Respondents Brief — Batson v. Kentucky

|

SUPREME COURT OF THE UNITED STATES

October Term, 1984

BRIEF FOR RESPONDENT

a

DAVID L. ARMSTRONG

Attorney General of Kentucky

By: CARL T. MILLER, JR.

Assutan! Attorney General

Counsel for Respondent

RICKIE L. PEARSON

Assutant Attorney Ueneral

Capito! Building

Frankfort, Kentucky 40601-3494

(502) 564-7600

Co-Cownsel for Respondent

BEST AVAILABLE COPY

L

QUESTION PRESENTED

Is a trial court compelled by the Constitution to

restrict the use of peremptory challenges by counsel in

a particular case when members of an identifiable

group are excluded from the jury panel?

i

:

ft las

TABLE OF AUTHORITIES

Cases: PAGE

Apodaca v. Oregon, 406 U. 8. 404 (1972) ......... 13

Brown v. Louisiana, 447 U. S. 323 (1980) ........ 13

Commonwealth v. McFerron, Ky., 680 8S. W. 2d 924

Sih d ciedbenan dane ebbeedeeeetes< 4

Commonwealth v. Henderson, 438 A. 2d 951 (Pa.

i iieieihehbn dns db cbeekécckseuecdedess vs 14

Commonwealth v. Soares, 387 N. E. 2d 499 (Mass.

1979), cert. denied, 444 U. S. 881 (1979) ..... 4, 14, 25

Doepel v. United States, 434 A. 2d 449 (D.C. App.

1981), cert. den., 454 U. S. 1087 (1981) ........ 14

Evitts v. Lucey, 105 8. Ct. 830 (1985)............ 11

Hayes v. Missouri, 120 U. 8. 68 (1887) ........... 12

Herring v. New York, 422 U. 8. 853 (1975) ....... 11

Holley v. J. € 8S. Sweeping Co., 192 Cal. Rptr. 74

eo oi eke dac ceceeseeee 17, 23

Johnson v. Louisiana, 406 U. S. 356 (1972) ....... 13

Lewis v. United States, 146 U. 8S. 370 (1892) ...... 25

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

for Cert. filed, No. 84-1426 (March 4, 1984) .... 14

People v. Alexander, 205 Cal. Rptr. 387 (Cal. Ct.

i dite dens oe GGandeeneeseneesececees 18

People v. Fuller, 185 Cal. Rptr. 283 (App. 1982).. 18

People v. Hall, 672 P. 2d 859 (Cal. 1983) ......... 18

People v. Harvey, 208 Cal. Rptr. 910 (Cal. Ct. App.

EEE EE ee > ae a ee 18

People v. Johnson, 583 P. 2d 774 (Cal. 1978) ..... 21

People v. McCray, 443 N. E. 2d 915 (N.Y. 1982)

cert. denied 461 U. S. 961 (1983) ........... 14, 22, 24

People v. Payne, 457 N. E. 2d 1202 (Til. 1983) .... 6,14

People v. Rousseau, 179 Cal. Rptr. 892 (Cal. Ct.

12s dee ceeededsepessenesetees < 18

People v. Walker, 205 Cal. Rptr. 778 (Cal. Ct. App.

DE hitébend badedeobeoeccoeeseocesse 18

People v. Wheeler, 583 P. 2d 748 (Cal. 1978) ..... passim

iv

Peters v. Kiff, 407 U. S. 493 (1946) .........05.. 19

Pointer v. United States, 151 U. S. 396 (1894) .... 7

Roman v. Abrams, 608 F. Supp. 629 (D.C. N.Y.

BED ccccccéschcoscscdecéuuandedessusesenne 24

State v. Crespin, 612 P. 2d 716 (N.M. Ct. App. 1980) 14

State v. Gilmore, 489 A. 2d 1175 (N.J. Super. Ct.

Bam, Bon, BREE ccccvdsveesdscescccceses ie

State v. Neil, 457 So. 2d 481 (Fla. 1984) ......... 14

State v. Raymond, 446 A. 2d 743 (R.I. 1982) ..... 14

State v. Stewart, 591 P. 2d 166 (Kan. 1979) ...... 14

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

Taylor v. Louisiana, 419 U. 8, 522 (1975) ........ passim

United States v. Cancel, 708 F. 2d 894 (3rd Cir.

1983), cert. den., ___ U. S. ——, 104 8S. Ct. 165,

i * &§ § FO rrr errr err 15

United States v. Childress, 715 F. 2d 1313 (8th Cir.

1983) (en bane), cert. den., __ U. 8S. —~, 104

S. Ct. 744, 79 L. Ed. 2d 202 (1984) ........... 14

United States v. Gouveia, __. U. 8. ——, 104 8. Ct.

2292, 81 L. Ed. 2d 146 (1984) ................ 12

United States v. Jenkins, 701 F. 2d 850 (10th Cir.

SEE éwéddbaeusecenaeebseeasnanne adam ekean 15

United States v. Leslie, 759 F. 2d 366, reh. en banc

granted, 759 F. 2d 366 (5th Cir. 1985) ......... 14-15

United States v. Mandujano, 425 U. 8. 564 (1976). 12

United States v. Whitfield, 715 F. 2d 145 (4th Cir.

GUD. dcnucésdeccécukcacseeemeereuaen 14

Weathersby v. Morris, 708 F. 2d 1493 (9th Cir.

1983), cert. den., __ U. S. —_, 104 8. Ct. 719,

79 L. Ed. 2d 181 (1984) ...... enéaeabheecanns 15

Wendling v. Commonwealth, 143 Ky. 587, 137 8. W.

Sy GE n.néecunnédakées tunssadaadsmeaaenin 12-13

Willis v. Zant, 720 F. 2d 1212 (11th Cir. 1983),

cert. den., __ U. 8. ——, 104 S. Ct. 3546, 82

SS § | fe eer ee 14

Constitutional Provisions: PAGE

U. S. Constitution Fifth Amendment ............ passim

U. 8. Constitution Sixth Amendment ............ passim

U. 8. Constitution Fourteenth Amendment ...... passim

Be GEE, BF vccccccccccccccccsccccceccoscoses 12

Puerto Rico Const. Art. 2, § 11 ...... sevlinetwedetn 13

Oregon Const. Art. 1, § 11.1... 6.06 c cece eee eeee 13

oc cocascnccaccnassesetsese 13

ee I, SOU BD BP cccccccccconcececceccece 13

Statutes:

Florida Stat. Annot., § 913.10 ..... 0... 666s eee ens 13, 25

Miscellaneous:

Ky. Rules of Crim. Proc. 9.40 ..........666665005 3

Louisiana Code Crim. Proc. 782 ...........6..45. 13

er GD RT nn cnacnnsenesabancesceeces 20

Black’s Law Dictionary (5th Ed. 1979) .......... 20

Note, People v. Payne and the Prosecution’s Per-

emptory Challenges: Will They Be Preempted,

32 DePaul Law Review 399 (1983) .......... 6, 8, 22

Younger, Unlawful Peremptory Challenges, 7 Liti-

gation 23 (Fall 1980) ...........c.ceeseceses 22, 26

Comment, 7s There a Place for the Challenge of

Racially-based Peremptory Challenges?, 1984

Det. C. L. Rev. 703 (1984) ...........ccceeees 22

Note; Peremptory Challenges and the Meaning of

Jury Representation, 89 Yale L. J.1177 (1980).. 22

Salteburg & Powers, Peremptory Challenges and

the Clash Between Impartiality and Group Rep-

resentation, 41 Md. L. Rev. 337 (1982) ........ 16, 22

-

IN THE

SUPREME COURT OF THE UNITED STATES

No. 84-6263

October Term, 1984

JAMES KIRKLAND Batson - - - _ Petitioner

Vv.

COMMONWEALTH OF Kentucky - - Respondent

SUMMARY OF ARGUMENT

The use of peremptory challenges affects every

criminal jury trial in America. Under the American

adversary system, peremptory challenges are of great

importance in affording the parties the confidence that

the case will be heard by an impartial jury. Not only

is it the function of the challenge to eliminate extremes

of partiality on both sides, but to assure the parties

that the jurors before whom they try the case will

decide it on the basis of the evidence presented before

them, and not otherwise. Peremptories are an integral

part of the mechanism for choosing an impartial jury,

just as is voir dire and the exercise of challenges for

cause. Peremptory challenges should continue to be

allotted to the prosecution and the deferse.

In Swain v. Alabama, 380 U. 8. 202 (1965) this

Court held that it was not a violation of the Fourteenth

Amendment for the prosecutor to use his peremptory

challenges to strike petit jury veniremen who are mem-

bers of an identifiable group absent proef by the de-

fendant that the prosecutor has done the same in

previous cases over a period of time. Furthermore,

the prosecutor’s exercise of peremptories is presumed

to be impartial and he need not give reasons for ex-

cusing the veniremen of an identifiable group.

Subsequent to Swain, this Court held that under the

Sixth Amendment’s guarantee of a jury trial in crim-

inal prosecutions, petit juries need not mirror the

community and reflect the various distinctive groups

in the population. Therefore, a defendant is not en-

titled to a jury of any particular composition, but the

jury wheels, pools of names, or venires from which

juries are drawn must not systematically exclude dis-

tinctive groups in the community and thereby fail to be

reasonably representative thereof. Taylor v. Louisiana,

419 U. 8. 522 (1975). Kentucky submits these holdings

are constitutionally sound and should be reaffirmed.

Petitioner’s proposed remedy is a variation of the

one adopted by California's highest court in People v.

Wheeler, 583 P. 2d 748 (Cal. 1975), a criminal case

decided pursuant to that state’s constitution. Wheeler

requires, when an objection is made, that the opposing

side explain those peremptories used to exclude all or

most of a readily identifiable group from the petit jury.

Petitioner’s variation is that only the prosecution must

explain its challenges. This inequitable remedy is not

consistent with the Equal Protection Clause of the

Fourteenth Amendment and does not perpetuate jus-

tice or the appearance of such. Thus, the rule in

Swain is based on equal protection considerations and

presents a fair or equitable resolution in cases where

the allegation is made that peremptory challenges are

being exercised on the basis of group affiliation.

A. Petitioner Failed to Present Proof in the Trial Court

Regarding His Alleged Constitutional Violation.

The facts demonstrate that the prosecutor used four

of his six allotted peremptory challenges to strike the

only four black persons on the venire." The sum of

petitioner’s proof was that the prosecutor acknowl-

edged and stated, “I struck four blacks and two

whites”’ and “looking at them, yes; it’s an all white

jury” (TE7-8; A3). From this factual acknowledge-

ment, petitioner presumed that the prosecutor struck

the veniremen because of race discrimination. Peti-

tioner’s trial counsel failed to question the prosecutor

or put any evidence on the trial record that the prese-

eutor had participated in striking affiliated groups,

like the one at bar, in any other ease. Swain at 224,

‘In Kentueky, the prosecution is entitled to Give (5) petemp-

tory challenges and the defendants jointiy to eight (8) peremp-

creased by one. If more than one defendant is being tried, the

court may at its diseretion allow additional peremptory challenges

to each defendant. Kentucky Rules of Crim. Proce. 940. In the

ease at bar, the prosecutor was allowed six (6) peremptory chal-

lenges. The defense was allowed nine (9) to provide for an al-

ternate who would be removed from the jury when the case was

submitted.

‘

227, 228. Consequently, petitioner’s trial counsel failed

were based solely on membership. People

v. Wheeler, 583 P. 2d 748 (Cal. 1978), and Com-

monwealth v. Soares, 387 N.E. 2d 499 (Mass. 1979).

a result, the requirements of both the Fourteenth

Amendment «ad Sixth Amendments were met in peti-

tioner’s case under the latest pronouncements of this

Court.

Petitioner contends there is a constitutional neces-

sity under the Sixth and Fourteenth Amendments for

this Court to create a new rule that the prosecutor shall

not have peremptory challenges in the traditional sense

—unquestioned and unexplained—which would allow

him to remove groups of people from the jury panel in

a particular case. We submit that there is no such

constitutional necessity and that, as stated in Taylor v.

Louisiana, ‘defendants are not entitled to a jury of any

particular composition. . . .” 419 U. S. at 538.

Taylor and its progeny dealt only with state adminis-

tered selection procedures which exclude groups from

the jury venires, not from the petit jury :

“Thus, in contrast to the Supreme Court's test for

purposeful systematic exclusion under the Four-

teenth Amendment, the Sixth Amendment cro«s-

limited to the venire

Under both the Fourteenth and

Sixth Amendments, group affiliation appears to be

sys-

only a means by which a court identifies the seope

of the community's participation in the jury

tem. According to Swain and Taylor, the consti-

tutional requirement of community participation

under either the Fourteenth or Sixth Amendment

is satisfied when the venire represents a cross-

section of the community, and when groups are not

excluded systematically from the petit jury.

Swain authorized judicial review when systematic

exclusion oceurred in case after case.”’ Note,

People v. Payne and the Prosecution’s Peremptory

Challenges: Will they be Preempted? 32 DePaul

L. Pew , 399, 416-417 (1983).

Petitioner makes no claim of systematic exelusion

of blacks on \a case-after-case basis. There is no infor-

mation in the record relating to any case other than

his.” Kentucky contends that the Swain rule should

survive petitioner's attack and prosecutors should con-

tinue to be allowed to exercise peremptory challenges

without question, explanation or judicial serutiny.

Other than petitioner's claim regarding petit jury

composition, he fails to allege and demonstrate that

the jury ultimately selected was partial or prejudiced.

Absent petitioner's alpaoven allegation of diserim-

ination, the record does not illustrate that petitioner's

trial was unfairly -ondueced or its result was unre-

liable because the jurors were not impartial.

B. The Effect of Is Not Confined

Sa rae te tt

Criminal Trial.

The elimination or qualified use of the peremptory

challenges tugs at the very fiber of a criminal trial,

"By contrast the Court in Swain had informetion that “‘no

negro had actually served on a petit jury since about 1950."’

Swan, at 205.

7

that is, the existence of an impartial jury to hear the

ease. As set forth below, peremptories are essential

to the overall criminal process.

1. The Importance of Peremptory Challenges.

In Swain v. Alabama, 380 U. 8S. 202 (1965), this

Court examined the common law history, nature and

function of the peremptory challenge. The conclusion

was that it is ‘‘one of the most important of the rights

secured to the aceused.”’ /d. at 219 (quoting Pointer

v. United States, 151 U. S. 396, 408 (1894)). Although

this Court held that peremptory challenges were not

constitutionally required, Jd. a* 219-220, it added that:

The importance of the peremptory challenge has

been stated as follows:

“In formulating ‘ts standard in Swain, the Su-

jury because they enabled a party to excuse pro-

spective jurors on the basis of either a real or

imagined subjective perception of bias which or-

dinarily could not be established during voir dire.

The Swain court noted that these perceptions fre-

would radically alter the function and nature of

the device. (Footnote omitted). Therefore, even

though an individual prosecutor exercised his chal-

lenges to shape the racial composition of a single

petit jury, his peremptory challenges were not

subject to the requirements of equal protection.

( Footuote omitted).

Swain thus demonstrated the court's fear that

omitted). Furthermore, Swain recognized the

impossibility of applying a traditional systematic

exclusion analysis to the small number of indi-

viduals presented on the venire within a particular

trial. (Footnote omitted).”” 32 Depaul L. Rev.

399, 408, 404 (1983).

Despite occasional complaints from the defense bar,

special interest groups and legal theorists seeking per-

fection in adjudicatory process, nothing has happened

in the last twenty years to show that the decision in

Swain does not best serve the interests of a fair trial

or that a better rule for the use of peremptories can be

devised.’

2 Trial by Jury.

In Swain this Court recognized two different

scenarios for use of peremptory challenges. The first

involved the use of group characteristics as a means

of identifying probable prejudice in a particular case.

This Court concluded such usage was proper and a

traditional part of the jury system as known to the

common law and American jurisprudence. The second

So deeply ingrained in the jury system is the per-

“The holding called for by this case is that where

as here, a negro defendant proves that negroes

constitute a substantial segment of the population,

that negroes are qualified to serve as jurors, and

that none or only a token has served on juries over

an extended period of time, a prima facie case of

the exclusion of negroes from juries is then made

out; . . . and that the state wholly fails to meet

the prima facie case of systematic and purposeful

racial discrimination by showing that it has been

accomplished by the use of a peremptory challenge

system unless the state also shows that it is not

involved in the misuse of such a system to prevent

all negroes from ever sitting on eng jury. Such a

It is obvious that the Swe: Court was unanimous

in its opinion and also agreed that a prosecutor's use

of peremptories in any particular case should not be

examined. The dissenters differed with the majority

only in that they thought that the facts educed in the

ll

record as to repetitive practices in the jurisdiction

made a prima facie case of systematic exclusion of

negroes from serving on any jury. We believe the

dissenters in Swain would agree with our position that

there is no constitutional violation when the prosecu-

tion uses peremptories as a traditional part of the jury

system. Additionally, there is nothing in the record

in this case to show that the prosecution’s use of chal-

lenges were contra to traditional jurisprudence usage.

Such an issue has not been raised in the matter at bar.

3. Adversary System.

Petitioner argues at length that the prosecutor does

not have a “‘right’’ to peremptory challenge. He ex-

tends this conclusion for the purpose of further argu-

ing that only the prosecution should explain the use

of the peremptory challenges when an allegation has

been made by the defense that the prosecution has

exercised its peremptory challenges because of bias.

Such an approach to resolve the question at bar is

contrary to all notions of fair play and justice.

The adversary system has been adulated in many

opinions of this Court and attributed directly to the

Bill of Rights. ‘‘The very premise of our adversary

system of criminal justice is that partisan advocacy

on both sides of a case will best promote the ultimate

objectives that the guilty be convicted and the inno-

cent go free.’ LEvitts v. Lucey, U. Ss. _, 16

S. Ct. 830 (1985) quoting from Herring v. New York,

422 U. S. 853 (1975). The system is especially cher-

12

ished when compared with the inquisitorial system

recognized in some countries.‘ One of the chief fea-

tures of the adversary system is that ‘‘the system

should guarantee ‘not only freedom from any bias

against the accused, but also from any prejudice

against his prosecution. Between him and the state

the seales are to be evenly held.’’’ Swain v. Alabama,

380 U. S. 202, at 220, quoting Hayes v. Missouri, 120

U. 8S. 68, 70 (1887). One of the details of the system

is that the prosecution and the defense shall have per-

emptory challenges ‘‘exercised without a reason stated,

without inquiry and without being subjected to the

court’s control.”’ Jd.

4. Unanimous Verdict.

Section 7 of Kentucky’s Constitution provides:

“Trial by jury inviolate.

The ancient mode of trial by jury shall be held

sacred, and the right thereof remain inviolate,

subject to such modifications as may be author-

ized by this constitution.”

By looking to the common law, the highest court of

Kentucky interpreted this constitutional provision to

mean that an accused in a criminal or penal case has

the right to a trial in a court of justice presided over

by a judge, trial before a jury of twelve men, and

that all of them shall agree upon the verdict. Wend-

‘United States v. Gouveia, _. U. 8. ——, 104 8. Ct. 2292,

81 L. Ed. 2d 146 (1984); United States v. Mandujano, 425 U. 8.

564 (1976).

13

ling v. Commonwealth, 137 S. W. 205, 207 (Ky. 1911).

Only three jurisdictions in the United States differ

from Kentucky in requiring a unanimous verdict to

convict or acquit in a criminal case.°

Two states differ from Kentucky in authorizing

juries of less than twelve members in all criminal cases,

but those states require a unanimous verdict of twelve

persons to convict or acquit in a case involving a capital

offense.°

Peremptory challenges or strikes are of more im-

portance in a justice system which requires a unan-

imous verdict to convict. These challenges, which vary

from state to state, are indispensible in reducing the

number of veniremen to the required number of twelve

impartial jurors.

Without the benefit of the prosecutions peremp-

tories, the balance between the initial selection of the

venire from a representative cross-section of the com-

*Puerto Rico allows a verdict reached by nine of twelve jurors.

Const. Art. 2, §11. Oregon requires ten of twelve j irors to convict

or acquit for all criminal trial offenses with the xception of a

unanimous verdict for a conviction of first degree murder. Const.

Art. 1, §11; upheld in Apodaca v. Oregon, 406 U. 8. 404 (1972).

In Louisiana ten of twelve jurors are required to convict or acquit

in all lesser cases; Const. Art. I § 17; La. Code Crim. Proe. 782;

Johnson v. Lowisiana, 406 U. 8. 356 (1972; Brown v. Lowisiana;

447 U. 8S. 323 (1980).

*Utah requires an eight person jury to reach & unanimous

14

munity and the ultimate selection of an impartial jury

cannot be struck. Consequently, the absence of an im-

partial jury would all but eliminate the possibility of

a unanimous verdict.

C. The “Remedy” Proposed by Petitioner Will Serve Only

as an Undue Strain on the Judicial Process with Little

Recognizable Benefit.

Petitioner urges this Court to adopt the rule of

peremptory challenge validity created by the California

Supreme Court in People v. Wheeler, 583 P. 2d 748

(Cal. 1978), a rule expressly rejected by several juris-

dictions but imitated by others.’ The Wheeler rule

TThe Wheeler rule was rejected by the highest appellate courts

of Illinois, Kansas, Kentucky, New York, Pennsylvania, Rhode

Island, and the District of Columbia, People v. Payne, 457 N. E.

2d 1202 (Ill. 1983), State v. Stewart, 591 P. 2d 166 (Kan. 1979),

Batson v. Commonwealth, A. at p. 5, People v. McCray, 443 N. E. 2d

915 (N.Y. 1982), cert. den., 461 U. 8. 961 (1983), Commonwealth v.

Henderson, 438 A. 2d 951 (Pa. 1981), State v. Raymond, 446 A. 2d

743 (R.1. 1982), Doepel v. United States, 434 A. 2d 449 (D.C. App.

1981), cert. den., 454 U. 8. 1037 (1981). Wheeler was adopted by

Florida, Massachusetts, New Jersey, and New Mexico. State v.

Neil, 457 So. 2d 481 (Fla. 1984), Commonwealt v. Soares, 387

N. E. 2d 499 (Mass. 1979), cert. den., 444 U. 8. 881 (1979), State

v. Gilmore, 489 A. 2d 1175 (N.J. Super. Ct. App. Div. 1985), State

v. Crespin, 612 P. 2d 716 (N.M. Ct. App. 1980). Among the fed-

eral cireuit courts, versions of the Wheeler rule were judged un-

acceptable by three circuits. See Willis v. Zant, 720 F. 2d 1212

(11th Cir. 1983), cert. den, ___. U. 8. —_., 104 8. Ct. 3546, 82

L. Ed. 2d 849 (1984), United States v. Childress, 715 F. 2d 1313

(8th Cir. 1983) (en bane), cert. den., U. 8. _, 104 8. Ct.

744, 79 L. Ed. 2d 202 (1984), United States v. Whitfield, 715 F.

2d 145 (4th Cir. 1983), but found satisfactory by two circuits.

McCray v. Abrams, 750 F. 2d 1113 (2nd Cir. 1984), Pet. for Cert.

Filed, No. 84-1426 (March 4, 1984), United States v. Leslie, 759

(Continued on next page.)

15

allows judicial review of the use of peremptories upon

a prima facie showing of the circumstances of one case.

The test derived from Wheeler consist of four steps.

First, the objecting party must raise a “strong likeli-

hood’’ that members of a cognizable group protected

by the representative cross-section rule are being chal-

lenged for no reason other than their group association.

Id. at 764. Second, the trial judge must make a deter-

mination that the pattern of peremptories in this one

ease gives rise to a ‘‘reasonable inference”’ of use based

on group bias. Jd. at 764. Third, if an inference is

found, the burden shifts to the opposing party to sug-

gest a reason to the satisfaction of the trial judge that

the challenges were not properly exercised. Jd. at 765.

Fourth, the trial judge decides whether the ‘‘burden of

justification”’ is met. If the objection is sustained, the

trial judge shall dismiss the jurors, remaining venire-

men and draw a new venire. ZJd. at 765.

While superficially innocuous, the adoption of the

Wheeler rule would be of far reaching harm to the

(Contmued from preceding page.)

F. 2d 366, reh. en bane granted, 759 F. 2d 366 (5th Cir. 1985).

The precedents of three additional circuits suggests their adherence

to Swain. Cf. Weathersby v. Morris, 708 F. 2d 1493 (9th Cir.

1953), cert. den., __._. U. 8. ___., 104 8. Ct. 719, 79 L. Ed. 2d 181

(1984) (Taylor analysis does not extend te petit juries.), United

States v. Cancel, 708 F. 2d 894 (3rd Cir. 1983), cert. den.,

U. 8. _—., 104 8. Ct. 165, 78 L. Ed. 2d 151 (1983) (Refusal to

change the rule that ‘‘neither side need justify the use of per-

emptory challenges.’’), United States v. Jenkins, 701 F. 2d 850

(10th Cir. 1983) (Showing of systematic and intentional clusion

required to demonstrate unconstitutional use of peremptory

challenge. ).

judicial processes of this Nation, because each step

of tLe rule presents an invitation to confusion and

litigation.

1. Petitioner's Proposed Remedy is a Radical Departure from

the Traditional Use of Peremptory Challenges.

Petitioner urges the adoption of the reasoning and

remedy of Wheeler. However, unlike the first step in

Wheeler, he proposes the total elimination of prose-

eutorial peremptory challenges.

His proposed remedy would tilt the balance of

selecting an impartial jury. The result of this un-

even procedure would be the selection of a partial jury

or one of a particular composition. This is a radical

procedure which would eliminate the traditional usage

of peremptory challenges, destroy one of the procedures

which guarantees the selection of an impartial jury

and limit the prosecutor's participation in the jury

selection process. See Saltzburg and Powers, Peremp-

tory Challenges and the Clash Between Impartiality

and Group representation, 41 Md. L. Rev. 337, 355-357

(1982).

2. The Second Step of the Wheeler Rule Creates a Standard for

Judicial Review That is Unavoidably Vague and Impossible

te Consistently Apply.

Step two of the Wheeler test requires a judicial

determination of when protection shall begin by either

a finding of a ‘‘reasonable inference”’ of improper bias

in the use of peremptories or a conclusion to the con-

trary. This standard, will cause “ ‘difficult and often

17

close judgments’,”’ Wheeler at 764, and is so vague

that it will be impossible to consistently apply. In a

reluctant concurrence in Holley v. J. & S. Sweeping

Co., 192 Cal. Rptr. 74 (Cal. Ct. App. 1983), a fear

was expressed that Wheeler's ‘‘application from case

to ease will take the courts into the quagmire of quotas

for groups that are difficult to define and even more

difficult to quantify in the courtroom.”’ Jd. at 79.

The Wheeler court rejected the use of statistical

analysis to establish a mathematical likelihood of a

violation of the rule. The court recognized the in-

herent complexities of such methods and found it de-

ficient because of the inability to accurately evaluate

peremptory challenges. The court rejected the use of

statistical analysis in a single case because of the dis-

eretionary use of the challenge and the existence of a

small number of veniremen from which to draw a sta-

tistica! sample Id. at 763.

The California Supreme Court suggested that cer-

tain facts may be given special consideration by the

trial judge in reaching a decision. The fact of primary

importance is the showing that a disproportionate num-

ber of a cognizable group are being removed. Id. at

764. What constitutes ‘‘disproportionate”’ for the pur-

poses of this rule is left as unclear by the court as what

groups are considered ‘‘cognizable."’ As the rule it-

self is founded on case-by-case review, it would seem

that a trial juage at each objection must define dis-

proportionate according to the circumstances as they

exist in the issue before him." This will lead to a

chameleon-like rule, the color of whose meaning will

change as frequently as the facts to which it is applied.

The Wheeler court also found the manner in which

voir dire examination is conducted, and the group

membership of defendant in relation to that of the

victin. to be supplemental factors for consideration tv

the primary concern of disproportionate removal.

What weight is to be given these factors is now dis-

puted in California courts. See People v. Fuller, 186

Cal. Rptr. 283 (Cal. App. 1982). Wheeler implies that

inconsistent thoroughness in voir dire questioning or

when conducted in desultory fashion is grounds for

concern. The Court inferred that such questioning in-

dicates a settled intent to strike on the part of the in-

quiring counsel. If any inconsistency in degree of

defense or prosecution questioning can lead to a re-

quirement to give reason for a peremptory challenge,

counsel will either consistently make little use of the

*In the six years since the decision of Wheeler, the California

Courts are struggling to define the ‘‘ reasonable inference’’ stand-

ard in practical terms. See People v. Rousseau, 179 Cal. Rptr. 892

(Cal. Ct. App. 1982) (Striking of two of two group members was

not prima facie evidence of improper use of peremptory challenges )

Holley, supra, (striking of three or four members was prima facie )

People v. Hall, 672 P. 24 859 (Cal. 1983), (Striking of four of

eight members was prima facie.), People v. Walker, 206 Cal. Rptr.

778 (Cal. Ct. App. 1964) (striking of seven of nine members was

prima facie.) People ¥. Alexander, 205 Cal. Rptr. 387 (Cal. Ct.

App 1984) (Striking of four of five members was not prima facie )

People ¥. Harvey, 208 Cal. Rptr. 910 (Cal. Ct. App. 1984) (striking

of two of three members was not prima facie )

opportunity or uniformly indulge in a great number

of queries even where frivolous.

The group memberships of the defendant and vie-

tim are less useful than the Wheeler Court implies

because the affiliation is irrelevant to raising an ob-

jection regarding a possible violation of the repre-

sentative cross-section rule. Peters v. Kiff, 407 U. 8.

493 (1946). The trial court must consider the con-

cerns of all those who assert that their right to fair

trial is being violated whether the defendant and vie-

tim meet separate demographic classification or not.

3. The Third Step of the Wheeler Rule Changes the Peremptory

Challenge to a Challenge for Cause Without Effectively Pre.

— Removal of Group Members from the

Once a judicial determination is made that a rea-

sonable inference of misuse of a challenge existe,

Wheeler then requires the opposing party to justify

its actions. A reason of ‘specific bias"’ on the part of

an individual veniremen and not simply a bies based

on group association must be presented to the trial

court to allow the questioned peremptory challenge

to stand. Jd. at 765.

Even though the Whecler court stated that the

“showing need not rise to the level of a challenge for

cause," Id. at 765, the result of the rule would be the

foreing of just such a conclusion.

The California “epreme Court, while insisting a

recognizable difference remained, defined both the

justification for a peremptory challenge and the pur-

pose of a challenge for cause as an attempt to remove

an individual juror for “‘specifie bias.” Jd. at 760.

The requirement proposed for use in the third step

of Wheeler is practically indistinguishable from the

traditional meaning of a challenge for cause.’ It will

be an impossible task for trial judges to find a prac-

tical distinction between the two standards if the

highest appellate court of California, afte long and

careful deliberation, cannot articulate separate defi-

nitions.

In an attempt to avoid the transformation of the

peremptory, prosecution and defense counsels will de-

obvious anti-Semitism of one of his key witnesses will

inevitably prejudice such jurors against his client.

Adoption of Wheeler or a variation of it will foster

juries which are not impartial and are of a particular

composition. People v. Johnson, 583 P. 2d 774 (Cal.

1978).

4 The Fourth Step of the Wheeler Rule Will Lead to

Lengthy Delays in the Trial Process.

The trial judge, having heard the arguments of the

prosecution and defense, must, at his discretion sus-

tain or overrule the objection. If it is overruled, voir

dire continues until completion and the jury is im-

panelled. On the other hand, if the objection is sus-

tained, Wheeler requires the dismissing of the tainted

venire and the drawing of a new one. Id. at 765. The

California Supreme Court reached this conclusion by

finding the intent of the fair and representative cross

section rule violated, because of the forced selection

of a jury from a venire “partially or totally stripped

of members of a cognizable group by the improper

use of peremptory challenges." /d¢ at 765. The clear

sonal of the poocedaves mandated @ the Whester vals

will be that the “lengthy process of voir dire will be

rendered lengthier still." Wheeler. dissent at 769.

In rejecting a version of petitioner's “remedy” for

use in their jurisdiction, the Court of A peals of New

York articulated the fear that:

“. . . [To the extent that restrictions on a party's

exercise of the peremptory challenge would re-

quire more extensive voir dire to disclose provable

racial biases, as well as requiring extensive evi-

End to the Effective Use of the Peremptory

The Wheeler rule is clearly problematic.” It is a

rule which trial judges will be unable to consistently

and Group Repro tation, 41 Md. L. Rew. 387 (1982), Younger,

Uniewfal Peremp 9 Challenges, T Litigation 2 (Pall 1980),

Note, People v. Payne and the Prosceution’s Peremptory Chal.

lenges: Wil They Be Preempted? 32 Depaul L. Rew. 999 (1989),

Comment, Is There a Place for the Challenge of Racially-Rased

Peremptory Challenges? 1984 Det. C. L. Rev, 708 (1984), Note,

Peremptory Challenges and the Meanung of Jury Representation

89 Yale L. J. 1177 (1980).

apply. It will require explanation of all peremptory

challenges and will not detect or deter genuine im-

proper bias. The conflicts and confusion by adopting

Wheeler will generate and provide fertile ground for

litigation and appeals.

The conclusion of the trial judge, on which the

Wheeler rule so greatly relies, will frequently be

termed an abuse of discretion by those parties who

receive judgments adverse to their interest. This char-

acterization will serve as foundation for an expansive

number of claims for appeal, and when the decided ma-

jority of these contested convictions are affirmed

through the appellate process, this assertion of error

will become the justifcation for a petition for writ of

habeas corpus. The Wheeler rule has already been

extended into civil jury selection in the California

courts, Holley v. J & S Sweeping Co. supra. This

extension further taxes the strained resources of a ju-

dicial system. It is the inherent nature of rules that are

substantially subjective that they increase the demand

for appellate courts to review the decisions of the trial

judge. The California Supreme Court concluded that

the right impaired is so fundamental that any discov-

ered error is “prejudicial per se.” Wheeler, at 766.

The extention of such reasoning to all the judicial

systems that are touched by the judgements of this

Court would be a profound hindrance to the effective

administration of justice. A federal district court

aptly termed “pernicious” any rule that permits ;

“. . « [A)m individual, convicted of conspiracy

to commit arson by blowing up a building within

which there is we reason te believe that

those trial jurors finally selected were wot fair and

impertial, simply because white jurors had been

excluded.” Reomen ¥. Abrams, 608

FP. Supp. 629 (D.C. N.Y. 1985). ( Emphasis added).

In finding all error harmful, the Wheeler court

relies entirely on California state decisions. This re-

liance underlines the peculiar nature of this rule which

petitioner and various amici fail to recognize. Wheeler

is a judgment of a state court, interpreting a state con-

stitution, and crafting a standard for use in a specific

state system. The Supreme Court of Kentucky re-

viewed the Wheeler decision and found it unacceptable

for use in this jurisdiction stating, **[w )e have recently

reaffirmed our reliance upon Sweie . . . and we

decline te adopt another rule.” (A 8). In People v.

Me€ ray, the Court of Appeals of New York stated:

and impertial verdict before that juror could be

exeused. We decline to adopt this position for it

would comvert the peremptory challenge system

inte a eyetem based solely upon challenges for

come. Indeed, we find no persucsive reason for

departing from our present method of jury selec-

tien, MeCray at 917. (Emphasis added)

In states which have adopted the Wheeler rule, the

particular procedures of those jurisdictions enhances

the ability of the parties to influence the composition

of the petit jury. In Massachusetts sixteen peremptory

challenges are afforded each defendant and an equal

number to the defense total is allowed the prosecution.

Consequently, in Commonwealth v. Soares, 387 N.E.

2d 499, 508 fn. 6 (Mass. 1979), ninety-six peremptory

challenges were available for use in selecting the

twelve-person, petit jury. In the case sub judice, the

prosecution was allowed only six (6) peremptory cha!-

lenges and the defense nine (9). In Florida an indi-

vidual convicted of an offense similar to that of peti-

tioner’s, could be found guilty by a petit jury of only

six. Florida Stat. Annot., Section 913.10. It was with

an awareness of these unique procedures that the high

courts of these two states accepted the Wheeler rule

into the law of their respeetive legal systems.

The peremptory challenge found its way into our

common law legal systern many years before the dis-

covery of the continent upon which this Nation was

established. In Lewis v. U. S., 146 U. 8. 370, 376

(1892) this Court described the peremptory as coming

“from the common law with the trial by jury itself”’

and as having ‘‘always been held essential to the fair-

ness of trial by jury.”

The broad implications ©! petitioner’s proposed

“remedy”? must be recognized and the rule’s true re-

sults foreseen, for:

“(T]he reali question is whether to tinker with a

system, be it of jury selection or anything else, that

has done the job for centuries. We stand on the

shoulders of our ancestors, as Burke said. It is

not so much that the past is always worth preserv-

ing, he argued, but rather that ‘‘it is with infinite

caution that any man ought to venture upon pull-

ing down an edifice, which bas answered in any

tolerable degree for ages the common purposes of

society. . . .’’ However fair these decisions may

seem in the abstract, in practice they undermine

the jury trial. Let us hope that other courts take a

more searching look at the problem.’’ Younger,

Unlawful Peremptory Challenges, 7 Litigation 23

(Fall 1980).

D. Justice is Better Served by the Swain Rule Than by

the Proposed Rule.

Swain properly holds that only systematic exclusion

of an identifiable group from jury service is a constitu-

tional violation, because it excludes the group from

participating in a function of citizenship. This holding

should be reaffirmed.

Kentucky urges the Court to again hold that the

Constitution does not give a criminal defendant the

right to a jury of any particular composition, there

should be no presumption of a constitutional violation

when all of a cognizable group are struck from the jury

panel in a particular case and state courts may continue

to allow peremptory challenges in the traditional sense

under the Fourteenth and Sixth Amendments of the

Constitution.

The holdings of Swain and Tuylor, are constitution-

ally sound and should be reaffirmed. The Wheeler test

or any variation of it should be rejected because it was

created pursuant to California law, would create ju-

dicial confusion and is too vague to apply nationwide.

Consequently, the traditional use of peremptory chal-

lenges should continue as an integral part of American

jurisprudence.

Respectfully submitted,

Daviy L. ARMSTRONG

Attorney General

By: Cart T. Miiier, Jr.

Assistant Attorney General

Counsel for Respondent

Rickie L. Pearson

Assistant Attorney General

Capitol Building

Frankfort, Kentucky 40601-3494

Co-Counsel for Respondent