Petition for Writ of Certiorari — Alabama v. Harrell

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' 90-1408

NO

IN THE SUPREME COURT OF .1

UNITED STATE: ;

~TOBER TERM

STATE ALABAMA

PETITIONES

OF LOUIS HARRELI

RESPONDENT

PETITION FOR WRIT F CEI

TO THE SUPREME COURT AND

OF CRIMINAL APPEAI YF I

JAMES H EVAN:

ATTORNEY GENERAI

ATTORNEY:

ADDRESS

Office of the

Alabama

1] South

Montaomer w

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"TORNE’

FOR

A WNT)

MARSTON I

F COUNSEL

Attorney

House

Street

state

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Alabama

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(SENFER?

PETITIONER

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TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED.......... Ante I

THE PARTIES... cccccccccccecs Ante II

TABLE OF CASES......--ssseees iii

TABLE OF CONSTITUTIONAL

PROVISIONS... cccccsccccccees vi

TABLE OF STATUTES.........++-; vi

TABLE OF OTHER AUTHORITY..... vii

OPINION AND ORDERS BELOW..... l

JURISDICTION. «2... ccc eencceees 4

CONSTITUTIONAL PROVISIONS

TNVOLVED..ccccccccccccccces 4

STATUTORY PROVISIONS

TNVOLVED..cccccccccssccsses 5

STATEMENT OF THE CASE........ 6

STATEMENT OF THE FACTS....... 13

SUMMARY OF THE ARGUMENT...... 15

ARGUMENT... cc ccccccccccccccees is

REASONS FOR GRANTING THE

WRIT:

I. CONFLICT WITH CONTROLLING

DECISIONS OF THIS HONORABLE

TABLE OF CONTENTS CONTINUED

PAGES

It. CONFLICT AMONG THE

JURISDICTIONS. .........-.- 27

IIt. THE CONSTITUTIONAL

POLICY OF EQUAL PROTECTION

MANDATES SUBSTANTAIL UNDER-

REPRESENTATION AS AN

ESSENTIAL ELEMENT OF RACIAL

DISCRIMIWATION.......... 30

COMCEAIB ROM. ccc cccccccsccccces 38

CERTIFICATE OF SERVICE....... 40

ii

STATEMENT OF QUESTIONS PRESENTED

A. Is substantial under -repre-

sentation of the relevant minority on the

petit jury an essential element in the

establishment of a prima facie case of

racial discrimination under Batson v.

Kentucky, 476 .S. 79 (1986)?

B. Where the relevant iuecite

comprises 31.5% of the population of a

county and the same minority comprises

35.7% of a venire drawn from such county

and the same minority comprises 41.7% «of ao

petit jury struck from such venire, i a

finding of racial discrimination in the

striking of such petit jury clearly wrona,

where the prosecution struck

substantial numbers of al) racial groups?

THE PARTIES

The parties in all of the lower

courts were the same as those in this

proceeding, the same being set out in the

caption.

TABLE OF CASES CONTINUED

PAGE(S)

Alexander v. Lovisiana

405 U.S. 625, 31 L.Ed.24

536, 92 S.Ct. 1221 (1972)... 22-23,24

Arlington Heights v. Metropolitan

429 U.S. 252, 50 L.Ed.2d

450, 96 S.Ct. 555 (1977).... 33

476 U.S. 79, 90 L.Ed.24

69, 106 S.Ct. 1712 (1986)... Ante I,

post l,

7,8,15,17,

20-26,30,

32, 34-38

Cc

430 U.S. 482, 51 L.Ed.2¢

498, 97 S.Ct. 1272 (1977)... 22,23,24

290 Ark. 54, 716 S.W.2d

Fen. Ce on atenccuesoaneca 28

481 U.S. 1037, 95 L.Ed.2¢d

6814, 107 S.Ct. 1973 (1987).. 27

Evans v. Illinois

—_.. U.S. __, 104 L.Ed.2d

1036, 109 S.Ct. 3175 (1989).. 27

526 So.2d 609 (Ala, 1987).... 35

_.. 80.246 (Ala, Jen. il,

Peecetaes ch bens ecenueuccen 35

hii

(Harrell) I)

555 So.2d 257 (Ala. Crim.

Raw, WSS) cccccecccccessesecs

Harrel] v. State (Harrell I!)

555 So.2d 263 (Ala, 1989.....

Harrell] vy. State (Harrell III)

«$0.20 __- (Ala. Crim.

App, April 27, 1990).........

Harrel] v. State (Harrel] IV)

_-« $0.24 ____ (Ala, Nov. 30,

SOOO S ccxeccbveedeedesuneese

__. ;U.S§. __, 111 L.Ed.2d

804, 110 S.Ct. 3296 (1990)...

Horton v. State

194 Ga. App. 797, 392 S.E.2d

259 (1990) ..cccccccccsccccees

257 Ga. 500, 360 S.E.2d

S7B (1987). wccccccccccccccess

125 111.2d 50, 530 N.E.2d

1360 (1966)... ccccccevcsevess

132 111.20 128, 547 N.E.2d

124 (1989). ccccccvcvccceeces

496 N.E.20 87 (Ind, 1986)....

489 U.S. 1069, 98 L.Ed.2d

1001, 108 &.Ct. 1037 (1988)..

2,9-10,

13,14,18,

21,34

3,12-13

3,13,19,

34

27

28

28

27

27

27

29

iv

TABLE OF CASES CONTINUED

320 N.C. 475, 358 S.E.24

POW COM ePewccchoccescccecccs

State v. Allen

323 N.C. 208, 372 S.E.2¢a

Wee ECR Shs ovbGe enou Cee,

747 S.W.2d 772 (Mo. App,

POETS 30 Oho cs b'o.0s eae seu.

99 N.C. App. 123, 393 S.E.24

See BS oes db oc scecen bobs

490 So.2d 556 (La. App,

gk ee

719 S.W.2d 553 (Tenn,

Crim. App, 1986).............

505 So.2d 981 (La. App,

Weer Ee BP ee vcccoceccccus

293 S.C. 22, 358 S.E.24

Pe SOP Deeb beccccccecce

908 F.2d 1531 (llth Cir,

BPS 56 Vi wee hE abs <060cccksc

604 F.2d 1208 (llth Cir,

B9OG) oc cccccecs PESO O ee CecoeeEes

PAGE(S)

28

6819 F.2d 847 (8th Cir,

ROOT) cccccccccsececccccccess

¥, Porter

631 F.2d 760 (8th Cir,

LGBT) wc ccccccccesereceseses:

360 U.S. 102, 13 L.Ed.2¢d

664, 85 S.Ct. 741 (1965).....

._Davis

426 U.S. 229, 486 L.Ed.2d

$97, 96 S.Ct. 2040 (1976)....

Amendment Four, 1791.........

Amendment Fourteen, 1868.....

TABLE OF STATUTES

Code of Alabama, 1975,

Title 12, Section 12-16-100..

Title 13A, Section 13A-12-212

Section 13A-12~-214

United States Code.

Title 28, Section 1257(3)....

PAGE(S)

29

29

33

23,25,33

vi

TABLE OF OTHER AUTHORITY

PAGE(S)

U.S. Dept. of Commerce, Bureau

of the Census, General Population

Characteristics, 1980. Vol. 1

part <2, Alabama, P.C. &0-1-B2 15

vais

NO.

oe i ee

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1999

STATE OF ALABAMA,

PETITIONER,

Vv.

JOE LOUTS HARRELL,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

OPINIONS AND ORDERS BELOW

The Circuit Court of Mobile County,

Alabama, issued no formal order in over-

ruling the Respondent ‘s Batson’ objec-

tion at the time of trial.

The opinion and order of the Court

of Criminal Appeals of Alabama affirming

Ipatson v. Kentucky, 476 U.S. 79, 90

L.£d.20 69, 106 S.Ct. 1712 (1986).

the Respondent's conviction on original

submission are reported as follows:

» 555

Harrell] v. Stete

So.2d€ 257, 258-262 (Ala.

Crim. App, 1989)

A copy of the same is submitted in

Appendiz “A” hereto.

The opinion and orders of the Court

of Criminal Appeals on rehearing, remanding

the cause with directions and denying

rehearing are reported as follows:

Harrell v. State. 555

So.20 257, 262 (Ale. Crim.

App. 1989)

A copy of the same ics submitted in

Appendix “A” hereto.

The opinion an’? order of the Supreme

Court of Alabama affirming the order of

the Court of Criminal Appeals is reported

as follows:

Ex parte State Re:

Harrell] v. State. 555

So.2d 263 (Ala. 1989)

* copy of the same is submitted as

Appendix “B” hereto.

The order of the Circuit Court of

Mobile County on remand will not be

reported, but a copy of the same is

submitted as Appendix "C” heret..

The opinion and order of the Court

of Criminal Appeals of Alabama reversing

the Respondent's conviction, remanding the

cause and denying rehearing are not yet

reported, but will be reported as:

Harrel] v. State, _ So.2a

—. (Ala. Crim. App, Apri}

27, 19990)

A copy of the same is submitted as

Appendix “D” hereto.

The opinion and order of the

Supreme Court of Alabama, quashing the writ

of certiorari as improvidently uranted are

mot yet reported, but will be reported as

follows:

Ex parte State: Re:

Harrel] v. State,

So.20d (Ala, Nev.

30, 1999)

A copy of the same is submitted as

Appendix "E” hereto.

The order of the Alabama Supreme

Court declining to stay its order pending

review by this Honorable Court wil] not be

reported but a copy of the same is

submitted as Appendix “F", hereto.

JURISDICTION

The order of the Supreme Court of

Alabama was issved on November 10, 1990,

and this petition is filed within ninety

(90) days of said date. This Honorable

Court's Jurisdiction is invoked under 28

".8.C. §1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The Courts of the State Alabama,

believed that their decisions were

mandated by the Section 1 of the

Fourteenth Amendment to the Constitution

of the United States Your Petitioner is

making a claim under the same said

provisions. Said constitutional provision

reads:

“AMENDMENT XIV

"Section 1.

“All persons born or

naturalized in the Uniter

Stetes, and subject to the

jurisdiction thereof, are

citizens of the United States

and of the state wherein they

reside. No state shall make

or enforce any law which

shall abridge the privileges

or immunities of citizens of

the United States; nor shal}

any state deprive any person

of life, liberty, or property.

without due process of law;

nor deny to any person within

its jurisdiction the equal

«protection of the laws.”

STATUTORY PROVISIONS INVOLVED

No statutory provisions are at

issue in this proceeding. Respondent

was indicted under Sections 13A-12-212

and 214, Code of Alabama, 1975, and the

jury was selected pursuant to Section

12-16-100 of the same Code. Copies of

these statutes are submitted in

Appendiz “G" hereto.

STATEMENT OF THE CASE

The Court of Criminal Appeals

stated the case up to appeal generally,

as follows:

“Joe Louis Harrell was

convicted for the unlawful

possession of cocaine in

violation of Ala. Code 1975,

§13A-12-212,'2) ana

sentenced to 30 years"

imprisonment. He was also

convicted of possession of

marijuana in the second

degree in violation of #1}.

Code 1975, §13A-12-214,

and sentenced to siz months’

imprisonment. Harrell raises

six issues on this appeal

from those convictions....”

Z Appendix “G" -

3 Ibid.

(Harrel] v. State, 555 So.2d

257, 258 (Ala. Crim. App.

1989); hereinafter referred

to as “Harrel] I”; Appendix

“A”, page 1-2)

On rehearing, the Court of Appeals

stated the case as to Respondent Harrell'‘s

Batson Claim as follows:

"...The supplemental record

shows that the prosecution

used five of its eight

peremptory challenges to

rémove blacks from the jury

venire and that the jury was

composed of seven whites and

five blacks. The trial judge

denied the Batson objection

at a side bar conference held

off the record after defense

counsel argued his objection

and the prosecutor explained

the reasons for here

peremptory strikes after the

trial judge had absented

-e-” (Haxrel] I. $55 So.2¢d

257, 262; Appendix “A”, paae

20, emphasis supplied)

On original submission, the

Petitioner State argued (1) that the Tria}

4patson v. Kentucky, 476 U.S. 79, 90

L.Ed.2d 69, 106 S.Ct. 1712 (1986)

Judge's absenting himseif from the

proceedings during the Batson argument

implied a finding that the lack of a prima

facie case under Batson was too obvious to

merit discussion and (2) that such ruling

could not be reviewed because of the

insufficiency of the record.

On March 31, 1989, the Court of

Criminal Appeals affirmed Respondent

Harrell's conviction, finding, inter alia,

that his Batson objection was not timely.

(Harrell I, 555 So.2d 257, 258-259,

Appendix "A", pages 2-6) The Petitioner

State had advanced no such claim.

Respondent Harrell then applied for

rehearing and moved to supplement the

record. On May 12, 19989, the Court of

Criminal Appeals granted rehearing and,

ignoring the question of prima facie

showing of racial discrimination, remanded

the cause for a determination of racial

neutrality of the Prosecutors’ reasons for

their strikes of black venirepersons.

(Appendix A,pages 20-21)

The Petitioner State applied for

rehearing pointing out: (1) The necessity

of a prima facie showing of racial dis-

crimination, before the prosecutor is

required to explain his or her strikes,

(2) that the Trial Judae had made an

implied finding that no prima facie case

had been made out, amd (3) that such

finding was correct hecause the Prose-

cutors struck both blacks and whites and

the jury which sat on the Respondent's

case did not reflect substantial under -

representation of black persons. On June

16, 1989, the Court of Criminal Appeals

denied the Petitioner State's application

for rehearing. (Harrel] 1. Appendix “A™)

The Petitioner State petitioned the

Alabama Supreme Court for certiorari

review, raising the points it had raised

on rehearing. Review was granted, but on

November 9, 1989, the Alabama Supreme

Court affirmed the Court of Appeals’

decision. The Alabama Supreme Court

agreed with the Respondent State on the

necessity of there being a prima facie

finding of racial discrimination and that

the Trial Judge had made such a finding.

(Harrell) v. State, 555 So.2d 263, 265

{Ala, 19899); hereinafter Harrell] II;

Appendix "B", page 28)> The Alabama

Supreme Court did not address the issue of

substantial under-representation but

remanded the cause for a determination of

prima facie case and whether the

§. LAS the record indicates, the trial

judge took no part in the exchange between

defense counsel and the prosecutor

regarding the Batson issue. We can only

conclude that the trial judge found that

the defendant had failed to prove the

prima facie case under Batson at the

previous sidebar conference....”

4

4

10

Prosecutors’ reasons were race neutral.

(Harrel] II, Appendix "B")

On remand, the Trial Court on

hearing nothing but what had been

presented at the time of trial and without

explanation, found that a prima facie case

of racial discrimination had been made

out. (R.R.Tr.p. 6)

There then followed a remarkably

nasty confrontation between the Defense

Attorney and Assistant District Attorney

Herman Y. Thomas. Mr. Thomas insisted

that the black venirepersons excused by

the State had been struck because they

came from neighborhoods where there were

serious drug problems. The Defense

Attorney insisted that this was a pretext

to cover up racially discriminatory

strikes by Mr. Thomas. In support of

6tronically, Mr. Thomas is black.

11

his position the Defense Attorney did not

dispute the proposition that the veniremen

in question came from such neighborhoods,

but pointed to a venirewoman of unspecified

race, who was not struck and who had the

same zip code as a black venireperson who

was struck. Mr. Thomas pointed out that

zip codes do not follow neighborhoods.

And so on. (R.R.Tr.pp. 3-14) On January

17, 1990, the Trial Judge issued an order

finding that the State had not advanced

race neutral reasons for its strikes.

(R.R. p. 7; Appendix “c™)

On April 27, 1990, the Court of

Criminal Appeals, on the basis of the

return from remandment, reversed

Respondent Harrell's conviction, again

without mentioning prima facie case or

substential under-representation.

(Harrell v. State, _ _ So.24 ____ [Ala.

Crim. App, April 27. 1990); Appendix “D",

12

hereinafter, Harrell] IIIT) The State

applied for rehearing. but the same was

overruled on June 29, 1990. (Ibid)

The State petitioned for certiorari

review, arguing that a finding of racial

discrimination where there was no

substantial under-representation is

Clearly wrong. The Alabama Supreme Court

granted review, but on November 30. 1990.

quashed the writ as improvident ly

granted. However, in so doing the Supreme

Court found facts showing that there was

no substantial under-representation.

(Harrell v. State. _—s« So..2¢ _. (Ala,

Nov. 30, 1990); Appendix “E*; hereinafter

Harrell) Iv)

STATEMENT OF THE FACTS

The facts relating to Respondent

Herrell*s crime are of little direct

relevance to the issue here presented.

13

Those facts are adequately set out in the

opinions in Harrel] I and II; 555 So.2d

257, 259-60; Appendix "A", pages 6-9 and

555 So.2d 263, 264, Appendix “B", pages

22-24, respectively. We submit these for

the information of this Honorable Court.

The facts on which this petition is

based are undisputed and were found by

both state appellate courts. As stated by

the Alabama Supreme Court in Harrell] IV,

they are:

"...1) The lawfully establish-

ed venire consisted of 28

people, of whom 10 (35.7%)

were black; 2) the prosecutor

used 5 of her 8 peremptory

challenges to strike blacks

and the remaining 3 to strike

whites; 3) defense counsel

used all 8 of his peremptory

challenges to strike whites

from the venire; and 4) the

jury that was ultimately

empanelled consisted of 5

blacks, amounting to 41.7% of

the jury (a greater

percentage than was on the

lawfully established venire),

and 7 whites....” (Harrell

IV; Appendix “E",. page 48)

According to the 19860 census for

Mobile County, Alabama, 31.5% of the

population of that county is black.

(Bureau of the Census 1980, General

Population Characteristics, Vol 1, part 2,

Alabama, P.C. 80-1-B2, pages 2-11 and 16.)

SUMMARY OF THE ARGUMENT

1. The confusion evidenced by the

Alabeme courts in this case results from

the reading of a single passage of Batson

v. Kentucky. (476 U.S. 79, 90 L.Ed.2d 69,

106 S.Ct. 1712 (1986)), out of the context

of the whole opinion and the cese in which

it arose. The language of Batson and the

authorities relied on clearly demonstrate

an intent to extend to petit jury selec-

tion procedures the standards previously

established for grand juries and venires.

Substantial under-representation, contrary

to the ruling of the Alabama Supreme

15

Court, is @ well established essential

element of racial discrimination under

such standards.

2. Numerous state supreme and

appellate court cases have found the

intentional inclusion by a prosecutor of

members of the relevant minority to be of

strong or conclusive significance to the

question of prime facie-case of racial

discrimination. The Alabama Supreme Court

ruled to the contrary in these authorities.

3. The censtitutional policy of

equal protection requires thet substantial

under-representation be an element of «a

prima facie cese of recial discrimination,

because:

(A) The lack of substantial under-

representation demonstrates a lack of

discriminetory intent

(8) Without substantial under-

representation there ts no besis for «4

16

Claim of a denial of equal protection.

(C) It would be a denia) of equal

protection to visit the burdens of

compulsory jury service disproportionately

om racial minorities.

(D) Prosecutors should be

encouraged to, not discouraged from,

striking juries in which racia} minorities

ere not substantially under-represented.

(E) The Batson rule as it has been

implemented in Alabama requires the

interjection of race as an issue in every

cese involving a Minority defendant, and.

im so doing, the Batsen decision, as

implemented in Alabama. exacerbates racial

prejudice.

17

ARGUMENT

REASONS FOR GRANTING THE WRIT:

I.

CONFLICT WITH THE CONTROLLING

DECISIONS OF THIS HONORABLE COURT

One point made by the Alabama

Supreme Court in Harre]] II must be

conceded: *...There has been a great

amount of confusion over the

interpretation to be given Batson....”

(555 So.2d 263, 265; Appendix "B", page

28) The confusion of the Alabama courts

is clearly revealed by their actions in

this case: The Trial Judge, on the basis

of his observations in the courtroom,

first found that the Batson objection did

not even merit discussion and rejected it

without considering the objection. Then,

on remandment, the Trial Judge on the same

evidentiary basis found that a prima facie

case had been made out. The Court of

Criminal Appeals of Alabama never mentioned

18

prima facie case in either of its opinions.

The Alabama Supreme Court, although

expressly recognizing the importance of

prima facie case, seems to think that one

is made out, if a scintilla of evidence

can be found which suggests the

possibility of discriminatory intent, even

if there is strong evidence demonstrating

the contrary.

Thus, in Harrell] IV, the Alabama

Supreme Court, after expressly finding

facts demonstrating that there was no

substantial under-representation of black

people on the Respondent's jury. proceeded

to approve the Trial court's finding of

members of the Respondent's race. The

Court reached this conclusion by ignoring

facts clearly demonstrating a lack of

discriminatory intent (e.g. the fact that

the prosecution struck substantial numbers

of both black and white venirepersons and

19

the fact that the prosecution accepted a

jury with nearly half of its members

being of the Respondent's race) and

giving controlling weight to very

questionable factors,” which it thought

indicated a discrimin- atory intent. The

confusion evidenced in this case comes

from reading a single passage of the

Batson opinion out of the context of the

whole opinion and out of the context in

which Batson srose. That passage reads:

“To establish such a [prima

facie) case, the defendant

first must show that he is a

member of a cognizable racial

group, ;

supra, at 494, 51 L.Ed.2d 498,

97 S.Ct. 1272, and that the

prosecutor has exercised

peremptory challenges to

remove from the venire members

7TWwe will not burden the Court with

analysis of these factors here, but we do

submit such analysis in Appendix “H” to

this petition.

20

of the defendant's race.

Second, the defendant is

entitled to rely on the. fact,

as to which there can be no

dispute, that peremptory

challenges constitute a jury

selection practice that permits

‘those to discriminate who are

of a mind to discriminate.’

Avery v. Georgia, 345 U.S., at

562, 97 L.Ed. 1244, 73 S.Ct.

891. Finally, the defendant

must show that these facts and

any other relevant circum-

stances raise an inference

that the prosecutor used that

practice to exclude the

veniremen from the petit jury

on account of their race.

This combination of factors in

the empaneling of the petit

jury, as in the selection of

the venire, raises the

necessary inference of

purposeful discrimination....”

(Batson v. Kentucky, 476 U.S.

79, 96, 90 L.Ed.2d 69, 87-88)

Compare Harrell] II, 555 So.2d 263,

265-264; Appendix "B"”, pages 29-30. This

passage does not mention substantial

under-representation, and the Alabama

Supreme Court has taken the position that

such is not an element of racial

discrimination under Batson.

21

it

However, the quoted passage, above,

does make reference to “...the selection

of the venire....”" And, immediately

before the quoted passage there appears

the following:

“...The standards for assessing

@ prima facie case in the

context of discriminatory

selection of the venire have

been fully articulated wince

Swain. See Castaneda v.

Partida, supra, at 494-495, 51

L.Ed.2d 498, 97 S.Ct. 1272;

Washington vy. Davis, 426 U.S.,

at 241-242, 48 L.Ed.2d 597, 96

S.Ct. 2040; Alexander v.

Louisiana, supra, at 629-631,

31 L.Ed.2d 536, 92 S.Ct. 1221.

These principles support our

conclusion that a defendant may

establish a prima facie case of

purposeful discrimination in

selection of the petit jury

solely on evidence concerning

the prosecutor's exercise of

peremptory challenges at the

defendant's trial...."

(Batson, 476 U.S. 79, 96, 90

L.Ed.2d 69, 87)

Castaneda v. Partida (430 U.S. 482, 51

L.Ed.2d 498, 97 S.Ct. 1272 [1977)) and

Alexander v. Louisiana (405 U.S. 625, 31

22

a ac

L.Ed.2d 536, 92 S.Ct. 1221 (1972)) related

to grand jury selection procedures. The

reference to these cases and to “...the

selection of the venire...." in the

context of prima facie case in Batson.

Clearly demonstrate that this Court did

not intend to create a new concept of

racial discrimination in Batson but to

extend to petit jury selections the

standards already established for grand

juries and venires. Castaneda. Alexander.

and Washington v. Davis (426 U.S. 229, 48

L.Ed.20d 597, 96 S.Ct. 2040 [1976]}) all

involved substantial under-representation.

Alexander v. Louisiana, above,

involved a grand jury selection process by

which prospective jurors were put through

several screenings. In Alexander's case

the percentage of prospective grand jurors

who were black went down markedly at each

screening, with the result that, although

23

21% of the presumptively qualified persons

in the county were black, no black person

sat on the grand jury which indicted

8 On these facts, this Court

Alexander.

found that Alexander had made out a prima

facie case of discrimination. In

Castaneda v. Partida, above, although

79.1% of the county was of hispanic

Origin, the grand juries included only

between 39% and 50% of persons of such

Origin. (430 U.S. 482, 485-488, 51

L.Ed.2d 498, 505-506) This Court found a

prima facie case of racial discrimination.

observing:

“"...(SJubstantial under-repre-

sentation of the group consti-

tutes a constitutional violation

as well [as total exclusion), if

-" (430 U.S.

482, 493, 51 L.Ed.2d 498, 509;

emphasis supplied)

8This pattern is precisely reversed in

this case.

24

In Washington v. Davis (426 U.S. 229, 48

L.Ed.2d 597, 96 S.Ct. 2040 [(1976)),

although the evidence showed undey-repre-

sentation of the group, this Court

rejected the claim of discrimination,

because there was no purposeful

G.iscrimination. (426 U.S. 299, 238ff, 48

L.Ed.2d 597, 606ff€).

In Batson, the prosecutor used his

peremptory challenges to strike all of the

black venirepersons from the jury, with

the result that an all white jury sat on

the case. In this case, the lawfully

established venire of 28 persons included

10 (35.7%) who were black. The

prosecution used its peremptory strikes to

excuse about equal numbers of black and

white venirepersons, while the defense

struck whites exclusively. The resulting

jury consisted of 5 (41.7%) black jurors

and 7 white jurors. Notwithstanding the

25

fact that the representation of black

persons on the jury was significantly

higher than their representation on the

venire, the Alabama courts found that a

prima facie racial discrimination by the

prosecution had been made out. In

reaching this conclusion, no Alabama court

ever addressed the question of substantial

under-representation In Batson and all

of its other cases on racial discrimina-

tion, this Honorable Court has held

substantial under-representation to be an

essential element in racial discrimination.

The decision and opinion of the Alabama

Supreme Court is in frreconcilable

conflict with said opinions. For this

reasons, the writ should issue in this

cause to review the decision and opinion

of the Supreme Court of Alabama

26

CONFLICT AMONG THE

JURISDICTIONS

The weight of authority among the

jurisdictions is that mo prima facie case

of racial discrimination is nade out under

Batson. if the prosecrtion does “...not

attempt to exclude +4!! fof the relevant

group), or as many fof the relevant

group) as it covld. from the jury .

United States v. Dennis. 04 F./d 1208,

121) (llth Cir, 1986): cert den. 481 U.S

1037, 958 L.2d.20 814, 197 S.Ct. 1973

People v. Evans. 12% '!!.24 80, 530 4.E.2¢

1360, 1365 (1988); cert. den. _ U.S

104 L.£d.2¢d 1036, 10° S.Ct. 3175; People

v,. Holman. 132 311.20 128, $47 N.E.2¢€ 124,

144ff (1989); cert. den — U.S. » aaa

L.Ed.2d 804, 110 S.Ct. 3296: Phillips vy.

State. 496 N.E.20 87, 89 (Ind. 1986);

State v. Elem. 747 S.W.20 772. 775 (Mo

App, 1988); v. St , 290 Ark. 54,

716 S.W.2d 751, 754f€ (1986); State v.

Peck, 719 S.W.2d 553, SSSff (Tenn. Crim.

App, 1986); rev. den.: Mincey v. State,

257 Ga. 500, 360 S.E.2d 578, S@L (1987);

Horton v. State, 194 tia. App. 797, 392

S.E.2d 259 (1990); cert. den; State v.

Simms, 505 So.2d 981, 985 (La. App, 3rd

Cir, 1987); State v. Moore, 490 So.2d 556,

S558ff (La. App, 4th Cir, 1986); State v.

Allen, 323 N.C. 208, '72 S.E..2d0 855,

861ff (1988); State v. Abbott, #20 N.C.

475, 358 S.E.20 578. “Al (1987): State v.

McNeil], 99 N.C. App. 123, 393 S.E.2d 123,

126 (1990); State v. Smith, 293 S.C. 22,

358 S.E.2d 389, 390 (1987). These states

consider a prosecutor's intentionally

leaving members of the relevant racial

minority on the jury 4s strong, even

conclusive evidence. that he or she had no

discriminatory intent Obviously, this is

28

expecially sc where the prosecutor

intentionally leaves substantial numbers

of such persons on the jury. See also

United States v. Porter, #7) F.cAd 760, 767

(Ath Cir, 1987); cert. den. 484 US. 1069,

Of L.Ed.24 1001, JOR S.CH. 1037; United

States v. Montgomery. "19 F.2d "47, AS]

(8th Cir, 1987) and United States v.

Allison, 908 F.20 1531, 1537 (11th Cit,

1990). The rational hasic of these cases

is that Batson does wt forbid the

striking of minority “eniremen «~ long as

they are not struck svlely becense of

race. If a prosecutor intentionally

eschews an opportunity to strike a person

of a certain race, it is strong evidence

of a lack of interest in discriminating

against that person's race.

Obviously, the decision and opinion

of the Alabama Supreme Court cannot be

reconciled with there decisions. Here,

_

the prosecution did net merely leave a

black person or some hlack people on the

Jury, but intentionally struck so that

almost half the jury was of the

Respondent's race. Yet, the Alabama

Supreme Court treated this fact as of

little relevance.

The writ should issue tc resolve

the conflicts and confusion over this

issue.

THT.

THE CONSTIT'ITIONAL POLICY

OF EQUAL FR''TECTION MANDATES

SUBSTANTIAL UNDER-REPRESEN-

ATION AS AN ESSENTIAL ELEMENT

OF RACIAL DISCRIMINATION.

The purpose of the decision in

Batson v. Kentucky (476 U.S. 79, 90

L.Ed.2d 69, 106 S.Ct. 1712 [(1986]) is to

Promote the constitutional policy of equal

Protection. Obviously, if that decision

is applied in a manner which promotes

30

unequal protection, it is being perverted.

Suel is the case in Alabama at the present

time. as a result of ignoring the

sianificance of substantial under-repre-

sentation.

First, it must be observed that,

although it may be theoretically possible

for @ person to desire to practice racial

discrimination against some members of a

racial group and not others, the racial

Aiscrimination condemned by the Fourteenth

Amendment is that grounded on the

assumption that al} members of the group

share characteristics which make them

particularly qualified or unqualified for

31

some purpose.” Such prejudice leads to

the exclusion of all or as mahy as

possible of the relevant minority.

Therefore, the voluntary acceptance of a

substantial number of members of such

minority is conclusive proof of the lack

9 .(T)he prosecutor may not rebut the

defendant's prima facie case of

discrimination by stating merely that he

challenged jurors of the defendant's race

on the assumption - oF his intuitive

judgment - that they would be partial te

the defendant because of their shared race.

... Just as the Equal Protection Clause

forbids the States to exclude black

persons from the venire on the assumption

that blacks as a group are unqualified to

serve as jurors ... se it forbids the

States to strike black veniremen on the

assumption that they will be biased in a

particular case simply because the

defendant is black....” (Batson. 476 U.S.

79, 97, 90 L.Ed.2d 6%, 88)

32

of discriminatory intent, which is the

other element of a prima facie case of

racial discrimination Washington v.

Davis, above; Arlington Heights v.

Metropolitan Housing Development, 429 U.S.

252, 50 L.Ed.20 450, 97 §.Ct. 555 (1977).

Second, without substantial under-

representation, there is no hasic for a

claim that there has heen a denial of

equal protection.

Third, if substantial under-repre

sentation is not an exnsential element of

racial discrimination. prosecutors,

desirous of avoiding litigation, would be

tempted to discriminate in favor of

minorities. In addition to being simply

another form of racia! discrimination,

such discrimination in the case of civic

duties like compulsory jury duty would

visit a disparate burden on the minorities

39 “favored”

a?

Fourth, since ivries which do not

reflect substantial under-representation

are, on their face, consistent with equal

protection, prosecutors should be encour-

aged to strike such juries. In the area

of the Fourth Amendment, this Honorable

Court has long condemned warrant review

policies which would have the effect of

discouraging resort t+ a warrant.

E.g. United States v. Ventresca, 380 U.S.

192, 108, 13 L.Ed.24 684, 689, 85 S.Ct.

741 (1965). This peliey is based on the

Fourth Amendment's preference for

warrants. As things stand now in Alabama,

the prosecutor, who strikes al) members of

@ relevant minority. and the prosecutor

who avoids such strikes in so far as

possible, both face the same threat of

Batson litigation at trial and on appeal

and, under the instant case, the same

threat of Batson sanctions. Prosecutors

34

faced with defense attorneys, who

invariably strike along racial lines,

ought to be given some practical

encouragement for resisting the temptation

to reply in kind.

Fifth, although prejudice, heing a

belief, opinion or feeling, is not per se

unconstitutional, it stands at the base of

the bulk of our equal protection

problems. Surely, racial prejudice is not

something which ought to be enconraged.

Yet, that is precisely what the present

administration of the Batson Rule in

Alabama threatens. This is primarily

because the Alabama Supreme Court's

efforts to “clarify” Batson (E.u. Ex parte

Branch, 526 So.2d 699 [Ala, 1987] and

Harrel]] II and IV, Appendices "B” and "D")

have left Alabama trial judges, defense

attorneys, and prosecutors with no idea of

what is a prima facie case under Batson,

cae

except that it includes the striking by

the prosecutor of a member of the

accused's race. Thus, when that situation

presents itself, defense attorneys feel

obliged to make a Batson objection.

Indeed, the Alabama Supreme Court has

recently held the failure to make a Batson

objection, when a prima facie case is

presented, constitutes ineffective

assistance of counse) of the same category

as denial of counsel, so that prejudice is

conclusively presumed Ex parte Yelder,

—_.. So.2d ____—sv (Aida, ~Jan. ll, 1991);

Appendix "I". Trial judges, in ruling on

Batson objections, usally simply

automatically direct the prosecutor te

state his or her reasons for their

strikes. Then, no matter what the reasons

are, the defense must make a pro forma,

Claim that the reasons advanced are

shams. The result of all this, beyond the

gross waste of time and resources, is the

36

introduction of race into every case in

which there is a minority defendant.

The instant case is a perfect

example of how this works in practice:

This is a simple drug case. The victims,

society, are of all races; the prosecutors

were black and white; the State's

witnesses included blacks and whites; the

jury was five black and seven white

persons; the defendant was black but covld

have been of any race. Race was not an

issue in this case and never would have

been injected but for the Alabama

implementation of Batson. In more than

three years of litigation the non-issue

of race has been the overbearing issue.

The gratuitous interjection of racial

issues into race neutral situations can

only introduce prejudice where there was

none and exacerbate any prejudice there

is. Thus, Batson. ® Necision aimed at

7

eliminating the effects of prejudice, may

well be generating prejudice in Alabama.

For all of these reasons, this

Honorable Court should grant review in

this case and clarify the significance of

substantial under-representation in a

prima case under Batson.

CONCLUSION

In conclusion your Petitioner, the

State of Alabama, respectfully submits

that in this case the Court of Criminal

Appeals and Supreme Court of Alabama,

decided an important question under the

Fourteenth Amendment +n a manner which

conflicts sharply with the teachings of

this HonoralLle Court as well as the

holdings of other jurisdictions which have

addressed this issve. In addition, the

policy established by the Alabama Supreme

Court is destructive of the purposes of

the policy established by this Court.

‘

38

Therefore, Your Petitioner prays

that this Honorable Court wil! issue the

writ of certiorari an‘? will review the

matters complained of and reverse the

decisions of the said Appellate Courts of

Alabama.

Respectfully submitted,

} TAMES H. EVANS

ATTORNEY GENERAL

BY:

JOSEPH G.L. MARSTON, IIT

ASSISTANT ATTORNEY GENERAL

ATTORNEYS FOP THE

PETITIONER

|

|

|

|

39

CERTIFICATE OF SERVICE

I, Joseph G. L. Marston, III,

Assistant Attorney General of Alabama, a

member of the Bar of the Supreme Court of

the United States and one of the Attorneys

for the State of Alabama, Petitioner,

hereby certify that on this day of

February, 1991, I did serve the requisite

number of copies of the foregoing on the

Attorney* for Joe Louis Harrell.

Respondent, and his former attcrneys** by

mailing the same to sid Attorneys first

Class postage prepaid and addressed as

follows:

Honorable Pau! Brown”

Attorney at Law

Post Office Box 126)

Mobile, Alabama 36633

Honorable Barbara Brown*’”

Attorney at Law

359 St. Francis Street

Mobile, Alabama 36602

40

a.

Honorable T. lefferson Deen*

Attorney at Law

207 Church Street

Mobile, Alabama 36602

JOSEPH G.L. MARSTON,

ASSISTANT ATTORNEY

GENERAL OF ALABAMA

ADDRESS OF COUNSEL:

Office of the Attorney Genera)

Criminal Appeals Division

Alabama State House

Ll South Union Street

Montgomery, Alabama 24130

(205) 242-7300

2691P

41

Ii!