Respondents Brief — Holland v. Illinois

—

—

:

_-

ES.

19

& N x

28

Zbe : as: ; ~_ E gee <p.

Se ilip i] i at HEE

i Bete gel eet se:

4 i ile gue _ Seta:

oes 22 : “28 | , bee

2 itu b cae

a ah ae

a nk ee mal ce

.

: -“—p oO @ ba ba <

sseeeae: 2p att jai

sect

aE

i i

4

itis

ee < x

UMENT:

; ee

a

— SS —.

IV

THE “IMPARTIALITY” GUARANTEE OF

THE SIXTH AMENDMENT UIRES A

DEFENSE, AND IS INCOMPATIBLE WITH A

REQUIREMENT THAT THESE JURORS BE

4 a PARTICULAR GROUP AFFILIA- ao

TABLE OF AUTHORITIES

CASES: PaGE(s):

Alexander v. Louisiana, 405 U.S. 625 (1972) .. 33

Allen v. Hardy, 478 U.S. 255 (1986) .......... 44

Apodaca v. Oregon, 406 U.S. 404 (1972) ...... 28

Arnold v. North Carolina, 376 U.S. 773 (1964) .. 33

Ballard v. United States, 329 U.S. 187 (1946) ... 36, 42

Ballew v. Georgia, 435 U.S. EE nas an one 28, 29

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

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

cated and remanded, 478 U.S. 1001, aff'd on

reconsideration, 801 F.2d 871 (6th Cir. 1986),

cert. denied, 479 U.S. 1046 (1987) .. 9, 14, 25, 30, 41

Burch v. Louisiana, 441 U.S. 130 (1979) ...... 28

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

ac cdbbbc ond cdebte dbth die dbvecdbs odbbebe 13, 20, 31

vi

Castaneda v. Partida, 430 U.S. 482 (1977) .. 21, 22, 26, 33

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

2d 499, cert. denied, 444 U.S. 881 (1979) ... 9,13

Duncan v. Louisiana, 391 U.S. 145 (1968) ... 16, 27, 39

Duren v. Missouri, 439 U.S. 357 (1979) ...... passim

Fields v. People, 732 P.2d 1145 (Colo. 1987) ... 15

Glasser v. United States, 315 U.S. 60 (1942) .. 16

Hayes v. Missouri, 120 U.S. 68 (1887) ........ 16, 46

Hoyt v. Florida, 368 U.S. 57 (1961) .......... 23, 24

Irvin v. Dowd, 366 U.S. 717 (1961) ........... 44, 47

Lockhart v. McCree, 476 U.S. 162 (1986) . 11, 24, 32, 33, 47

McCray v. Abrams, 750 F.2d 1113 (2d Cir. 1984),

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

s occcebuus e¥Gee bess cecddecdubeestines 9, 13, 14, 30

NAACP v. Alabama, 357 U.S. 449 (1958) ..... 26

Patterson v. McLean Credit Union, 57 U.S.L.W. 4705 uf

People ex rel. Daley v. Joyce, 126 Ill. 2d 209, 533

N.BB0 STB (IGG nnn cccvcccccccccscccsess 41

People v. Jackson, 69 Ill. 2d 252, 371 N.E.2d 602

ree epee or ewecsbis ob. 6, 18

People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748,

148 Cal. Rptr. 890 (1978) ............-0-.- 9, 13

Reece v. Georgia, 350 U.S. 85 (1955) .......... 33

Riley v. State, 496 A.2d 997 (Del. 1985) ...... 15

Satterwhite v. Texas, 108 S.Ct. 1792 (1988) .... 36

Seubert v. State, 749 S.W.2d 585 (Tex. Ct. App.

SEED ecvcocenseveeseces dtesveeteesoosioees 15

vii

Smith v. Balkcom, 660 F.2d 573 (5th Cir. 1981) .. 46

State v. Crespin, 94 N.M. 486, 612 P.2d 716 (N.M.

i I a ti at as 14, 15

State v. Gilmore, 103 N.J. 508, 511 A.2d 1150 (N_J.

ME. BébcdabencdnetBedibhcccccccescccee ce 15

State v. Neil, 457 So.2d 481 (Fla. 1984) ....... 15

State v. Superior Court, 157 Ariz. 541, 760 P.2d

ee 15

Strauder v. West Virginia, 100 U.S. 303 (1879) .. 13

Swain v. Alabama, 380 U.S. 202 (1965) ...... passim

Taylor v. Lowisiuna, 419 U.S. 522 (1975) .... passim

Teague v. Lane, 109 S.Ct. 1060 (1989) ........ 11, 45

Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) . 25, 27

United States v. Gometz, 730 F.2d 475 (7th Cir.

Fs on anal aseramaan 24

Wards Cove Packing Co., Inc. v. Antonio, 57 US.

RD isn ccs veccuccvaccccesc: 32

Washington v. Davis, 426 U.S. 229 (1976) ..... 20, 26

Wheat v. United States, 108 S.Ct. 1692 (1988)... 42

Whitus v. Georgia, 385 U.S. 545 (1967) ....... 20

Williams v. Florida, 399 U.S. 78 (1970) .... 16, 28, 29

ey IE TE hock cowc'casccocccbecs passim

U.S. Const. amend. XIV, §1 ................ passim

Ill. Rev. Stat. 1981, ch. 38, sec. 115-4(b) ...... 5

viii

Ill. Rev. Stat. 1981, ch. 38, sec. 115-4(e) ...... 5, 6

Ill. Rev. Stat. 1981, ch. 38, sec. 115-4(f) .......

Ill. Rev. Stat. 1981, ch. 78, sec. 4 ............

Ill. Rev. Stat. 1981, ch. 78, sec. 21 ...........

Ill. Rev. Stat. 1981, ch. 78, sec. 23 ...........

Ill. Rev. Stat. 1981, ch. 78, sec. 25 ...........

ov aw &

TREATISES:

Brilmayer, L., The Jurisprudence of Article III:

ives on the “Case or Controversy” Re-

quirement, 93 Harv. L. Rev. 297 (1979) .... 39

No. 88-5050

Iw Tus

Supreme Court of the United States

Ocroszr Tzam, 1988

DANIEL HOLLAND,

vs.

STATE OF ILLINOIS,

Respondent.

SSS aes=—saowSM9MS eee

On Writ Of Certiorari To The Supreme Court Of Illinois

CONSTITUTIONAL ee INVOLVED

:

5)

Ei TT

aE HH

inti

a

a

1

i 7

pf

25

bbe

ret

vias

; 5

ae

i

ath

hy

Hi;

f

Si2a%

eg

Z

F

ad

ail

err

eee

rH Ft

ia

i

3

ii

es

a

4? it

27

i a

ae

TPES ate

i

UTHER ALE HT

i?

i

HHA gis gece

Set

ely

$33:

beet Hy

apie yl

ais! f

bi}

ult! ETE

Ha i

e

regis

The aides]; i 13

tie (! He Hi Hii

' +t, TH a34¢ee 35 JH iti aa

i: 4 Tite : HF

a ee iW i

3°

at

‘tli

eel

at Te

eee Fy

Hu

ni Hee i d282 184,

Hi i Ht Be te

‘fie | HIPS

iii at

eH i A: He) hii

ne ii ae :

in.

Ht it li pa jie

a ue

i Hh | ii HE Hit

al il i Hl mea

el ne ial

Hein nH ban fi

TE

aifith ate ef!

: cul Hi

iil Get iH

i HT iBT it Heri

qian Wg THE

HT a a i

ip aaaitiad Ett

' HG i i itis slits:

Ce

Reet ate LH

“it 2 aie Hin

sf4aiii

i]

from jury service could of

Any

course file suit to enforce their own rights. Carter v. Jury

See eaere See Dosintns ax

om Poorer

na

fit

their rights thus does not turn on the availability of peti-

Commissioners, 396 U.S. 320 (1970). The vindication of

tioner’s services as private attorney general.

is

i aa Hi

cy i

Ze e326

| Suef

en coeds te eatlap aaa aeeniae ty

He

3

He

: Pe i

tle }

at

He

: a Hat Hy

ae iii rah

FE

i

: a

rape = say wre

of race-neutral

—'4—

foreclosed by the

pail Alabama, 380 U.S. 202 (1965).

TF

STE

It seems safe to say that none of these opinions would

have been written had the Swrm evidentiary burden been

overruled earlier, although the outcomes would certairly

have been the same. None of these decisions adopts a full

Se Laue

to 1 greater or lesser extent, each relies on equal

i Hl

Jointly Producing A Jury System That Has Legitimacy

In The Community And Provides An Impartial Jury For

The Individual Litigants.

Petitioner and Amicus Curiae argue that because it is

the petit jury and not the venire that is called upon to

decide a case, it would be “meaningless” to require a

representative cross-section on the venire but then fail

to provide for the fair possibility that the representative

cross-section will reach the petit jury. This is a non

tary components of the jury system, and each component

serves different purposes and values.

The jury pool or venire must be broadly based. This

promotes confidence that no segment of the citizenry is

excluded from the criminal justice system, and demon-

strates that the government does not have the power (o

“pack” juries with those who may favor its policies; the

government can remove people by challenge, but may not

affirmatively recruit. “The right to challenge is the right

to reject, not to select, a juror.” Hayes v. Missouri, 120

U.S. 68, 72 (1887). Juries ultimately selected from broadly-

based pools will not be the tool of any limited social class.

See e.g., Glasser v. United States, 315 U.S. 60 (1$42) (it

would be improper to select women jurors only from a

list submitted by the League of Women Voters).

As this Court has often noted, the right to trial by jury

is fundamentally a protection against “oppression by the

Government.” Duncan v. Louisiana, 391 U.S. 145, 155

(1968); Williams v. Florida, 399 U.S. 78, 100 (1970). Con-

trary to petitioner’s assertion, the fair cross-section prin-

ciple need not be implemented on the petit jury (which

— ———

——

= =

must in any event be impartial) in order for the jury

system to act as a shield between State and citizen. Be-

2 Petitioner (Brief at 27) on to that the

failed to ask questions of two black “in to indi-

cate Guts 09: Oe. ne apparently an allusion

to the statement in that prosecutor’s questions and

statements voir dire” are among the circumstances rele-

vant to showing purpose. Batson v. Kentucky, 476

_™

(Brief for Petitioner at 27) That may or may not be true,

but both sides want the “best” of the venire; neither side

wants to settle for minimally qualified jurors, and fairness

and legitimacy would not be advanced by requiring them

to do so. If a rule of excusal only for ineiigibility (.e.,

for statutory “cause”) applied to all jurors, it would, in

effect, eliminate the peremptory challenge, traditionally

“viewed as one means of assuring the selection of a quali-

fied and unbiased jury.” Batson v. Kentucky, 476 U.S.

79, 91 (1986), citing Swain v. Alabama, 380 U.S. 202, 219

(1965).

If on the other hand, what petitioner means is that

black jurors may be excused only for reasons approaching

“cause,” that is surely an invidious race-based distinction

to be making during voir dire. Once a black juror quali-

fied for the jury pool, he could be challenged only for

reasons articulated on the record (either in open court or

in chambers) and acceptable to the judge. No persci con-

templating jury service is likely to be enthused about the

prospect that his personal attributes (inattentiveness,

—— ’s decision in v. Jackson, 69 Ill. 2d 252,

N.E.2d 602 ae we Ss oe unusual.

The reference to suggests that an absence of questiun-

law, standards have been developed for determining whether

the constitutional right at issue has or hes not been vio-

lated. There is an internal logic to each, and standards

developed to assess a violation of one may not be freely

appropriated for the purpose of establishing a violation

of the other, as petitioner is seeking to do. If petitioner

wants to apply Sixth Amendment fair cross-section stan-

dards to the petit jury, he must follow Sixth Amendment

principles consistently to their logical conclusior To show

petitioner is inappropriate and unworkable, it is useful to

compare the standards developed by this Court for evalu-

ating claims of equal protection and Sixth Amendment vio-

lations.

98 (1986), quoting Washington v. Davis, 426 U.S. 229, 240

(1976). “Purposeful discrimination” must be proven.”

Whitus v. Georgia, 385 U.S. 545, 550 (1967).

status: he is directly the object of invidious discrimina-

tion when he is brought to trial by a criminal justice

system from w members of his own race have been

pacagere

efigetth

= g5

bie

pipe

ut

ath

it

~

implemented by this Court in Castaneda v. Partida, 430

U.S. 482 (1977) (involving the selection of grand jurors).

Defendant may establish a prima facie case of discrimina-

tion by showing that a cognizable group, of which defen-

dant must be a member, has been underrepresented over

some significant period of time in the context of a selec-

tion process that is susceptible of abuse or not racially

neutral. 430 U.S. at 494. Once a prima facie case of dis-

crimination is established, the burden shifts to the State

to show that the underrepresentation is not due to dis-

_ crimination.

In Batson v. Kentucky, 476 U.S. 79 (1986), this Court

followed, but modified, the Castaneda standard in order

to make discrimination in the voir dire of a single trial

cognizable. Under the modified standard, a prima facie

case could be established by showing that:

1. Defendant is a member of a cognizable racial

group, members of which have been excluded;

2. The selection process is susceptible of abuse; and

3. All the facts and circumstances raise the neces-

sary inference of purposeful discrimination.

476 U.S. at 96. That is, direct evidence of intent obtain-

able from the face-to-face confrontation between the pro-

spective jurors and the parties may be substituted for the

indirect evidence of intent obtainable from a long-term

statistical pattern of exclusion. Once a prima facie case

of discrimination is established, the burden, as under

Castaneda, shifts to the State to show that the exclusions

were not due to discriminatory animus, but are related

to the outcome of the trial. Under the Castaneda/Batson

Set Forth In Duren v. Missouri.

The core value of the Sixth Amendment is the guaran-

tee of an impartial jury. The guarantee of impartiality has

been held to require that the jury pool be selected from

a representative cross-section of the community. Taylor

v. Louisiana, 419 U.S. 522 (1975); Duren v. Missouri, 439

U.S. 357 (1979). That is, no “distinctive” community group

may be excluded by the State.

The standard for determining whether exclusion from

the jury pool has been established was set forth in Duren

v. Missouri, 439 U.S. 357 (1979), the Sixth Amendment

counterpart to Castaneda v. Partida, 430 U.S. 482 (1977).

To establish a prima facie violation of the “drawn from

a fair cross-section” requirement, a defendant must estab-

lish that:

1) The group alleged to have been excluded is a

“distinctive” group in the community;

2) The representation of this group in the pool from

which juries are selected is not fair and reasonable

in relation to the number of such persons in the com-

munity; and

3) This underrepresentation is due to systematic ex-

clusion of the group in the jury selection process.

Duren, 439 U.S. at 364. A prima facie case of systematic,

or systemic, exclusion (i.e., that due to the operation of

the system) may be overcome if the State can establish

that “a significant State interest be manifestly and pri-

marily advanced” by those aspects of the system that re-

sult in disproportionate exclusion. 439 U.S. at 367-368.

Discriminatory animus plays no role in the Duren analysis.

—23-—

a

As it happens, because the Sixth Amendment jury pool

cases have involved underrep: ~sentation that was clearly

attributable to the operation of the system, see Taylor

v. Louisiana, 419 U.S. 522 (1975) (women had to opt in

as jurors) and Duren v. Missouri, 439 U.S. 357 (1979)

(women permitted to opt out), the prima facie case has

been easily established. It is, however, clear that the

critical point is only whether the system does or does not

operate to reduce participation by some group; intent

(discriminatory animus) has been irrelevant to the prima

Rebuttal of the prima facie case appears to be very dif-

ficult. Once the State fails in an attempt to show that

439 U.S. at 357. The greater attention paid in Taylor to

the same (ultimately unavailing) State interest probably

reflects the fact that Taylor in effect overruled Hoyt v.

There is no Sixth Amendment analog to the Batson

case, applying the concept of systematic or systemic ex-

clusion to the selection of a single petit jury. That, of

course, is the question presented by the present case.

may be considered “distinctive” for Sixth Amendment

purposes. “Communities differ at different times and

places. What is a fair cross-section at one time or place

is not necessarily a fair cross-section at another time or

a different place.” Taylor v. Louisiana, 419 U.S. 522, 537

(1975). It seems clear enough that groups defined by some

immutable characteristic such as race or sex would be

“distinctive.” At the other end of the spectrum, groups

defined only by attitude apparently are not. See ¢.g.,

Lockhart v. McCree, 476 U.S. 162, 177 (1986) (a group ex-

cludable under Witherspoon v. Illinois, 391 U.S. 510 (1968)

for opposition to the death penalty is not distinctive);

United States v. Gometz, 730 F.2d 475 (7th Cir. 1984)

(claim that low rate of response to jury summons resulted

in juries on which anti-authoritarian personalities were

underrepresented not cognizable). In between are a range

of attributes which are not necessarily observable, and

—25—

are under the control of the individual to greater or lesser

degree. Thiel v. Southern Pacific Co., 328 U.S. 217 (1946)

(a civil jury case) held that the right to “an impartial jury

drawn from a cross-section of the community” requires

that there be no “ and intentional exclusion”

of “economic, social, religious, racial, political and geo-

graphic groups of the community.” 328 U.S. at 220.

The systematic exclusion of those “who work for a daily

wage” was prohibited. Id. at 222. While sexual orienta-

tion has not been raised heretofore, petitioner’s Sixth

775 F.2d 762, 773 (6th Cir. 1985).

There is thus no basis for petitioner’s argument, pressed

throughout his Brief, that the Sixth Amendment is vio-

lated only when a black juror is excused. That is a total-

While census data would establish population percen-

tages for some categories, an evidentiary hearing would

be required in order to determine whether other sug-

gested groups were really “distinctive” in the community.

Jurors would have to be questioned carefully in order to

uncover membership in groups defined by characteristics

that are not immediately apparent. A juror who was less

than candid about, e.g., his religion or sexual orientation

—26—

could produce a jury that failed to mirror the community.

(Of course there are obvious First Amendment problems

with a requirement that a potential juror disclose his

religion or memberships, see NAACP v. Alabama, 357

U.S. 449 (1958).)

The Sixth Amendment and the equal protection clause

have distinct purposes and consequently the second and

third prongs of the Duren and Batson tests as well as

the first, involve very different standards. A systematic

disproportion itself constitutes an infringement of defen-

dant’s Sixth Amendment right to a jury pool chosen from

a fair cross-section of the community, and any rebuttal

is directed to showing overriding government interest in

the systematic procedure that results in the dispropor-

tion. See Duren v. Missouri, 439 U.S. 355, 368 n.26 (1979).

In contrast, the prima facie case under the equal protec-

tion clause requires a showing of discriminatory animus.

Washington v. Davis, 426 U.S. 229, 240 (1976); Batson v.

Kentucky, 476 U.S. 79, 931986). A prima facie case may

then be rebutted by a showing that there was no invidious

discriminatory purpose (i.e., that there were race-neutral

reasons for the government’s actions). See Castaneda v.

Partida, 430 U.S. 482, 493-95 (1977).

Although some problems can be conceptualized in alter-

native ways, a problem typically belongs in one category

or the other. Thus, for example, the underrepresentation

of women on jury pools has been typically viewed as a

Sixth Amendment rather than an equal protection issue.

Putting aside the matter of standing when a male defen-

dant challenges the exclusion of women, there is clearly

no basis for maintaining that any exclusion was designed

with invidious intent to bar women from civic participa-

tion (the equal protection touchstone). Rather, the policies

—~27—

examined in Taylor (women had to opt in) and Duren

(women were permitted to opt out)—however patronizing

they may seem to a 1980’s feminist sensibility—in con-

text were viewed as benefiting the women who cared for

children, and advancing a State interest in promoting the

family.

In contrast, venire cases involving the exclusion of black

jurors have been brought almost exclusively under the

equal protection clause. In part this may simply reflect

the pre-1968 unavailability of the Sixth Amendment, see

- Duncan v. Louisiana, 391 U.S. 145 (1968), but more im-

portant, discriminatory animus is likely to be the only ex-

for the wholesale exclusion of blacks from the

jury pools, and unlike the governmental interest in per-

mitting homemakers to stay home, there is no rational

government interest in eliminating all black jurors from

jury service.

It is thus clear that the Sixth Amendment and the equal

clause address different problems and have dif-

ferent standards of proof. Lines of case law construing

the two provisions of the constitution have developed in-

dependently. If petitioner is making a claim under the

Sixth Amendment, he must follow Sixth Amendment juris-

prudence consistently without modification by equal pro-

tection principles.

agg pone mn are Louisiana, 41S

U.S. 78 (1970); Ballew v. Georgia, 485 U.S. 223 (1978);

Burch v. Louisiana, 441 U.S. 130 (1979); Apodaca v.

Oregon, 406 U.S. 404 (1972)) which, inter alia, mentioned

the impossibility of achieving a cross-section of the com-

munity on a petit jury of fewer than six unanimous indi-

viduals.

The jury pool cases unambiguously held that no com-

munity group could be excluded from the pool. The jury

size cases—the only cases to use the term “fair cross-

section” in the context of the petit jury—did not hold the

cross-section requirement applicable to the petit jury.

Rather, the possibility of a cross-section was listed as one

of several rationales (others included the likelihood that

size of the petit jury below six. At bottom, the point was

Ree i es —--

—29—

merely that a “jury” is a collective body, and if reduced

below some minimal size it no longer functions as a “group.”

Ballew and Williams are more about group dynamics as a

function of group size than about broad-based community

involvement being a necessary ingredient of impartiality.

Petitioner argues that he seeks nothing more than the

“fair possibility” that his petit jury mirrors the communi-

“that the “possibility” of a fair cross-section of the com-

the “fair possibility” at the level of the jury pool is a

—30—

Although petitioner disavows any interest in a quota

system,® he is simply incorrect in asserting that a “fair

possibility” can be operationalized without resort to num-

bers when the problem is viewed consistently as a Sixth

Amendment issue. The Sixth Amendment cases have been

clear and unambiguous in applying the Duren v. Missouri,

439 U.S. 357, 364 (1979), standard for establishing and re-

that he “does not advocate using Duren as the standard

by which to determine if the State’s exclusion of prospec-

Petitioner is apparently following the Second and Sixth

Circuits in McCray v. Abrams, 750 F.2d 1113, 1131 (2d

Cir. 1984), and Booker v. Jabe, 775 F.2d 762, 773 (6th Cir.

and Sixth in order to build

eee etal suis for Oe oy ;

concedes a petit cia deen ane w the community

—31—

guishable from the Batson equal protection test. Rather

find a Sixth Amendment violation within the confines of

vation devoid of constitutional unless it can

be placed in a context of either racial animus (in which

case it implicates the equal protection clause either via

defendant’s right or the excluded individuals’ civil rights,

see Carter v. Jury Commissioner, oe ar

or a pattern of exclusion that is nond.scriminatory, but

“systematic”, thus implicating the Sixth Amendment. (For

—32—

the same reason, the out-come of a single coin toss con-

veys no information about whether the coin is a fair one.)

In this case, the prosecutor specifically stated at trial that

the excusal of the two black jurors was not on account

and the prosecutor can have confidence that the convic-

tion will not be overturned.

This Court, however, has never suggested that a defen-

dant has a right to a petit jury of any particular com-

position, and indeed has made it quite clear that there

is no such entitlement. Taylor v. Louisiana, 419 U.S. 522,

ing Co., Inc. v. Atonio, 57 U.S.L.W. 4583, 4586 (1989)

(Title VII disparate impact employment case). Even if

EES EEE

i

i

:

:

a

ie

i

ah

:

i

E

fl

:

ta

g

A

u

F

i

f

i

Hi

a

2

ensure that a defendant’s venire reflects the community

(a claim that petitioner made during his voir dire in 1981

The choices then, if the fair cross-section requirement

of the jury pool cases is applied to the petit jury, are a

representative petit jury with all the problems that en-

tails, or one that is unrepresentative and in constitutional

limbo. The former is unworkable; the latter is meaning-

less.

In contrast, because a Sixth Amendment approach to

jury selection has nothing to do with discriminatory in-

tent, individual peremptory challenges are without signifi-

would simultaneously be violating the equal protection

mandate of Batson. None of this is iikely to prove edify-

ing for the citizens who reported for jury duty that day.

The obvious alternative to a mistrial is a harmiess error

analysis, an alternative thus far rejected in Sixth Amend-

ment ju7y pool cases, although in general permitted in

dunien’” for Gixth Aantadindat pipette, to berdicliave dealt

with in the case law, operates at the level of the “system”

or mechanism of juror recruitment for the jury pools.

Therefore, a single court decision is enough to alter the

- *

juror recruitment system for all time; a jurisdiction only

needs to be informed that it must recruit jurors by some

mechanism whose operation does not have the effect of

systematically excluding any identifiable segment of the

community. It is now typical, as in Illinois, to select jurors

from voting lists, thus obviating any possibility of sys-

tematic exclusion of those who are otherwise qualified.

With such juror recruitment schemes in effect throughout

the country, it is not surprising that jury pool selection

has essentially vanished as a subject of litigation. A prob-

_lem has been solved by enforcing a rule of procedural reg-

ularity in jury pool recruitment.

In contrast, if the Sixth Amendment is applied to regu-

late group representation at the level of the petit jury

(whether allegedly enforcing a “fair possibility” or a quota

system), a single court decision can have no such clarify-

ing effect. Any given appellate decision holding (e.g.) that

a given jury was insufficiently representative of the com-

munity is simply a one-shot decision. It does not “solve”’

any problem with the operation of the criminal justice sys-

tem because it does not deal with any systematic or sys-

temic procedures; it deals with and can address only in-

dividual human choices. That is, the Sixth Amendment

in the context of the jury pool addresses procedural regu-

larity, while in the context of the petit jury it addresses

the ends achieved. There can be no “progress” over time

as there has been in the jury pool context. The represen-

tativeness of the petit jury can and will be litigated afresh

in every single trial.

For this reason, it is vital that if the representativeness

of the petit jury (rather than the jury pool) is to be chal-

lenged, there be an inquiry into whether the exclusion

of a juror identifiable with some group really results in

greater partiality on the empaneled jury. Otherwise, a

-™

mistrial is granted or a conviction reversed when there

is nothing to be “improved” at a new trial, there being

no discriminatory animus or actual partiality involved. A

reversal is thus a pure windfall for the defendant, at great

cost and no ccunterbalancing gain for society. While this

approach might be termed a “harmless error” analysis,

that is actually somewhat of a misnomer. The Sixth Amend-

ment requires only “impartiality,” and if the empaneled

jury is impartial, there is no error, harmless or otherwise.

The point, however denominated, is that if the petit jury

cannot be shown to be other than impartial, the Sixth

Amendment does not permit the jury to be invalidated on

account of its group composition. It cannot be argued that

it is constitutionally imperative to have an equally impar-

tial jury of a different racial composition. Whatever social

policy that might be thought to advance, it certainly has

nothing to do with the Sixth Amendment.

C. If The Impartiality Clause Of The Sixth Amendment Is

Interpreted To Require A Petit Jury On Which Juror

Group Affiliation Is Relevant, Then Every Defendant

Would Have Standing To Litigate The Composition Of

His Petit Jury.

In his Argument II, petitioner argues that a white de-

fendant should have standing to object to the exclusion

of black potential jurors. Respondent maintains that peti-

tioner’s remedy—the Batson remedy minus a standing

requirement—is rooted in neither the equal protection

clause nor the Sixth Amendment and is neither permitted

nor required by either. The only possible rationale for ex-

tending equal protection standing (under the guise of the

Sixth Amendment) to a white defendant is, as petitioner

argues, Brief for Petitioner at 17, that while black defen-

dants can act as private attorneys general “to correct ...

—i-

racial misuse” of peremptory challenges, “white defendants

have no comparable weapon to fight racial bigotry and

the war against racial discrimination is thereby crippled.”’

That is, petitioner is making an equal protection policy

argument—not traceable to, let alone rooted in, the Sixth

Amendment—that every defendant shouid be able to act

as an enforcer of the Reconstruction Amendments. Peti-

tioner does not cite any support for this novel theory of

93 Harv. L. Rev. 297 (1979), and whatever its

ems 1G cates ter dd been ip coe he

partiality, the ostensible rationale for his Sixth Amend-

ment claim.

If respondent’s position is adopted, the standing issue

does not arise. If, however, this Court adopts petitioner’s

Amendment right to a jury trial have been made appli-

cable to the states via the Fourteenth (see Duncan v.

Louisiana, 391 U.S. 145 (1968)), it has never previously

to one class of citizens—i.e., those singled out for unique

protection by the equal protection clause.

Therefore, if the full force and internal logic of the Sixth

Amendment—unaltered by equal protection concepts—is

to be applied, there would be no standing requirement,

and every defendant, in every trial, would be entitled to

—40—

litigate the factual question of whether his petit jury

r .cts all distinctive community groups—whether those

groups be identifiable by race, religion, sex, occupation,

ethnic origin, sexual orientation or other distinctive at-

tribute.

D. If The Sixth Amendment Guarantee Of An Impartial

Jury Is Interpreted To Bar The Peremptory Challenge

Of Prospective Jurors Who Are Identifiable By Group

Affiliation, That Bar Must Be Equally Applicable To

Prosecution And Defense Because A One-Sided Bar

Would Necessarily Produce A Less Impartial Jury.

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

“We express no view on whether the Constitution [clause

unspecified] imposes any limit on the exercise of peremp-

tory challenges by defense counsel.” While the language

of the equal protection clause is directed against the gov-

ernment (although there is arguably state action when the

court excuses those peremptorily challenged by the de-

fense), the structure of the Sixth Amendment appears to

impart symmetry. The Sixth Amendment provides that

“the accused shall enjoy” the right to a trial by an im-

partial jury, but it does not say how impartiality is to

be achieved. The provisions of the Bill of Rights were

adopted as restraints on the federal government, and

through incorporation via the Fourteenth Amendment,

now serve to bind the States as well. Thus, it is clear

that whatever it is that the Sixth Amendment means by

“impartiality,” it bars the State from creating a biased

jury. The question, then, is whether the Sixth Amend-

—41—

ment also bars a defendant from exercising peremptory

that create a biased jury.

that must be accepted in order for this Court to hold that

the Sixth Amendment restricts the State’s peremptory

challenges. If the State is restricted, then the defense

must be restricted in the same manner or the resulting

jury will by definition be less impartial than under pres-

ent law. The suggestion that the defense would exercise

peremptory challenges in a group-based fashion is not

fanciful. The voir dire reported in Booker v. Jabe, 775

F 2d 762, 764 (6th Cir. 1985), is only an unusually blatant

example of a common occurrence—a black defendant system-

atically removing white jurors. Such conduct by the ac-

cused cannot be protected by a constitutional provision

guaranteeing his right to an “impartial” jury.

s Ene Oe SO wt hag eect gm ome ie arg are

es the defendant People ex rel. Daley

: = ech , 558 N.E.bd 873 (860) a different mat

ry ar caine © & ole waiving impartiality.

of the petit jury on the basis of the grovuv aff.liation of

not

if

fi

E

i

tf

il

Pe

i

i

r

Hi

]

H

1

if

Be

:

:

f

r

Pi

3

be

2

£9,

S

Although not otherwise defined in the Constitution, the

term “impartial” has a clear dictionary and decision theory

Cloner fo mohair sh iteed soenedlion: sith 6 Shahi Amend.

ment claim, and being white he has no standing to raise

the issue. Of course if the two jurors are not impartial,

then neither the Sixth Amendment nor the equal protec-

tion clause is implicated. And, if 12 impartial jurors

nate citizens who are summoned to sit in against

aaalaned dae cemensae confidence in

the administration of justice,” had « “some bearing” on the

jerk Periaetiin: tb cdedtedltianhenetthatery

pool who are to report to the courthouse on any given day

pre-determined according to some impartial system, and

the members of the day’s pool sent as a venire to a court-

room are typically drawn either at random or in accord with

—46—

jury. Hayes v. Missouri, 120 U.S. 68 (1887). If peremp-

As an alternative basis for his request that the fair

cross-section requirement be extended to the petit jury,

petitioner argues for the necessity of a “counterbalanc-

ing of views” on the petit jury. (Brief For Petitioner at

tween two alternatives;

—41—

15) Counterbalancing of views is a good description of the

political process in a democracy, but it has nothing to do

with “impartiality”—the requirement of the Sixth Amend-

ment. Ar “impartial” juror is one who is, a priori, “‘in-

different” as between defense and prosecution. See Irvin

v. Dowd, 366 U.S. 717, 722 (1961) (“In essence, the right

to jury trial guarantees to the criminally accused a fair

trial by a panel of impartial, ‘indifferent’ jurors.”) The

term “indifferent” refers to one who is at equipoise be-

treme viewpoint to produce a hung jury. In Lockhart v.

McCree, 476 U.S. 168, 177-178 (1986), this Court specifical-

ly rejected the theory that an “impartial jury” was to

be obtained by “balancing the various predispositions of

the individual jurors;” “an impartial jury consists of noth-

ing more than jurors who will conscientiously apply the

law and find the facts.” (citation omitted; emphasis in

original)

More fundamentally, the theory behind petitioner’s im-

juror.’” 476 U.S. at 87, quoting Thiel v. Southern Pacific

Co., U.S. 217, 227 (1946) (Frankfurter, J. dissenting).

Thus, by hypothesis, a prosecutor could be removing black

jurors (trial-related reasons aside) only because of racial

prejucice, “a primary example of the evil the Fourteenth

Amendment was designed to cure.” Batson, 476 U.S. at

85. Petitioner here argues that race does matter; hence

the argument that the Sixth Amendment is violated when

si, |

1, lig |

| H HAH |

7 i!

i 3 Gia

Hy 2) E sialeg! :

ne

Hagis ily lf iu Hi i EE

HIT taal palit nila

it ett HL Het : Hi

Veet nat Hite

BET Hit HHT