0.08544 RE ee ee 5

Ballard v. United States, 329 U.S. 187 (1946) ......... 8

Barrows v. Jackson, 346 U.S. 249 (1953) ............. 12, 14

Batson v. Kentucky, 476 U.S. 79 (1986) ........... 2, passim

Booker v. Jabe, 775 F.2d 762 (6th Cir. 1985), vacated,

478 U.S. 1001 (1986), reinstated, 801 F.2d 871 (1986)

cert. denied, 479 U.S. 1046 (1987) ................. 10

Burton v. Wilmington Parking Authority, 365 U.S. 715

(SPOTS x au cask danas wee keke ae 12

Carter v. Jury Commission, 396 U.S. 320 (1970) ...... aoe

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ..... 15

Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d

499, cert. denied, 444 U.S. 81 (1979)............. : 10

Craig v. Boren, 429 U.S. 190 (1976) ..............0-. 13

Cuyler v. Sullivan, 446 U.S. 335 (1980)............... 12

Dae v. Bolten, 410 U3. 379 C9 al sé sana ss o¥euaeaee 13

Eisenstadt v. Baird, 405 U.S. 438 (1972).............. 13

Evans v. Newton, 382 U.S. 296 (1966) .............. 12

Ex parte Virginia, 100. U.5. 3359 (iGGD ccc cs ba watass 7-8

Faretta v. California, 422 U.S. 806 (1975) ............ 9

Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978) ... 1]

PAGE

Frazier v. United States, 335 U.S. 497 (1948).......... 11

Gannett Co. v. De Pasquale, 443 U.S. 368 (1979)...... 9

Gray v. Mississippi, 107 S.Ct. 2045 (1987) ............ 1]

Griswold v. Connecticut, 381 U.S. 479 (1965) ......... 13

Harlow v. Fitzgeraid, 457 U.S. 800 (1982) ............ 15

Holtzman vy. Supreme Court, 139 Misc.2d 109, 576

2, 6,

N.Y.S.2d 892 (Sup. Ct. Westchester Co. (1988).. 7, 16

Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) ....11, 12

McCray v. Abrams, 576 F.Supp. 1244 (E.D.N.Y. 1983),

remanded for a hearing, 750 F.2d 1113 (2d Cir. 1984),

vacated and remanded, 478 U.S. 1001 (1986)........ 2

Nixon v. Condon, 286 U.S. 73 (1932) ................ 12

People v. Bova, Kings Co. Indictment No. 3545/82.... 5

People v. Carter, Kings Co. Indictment No. 1093/86... 6, 7

People v. Duncan, Kings Co. Indictment No. 4115/84 . 6

People v. Gary M., 138 Misc.2d 1081, 526 N.Y.S.2d 986

(Sus. Ct. Bae CG). Sole as siveondesiichaeeeswesces 7

People v. Kern, New York Law Journal, September 27,

ISG7 at 5 Gem. Ct.. RO Ge BRE bei cctsenscsece a6. 7

People v. McCray, 57 N.Y.2d 542, 443 N.E.2d 915, 457

N.Y.S.2d 441 (1982), cert. denied 461 U.S. 961 (1983) = 1-2

People v. Miller, Kings Co. Indictment No. 4577/86... 6, 7

People v. Mormondo, Kings Co. Indictment No. 3533/

yee ee nA aerate Ih CGE Bt hte urs 5

People v. Muriale, 138 Misc.2d 1056, 526 N.Y.S.2d 367

(Sus. Ct. Hes Ce: FG ccc bos ene descaseksersec 7

PAGE

People v. Rosado, Kings Co. Indictment No. 4540/83. . 9

People v. Vacchio, Kings Co. Indictment No. 117/85 .. 6

People v. Wheeler, 22 Cal.3d 258, 583 P.2d 748 (1978). 10

People v. Wiggins, Kings Co. Indictment No. 2694/83. 6,7

People v. Williams, Kings Co. Indictment No. 8282/87 6,7

Peters @. Riff, 407 U.S. 493 CYSTZ). oo cccccccccuscas 14

Pierce v. Society of Sisters, 268 U.S. 510 (1925)....... 13

Polk County v. Dodson, 454 U.S. 312 (1981) ......... 10

Press-Enterprise Co. v. Superior Court, 464 U.S. 501

be PPE Pre ee Te ere ee ee error nT 9

Rizzo v. Goode, 423 U.S. 362 (1976)..............5.. 15

Shelly v. Kraemer, 334 U.S. 1 (1948). .............0.. 12

Singer v. United States, 380 U.S. 24 (1965) ........... )

Singleton v. Wulff, 428 U.S. 106 (1976) .............. 13

State v. Neil, 457 So.2d 481 (Fla. 1984) .............. 10

Stilson v. United States, 250 U.S. 123 (1936).......... 1]

Strauder v. West Virginia, 100 U.S. 303 (1880)........ 8

Teague v. Lane, cert. granted, 108 S. Ct. 1106 (1988)

i = SPP ae a rietenra a ner E nape eT 9

erry v. AGams, 345 U.S. 461 (1953)... 2c ccccnccees 12

United States v. Wood, 299 U.S. 123 (1936) .......... 1]

Wheat v. United States, 108 S.Ct. 1692 (1988) ........ 9

V1

PAC iE

United States Constitutional Provisions:

te NE ccna a dine dt cne sens eudeneawas passim

Fourteenth AmiOmament ow... ccc cnc ccc cccccccacess passim

Other Authorities:

‘Nn

The New York Times, March 18, 1984 at 23. .........

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-630

>_>

STATE OF ALABAMA,

Petitioner,

—_—V.—

BENJAMIN F. Cox and BENNIE J. HAYs,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

ALABAMA COURT OF CRIMINAL APPEALS

BRIEF AMICUS CURIAE IN SUPPORT OF THE

PETITION FOR CERTIORARI FOR ELIZABETH

HOLTZMAN, DISTRICT ATTORNEY, KINGS COUNTY,

NEW YORK AND THE NATIONAL DISTRICT

ATTORNEYS ASSOCIATION, INC.

i on

STATEMENT OF INTEREST OF AMICI CURIAE

1. Elizabeth Holtzman is the District Attorney of Kings

County, New York. Since taking office in January of 1982 she

has filed many briefs seeking to persuade the courts of New

York and of the United States that both the state and federal

constitutions prohibit prosecutors and defense counsel alike

from using the peremptory challenge to exclude potential jurors

on the basis of race. See People v. McCray, 57 N. Y.2d 542, 443

N.E.2d 915, 457 N.Y.S.2d 441 (1982), cert. denied, 461 U.S.

961 (1983) (declining to adopt the ban); McCray v. Abrams, 576

F.Supp. 1244, 1249 (E.D.N.Y. 1983), remanded for a hearing,

750 F.2d 1113, 1134-35 (2d Cir. 1984), vacated and remanded,

478 U.S. 1001 (1986) (imposing sixth amendment ban on prose-

cutors); Batson v. Kentucky, 476 U.S. 79 (1986) (imposing

fourteenth amendment ban on prosecutors); Holtzman v.

Supreme Court, 139 Misc.2d 109, 526 N.Y.S.2d 892 (Sup. Ct.

Westchester Co. 1988), appeal docketed (2d Dep’t March 21,

1988) (action for declaratory judgment extending ban to

defense counse]l).

Throughout the same seven-year period—including the

period before this Court first made clear in Batson v. Kentucky,

476 U.S. 79 (1986), that prosecutors are prohibited from exer-

cising race-based peremptory challenges—District Attorney

Holtzman has forbidden her staff from engaging in that prac-

tice, and has taken internal administrative steps to enforce that

prohibition. During the same period she has instructed her staff

to report to her instances where defense counsel appear to be

excluding potential jurors on the basis of race, and in appropri-

ate cases to ask for judicial intervention to stop defense counsel

from exercising race-based challenges.

While members of her office have reported numerous cases

where defense counsel appear to be exercising peremptory chal-

lenges on the basis of race, trial judges have been reluctant to

intervene to stop that practice. Accordingly, in June of 1987,

District Attorney Holtzman filed a complaint in state court

seeking a judgment declaring that the United States and New

York State constitutions prohibit criminal defendants and their

attorneys from using peremptory challenges to exclude prospec-

tive jurors on the basis of race, religion, sex, or national origin,

and prohibit judges from enforcing such challenges. The trial

court dismissed the complaint on the ground that such discrimi-

nation and its enforcement did not constitute state action.

Holtzman v. Supreme Court, 139 Misc.2d 109, 526 N.Y.S.2d

892 (Sup.Ct. Westchester Co. 1988). District Attorney Holtz-

man’s appeal from that decision is pending.

Thus, District Attorney Holtzman has had almost seven years

of experience litigating the issue presented by this case. In that

time she has observed the frequency with which the issue arises,

the reluctance of lower courts to resolve the issue, and the seri-

ous harm to constitutional values that occurs when courts

enforce race-based challenges, whether made by prosecutors or

defense counsel. For these reasons, she urges the Court to grant

the writ of certiorari in this case and to hold that the Constitu-

tion prohibits courts from tolerating or enforcing race-based

challenges, whether made by prosecutors or defense counsel.

2. The National District Attorneys Association, Inc.

(‘‘NDAA’’), is a nonprofit corporation and the sole national

organization representing state and local prosecuting attorneys

in America. its programs of education, training, publications,

and amicus curiae activity carry out its guiding purpose, since

its founding in 1950, of reforming the criminal justice system

for the benefit of all of our citizens.

For authority to file this brief, reference is made to the

attached Motion for Leave to File Brief Amicus Curiae.

REASONS FOR GRANTING THE WRIT

Judicial Enforcement of Peremptory Challenges Made by

Defense Counsel to Exclude Potential Jurors on the Basis of

Race Raises a Substantial Constitutional Question of Great

Public Importance Which Should Be Promptly Resolved By

This Court.

When a state court enforces the use by defense counsel of

peremptory challenges to exclude potential jurors on the basis

of race, the state denies the equal protection of the laws to the

excluded jurors, to the victims who are thereby denied a hearing

of their complaint by their peers, and to all members of the

excluded group thereby stigmatized as unfit to provide fair and

impartial jurors. In addition to violating constitutional rights,

the practice seriously undermines the confidence of the

4

excluded group and the community as a whole in the fairness of —

the criminal justice system.

A. The Issue Arises Frequently and Demands Prompt

Resolution.

This issue arises frequently in the trial courts, and is creating

great uncertainty throughout the nation, uncertainty which can

only be resolved by this Court. Many criminal defense attorneys

continue to believe, even after this Court’s decision flagging the

(issue in Batson v. Kentucky, 476 U.S. 79, 89 n.12 (1986), that

the Constitution does not prohibit judicial enforcement of race-

based peremptory challenges by criminal defendants or their

attorneys. Indeed, the instant Alabama case is only one recent

and highly publicized example of the race-based exercise of

peremptory challenges by defense counsel. Another example

arose in New York, in People v. Kern, 137 A.D.2d 862, 524

N.Y.S.2d 521 (2d Dep’t 1988), known as the Howard Beach

case.

In Kern, tried in December 1987, several white teenagers were

tried in Queens County, New York, for an unprovoked racially-

motivated attack on four black men whose car had broken

down in a white residential neighborhood. The tmnal judge

found that the defendants appeared to be excluding black

potential jurors on the basis of race and held that the Batson

rule applied. Both the instani case and the Howard Beach case

involve charges of racial violence. In such cases, the defense is

especially likely to exclude minority jurors, and in such cases

the exclusion of minority jurors has a particularly grievous

effect in undermining community confidence in the verdict.

Prior to Batson, there were at least two similar examples in

Miami, Florida. In one case, white police officers were tried on

charges that they had beaten to death a black insurance execu-

tive. After the defendants exercised their peremptory chal-

lenges to remove all blacks from the panel, the all-white jury

acquitted the defendants. The verdict touched off rioting in

which fourteen people were killed and $200 million was lost in

property damage, inventory losses, lost wages, and lost tourist

dollars. The Florida governor’s report on the disturbance spe-

cifically identified the practice of excluding blacks from juries

in racially sensitive cases as a cause of the riots and a reason for

blacks in Dade County to distrust the criminal justice system.

See Andrews v. State, 438 So.2d 480, 482 n.4 (Fla. Dist. Ct.

App. 1983) (Ferguson, J., dissenting), quoting Miami Times,

June 23, 1983, p.1, col.1.

Again, in 1984, violence and outrage followed the acquittal

of four Miami police officers accused of killing black men. In

each of the cases, defense lawyers had used their peremptory

challenges to strike all blacks from the juries. See The New

York Times, Mar. 18, 1984, p.23, cols. 1, 4. The exclusion of

qualified jurors solely on the basis of race outraged the commu-

nity and undermined the legitimacy of the judicial process.

In her own jurisdiction, too, amicus Holtzman has regularly

observed defense counsel apparently excluding potential jurors

on the basis of race in numerous cases involving racial violence.

For example, two cases involved a single racially-motivated

attack upon three black employees of the New York City Tran-

sit Authority. These employees, after finishing the late shift,

had stopped for coffee in a white residential Brooklyn neigh-

borhood, where they were attacked by a group of white teen-

agers. One of the victims was beaten to death with a wooden

stick, and a second was seriously injured. One of the perpetra-

tors, indicted for murder, was tried by an all-white jury and

convicted of reckless manslaughter. People v. Bova, Kings

County Indictment Number 3545/82. Another was indicted for

murder and first degree assault, tried by a jury of eleven whites

and one black, and convicted of third degree assault, a misde-

meanor. People v. Mormondo, Kings County Indictment Num-

ber 3533/82. The defense attorney in Mormondo stated on the

record that his ‘‘concept’’ of the case was not to have blacks on

the jury, and the defense attorney in Bova, while not acknowl-

edging discrimination, evinced it by using 15 of his 17 chal-

lenges to strike minority jurors and ensure an all-white jury.

Another incident of racial violence in Brooklyn provides yet

another example. Three young white men were prosecuted for a

racially motivated assault on three black men who were on their

way home from their jobs at the Veterans Administration in

Brooklyn. People v. Wiggins, Kings County Indictment Num-

ber 2694/83. In that case, the trial judge found on the record

that the defendants appeared to be excluding black potential

jurors on the basis of race, but declined to do more than urge

them to stop.

In Brooklyn, as elsewhere, the defense practice of race-based

exclusions in prosecutions for racial violence has continued sub-

sequent to Batson. For example, a white police officer was tried

in Brooklyn in June of 1986 for the fatal shooting of a black

teenager. His counsel used peremptory challenges to exclude

eight black jurors, leaving only one black on the jury. The trial

ended in an acquittal. People v. Vacchio, Kings County Indict-

ment Number 117/85.

The issue arises not only in cases of racial violence, but also

in less inflammatory (if no less serious) contexts. Thus, subse-

quent to Batson, the issue has arisen in Brooklyn trials of two

black men charged with narcotics offenses, People v. Duncan,

Kings County Indictment Number 4115/84 (defense counsel

stated it was his ‘‘duty’’ to exclude potential jurors on basis of

race); a black man charged with the murder of a Hispanic man,

People v. Carter, Kings County Indictment Number 1093/86

(14 of 15 defense challenges against whites); a black man

charged with attempted murder of a person of unknown race,

People v. Miller, Kings County Indictment Number 4577/86

(13 of 13 defense challenges against whites); and a white man

charged with narcotics and weapons offenses, People v. Wiil-

liams, Kings County Indictment Number 8282/87 (9 of 9

defense challenges against whites). '

A few trial judges have been courageous enough to consider

and rule on the issue directly. See, e.g., People v. Kern, 137

l The facts of these Kings County cases are taken from the brief and

reply brief for appellant in the pending appeal to the New York State

Supreme Court, Appellate Division, in Holtzman v. Supreme Court,

139 Misc. 2d 109, 526 N.Y.S.2d 892 (Sup. Ct. Westchester Co. 1988),

appeal docketed (2d Dep’t March 21, 1988).

A.D.2d 862, 524 N.Y.S.2d 521 (2d Dep’t 1988) (the Howard

Beach case, appeal pending); Peopie v. Gary M., 138 Misc.2d

1081, 526 N.Y.S.2d 986 (Sup. Ct. Kings Co. 1988) (no appeal

because of acquittal); People v. Muriale, 138 Misc.2d 1056, 526

N.Y.S.2d 367 (Sup. Ct. Kings Co. 1988) (no appeal because of

guilty plea); Holtzman v. Supreme Court, 139 Misc.2d 109, 526

N.Y.S.2d 892 (Sup. Ct. Westchester Co. 1988) (declaratory

judgment, appeal! pending). Others have felt it inappropriate to

entertain the issue in the absence of a directive from higher

authority. See, e.g., Carter, Miller, Williams, and Wiggins,

supra.

While the issue recurs frequently in the trial courts, it arises

far less frequently in the appellate courts. First, if the trial judge

permits defense counsel to use race-based challenges, then

unless interlocutory relief is available, as in this case, the prose-

cutor is barred from obtaining appellate review. Second, if the

trial judge prohibits defense counsel from using race-based

challenges, appellate review may nevertheless be frustrated,

whether by an acquittal (Gary M.), a guilty plea (Muriale), or

some other fortuity. For example, in the Howard Beach case

the sole juror seated over defense objection was excused for

personal reasons before deliberations began, possibly mooting

the issue for appeal. Thus, the trial courts continue to wrestle

daily with this important constitutional issue without the

authoritative guidance they so desperately need. This Court

should grant certiorari in order to resolve this important ques-

tion.

B. The Constitutional Question is Substantial.

1. The Constitutional Rights of Jurors and the Public are

Violated.

This Court has long recognized that race discrimination in

jury selection violates the equal protection rights not only of

criminal defendants, but also the equal protection rights and

other legitimate interests of excluded jurors, of other members

of the stigmatized group, and of the public. Carter v. Jury

Commission, 396 U.S. 320, 329-30 (1970); Ex parte Virginia,

100 U.S. 339, 345 (1880); Strauder v. West Virginia, 100 U.S.

380)

The rights of prospective jurors are violated by race-based

challenges because the prospective jurors are denied their con-

stitutional right to participate equally in the administration of

justice without regard to race. While no person has a right to sit

as a juror in any particular case, the United States Constitution

guarantees to all persons that they will not be excluded from

jury service on the basis of race. Persons who comply with their

civic duty to appear when summoned for jury service have a

constitutional right to be selected, or rejected, on the basis of

their individual characteristics rather than as members of a

racial group. Batson v. Kentucky, 476 U.S. at 87-88; Carter v.

Jury Commission, 396 U.S. at 329-30; Strauder v. West Vir-

ginia, 100 U.S. at 308.

Moreover, other members of the stigmatized group are also

denied equal protection of the laws when the jury selection pro-

cess casts ‘‘a brand upon them. . . an assertion of their inferi-

ority, and a stimulant to that race prejudice which is an

impediment to securing to individuals of the race that equal jus-

tice which the law aims to secure to all others.’’ Strauder v.

West Virginia, 100 U.S. at 308; accord, Carter v. Jury Commis-

sion, 396 U.S. at 330.

Finally, the public at large is harmed by race-based challenges

because ‘‘[s]election procedures that purposefully exclude black

persons from juries undermine public confidence in the fairness

of our system of justice.’’ Batson v. Kentucky, 476 U.S. at 87.

In addition, the public at large is harmed by the ‘‘injury to the

jury system, to the law as an institution, to the community at

large, and to the democratic ideal reflected in the processes of

our courts.’’ Ballard v. United States, 329 U.S. 187, 195 (1946).

Thus, once the Court in Batson extended to the peremptory

challenge phase of jury selection the prohibition on race dis-

crimination, the conclusion inevitably followed that race-based

peremptory challenges, like any other form of race discrimina-

tion in jury selection, violate the rights of not only defendants

but also excluded jurors and the public. Batson v. Kentucky,

476 U.S. at 87-88.

Because rights other than those of the defendant are at stake,

the defendant may not avoid the constitutional ban on discrimi-

nation merely by noting that the equal protection rights pro-

tected by Batson can be asserted or waived as the defendant

alone sees fit.’

Moreover, the excluded jurors and the public experience pre-

cisely the same injury from the race-based exclusion of poten-

tial jurors, whether the challenges are exercised by prosecutors

or by defense attorneys. Indeed, ordinarily the jurors and the

public are not told which party challenged which jurors, and

their perception is therefore simply that the criminal justice sys-

tem has determined that jurors of a certain race are unfit to

serve in a particular case.°

2 Indeed, there are limits on a defendant’s power to waive even those

rights that appear to belong solely to the defendant, such as the various

trial rights contained in the sixth amendment. See, e.g., Wheat v.

United States, 108 S.Ct. 1692 (1988) (right to conflict-free counsel does

not imply unfettered right to waiver of conflict); Faretta v. California,

422 U.S. 806, 819 n.15 (1975S) (right to counsel does not imply unfet-

tered right to waiver of counsel); Singer v. United States, 380 U.S. 24,

36 (1965S) (right to trial does not imply unfettered right to waiver of

trial, i.e., to guilty plea); see also Press-Enterprise Co. v. Superior

Court, 464 U.S. 501, 505 (1984) (‘‘process of juror selection is. . .

matter of importance, not simply to the adversaries but to the criminal

justice system’’); Gannett Co. v. De Pasquale, 443 U.S. 368, 382-83

(1979) (‘‘independent public interest in the enforcement of sixth

amendment guarantees’’). Thus, if the Batson rule is also required by

the sixth amendment, see Teague v. Lane, No. 87-5259, argued Octo-

ber 4, 1988, then the defendant’s power to waive that right should like-

wise be limited by the public interest in avoiding race discrimination in

jury selection.

3 In a case in Kings County, New York, where a Hispanic defendant

was charged with killing a black victim, the defense counsel systemati-

cally struck all black potential jurors. People v. Rosado, Kings County

Indictment Number 4540/83. One black potential juror sent a letter to

the District Attorney complaining bitterly of the exclusion and seeking.

some way to purge the court system of this kind of discrimination. The

text of the letter is attached as an appendix.

10

In part for that reason, almost every other court that antici-

pated Batson in prohibiting race-based peremptory challenges

by prosecutors also applied the rule to defense counsel. See

Booker v. Jabe, 775 F.2d 762, 772 (6th Cir. 1985), vacated, 478

U.S. 1001 (1986), reinstated, 801 F.2d 871, 872 (1986), cert.

denied, 479 U.S. 1046 (1987); People v. Wheeler, 22 Cal.3d

258, 282 n.29, 583 P.2d 748, 765 n.29, 148 Cal. Rptr. 890, 907

n.29 (1978); State v. Neil, 457 So.2d 481, 487 (Fla. 1984); Corm-

monwealth v. Soares, 377 Mass. 461, 490 n.35, 387 N.E.2d 499,

$17 n.35, cert. denied, 444 U.S. 881 (1979).

But none of these courts decided the precise question pre-

sented by this case. The Sixth Circuit rested its holding on the

sixth amendment, and the state courts on their respective state

constitutions. The cases stand uniformly for the proposition

that excluded jurors and the public are equally harmed, whether

discriminatory challenges are exercised by prosecutors or

defense counsel. They do not, however, address the question

presented here: whether the federal equal protection clause pro-

tects excluded jurors and the public from that harm.

2. Judicial Enforcement of Defense Counsel's Challenges

Constitutes State Action.

The argument most frequently raised against extending the

Baston rule to defense counsel 1s that this Court’s decision in

Polk County v. Dodson, 454 U.S. 312 (1981), compels the con-

clusion that there is no state action in defense counsel’s exercise

of peremptory challenges and thus that such conduct cannot

violate the equai protection clause of the fourteenth amend-

ment. See, e.g., Holtzman v. Supreme Court, 139 Misc.2d 109,

S26 N.¥.S.2d 892 (Sup. Ct. Westchester Co. 1988).

While the issue 1s indisputably a substantial one, the argu-

ment is fundamentally flawed. This Court obviously recognized

that Polk County was not controlling when it reserved in Bar-

son the issue presented by this case. 476 U.S. at 89 n.12. More-

over, the jury selection process at issue here clearly satisfies the

test for state action established by a long line of decisions from

wnis Court.

1]

In Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982),

the Court set forth a two-prong test for state action: ‘‘[fJirst,

the deprivation [of a federal right] must be caused by the exer-

cise of some right or privilege created by the state. . . ; [s]ec-

ond, the party charged with the deprivation must be a person

who may fairly be said to be a state actor. This may be because

he is a state official, because he has acted together with or has

obtained significant aid from state officials, or because his con-

duct is otherwise chargeable to the State.’’ 457 U.S. at 937.

Both prongs of Lugar are satisfied here. First, it is well-

settled that the peremptory challenge is a state-created privilege

and not a right conferred or recognized by the federal constitu-

tion. See, e.g., Gray v. Mississippi, 107 S.Ct. 2045, 2054 (1987);

Batson v. Kentucky, 476 U.S. at 108 (Marshall, J., concurring);

Frazier v. United States, 335 U.S. 497, 505 n.11 (1948); United

States v. Wood, 299 U.S. 123, 145 (1936); Stilson v. United

States, 250 U.S. 583, 586 (1919). Thus, the peremptory chal-

lenge is a state-created right like the writ of attachment at issue

in Lugar, and unlike the private takings which were not state

action in Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978).

Second, the parties charged with the deprivation here are

state actors. The judges who enforce race-based challenges are

obviously state officials. The defense attorneys in exercising

race-based challenges also ‘‘may fairly be regarded as state

actors’’ both because they require the participation and assis-

tance of the court to enforce their challenges, and because of

the inextricable involvement of the state in the discriminatory

jury selection at issue here.

Each aspect of that involvement, without the others, has been

held to be a weighty factor contributing to a finding of state

action in prior decisions of this Court. Together, they point

irresistibly to that conclusion.

First, potential jurors are exposed to the humiliation of dis-

criminatory challenges only as a result of state coercion,

because the state summons people for jury service under threat

of criminal prosecution for failure to appear. This Court has

repeatedly recognized that state compulsion is a factor pointing

to a finding of state action. Lugar v. Edmondson Oil Co., 457

U.S. at 939; Adickes v. S.H. Kress Co., 398 U.S. 144, 170

(1970).

Second, race-based challenges occur exclusively on state

property, in state courtrooms. Because the state is implicated in

discrimination by a private restaurant located in a public build-

ing, Burton v. Wilmington Parking Authority, 365 U.S. 715

.1961), it must also be implicated in discrimination by an attor-

ney in a public proceeding in a public courthouse.

Third, race-based challenges occur not merely in a public

building, but in a proceeding created and conducted by the

state. In Cuyler v. Sullivan, 446 U.S. 335, 343 (1980), this Court

held that ‘‘a state criminal trial, a proceeding initiated and con-

ducted by the State itself, is an action of the State within the

meaning of the Fourteenth Amendment.’’

Fourth, judicial enforcement is necessary to give effect to

defense counsel's race-based challenges, and judicial enforce-

ment of race discrimination is itself discriminatory state action.

Barrows v. Jackson, 346 U.S. 249 (1953); Shelly v. Kraemer,

334 U.S. 1 (1948).

Fitth, the selection of a jury is an inherently governmental

function. A state cannot avoid its obligation to maintain a non-

discriminatory jury selection system by delegating part of the

selection process to private parties. In Nixon v. Condon, 286

U.S. 73 (1932), this Court held that Alabama could not exclude

blacks trom voting by delegating to a private political party the

task of determining qualifications for primary voters, and per-

mitting that party to bar blacks from the party primary.

Accord, Terry v. Adams, 345 U.S. 461 (1953). See also Evans v.

Newron, 382 U.S. 296, 299 (1966) (state action when state dele-

gates management of segregated municipal park). Similarly, the

state may not exclude blacks or any racial groups from jury ser-

vice by delegating the task of jury selection in part to a private

attorney, and permitting that attorney to exclude a class of

jurors through discriminatory exercise of the peremptory chal-

ienee.

13

There ‘is simply nothing private about the selection of jurors

or the use of peremptory challenges. They take place as part of

a governmental proceeding, in a public courthouse, for public

purposes. Moreover, peremptory challenges are available for

use (or abuse when used to discriminate unconstitutionally)

solely as a result of state legislation creating them. Finally, they

depend on public enforcement from the initial summons that

brings potential jurors to the courthouse and subjects them to

discrimination, to the final actions of the judge and court offi-

cers in seating and then excluding jurors who are so challenged.

For each of these reasons, and all of them together, the nexus

between the state and the discriminatory acts is sufficient to

render judicial enforcement of defense counsel’s race-based

challenges state action that denies the equal protection of the

laws to excluded jurors and to members of the stigmatized

group, and violates the rights of the public at large.

3. The Prosecutor has Standing to Assert the Equal Pro-

tection Rights of Excluded Jurors and Members of the

Public.

In a long line of cases, this Court has recognized a litigant’s

standing to assert the rights of third parties when three condi-

tions are satisfied: a) a close nexus between the litigant and the

third parties whose constitutional rights are at stake, b) serious

obstacles to the assertion of the right by the third parties them-

selves, and c) injury-in-fact to the litigant. Thus, private schools

have standing to assert the rights of parents and students to

choose private school education. Pierce v. Society of Sisters,

268 U.S. 510, 535 (1925). Likewise, physicians have standing to

assert the rights of their patients to contraceptives, Griswold v.

Connecticut, 381 U.S. 479, 481 (1965); cf. Eisenstadt v. Baird,

405 U.S. 438, 443-46 (1972) (nonphysician distributor of con-

traceptives); and to abortion, Singleton v. Wulff, 428 U.S. 106,

111-18 (1976); Doe v. Bolton, 410 U.S. 179, 188-89 (1973). Beer

sellers have standing to invoke their young male customers’

equal protection rights to buy beer at the same age as women.

Craig v. Boren, 429 U.S. 190, 192-97 (1976). Property sellers

have standing to invoke their buyers’ equal protection rights to

14

avoid the enforcement of a racially restrictive covenant. Bar-

rows v. Jackson, 346 U.S. 249, 255-58 (1953).

In all of these cases the litigants were injured in their business

or economic interests, though not in the exercise of their own

constitutional rights. The victims whose constitutional rights

were violated were ill-situated to litigate on their own behalf,

whether for reasons of privacy, or small individual stake in the

outcome, or for other reasons. The nexus between the litigants

and the victims whose constitutional rights were violated was

sufficient to assure the court of vigorous advocacy oi the vic-

tims’ rights.

So too here, the three prerequisites for standing are satisfied.

First, the prosecutor is injured in the performance of his or her

professional and statutory obligations. The public prosecutor

has an undeniable interest in conducting orderly, fair, and law-

ful criminal trials that command community confidence. That

interest is seriously impaired when juries are selected on the

basis of race. Unconstitutional discrimination in jury selection

may well impair the ability of a jury to engage in impartial fact

finding. Peters v. Kiff, 407 U.S. 493, 503-04 (1972). In addi-

tion, it undermines public confidence in the fairness of the

criminal justice system, see Batson v. Kentucky, 476 U.S. 79, 87

(1986), and impairs the prosecutor’s ability to investigate and

prosecute crimes and to obtain the cooperation of victims and

witnesses. Indeed, excluded jurors frequently believe the prose-

cutor is responsible for discrimination in jury selection, no mat-

ter who is in fact responsible, and they hold the prosecutor

responsible for correcting the situation (see juror letter

appended hereto). Thus the prosecutor clearly suffers injury-in-

fact.

Moreover, as in the cases cited above, the victims of the dis-

crimination are ill-suited to vindicate their own rights. First,

potential jurors are not parties to the jury selection process and

have no opportunity to be heard at the time of their selection or

exclusion. Their equal protection rights, therefore, can best be

vindicated only if the prosecutor is permitted to challenge what

appears to be discrimination in the defendant’s exercise of

15

peremptory challenges while that discrimination is occurring.

Second, because all jury challenges are made outside the jury’s

presence, excluded jurors are ill-situated even to know, much

less to allege and prove, which party to the criminal action was

responsible for their exclusion and why. Third, an excluded

juror would be barred from seeking damages by the qualified

immunity of judges, Harlow v. Fitzgerald, 457 U.S. 800, 817-18

(1982), and could not easily obtain declaratory or injunctive

relief because it would be difficult to demonstrate the likelihood j

of a repetition for any particular juror. City of Los Angeles v. j

Lyons, 461 U.S. 95, 105-10 (1983); Rizzo v. Goode, 423 U.S.

362, 371-72 (1976). And fourth, the practical barriers to suit by

an excluded juror are at least as great as the legal! barriers,

because of the small stake of any individual juror.

Finally, the nexus between the prosecutor and the excluded

juror is close enough to assure vigorous advocacy of the juror’s

rights. The public prosecutor has an official duty to assure that

jury selection proceeds in a constitutional manner. That interest

is virtually identical in this case to the interest of the excluded

juror in avoiding unconstitutional exclusion from jury service.

Moreover, the nexus is strengthened by several additional facts.

First, excluded jurors frequently hold the prosecutor responsi-

ble for unfair jury selection practices, no matter who is in fact

responsible. Second, the prosecutor has an interest in assuring

that potential jurors are satisfied with the fairness of the jury

selection process because he or she has the ultimate responsibil-

ity for compelling them to appear for jury service by prosecut-

ing them if they intentionally fail to respond to a jury

summons. Third, the prosecutor’s interest in preventing dis-

crimination in jury selection is supported by his or her interest

in impartial fact finding and in public confidence in jury ver-

dicts.

Thus, because the injury to the prosecutor in this case is

clear, the nexus to the excluded jurors strong, and the barriers

to suit by the excluded jurors substantial, the prosecutor has

standing to assert the constitutional rights of potential jurors to

be considered for jury service without regard to race.

CONCLUSION

For the reasons stated above, this Court should grant the writ

of certiorari to decide the important constitutional question

presented by this case.

FRED L. FOREMAN

President

JACK E. YELVERTON

Executive Director

National District Attorneys

Association, Inc.

1033 North Fairfax Street

Suite 200

Alexandria, Virginia 22314

November 28, 1988

Respectfully submitted,

ELIZABETH HOLTZMAN

District Attorney

BARBARA D. UNDERWOOD

Assistant District Attorney

Counsel of Record

PETER A. WEINSTEIN

VICTOR BARALL

Assistant District Attorneys

Kings County District

Attorney’s Office

210 Joralemon Street

Brooklyn, New York 11201

(718) 802-2156

Counsel for Amici Curiae

APPENDIX

11/21/84

Elizabeth Holtzman

District Attorney

210 Jorelmon Street

Brooklyn, N.Y.

Dear Mrs. Holtzman:

I am not sure that I am writing to the right person, if not

possible you will be able to put this bit of information in the

right place.

I am writing concerning the New York (Brooklyn) Judicial

system. Which has turned out to be one big joke, a waste of

time and the tax payers money.

I am acommon laborer not professing to know law, but I do

have common sense and understanding. | was summon to

Supreme Court 11/15/84 to serve as a possible Trial Juror.

After walking about for four days, I was finally called and sent

to court room 574 part II, 11/21/84. Presiding Judge Leone,

defendant Mr. Rosada. There were a least sixiy or seventy

people sent to room 574 to pick a jury of twelve plus two

alternates. The majority of the groups sent were Blacks. Mir.

Rosado is being tried for Murder 11/23/84.

After telling us what the law expected of us as possible

Jurors, which as the Judge stated was common sense and 4

promise from each of us to be fair and impartial then the

selection began; it made no difference to the Judge the District

Attorney or the defendants Lawyer that the majority of the

prospective Jurors were Black. They manage to pick thirteen

(13) whites and one black second alternate making sure of an

all white Jury.

We were also reminded that we if selected as a Juror, were

not suppose to take Sympathy into the founding of a Verdict.

But Mrs. Rosado was in the court room while the selection was

being made she is about seven months pregnant. Sne was

seated right a long with the prospective Jurors and if that isn’t

a sympathy pitch I’ve never seen one. Some of us do have

common sense.

And so I ask you Mrs. Holtzman if we Blacks don’t have

common sense and don’t know how to be fair and impartial,

why send these Summons to us? why are we subject to finds of

250.00 if we dont appear and told it’s our civic duty if we ask

to be excused. Why bother to call us down to these courts and

then over look us like a bunch of niave or better yet ignorant

children. We could be on our jobs or in schools trying to help

our selves instead of in court house Halls being Made fools of.

I will not sign my name because | am a little person and will

Surely get the short end of the stick. I just thought it was time

for some one to Know about the Judicia! system and if there is

anything that can be done or anyone who wants to do it, the

matter will be taken care of. A Copy of this letter will be sent

to Eye Witness News.

Thanking You

; a