# Opposition Brief — Batson v. Kentucky > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1288%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1986 - **Citation:** 476 U.S. 79 ## Text ats l ine COUNTERSTATEMENT OF QUESTIONS PRESENTED TABLE OF CONTENTS...... u n Hs E. : sek Es: a ef g t b 1 22 af § 15 f fix 283 112255 . : 5 5 5 N 1 2 ant 11 Es : : Se | 1 Fy 1 ö PROOF OF SERVICE... Commonwesith +. Seeres, 3°77 “ess. #61, . . % 699 (1979)..... buren ©. Wissouri, 639 6 357 7% L. 6. 1 S79, „ S.ce. 664 %%% res ©. Sisseuri, 120 8. 8. 66, 1.8. S70, S00, 7 S.€e. 6% „„ Lewis ©. Geited States, 166 8.5. 578. 7 1. 66. 1011, tors, fi et, Bde... .. Screw +. Abrees, led Cir. 1966. i * | eee McCrey ©. Sew York, 105 S.Ct.tep. OF , ee — thee Choe — 2 sas eet eedeataaaes ~ tee n.d Wear. Susie ©. Alebens, 306 5.5. % 220 (900S)....... Tevier ©. Lewistens, 619 6.5. 5°? 62 . 86. 0 690, . e. O02 (907$)........... Geiversity of ett d. of Gegeats +. Vette. 638 6.5. 265, 359 (1978)..... 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1288%3A03. Public record. Not legal advice.