Opposition Brief — Batson v. Kentucky

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COUNTERSTATEMENT OF QUESTIONS PRESENTED

TABLE OF CONTENTS......

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PROOF OF SERVICE...

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Conscitetsene) Prov sjone

REASONS WHY THE WRIT SHOULD NOT BF ISSUED

I.

AN ATTACK ON THE USE OF PEREMPTORY

CHALLENGES TO THE VENIRE IN A CRIMINAL CASE

AMOUNTS TO AN ATTACK ON THE JURY SYSTEM PEFR

SE AS GUARANTED BY THE SIXTH AMENDMENT OF

THE UNITED STATES CONSTITUTION.

By definition a peremptory challenge to a member of

the venire is the striking of the member from sitting on the

jury at the uncontrolled discretion of a party in the case.

“The essential nature of the peremptory

challenge is that it is one exercised

without a reason stated, without inquiry and

without being subjected to the court's

control.” (Citations omitted). Swain v.

Alabama, 380 U.S. 202, 220 (19657.

“For it is, as Blackstone says, an arbitary

and capricious right; and it must be

exercised with full freedom, or it fails of

its full Tpose. TO v. United States,

146 U.S. 370, 378, . Ed. " - oe

S. Ct. 136 Id. 380 U.S. 219.

The Constitution does not require the granting of

peremptory strikes in a jury trial and, consequentiv, the

practice can be eliminated by either legislation or court

rule. Peremptory challenges could be taken away from the

presecution and be left only to the defendant or the tradition

could be otherwise altered as the court sees fit. However,

such action would be a radical departure from the procedure

which nas prevailed since the time of the common law.

“The persistence of peremptories and their

extensive use demostrates the long and

widely held belief that per tory challenge

is a necessary part of trial by jury.”

Swain v. Alabama, supra at 380 U.S. 219.

“Although historically the incidents of the

prosecutor's challenge has differed from

that of the accused, the view in this

country has been that the systems should

guarantee ‘not only freedom from any bias

against the accused, but also from any

r against his prosecution. Retween

im and the state the scales are to be

evenly held’. Hayes x. Missouri, 120 . 5.

68, 70, 30 L.Ed. oF 330, rt. 350."

Id. 380 U.S. 220.

“In the light of the purpose of the

peremptory system and the function it serves

in a pluralistic society in connection with

the institution of jury trial, we cannot

hold that the Constitution requires an

examination of the prosecutor's reasons for

the exercise of his challenges in any given

case." Id. 380 U.S. 222.

11.

THERE HAS BEEN NO SUBSTANTIAL JUDICATORY

CHALLENGE TO SWAIN X. ALABAMA IN THE

TWENTY YEARS SYNCE TT WAS DECIDED.

The Petitioner has been hard put to find any

substantial judicial dissatifaction with the opinion of the

court in Swain. He has found two state court decisions, People

v. Wheeler, 148 Cal.Rep. 890, S83 F. 2d 748 (1978) and

Commonwealth v. Soares, 377 Mass. 461, 387 N. F. 24 499 (1979),

There is also the opinion of a lower appellate court in

Illinois, People x. Payne, 106 III. App. 34 1034, 436 N. 6. 24 1046

(Ist Dist. 1982). [See PEOPLE V. PAYNE AND THE PROSECIITIONS

PEREMPTORY CHALLENGES: WILL THEY BE PREMPTED? 32 DePaul Law

Review page 399-451)

The Petitione has cited one federal circuit court

opinion, McCray v. Abrams, 2nd Cir. 1984, 750 F.id 1113 which

is an aberrance from the conclusion announced in Swain

upholding the use of peremptory challenges in their traditional

sense of being entirely unregulated and unexamined by the court

in a particular case.

-2-

The nenorandum opinion aissentine from the denial of

sentence only cites ten law review/1a™ journal articles» no

judicial opinions: it is * matter of general xnowledee that

the analytical treatises of lets! theorists are often at odds

with the constitutions! law » anounced by this court.

In summary, complaints against „ Alabama in

petit jury from 4 representative cross section of the community

was an essential component of the sixth amendment right to *

stated ~

“it 8s ould 218 be hasized t in

nol ding that petit uries gust de arawn From

a sou fairly represent? he

c japose re at

tit juries actually chosen must qrror the

community nd efiect the ¥ 1

418015 group i yation

fendant are not entitled zur v © any

particul® tion (citations omirce®

-4-

Swain, and ruled that even under the Sixth Amendment cross

sectional analysis, systematic exclusion through the use of

peremptory challenges must be demonstrated on a case after case

basis and not within the context of a particular case.

The goal for our judicial system should be to

administer justice without regard to color, race, or class.

Whatever may or may not be the merits of quotas or affirmative

actions in regard to such matters as education, public and

private employment, housing, etc., they have no place in the

System of justice. Discrimination against discreet groups

should be exposed and eliminated but peremptory challenges

should continue to be accorded to all parties in a jury trial

without any limitation or examination by the trial court.

Cc ION

The Petition for Writ of Certiorari to the Supreme

Court of Kentucky herein should be denied.

Respectfully submitted,

DAVID L. ARMSTRONG

ATTORNEY GENERAL

CAPITOL BUILDING

FRANKFORT, KENTUCKY 40601-3494

COUNSEL FOR RESPONDENT

8.

G * SERVICE

The undersigned be ev certifies the copy of the

Brief in Ospositis has

sail” ewstar aid, to Hon.

Frank . Heft, Jr., Ch dp liste Defender, “90 Civic Plaza,

"19 West Jefferson “eri +s. Lewisville, KY 40202 on this

the

bs y of Me ch, 18.