# Reply Brief — Holland v. Illinois

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0524%3A7

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1990
- **Citation:** 493 U.S. 474

## Text

: Supreme Court, Us, |

(4) | FILED

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Supreme Court of the Anited States

OcToBEeR TERM, 1989

DANIEL HOLLAND,

Vv.
ILLINOIS,

On Writ Of Certiorari To
The Supreme Court Of Illinois

REPLY BRIEF FOR PETITIONER

RANDOLPH N. STONE
Public Defender of Cook County
ALIson EDWARDS
RONALD P. ALWIN
Dona.p 8S. HoncHELL*
Assistant Public Defenders
200 W. Adams St.

4th Floor

Chicago, Illinois 60606
(312) 609-2040

Counsel for Petitioner
*Counsel of Record

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TABLE OF AUTHORITIES
CasEs: Page
Ballew v. Georgia, 485 U.S. 223 (1978) ............... 6,7
Batson v.
Duren v. Missouri, 489 U.S. 367 (1979). ........ 6, 7, 17, 18
Fields v. People,

Lockhart v. McCree, 476 U.S. 162 (1986)
McCray v. Abrams, 750 F.2d 1113 (2nd Cir. 1984)
Seubert v. State, 749 S.W.2d 585 1988) ...... 9
State v. Superior Court, 157 Ariz. 541, 760 P.2d 541 (1988)
Taylor v. Lowisiana, 419 U.S. 522 (1975). .......... 6, 7, 14
Williams v. Florida, 399 U.S. 78 (1970). ...........+.. 6,7

Aad The and the Jury: Voir Dire
Alschuler, Court 7 re,
Peremptory Challenges, and the Review Jury Ver-
dicts, -Chi. L. Rev. 18 (Wnter 500 ances 5
tight too Par Tra 00 So. Cal Lf 1019

Comment, The Prosecutor's Right to Object to a Defend-
ant’s Abuse of Peremptory Challenges, 93
Dick. L. Rev. {43 (1988) ; a osoccensesdadiakatieees 16

Doyel, In Search of a Remedy for the ally Diservmi-
natory Tee, Ce hen Chal es, 38
Okla. L. Rev. datedesendécaetndsueses 5, 8, 10

Druff, The Cross-Section ; and Jury Impar-
tiality, 73 Cal. L. Rev. i ctneedeoeens 9, 17, 18

Goldwasser, — a Criminal Defendant's Use of

" (iE oansentesesévecounccs * so Se ©

te Discriminat p '

C a Batson a Kentucke, St kee -
Rev. . : St pty Suen Selections err ee © Cour
Implementation Batson v. Kentucky, 25
Willamette L. Rev. ES ere 4

2

‘The State’s primary dispute with petitioner's assertion
the Sixth Amendment entitles him to the fair possibility
his petit jury will include the representative community
cross-section is the claim he commingles Sixth Amend-
ment and equal protection concepts. To the State, the
Sixth Amendment simply assures an “impartial” set of

presen
here. Therefore, since Batson v. Kentucky, 476 U.S. 79
(1986) provides the exclusive remedy for the equal protec-
tion error claimed here, petitioner must adhere to that
decision. Of course, being white, petitioner cannot utilize
that holding and, so, in essence can do nothing. This
inability to apply Batson to his own case, by the very
terms of the Batson decision, disposes of the State’s asser-
tion (Br., p. 15) that this Court need not consider the Sixth
Amendment approach since a remedy is already avail-
able.

In asserting the Sixth Amendment jury trial right,
petitioner relies on a guarantee clearly applicable to him.
As the State bemoans (Br., pp. 38-40), the Sixth Amend-
ment right to trial by jury applies to every citizen accused
of a crime and each is entitled to contend it was not
provided in his case. In the case such as here of racial
discrimination which serves to deny defendant his consti-
tutional right to a jury trial, there is necessarily some
unavoidable spillover of equal protection and Sixth
Amendment considerations. In this regar’, one commen-
tator sensibly explained this relationship as follows:

a eB —— in the goals aeeee by
Siete canticen
wal integrity of the judicial ooliak Both somuire-

ments help avoid discrimination against groups

24 Sen L. Rev.
(1987) thereaher Challenges)

Thus, both constitutional provisions do share an interest
in racial discrimination, with the difference arising in the

4

degree of that concern. While banning racial discrimina-

tion is the “essential” purpose of the equal protection
clause, it is a secondary (though worthy) objective of the
Sixth Amendment. Instead, “the chief goal of the fair
cross-section requirement remains the protection of every
defendant, not the protection of only particular groups.”
(Challenges, 24 San Diego L. Rev. at 1114) The benefits to

the war against racial bigotry from acknowledgment of |

the Sixth Amendment right advocated here are consid-
erable. The “recognition of the fair cross-section require-
ment as applicable to’ petit juries would combat such
discrimination” and “would broaden the anti-discrimi-
natory effect of the Batson decision.” (Raphael, Discrim:-
natory Jury Selection: Lower Court Implementation of
Batson v. Kentucky, 25 Willamette L. Rev. 298, 348, 294
(1989) (hereafter Selection)) But the constitutional
assurance on which petitioner relies is the Sixth Amend-
ment right to trial by jury because “only the sixth amend-
ment's fair cross-section analysis and not equal protection
analysis can fully protect a defendant's sixth amendment
right to a” trial by jury. (Magid, Cnallenges, 24 San D.ego
L. Rev. 1081 at 1083)

The State insists the Batson case is the sole means of
combating discrimination, although it admits this holding
“is not available to petitioner”. (Br. at p. 13) What it
doubts is whether discrimination against blacks ever
arises in trials of white defendants where the prosecution
removes black prospective jurors through use of peremp-
tory challenges and, so, whether this Court should con-
sider using the Sixth Amendment to combat it. (Br., p. 13)
In fact, this Court recognized in Batson, 476 U.S. 79 at 97
that prosecutors act on the “assumption that blacks as a
group are unqualified to serve as jurors” (apart from the
assumption of bias “simply because the defendant is

black”). This bias could thus operate in trials of white

defendants.

In truth, contrary to State beliefs, “the elimination of
blacks from juries is not limited to. . . black defendants”
(Doyel, In Search of a Remedy for the Racially Discrimi-
natory Use of Peremptory Challenges, 38 Okla.L.Rev.
385, 386 (1985) (hereafter Search)) and “{iJnnumerable
‘practice manuals’ reveal that ) least those
who accept the conventional cluckings of courthouse cor-
ridors—seek to avoid minority jurors whatever the race of
the defendant.” (Alschuler, The Supreme Court and the
Jury: Voir Dire, Challenges, and the Review
of Jury Verdicts, 56 U.Chi.L. Rev. 153, 187 (Winter 1989)
(hereafter Supreme Court and Jury)) This Court cannot
be “oblivious to the possibility that prosecutors might
systematically exclude blacks in cases involving white
... defendants” (Supreme Court and Jury, 56
U.Chi.L. Rev. at 186-7) but must recognize the clear col-
lateral value of fighting remaining vestiges of racial bigo-
try by applying the Sixth Amendment as argued by
petitioner herein and in his opening brief.

Contrary to the State’s additional contentions, there is
simply more to the Sixth Amendment trial guarantee

than impartial jurors.

2. Another State complaint arises from its assump-
tion petitioner is only assured of a right to impartial jurors
under the Sixth Amendment and since he offers no com-
plaint his jury was partial, there was no Sixth Amend-
ment violation by the State’s use of peremptory
challenges on the basis of race to remove all blacks from
jury service. Petitioner asserts the State misreads the
Sixth Amendment much too narrowly since it assures him

jury rights beyond the mere guarantee of impartial jurors

jury
siana, 419 U.S. 522 (1975); Duren v. Missouri, 439 U.S.
357 (1979)) and to the fair possibility the petit jury
includes of the community (Ballew v.

representative community

maintains (Br., p. 28) the “jury size cases” did not extend
the concept of a fair cross-section to the petit jury, it has
been recognized that, in Ballew, “the Court indicated that
the fair cross-section applies to the petit jury when it held

The trial jury not only be impartial or indifferent
as the State (Br., p. 47) but, as the State equally
concedes (Br., p. 22), selected from a venire constituting a
fair cross-section of the community. The State fails to
explain how a system which merely demands indifference
to achieve the sole goal of impartiality also demands a

when this Court extended the Sixth Amendment right to
trial by jury to States, it “focused not on fundamental
rights but fundamental processes.” (Druff, The Cross-
Section Requirement and Jury Impartiality, 73
Cal.L.Rev. 1555, 1580 (1985) (hereafter Cross-Section);

While the State refers to the discussion of impartiality
in Lockhart v. McCree, 476 U.S. 162 (1986) (Br., p. 47),

blacks called jor jury service the State has disrupted
petitioner's Sixth Amendment right to the fair possibility
he would obtain a jury comprising a fair cross-section of
the. mmunity and, thereby, has frustrated the underly-
ing purposes of a trial by jury.

It should likewise accept impartiality as significant in
the selection of that jury. It has been recognized that

pted procedural

the appropriate time. Under acce

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the mere “possibility” his jury reflects the community
consensus (Br., p. 3C n. 3) and notes the only sure way to
achieve a cross-sectional requirement “is to have a cross-

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misapplied peremptory

might be. Not only is such a demand reasonable, it is
necessary. The State's concerns on including group mem-
bers by some affirmative quota system are thus baseless
and need not be regarded.

Contrary to State accusation (Br., p. 19), petitioner
does not seek “to alter the system protected by the Sixth
Amendment”. Rather, he seeks to assure to all citizens
trial by a system as required by the constitution and
intended by this Court. This is done by recognizing (1) the
initial affirmative burden to include without exception all
community groups on the jury rolls, (2) the random selec-
tion thereafter of potential jurors on the venire (assuring

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sibility a representative cross-section of the society will
be included on that jury to express the community's com-
monsense judgment.
If, in the future in another case in another court in
another context, another defendant wishes to apply this

application
recognized by the State (Br., p. 24), it noted in Taylor v.

Louisiana, 419 U.S. 522 at 537 that communities differ so

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by the Sixth Amendment. (It does not argue the equal
protection clause of the Fourteenth Amendment provides
it any to defense peremptory challenges
and has been given no basis to utilize
that constitutional provision to restrict defense peremp-
tories.) The assumption of symmetry has been challenged
recently by analysts as an inadequate constitutional rea-
son to limit the exercise of peremptory challenges by
defense attorneys.

Professor Katharine Goldwasser, in her article in the
Harvard Law Review, Limiting a Criminal Defendant's
Use of Challenges: On Symmetry and the
Jury in a Criminal Trial, 102 Harv.L.Rev. 808, 825
(1989) reports, with citations, that

“A few courts have considered—and have uni-
fines require symmetrical te ss

ss
“No one would against fairness to both sides
in a criminal trial.

nal justice system equates fairness with symmetry

Upon analysis (102 Harv.L.Rev. at 826-40), Professor
Goldwasser concluded “prosecution and defense peremp-
tories ought to be treated differently” (102 Harv. L. Rev. at
826) and, since Batson-like limitations on
defendants would, in fact, jeopardize the fairness of crimi-
nal trials, defense should be left alone.”
(102 Harv. L. Rev. 808, 840)

Similarly, Professor Susan Bandes explored the con-
cept of State’s rights in Taking Some Rights Too
Seriously: The State’s Right to a Fair Trial, 60
So.Cal.L. Rev. 1019 (1987). In doing so, she considered

and rejected “the assumption that the state also possesses
trial-related rights which are equal in weight to those of
the accused.” (60 So. Cal. L. Rev. at 1019) She noted distor-
tions from “the incorrect assumptions that the state must
be treated equally with the accused” (60 So.Cal. L. Rev.
1019 at 1056), stressing the “Constitution makes no men-
tion of the state’s right to a fair or impartial trial.” (60
So.Cal.L.Rev. at 1022-3) Thus, the true purpose of the
Sixth Amendment right to trial by jury is not to aid the
State but (as with other sections of the federal Bill of
Rights) “to redress the inherent imbalance between the
‘awesome power of the state and the unprotected position
of the individual accused of crime.” (60 So.Cal.L.Rev. at
1025; emphasis removed) This same inability of the State
to rely on Sixth Amendment trial rights to diminish
defense peremptories appears elsewhere in current legal
literature (see Note, Defendant’s Discriminatory Use of
the Peremptory Challenge After Batson v. Kentucky, 62
St. John’s L. Rev. 46, 59-60, 66 (1987); Comment, The
Prosecutor's Right to Object to a Defendant’s Abuse of
Peremptory Challenges, 93 Dick.L.Rev. 143, 153 (1988))
aad this Court should not now so utilize the Sixth Amend-
ment to create such a State right, especially considering
the lack of authority for it offered by the State in its brief.
If anything, as the above law review note and comment
recognize (93 Dick. L. Rev. 143, 152; 62 St. John’s L. Rev.
46 at 66), any restrictions on defense peremptories cannot
be imposed by courts on constitutional grounds of Sixth
Amendment symmetry but should be limited to statutory
provisions enacted by local legislatures.

Accepting contention the Sixth Amend-
ment assures him the State will not frustrate his jury trial
right to the fair possibility of a representative community
cross-section on his petit jury does not compel extending

The perspective on this point was presented in Cross-
Section, 73 Cal. L. Rev. 1555, where it was recognized the
“elements of a prima facie violation in the early stages of

a le le i On etl ee... a . "

In this regard, the reviewing court in McCray v.
Abrams, 750 F.2d 1113, 1131 (2nd Cir. 1984) succinctly
concluded it was “evident that the second factor stated by
the Duren Court, i.e., that the resulting group was in fact
not of the community, is not applicable to
the petit jury stage.” That is truly the situation and, since
the evaluation of the exclusion of jurors during pre-trial
selection differs from the evalua-
tion of exclusion during voir dire, the standards sensibly
differ as well. The State has failed to justify application of
pre-trial standards (in Duren) to the selection of the petit
jury and, therefore, use of Duren bere (either to reject
the right or provide the remedy) should be refused.

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Even should a judge, however, delay consideration of
the matter to the end of voir dire, that has been viewed as

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reasons asserted herein, this Honorable Court reject the

brief, order a hearing on the State's unconstitutional use

of its peremptory challenges.

August, 1989

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0524%3A7. Public record. Not legal advice.