# Petition for Writ of Certiorari — Alabama v. Harrell

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 984

## Text

EDITOK'S NOTE:

THE FOLLOWING PAGES WERE POOR HARD COPY
AT THE TIME OF FILMING. IF AND WHEN A
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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
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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!

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1767%3A1. Public record. Not legal advice.