Amicus Curiae Brief — Batson v. Kentucky

Office Supreme Court, US

FILED

> JUN 25 W985

No. 84-6263

STEVAA,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

>

JAMES KIRKLAND BATSON,

Petitioner,

_—Vi—

COMMONWEALTH OF KENTUCKY,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF KENTUCKY

=——EE===>~=~_=x{ma—~~E~_{x[[—[—[—vy—_~~—_—_—_—>——S>SsSsSss—_—_—S—~j{=

BRIEF OF MICHAEL MCCRAY, THE NEW YORK CIVIL

LIBERTIES UNION, AND THE AMERICAN CIVIL

LIBERTIES UNION AS AMICI CURIAE

STEVEN R. SHAPIRO

New York Civil Liberties Union

132 West 43rd Street

New York, New York 10036

(212) 382-0557

Attorney for Amici Curiae

BEST AVAILABLE COPY

_ oy

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES... ..-eeeee0 iii

SCeeemoccoce Pee eeeeeeeeeeeeeeees iii

STATUTES AND RULES.......e+e++ ik

LEGISLATIVE HISTORY........++ ix

OTHER AUTHORITIES... ...eee00+ ix

INTEREST OF 0 l

PRELIMINARY STATEMENT..........++ 4

STATEMENT OF aes 5

SUMMARY OF ARGUMENT........6e+e2- 13

ee 16

THE USE OF PEREMPTORY

CHALLENGES TO EXCLUDE

POTENTIAL JURORS SOLELY

ON THE BASIS OF RACE

OFFENDS BASIC NOTIONS OF

EQUALITY AND DISTORTS THE

REPRESENTATIVE FUNCTION

OF THE rrr TrTrTrrrrer 16

A. Pirst Principles...... 17

B. The Premises of

PEM one eeeeseeeeeeeee 34

Page

C. The Impact of

SweiMccccccecsseceeseces 42

D. An Alternative

to SuMiGcccccceeeeeses 53

CONCLUSION. cc cccceeeeeeeeeeeeeeee 63

TABLE OF AUTHORITIES

Page

CASES

Alexander v. Louisiana,

ts i MTD ccccccoccccccse She SF

Avery v. EEE

U.S. re 2l, 22

Ballard v. United States,

Dn TT TEE lscccccccececcs 26

Ballew v. Seong e

. . Pebeceeeeoeeeses 25, 29

Bell v. Hood,

. @ > i 53

Bush v. Kentucky:

° ® rr 32

Carter v. so-+ Commission,

@ o peeebeceaececece 33

Carter v. Texas,

De rr PEUEOORcccccccsccccese al

Cassel’ v. Texas,

339 U.s. 282 a 19

Castaneda v. Partida,

° @ eoeneeeeweweeeeeee 33, 55, 57

- iii -

Commonwealth v. Soares,

377 Mass. 4601 (1978),

387 N.E.2d 499, cert. denied,

466 U.8. OBL (IDTElcccccsecéececes B28, BH

Duncan v. Louisiana,

391 U.S. 145 | SRP ES TE he rae 8, 28

Ex Parte Virginia,

TOO US 355 TIBSO).. wc ecccccceee 32

Hale v. Kentucky,

TOT UB CLT T1BS0) oc ccccccccee 33

Ham v. South Carolina,

409 U.s. 524 pg RS ES 38

Harris v. Texas,

U.S. t 82 L.Ed. 2d

Ge Came Ol rcctdusceccessedsessees Os @

Hernandez v. Texas,

Bal Gobo SID CEOeS ccccccccsccces 385 CB, GI

Hill v. Texas,

Bee Wate Se CeeeBbiccuctcecvess Ot

Hobby v. United States,

U.S. , 62 L.Ed.2d

) £ i __ rer Te 26

Hollins v. Oklahoma,

395 U.S. 394 ere 33

Johnson v. Louisiana,

= - eoeeesesee#e#e#se#e#s#s# 28

e ig «

McCra - Abrams,

S76 F Sane. 1244, (E.D.N.Y.

1983), aff'd in part,

reversed in part, 750 F.2d

1il3 (2d Cir. 1984), pet.

for cert. pending, No. 84-1426,

53 U.S.L.W.

(March 4, BOSS cocccccececceseeoes passim

McDonnell os 1159 v. Green,

U.S. Peeeeeeeeeoeees 55

Neal v. Delaware,

ee ela Be Teen padcccceccccesss

Norris v. Alabama,

~S-. Diececoeeeeooe| ses 20, 21

Oklahoma city v. Tuttle,

* _ oW. e*eeeeee#ee#ee#e#*# 44

Patton v. S metr uae ’

_ — e*eeoeeseeee#esese#es#s3#ee#ee?#s 33

People v. Hall,

35 Cal.3d lol

,

672 P.2d 854 EARS Pocecoeeoeocese 60

People v. McCray,

104 Misc.2d 762 (Sup.Ct.

Kings Co. 1980), aff'd,

57 N.Y¥.2d 542, 457 N.Y.S.24

441 (1982), cert. denied,

U.S. ’ 103 S.ct.

Dene CHORE) ceveeccccusesésbiécccese Ba Fe Ws

50, 59

Page

People v. Payne

N.E. (Ill. 1983)....6. 31

People v. apes

A.D. 7 N.Y.S.2d

739 (2d Dept. BEES cococeesoeseeee 49

People v. Wheeler,

Cal. ad 258,

gee me, Be.) rrr. 50, 53, 54,

57, 58, 59

Peters v. Kiff,

407 U.S. 493 PIE 4 ca ereh st 2 24, 27, 33

Pierre v. Louisiana,

s o eeeeseeeesneeseeesee 33

Ridley v. State,

475 S.W.2d 769 (Tex.

Crim. App. CC es*eees#8es. oe 48

Ristaino v. Ross,

424 U.s. 589 | a ee 38

rogers v. Alabama,

o © Beceocosoes eects 33

Rose v. Mitchell,

oe eo rrr Tt TT. 22, 23

Smith v. Texas,

@ eo PPT TTTTTTTrTre 20, 34, 36

segniey v. Illinois,

_ so e*eeseeeeses#es#ee#es#e#e#e¢ 40

- vi -

a 2.

Page

State v. Brown,

371 So. od 751 (La. 1979) .cccccees 45

State v. crese

oM. 7 P.2da

716 (1980) .. ccc ccc ceeeeeseseces 51, 53

State v. Neil,

0. (Fla. 1984)... cccees 51, 53

State v. emer

0. a. 1979) .ccccces 45

Strauder v. West Virginia,

eeeeeee eevee ee 18, 19

Swain v. Alabama,

oS. 65) .ceeecccceeees Passim

qayior v. Louisiana,

s e eeeseeseeeeeeeeeees passim

Texas Dept.

of Communit

eWe Pecceccceccoese 57

Thiel v. Southern Pacific Co.,

e so eeeeeeeeeeee8ee 19, 24, 33

Turner v. Fouche,

e os TO) ccccccccccceces 33

United States v. Carter,

oe t re

1975), cert. denied, 425

U.S. 961 [LOTS cccccccccecccccecs 46

- vii -

Page

United States v. Childress,

F. (8th Cir.

1983) (en banc), cert.

denied, U.S

104 S.Ct. 744 A 30, 52

United States v. Leslie,

No. 83-37 19, F.2d 7,

(Sth Cir. April 10, 1985)........ 51, 53, 63

United States v. Nelson,

. t Cir. Deereceese 47

United States v. Newman,

o Cir. Deetevceces 45

United States v. Pearson,

" t ir. 1971).... 48

Weathersby v. Morris,

708 F.od G53 (Sth Cir. 1983).... 52

Whitus v. George 3:

— @ 7eeec boeeacecass 33

Williams v. Florida,

> e eeeeeeeeeeeeeees 28

Witherspoon v. Illinois,

> oe ese @eeeeseeeefeeeeese#«¢ 29

- viii -

STATUTES AND RULES

Federal Jury Selection

and Service Act of 1968,

Pub.L. 90-274, 82 Stat. 53,

3B G.B.C. SIBGkcccecccesceceescocs

Rule 36.2, Rules of the

United States Supreme Court......

LEGISLATIVE HISTORY

H.R.Rep. No. 1076, 90th

Cong.» 2d Sess. 8 (1968)... ceeces

OTHER AUTHORITIES

Annot., “Use of Peremptory

Challenge t Exclude from

Jury Persors Belonging to

a Class or Race,"

79 A.L.R.~3d 14 (1975)... cc eweeees

Brown, McGuire & Winters,

"The Peremptory Challenge as

a Manipulative Device in

Criminal Trials: Traditional

Use or Abuse," 14 New Eng.L.

Rev. 192 (1978) ..ccecccvcccceeces

Comment, The Prohibition of

Group-Based stereot S in

Jury selection Srocevares.

25 ITT Rev. 339 (1979). .cneees

27

27

45

50

32

Comment, “The Prosecutor's

Exercise of The Peremptory

Challenge to Exclude Non-White

Jurors: A Valued Common Law

Privilege in Conflict with the

Equal Protection Clause," 46

U.Cin.L.Rev. 554 (1977).....2424+ 50

Loftus, €E.,

EYEWITNESS TESTIMONY (1979)...... 24

Malpass and Kravitz,

"Recognition for Faces of

Own and Other Race,”

31 J. Personality and Social

Psychology 330 (1979)......ess02. 24

Note, “Limiting the Peremptory

Challenge: Representation of

Groups on Petit Juries,"

86 Yale L.J. 1715 (1977)......... 50

Van Dyke, J., JURY SELECTION

PROCEDURES: OUR UNCERTAIN

COMMITMENT TO REPRESENTATIVE

PANELS (1977). .cccesecsccescceees 46

Winick, "“Prosecutorial

Peremptory Challenge

Practices in Capital Cases:

An Empirical Study and a

Constitutional Analysis,”

81 Mich.L.Rev. 1 (1982)........... 44, 50

ee ee

INTEREST OF amici?

Michael McCray has been litigating the

constitutionality of race-based peremptory

challenges in state and federal court for

nearly six years. A petition for certiorari

in his case is now pending before this Court.

Abrams v. McCray, No. 84-1426, 53 U.S.L.W.

3671 (March 4, 1985).°

On an earlier petition for certiorari in

McCray's case, _—s U.S. es 103 S.Ch. 2438

(1983), a majority of this Court indicated

for the first time its willingness to re-

examine the continuing validity of Swain v.

T. Letters of consent to the filing of this

brief have been separately lodged with the

Clerk of this Court pursuant to Rule 36.2.

2. McCray's motion to expedite further

consideration of the petition for a writ of

certiorari and consolidate his case with

Batson for purposes of oral argument was

denied on May 13, 1985, 53 U.S.L.W. 3807

(Brennan, Marshall and Stevens, JJ.,

dissenting).

Alabama, 380 U.S. 202 (1965). Shortly there-

after, McCray's case became the vehicle for

the first federal opinions departing from

Swain. In both the district court and the

Court of Appeals, McCray obtained decisions

holding that the prosecutor's use of peremp-

tory challenges to create a racially skewed

jury violates the Constitution even in the

absence of evidence establishing a pattern

and practice of similar actions in other

prosecutions. McCray v. Abrams, 576 F.Supp.

1244 (E.D.N.¥. 1983), aff'd in part, rev'd in

part, 750 F.2d 1113 (2d Cir. 1984).

By granting certiorari in Batson, this

Court has necessarily called into question

the correctness of those judgments and, by

extension, McCray's entitlement to relief.

McCray's stake in the outcome of this case

is, therefore, personal and immediate.

McCray's participation in this case also

offers the Court another factual record

against which to judge the impact and

propriety of race-based peremptory

challenges.

The New York Civil Liberties Union

(NYCLU) is a state affiliate of the American

Civil Liberties Union (ACLU) dedicated to the

preservation of individual rights. This case

threatens those rights in several critical

ways. First, by perpetuating the practice of

racial discrimination in jury selection,

race-based peremptory challenges maintain a

legacy of racial stigmatization that violates

the most basic premises of the equal protec-

tion clause. Second, the deliberate dis-

qualification of potential jurors solely

because of their race abridges the right of

every criminal defendant to trial by an

impartial jury drawn from a representative

cross-section of the community.

PRELIMINARY STATEMENT

The issues presented by this case are of

paramount importance to the criminal justice

system. Should a prosecutor be able to use

peremptory challenges to create a jury in-

tentionally chosen along racial lines? If

not, can standards be developed that will

preserve the benefits of peremptory chal-

lenges, eliminate the evils of racial dis-

crimination, and prevent further congestion

in a trial calendar that is already over-

crowded?

No defendant has a right to choose his

own jury. On occasion, black defendants may

be tried before all white juries and white

defendants may be tried b-fore all black

juries. The prosecutor's purposeful use of

peremptory challenges to produce that result,

however, is not a benign act. It resonates

with a history of past discrimination and

perpetuates a perception that blacks cannot

be treated fairly in the criminal justice

system. The loss of confidence that results,

and the potential for verdicts based on bias,

easily outweigh any benefits that accrue. In

a society committed to the fair adminis-

tration of justice and equal protection of

the laws, it is a practice that should no

longer be permitted to continue.

STATEMENT OF FACTS

Amici accept the statement of facts

contained in petitioner's brief. They offer,

in addition, the statement of facts in

Michael McCray's case as further evidence of

the practical impact of race-based peremptory

challenges.

Michael McCray was arrested in New York

City on charges of first and second degree

robbery on December 5, 1978. McCray is

black. The only evidence ever produced

against him was an identification by the

crime victim, who is white.

MceCray's first trial ended in a hung

jury with at least two and possibly all three

of the minority jurors voting to acquit.

McCray’s second trial ended in conviction by

an all white jury. DOwring jury selection in

the second case, the prosecution exercised

either eleven or twelve peremptory

challenges.”

Eight of those challenges were

used to excuse the only minority members

Grawn for the jury: seven blacks and one

hispanic. One minority juror was challenged

by the prosecution despite testimony during

voir dire that a close relation or friend had

recently been shot during a robbery.

3. The recora is ambiguous on the exact

number.

After unsuccessful appeals through the

state court system, * McCray was granted

habeas corpus relief by the district court,

which concluded that “the coherence of the

Swain opinion depends upon. . . assumptions

whose validity has been at least diluted

since 1965." McCray v. Abrams, 576 F.Supp.

at 1247.

The Second Circuit affirmed the consti-

tutional principle of non-discrimination

enunciated by the district court in a lengthy

opinion written by Judge Kearse and joined by

Judge Lumbard. McCray v. Abrams, 750 F.2d

1113 (2d Cir. 1984).°> The court began its

a. ceogie Vv. mosrey 104 Misc.2d 782

(Sup.Ct.Kings Co. 0), aff'd, 57 N.Y.2d

542, 457 N.¥.S.2d 441 (1982).

5. Judge Meskill dissented on the ground

that Swain foreclosed McCray's claim

regardless of its constitutional footing.

750 F.2d at 1135.

analysis by describing the virtually impos-

sible task of litigants seeking to satisfy

the evidentiary burden of Swain. Id. at

1120-22. Noting that the Sixth Amendment was

not applied to the states until Duncan v.

Louisiana, 391 U.S. 145 (1968), three years

after Swain, Judge Kearse then reviewed the

increasingly strong link forged by this Court

between the constitutional requirement of an

impartial jury and a jury drawn from a fair

cross-section of the community. 750 F.2d at

1124-1128. Based on that review, the Second

Circuit concluded that this Court's decisions

under the Sixth Amendment demanded applica-

tion of the fair cross-section requirement to

the petit jury as well as the jury venire.

As Judge Kearse observed:

No defendant has ever been

tried before a venire; the

venire is not the body that

deliberates in the jury room;

no defendant has even been

found guilty by a venire. If

there is a Sixth Amendment

te A ee

requirement that the venire

represent a fair cross sec-

tion of the community, it must

logically be because it is

important that the defendant

have the chance that the

petit jury will be similarly

constituted. The necessary

implication is that the Sixth

Amendment guarantees...

that possibility.

Id. at 1128-29.

The fair cross-section requirement

articulated by the Second Circuit in McCray's

case does not entitle a criminal defendant to

a jury that reflects the community-at-large

in any proportional sense. It prohibits,

however, the intentional manipulation of the

jury selection process to sdodeus a clearly

imbalanced result that targets a particular

group of citizens for exclusion from jury

service on grounds of race or other suspect

criteria. The presumption in all cases is

that the jury has been constitutionally

chosen. But a criminal defendant can make

out a prima facie case under the Sixth

Amendment by showing the excluded jurors

belong to a “cognizable group” within the

community and, furthermore, that there is a

“substantial likelihood" that the exclusions

were based on group affiliation rather than

an individual juror's ability to decide the

case fairly. Id. at 1131-32.

Once a prima facie case is made out

under the Second Circuit's rule, the burden

shifts to the prosecution to offer some

racially neutral explanation for the pattern

of peremptory challenges. Id. at 1132. The

prosecutor's explanation need not rise to the

level of cause -- indeed, “[t]here are any

number of bases on which a party may believe,

not unreasonably, that a prospective juror

may have some slight bias that would...

make excusing him or her desirable." Id.

Unless pretextual, those reasons will be

accepted at face value. In the absence of

any non-pretextual reason, the Second Circuit

e 10 «

held, the defendant is constitutionally

entitled to a new jury.°

The Second Circuit decision rests

entirely on Sixth Amendment grounds. Never-

theless, the court acknowledged that much of

its reasoning applies with equal force to the

Fourteenth Amendment claims rejected by

Swain. Id. at 1121. Of particular relevance

to any reexamination of the equal protection

issue considered in Swain, the Second Circuit

found, “as a practical matter,” id., that

blacks and other minorities are more likely

than whites to suffer systematic exclusion

from particular juries through the

prosecutor's use of peremptory challenges.

Finally, the Second Circuit summarized

6. In McCray's case, the Second Circuit

remanded to the district court for a hearing

to determine if the state could rebut the

grime facie case that McCray had established.

e ii eo

its decision with the following comment:

According to Swain... there is

no type of case in which blacks

may not be summarily eliminated

on the presumption that the

prosecutor is merely seeking a

"fair and impartial jury." The

premise of Swain and the rarity

of wholesale challenges to white

venirepersons thus serve only to

limit artificially the opportuni-

ty of blacks for participation

in our system of justice, and to

perpetuate an invidious proposi-

tion of racial inferiority that

has been outlawed in virtually

every area of public affairs --

in employment, in education, in

housing, in property rights.

How unfortunate that the in-

vidious proposition has been

allowed to flourish in the ad-

ministration of justice.

Id. at 1122.

On March 4, 1985, the State of New York

filed a petition for a writ of certiorari

from the Second Circuit decision in McCray's

case. No. 84-1426, 53 U.S.L.W. 3671. That

petition is still pending.

e 12 «

ee ee eee

SUMMARY OF ARGUMENT

In a broad array of cases spanning more

than a century, this Court has repeatediy

condemned racial discrimination in jury

selection, no matter what its form and no

matter when in the process of jury selection

the discrimination occurs. Two principles

underlie these decisions. First, the

fundamental notion that individuals should

not be barred from participating in important

civic functions, like jury duty, solely

because of their race. ‘econd, the recog-

nition that the legitimacy of the jury as an

institution is greatly diminished if it does

not represent a fair cross-section of the

community.

Swain forcefully affirms the propriety

of these constitutional principles. It does

not condone discrimination in jury selection;

it rejects it in the strongest possible

e 13 «

language. At the same time, Swain properly

acknowledges the historical pedigree and

modern significance of peremptory challenges.

The evidentiary standard imposed by Swain can

best be understood as a pragmatic remedy

Geveloped by the Court in the hope that it

would both prohibit discrimination and

preserve the salutary features of the

peremptory challenge. Specifically, Swain

requires that a criminal defendant alleging

race discrimination in the prosecutor's use

of peremptory challenges demonstrate that

peremptory challenges have been used in case

after case within the same jurisdiction to

eliminate any participation by minorities in

the administration of justice.

After twenty years. it is now irrefuta-

bly clear that Swain has not accomplished its

original purpose. Instead, it has encouraged

@ process of selecting jurors that sees race

Giscrimination as a permissible trial tactic.

© 14 «

That attitude is without corollary in

American constitutional law.

Not surprisingly, Swain has produced an

avalanche of criticism since it was written.

Within the past decade, four states and two

federal circuits have modified its seemingly

inflexible rule. In the best traditions of

the common law, this period of experimenta-

tion has demonstrated two facts that run

directly contrary to the assumptions of

Swain. It is now abundantly clear that

peremptory challenges can and will survive a

modified rule that forbids their use for

discriminatory reasons. And it is equally

clear that Swain has in fact produced dis-

Criminatory results, not the evenhanded

arbitrariness that the decision predicted.

This Court should not ignore those

important lessons. Simply put, Swain has led

to more discrimination, not less. It is

inconceivable that this Court intended that

result and unconscionable to allow it to

continue any longer.

THE USE OF PEREMPTORY CHALLENGES

This case does not present a clash of

basic values. The principles of non-

Giscrimination and representative juries that

govern this case are so firmly woven into the

fabric of American law that they are largely

uncontested. Rather, this case represents

another stage in the ongoing search for the

best method to enforce those principles in

actual practice.

Swain presents one remedial approach to

the problem of discrimination in the criminal

justice system. But like all remedial

decisions, it is subject to reevaluation in

e 16 «

light of subsequent experience. Amici

believe that Swain should be modified, not

because its basic values are wrong but

because its basic values are right.

Unfortunately, those values have not been

adequately protected by the procedures that

Swain devised.

A. First Principles

For more than a century, this Court has

grappled with racial discrimination in jury

selection, one of the earliest forms of race

discrimination in this country and one of the

most persistent. And for more than a century

this Court has insisted, in the strongest

possible teras, that racial discrimination in

jury selection is constitutionally

intolerable.

Two fundamental principles emerge from

the case law to explain this unwavering

- 17 «-

judicial response. The first is Gerived from

motions of equality and individual human

Gignity embodied in the Constitution, and

recognizes jury discrimination for what it

most surely is -- a continuing badge of

racial inferiority. The second thread

running through this Court's jury dis-

crimination cases is that the jury works best

when it fairly represents the community whose

judgment it is empowered to deliver.

The equality principle was first

articulated in Strauder v. West Virginia, 100

U.S. 303 (1880), which struck down a Jim Crow

statute limiting jury service to “white male

persons who are twenty-one years of age."

The very fact that colored

people are singled out and

expressly denied by a statute

all right to participate in

the administration of the law,

as jurors, because of their

color, though they are citi-

zens, and may be in other

respects fully qualified, is

practically a brand upon

them, affixed by the law, an

°- 18 «

assertion of their inferior-

ity, and a stimulant to that

race prejudice which is an

impediment to securing to in-

dividuals of the race that

equal justice which the law

aims to secure to all others.

Id. at 308.

Since Strauder, the Court has often

stressed the core equal protection notion

that jurors “should be selected as indi-

viduals, on the basis of individual quali-

fications, and not as members of a race.”

Cassell v. Texas, 339 U.S. 282, 286 (1950).

As explained in Thiel v. Southern Pacific

Co., 3286 U.S. 217, 220 (1946), *[(j)ury

competence is an individual rather than a

group or class matter. That fact lies at the

very heart of the jury system. To disregard

it is to open the door to class distinctions

and discriminations which are abhorrent to

Gemocratic ideals of trial by jury.”

Accordingly, the Court has struck down a

variety of practices over the years that have

- 19 «

the effect of producing racially skewed

juries, regardless of whether that effect is

commanded by law or achieved through trial

practice. In either event, *[fJor racial dis-

crimination to result in the exclusion from

jury service of otherwise qualified groups

mot only violates our Constitution and the

laws enacted under it, but is at war with our

basic concepts of a democratic society.”

Smith v. Texas, 311 U.S. 128, 130 (1940).

Democracy rests on a belief in indi-

vidual worth -- and individual autonomy --

that cannot be reconciled with racial

stereotyping. Thus, in Norris v. Alabama,

294 U.S. 587 (1935), the Court reversed a

rape conviction arising from the notorious

prosecution of the “Scottsboro boys* wpon a

Snmowing that mo black had ever served upon

either a grand or petit jury in the trial

county, motwithstanding the fact that this

Giscriminatory result was not sandated by

statute. Quoting an earlier decision in

Carter v. Texas, 177 U.S. 442, 447 (1900),

the Norris Court said:

Whenever by any action of a

State, whether through its

legislature, through its court,

or through its executive or

administrative officers, all

persons of the African race

are excluded, solely because

of their race or color, from

serving as grand jurors in the

criminal prosecution of a person

of the African race, the equal

protection of the laws is denied

him, contrary to the Fourteenth

Amendment of the Constitution

of the United States.

294 U.S. at 589. The Court then added that

this principle of equality “is equally ap-

plicable to a similar exclusion of negroes

from service on petit juries." Id.

Avery v. Georgia, 345 U.S. 559 (1953),

illustrates the rigorous scrutiny applied by

the Court to jury selection procedures when

an allegation of discrimination is supported

by the record. In Avery, prospective jurors

had their names printed on tickets -- white

e 21 «

jurors on white tickets and black jurors on

yellow tickets. The tickets were then placed

in a box and a judge drew out the required

number. These were given to the sheriff, who

in turn handed them to the clerk, who typed

up the final list of the jury panel.

Although it was difficult to pinpoint at what

stage in this process racial screening took

place, the end result was that an all white

panel of sixty jurors was selected to serve

in defendant's case. The Court considered

the exact moment of discrimination a con-

stitutional irrelevancy. Id. at 562.

The Court's insistence on non-

discrimination in jury selection has always

rested on the recognition that a jury chosen

through discriminatory procedures harms not

only the accused, but “society as a whole."

Rose v. Mitchell, 443 U.S. 545, 556 (1979).

In Justice Blackmun's words:

It is clear from the earliest

o 29 «

cases applying the Equal Pro-

tection Clause in the context

of racial discrimination in

the selection of a... jury,

that the Court from the first

was concerned with the broad

aspects of racial discrimina-

tion that the Equal Protection

Clause was designed to eradicate,

and with the fundamental social

values the Fourteenth Amendment

was adopted to protect, even

though it addressed the issue

in the context of reviewing an

individual criminal conviction.

Id. at 555.

The requirement of a jury drawn from a

representative cross-section of the community

similarly responds to broad social concerns.

On the one hand, it undeniably enhai.-es the

capacity of the jury as a fact-finding body.

When any large and identifiable

segment of the community is ex-

cluded from jury service, the

effect is to remove from a jury

room qualities of human nature

and varieties of human experi-

ence, the range of which is un-

known and perhaps unknowable.

It is not necessary to assume

that the excluded group will

consistently vote as a class in

order to conclude, as we do,

that their exclusion deprives

e 23 «

the jury of a perspective on

human events that may have un-

suspected importance in any

case that may be presented.

Peters v. Kiff, 407 U.S. 493, 503-04 (1972).

See also Thiel v. Southern Pacific Co., 328

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

dissenting).

The factfinding ability of a jury may be

impaired even though each of its members is

sincerely impartial. This impairment is

perhaps most obvious in a case like McCray's,

where the prosecution's evidence rests

entirely on an eyewitness identification.

Studies have consistently shown that cross-

racial identifications are notoriously

suspect.’ It does not require extensive

citation to appreciate that the possibility

7. See E. Loftus, SYEWITNESS TESTIMONY

(1979); Malpass and Kravitz, "Recognition for

Faces of Own and Other Race," 31 J.

Personality and Social Psychology 330 (1979).

» 24 @

of a white victim misidentifying a black

youth on an urban street corner three weeks

after a crime may be more readily understood

by black jurors than white jurors.

Moreover, the process of group decision-

making that is inherent in jury deliberation

is necessarily diminished by the deliberate

exclusion of cognizable groups. "“[Tjhe

counterbalancing of various biases is

critical to the accurate application of the

common sense of the community to the facts of

any given case." Ballew v. Georgia, 435 U.S.

223, 234 (1978).

At the same time, the fair cross-section

requirement promotes important interests

separate and distinct from the jury's fact-

finding function. Those interests relate to

the legitimacy of the jury as a social

institution.

There is good reason why public

confidence in the integrity of

the judiciary is diminished

e 23 «

whenever invidious prejudice

seeps into its processes. This

diminution of confidence largely

stems from a recognition that

the institutions of criminal

justice serve purposes inde-

pendent of accurate factfinding.

These institutions also serve

to exemplify, by the manner in

which they operate, our funda-

mental notions of fairness and

our central faith in democratic

norms.

L.Ed.2d 260, 271 (1984) (Marshall, J.,

dissenting) (footnote omitted).

Thus, almost forty years ago, in Ballard

v. United States, 329 U.S. 187, 193-94

(1946), the Court refused to accept the per-

petuation of all male juries in federal court

although acknowledging that the presence of

women on the jury “may not in a given case

make an iota of difference. Yet a flavor, a

distinct quality is lost if either sex is

excluded.”

This point was highlighted by Congress

when it adopted the Pederal Jury Selection

— =

and Service Act of 1968, which adopts the

fair cross-section requirement as “the policy

of the United States." The House Report

notes:

It must be remembered that the

jury is designed not only to

understand the case, but also

to reflect the community's

sense of justice in deciding

it. As long as there are

significant Cepartures from

the cross-sectional goal,

biased juries are the result

-- biased in the sense that

they reflect a s anted view

of the community they are

supposed to represent.

H.R.Rep. No. 1076, 90th Cong., 2d Sess. 8

(1968), quoted in Taylor v. Louisiana, 419

U.S. 522, 529 n.7 (1975).

The fair cross-section requirement has

its roots in this Court's early Fourteenth

Amendment jurisprudence. See generally,

Peters v. Kiff, 407 U.S. at 500 n.9. More

recent cases, however, have pointed to the

5. Pub.L. 50-274, 82 Stat. 53, 28 U.S.C.

$1861.

» 29 «

Sixth Amendment as the source of the fair

cross-section requirement. Most notably, in

Taylor, the Court relied on the Sixth

Amendment to support its holding “that the

American concept of a jury trial contemplates

@ jury @Grawn from a fair cross-section of the

community." 419 U.S. at 527. Accord,

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

Swain, of course, was decided prior to

the application of the Sixth Amendment's jury

clause to the states in Duncan v. Louisiana,

391 U.S. 145 (1968). Taylor was decided

seven years after and it thus represents a

judgment by this Court that the fair cross-

section requirement is fundamental to the

jury trial right protected by the Siath

Amendment. Cf. Johnson v. Louisiana, 406

U.S. 356, 373 (1972)(the Fourteenth Amendment

incorporates “the essentials” of the Sixth

Amendment's jury trial guarantee) (Powell, J.,

concurring).

As a fundamental attribute of the jury

trial right, the fair cross-section require-

ment has never been limited by this Court to

the jury venire. For example, in Ballew v.

Georgia, 435 U.S. 223 (1978), this Court held

that a five person jury was too small to

represent the community's judgment in a

meaningful way -- in part because a five

person jury threatened “the representation of

minority groups in the community,” id. at 236

-- although there is no indication that the

jury venire was in any way defective or

unrepresentative.

Similarly, in Witherspoon v. Illinois,

391 U.S. 510 (1968), the Court struck down a

legislative scheme that permitted the prose-

cution to challenge for cause any potential

juror opposed to the death penalty. In

Witherspoon, as in Ballew, the concern

focused clearly on the jury panel rather thar.

the jury venire. See generally McCray v.

Abrams, 750 F.2d at 1129.

That focus is plainly correct. The

point of demanding a representative jury poo!

is to maximize the chance of obtaining a

representative jury. The intentional exclu-

sion of prospective jurors on the basis of

race, whether in the process of compiling a

jury pool or selecting a jury, is equally

destructive of this constitutional goal. Ses

United States v. Childress, 715 F.2d 1313,

1319 (8th Cir. 19863)(en banc), cert. denied,

_. US» __ + 104 §.Ct. 744 (1984) ("The

extension of Taylor v. Louisiana from the

venire to the petit jury has much logical an¢

practical appesi").”

5. Another Goal of the fair cross-section

requirement recognized in Taylor is to

promote “public confidence in the fairness of

the criminal justice system." 419 U.S. at

530. Such confidence is unlikely to be felt

by 4 minority community which observes the

Systematic exclusion of every black juror

through the prosecutor's use of peremptory

challenges.

© 98 «

This does not suggest, as some lower

10 that the

courts have erroneously assumed,

jury chosen in any particular case must

faithfully duplicate the ethnic composition

of the community at large. “Defendants are

not entitled to a jury of any particular

composition... ." Taylor v. Louisiana,

419 U.S. at 538. But the constitutional

imperative of an impartial jury drawn from a

fair cross-section of the community that

Taylor endorsed is undeniably frustrated by

the prosecutor's use of peremptory challenges

to exclude potential jurors on the basis of

race alone.

"When the prosecution employs its

peremptory challenges to remove from jury

participation all Negro jurors, the right

. * Ve a e, 457 N.E.2d 1202,

op ees -

guaranteed in Taylor is denied just as

effectively as it would be had Negroes not

been inciuded on the jury rolls in the first

plece." Harris v. Texas, U.S. + 82

L.Ed.2d 858 (1964)(Marshall, J., dissenting

from the denial of certiorari). As one

commenta.or has aptly observed: “Random

unrepresentativeness ... is certainly dif-

ferent from the intentional destruction of

representativeness." Comment, The Prohibi-

ti Ba s n J

Selection Procedures, 25 Vill.L.Rev. 339, 356

(1979).

In his first inaugural address, Thomas

Jefferson listed “trial by juries impartielly

selected” as one of the defining liberties of

American life. This Court has upheld that

right over and over again for one hundred

years. See Ex Parte Virginia, 100 U.S. 339

(1660); Neal v. Delaware, 103 U.S. 370

(1661); Bush v. Kentucky, 107 U.S. 110

e 32 «

(1883): Rogers v. Alabama, 192 U.S. 226

(1904); Hollins v. Oklahoma, 295 U.S. 394

(1935): Hale v. Kentucky, 303 U.S. 613

(1938); Pierre v. Louisiana: 306 U.S. 354

(1939); Hill v. Texas, 316 U.S. 400 (1942);

Thiel _v. Southern Pacific Co., 328 U.S. 217

(1946): Patton v. Mississippi, 332 U.S. 463

(1947): Hernandez v. Texas, 347 U.S. 475

(1954); Whitus v. Georgia, 385 U.S. 545

(1967); Carter v. Jury Commission, 396 U.S.

320 (1970); Turner v. Fouche, 396 U.S. 346

(1970): Alexander v. Louisiana, 405 U.S. 625

(1972): Peters v. Kiff, 407 U.S. 493 (1972);

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

Occasionally, the Court has relied on

concepts of equality: occasionally, it has

cited the representative function of the

jury. On the issue of ultimate principle,

however, the Court has never wavered. “If

there has been discrimination [in jury

selection), whether accomplished ingeniously

e 33 «

er ingenuously, the conviction cannot stand.

Smith v. Texas, 311 U.S. at 132.

8. The Premises of Swain

Swain emphatically rejects the consti-

tutionality of race discrigination and thus,

on its face, is fully consistent with the

judicial tradition recited above. As Swain

properly notes, “the soundness of these

principles ... is unquestioned... ."

380 U.S. at 205. “*[A]) State's purposeful or

deliberate denial to Negroes on account of

race of participation as jurors in the

administration of justice violates the Equal

Protection Clause,” id. at 203-04, and after

Taylor, such purposeful exclusions violate

the Sixth Amendment as well.

Nevertheless, Swain holds that a prose-

cutor’s use of peremptory challenges in a

particular case is immune from constitutional!

inquiry no matter how egregious, 380 U.S. at

222. To prevail under Swain, a defendant

must introduce statistical evidence estab-

lishing a pattern and practice of racial

exclusions in a given jurisdiction over a

period of time. Swain does not define a

precise quantum of evidence necessary to make

out a prima facie case. But lower courts

faced with that problem have understandably

reacted to the fact that in Swain itself six

members of this Court found the evidence

lacking despite proof that no black had ever

served on a grand or petit jury in the

history of Talledega County.

The approach adopted by Swain differs

dramatically from the normal rule in dis-

crimination cases. For example, this Court

has never held that an employee must use

statistics in order to prove job discrimina-

tion. Nor has this Court ever held that

statistics are an indispensable ingredient in

housing discrimination cases. Discrimination

» Me

may be triggered by group membership, but the

right to be free of discrimination is an

individual right. Thus, "[T]he Pourteenth

Amendment requires that equal protection to

all must be given -- not merely promised."

Smith v. Texas, 311 U.S. at 130.

Swain sidesteps this injunction by

holding that the disqualification of blacks

from criminal juries on racial grounds is not

discrimination; rather, Swain defines such

action as the permissible consequence of an

admittedly arbitrary system designed in the

end to secure impartial juries and promote

public confidence in the jury system.

Elaborating on this point, Swain explains

that peremptory challenges are "frequently

exercised on grounds normally thought

irrelevant to legal proceedings or official

action, namely, the race, religion,

nationality, occupation or affiliations of

people summoned for jury duty." 380 U.S. at

- 3 «

220.

It is, at best, an odd definition of

discrimination that does not include the

purposeful exclusion of otherwise qualified

individuals from jury service solely because

of their race. Clearly, a practice does not

become more or less discriminatory because it

is longstanding. And the fact that potential

jurors are subject to peremptory challenge

because of their occupation or organizational

affiliation is simply not equivalent in

constitutional terms to the disqualification

of jurors on the basis of race.

As a society we have made the profound

choice not to divide the world along certain

lines. The use of race as a criterion for

jury selection is no less discriminatory

because it is accomplished through the

exercise of peremptory challenges than

through some other manipulation of the jury

selection procedure.

e 37 «

According to Swain, “[iJn the quest for

an impartial and qualified jury, Negro and

white, Protestant and Catholic, are alike

subject to being challenged without cause."

Id. at 221. But if blacks, whites,

Protestants and Catholics are all being

struck from the jury in a seemingly random

and arbitrary pattern, there is no valid

claim of discrimination. Conversely, if only

blacks or only whites or only Protestants or

only Catholics are being struck as a group,

then there are at the least legitimate

grounds for further inquiry.

Amici concede that in a given case, a

potential juror's race or religion may give

rise to a more searching voir dire. And it

is equally true that the right to disqualify

a juror whose racial bias is "felt" even

though it cannot be proved is an important

right. Compare Ham v. South Carolina, 409

U.S. 524 (1973), with Ristaino v. Ross, 424

e 38 «

U.S. 589 (1976). But when juror after juror

is excused by the state in a particular case,

not because of any actual or perceived bias

related to the specific case but because of

an automatic assumption that black jurors

will not fairly judge a black defendant no

matter what, then a constitutional line has

been crossed from merely arbitrary state

action to forbidden discrimination.

Swain does not deny that the racial use

of peremptory challenges can severely distort

the representative quality of a particular

jury in a way that American society and con-

stitutional jurisprudence now refuse to

tolerate in almost every other context.

Rather, Swain suggests that race may be a

relevant factor in selecting an impartial

jury, and that the selection of an impartial

jury is a higher value than non-

discrimination in the criminal justice

system. Taylor, however, emphatically

« 39 «

rejects the use of the racial and sexual

stereotypes in jury selection.

Race gua race is not a relevant

criterion in selecting an impartial jury. At

best, it offers a rough approximation of more

relevant criteria, such as background and

experience. “[(Tjhe Constitution recognizes

higher values than speed and efficiency,”

however. Stanley v. Illinois, 405 U.S. 645,

656 (1972). As this Court stated in Taylor,

"the administrative convenience in dealing

with women as a class is insufficient

justification for diluting the quality of

community judgment represented by the jury ir

criminal trials." 419 U.S. at 535.

To exclude all black jurors because some

black jurors may be affected by racial

sympathies is not fundamentally different

than excluding all women from certain

occupations because some women may not be

strong enough to perform the job. Indeed, it

is even worse since the quality of most jobs

presumably does not depend on whether they

are performed by a man or a woman. A jury,

on the other hand, cannot perform its

community function if it is purposefully

stripped of its representative character.

Swain's assumption that whites as well

as blacks are the potential victims of this

discrimination hardly validates the practice.

Moreover, as the Second Circuit correctly

recognized in McCray v. Abrams, 750 F.2d at

1121, “{i]jnm most communities a majority of

those eligible for jury duty are white: and

as a practical matter, the prosecution does

not peremptorily excuse whites simply because

they are whites.”

There is no doubt that peremptory

challenges play a valuable role in assuring

fairness in the trial process. There is also

no doubt that the decision in Swain was

prompted by a strong desire to preserve the

e 4) «

peremptory challenge system. There is

absolutely no indication in Swain, however,

that a majority of this Court meant to con-

done racial discrimination in jury selection

or anticipated that Swain would, in fact,

encourage such discrimination. Nor is there

any reason for this Court to adhere to a rule

that promotes discrimination when other

alternatives exist that are equally capable

of preserving the beneficial features of per-

emptory challenges without running the risk

of discriminatory abuse that Swain entails.

C. The Impact of Swain

Swain would not be subject to the

criticism it has engendered if its evi-

dentiary standard had proved an effective

Gevice for rooting out discrimination in jury

selection. After two decades, however, it is

abundantly clear that Swain created instead a

"mission impossible” for criminal defendants

whe allege discrimination in the prosecutor's

use of peremptory challenges. McCray v.

Abrams, 750 F.2d at 1120. The result has

been to breed cynicism rather than respect

for the criminal justice system.

McCray's impossible plight in seeking to

satisfy Swain is fairly typical. There are

no available statistics that document the

pattern of peremptory challenges by the Kings

County prosecutor. Thus, to meet the Swain

test, McCray would have to transcribe enough

voir dire proceedings to create a statis-

tically significant sample, assuming that a

significant number of voir Gires are even

recorded. |

The time and expense involved in

that undertaking are evident. Even then,

there is no assurance that the transcripts

Il. Wany v es, including McCray's, are

4 Sithos

conducte @ stenographer present.

-~ 43 «-

would be helpful since the race of pros-

pective jurors is often not revealed during

voir dire. Furthermore, all of this

discovery must be accomplished virtually over

night since its need does not arise until a

defendant's own jury selection is already

underway. *?

Most fundamentally, Swain offers

mo possibility of relief to the first victia

of discriminatory jury selection in a

jurisdiction. Cf. Oklahoma City v. Tuttle,

53 U.S.L.W. 4639, 4645 (1985) (Brennan J.,

concurring) ("A §1963 cause of action is as

available for the first victim of a policy or

custom that would foreseeably and avoidably

cause an individual to be subjected to

deprivation of a constitutional right as it

Iz. The complexity of the statistical case

required by is fully described in

Winick, “Prosecutorial Peremptory Challenge

Practices in Capital Cases: An Empirical

Study and a Constitutional Analysis,* 61

Mich.L.Rev. l, 21-39 (19862).

is tor the second and subsequent victims").

These difficulties have proved largely

insurmountable. According to one published

report, not a single defendant was able to

satisfy Swain in the decade following the

Supreme Court's decision. Annot., “Use of

Peremptory Challenge to Exclude from Jury

Persons Belonging to a Class or Race,* 79

A-L.R.3d 14, 24 (1975). Amici has discovered

only two cases in which Swain's evidentiary

burden has ever been met. See State v.

Brown, 371 So.2d 751 (La. 1979); State v.

Washington, 375 So.2d 1162 (ta. 1979).29

. a LOVEE. Fates v. stare 549 F.2d 240

(24 Cir. , con revit reversed «a

statistical finding that the pattern of

peremptory challenges by the United States

Attorney in the District of Connecticut had

reached “an excessive point.” Judge

Anderson's opinion disagreed with the

methodology used by the district court.

This judicial phenomenon can be

explained in only two ways. Either peremp-

tory challenges are not being used to screen

potential jurors on the basis of race or

Swain inadvertently condoned a discriminatory

practice it meant to condemn. The evidence

strongly supports the latter interpretation.

See generally J. Van Dyke, JURY SELECTION

PROCEDURES: OUR UNCERTAIN COMMITMENT To

REPRESENTATIVE PANELS (1977).

In dissenting from the Original denial

of certiorari in McCray's case, Justice

Marshall offered « catalogue of cases in

which Swain had proved an insurmountable

barrier “despite proof that unmistakably

creates an inference of racial @iscrimina-

tion.* ic3 $.ct. at 2441 n.4,

Por example, in United States v. Carter,

5286 F.2d 844 (Res Cir. 1975), cert. denied,

425 U.S. 961 (1976), the evidence Showed that

818 of all blacks available to serve on petit

= @ «

juries in 15 criminal cases tried during 1974

had been excluded by the prosecutor's

peremptory challenges, and that the

prosecutor had excluded a1) potential black

jurors in seven of those cases. Defendant's

claim under Swain was nonetheless denied and

the prosecutor was never required to justify

his conduct in non-racia) terms.

One year later, in United States v.

Nelson, 529 F.24 40 (8th cir. 1976), another

Gefendant in the same juriediction again

established that the Prosecutor had used his

peremptory challenges to bar @ll blacks in

his case. This time the court expressed

“concern*® about the prosecutor's actions but

vas unwilling to grant Gefendant a new trial.

Instead, the prosecutor was warned that in

future cases “appropriate action* might be

taken by district judges in the exercise of

their Supervisory powers. 529 F. 2a at 43.

The evidence of discriminatory intent

= 47 «

was even sore direct in United States v.

Pearson, 448 F.2¢ 1207 (Sth Cir. 1971).

There, the prosecutor's own notes recorded

the race of defendants he hed tried during a

one week period, the number of blacks on the

jury panel and the number of blacks excluded

through the prosecutor's pereaptory

challenges. Sased on this record, the court

accepted defendant's “reasonable conclusion”

that the prosecutor was engaged in «

deliberate effort to exclude as many black

jurors as possible whenever the defendant was

black. Still, the court held, this showing

did not suffice under Swain.

Indeed, Swain sotions are routinely

denied even when ste.istical proof is

reinforced by anecdotal evidence. In Ridley

wv. State, 475 S.W.2d 769 (Tex.Crim.App.

1972), the prosecutor used seven peremptory

challenges to exclude potential black jurors.

Te buttress his claim under Swain, defendant

presented testimony from local attorneys that

documented the prosecutor's systematic use of

peremptory challenges to create all white

juries in cases involving black defendants

and white victims. Defendant also produced

an admission from an assistant district

attorney that peremptory challenges were

regularly used in this discriminatory manner.

Yet his claim under Swain was denied by the

court. See also Harris v. Texas, U.S.

___» 82 L.Ed.2d 858, 859 (1984) (Marshall,

J., dissenting from the denial of

certiorari).

Given the inherently arbitrary nature of

peremptory challenges, no constitutional rule

can eliminate entirely the potential for

abuse by a prosecutor intent on purging the

jury in a discriminatory fashion. But Swain

leaves concerned trial judges with no remedy

to eradicate discrimination in theic

courtrooms. See e.g. People v. Thompson, 79

e @ «

A.D.2d 87, 435 N.¥.S.2d 739, 743 (2d Dept.

1981). 7

The difficulties with the Swain

approach, and the results it produces, have

been apparent for some time. From the

beginning, Swain has been strongly criticized

by most legal commentators. ‘4 In recent

years it has been rejected by four different

states in construing their own constitutions.

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

14. E.g. Winick, supra n.12; Brown, McGuire

& Winters, “The Peremptory Challenge as a

Manipulative Device in Criminal Trials:

Traditional Use or Abuse," 14 New Eng.L.Rev.

192 (1978); Comment, “The Prosecutor's

Exercise of the Peremptory Challenge to

Exclude Non-White Jurors: A Valued Common

Law Privilege in Conflict with the Equal

Protection Clause,” 46 U.Cin.L.Rev. 554

(1977): Note, “Limiting the Peremptory

Challenge: Representation of Groups on Petit

Juries," 86 Ya e L.J. 1715 (1977). Other

critical commentary is cited in Justice

Marshall's dissenting opinion in McCray's

case. 103 S.Ct. at 2439 n.1.

e 68 «

748 (1978): Commonwealth v. Soares, 377 Mass.

461, 387 N.E.2d 499, cert. denied, 444 U.S.

881 (1979); State v. Crespin, 94 N.M. 486,

612 P.2d 716 (1980); State v. Neil, 457 So.2d

481 (Pla. 1984).

In addition, two federal circuits have

now distinguished Swain. In McCray, the

Second Circuit relied exclusively on the

Sixth Amendment to “conclude that a defendant

may appropriately subject to scrutiny...

the prosecution's use of its peremptory

challenges on the basis of its actions in his

own particular case.” 750 F.2d at 1131. In

United States v. Leslie, No. 83-3719,

P.2d Ss (Sth Cir. April 10, 1985), the Pifth

Circuit cited its supervisory authority to

prohibit federal prosecutors within its

jurisdiction from exercising peremptory

challenges on the basis of race.

While not departing from Swain, the

Ninth Circuit has strived to circumscribe the

» $1 «

effect of Swain, ruling in Weathersby v.

Morris, 708 F.2d 1493, 1496 (9th Cir. 1983),

that "a court need not blind itself to the

obvious ... .”" when a prosecutor admits

utilizing peremptory challenges on the basis

of race. The Eighth Circuit has questioned

Swain in the process of following it.

United States v. Childress, 715 F.2d 1313

(8th Cir. 1983)(en banc), cert. denied, 104

S.Ct. 744 (1984).

All of this scholarly and judicial

analysis has done more than just reveal the

flaws of Swain. It has demonstrated in the

crucible of actual criminal trials that an

alternative to Swain is both feasible and

fair. It has done so, moreover, without

losing sight of Swain's dual goals --

eliminating racial discrimination in the

criminal justice system and preserving the

value of peremptory challenges as a method of

juror disqualification separate and distinct

e $2 «

from challenges for cause.

In Bell v. Hood, 327 U.S. 678, 684 & n.6

(1946), this Court wrote: "“(Wjhere federally

protected rights have been invaded, it has

been the rule from the beginning that courts

will be alert to adjust their remedies so as

to grant the necessary relief." To grant the

necessary relief when peremptory challenges

are used by the prosecution for discrimi-

natory purposes, the rule in Swain must now

be modified.

D. An Alternative to Swain

As previously mentioned, Swain has now

been modified by four states and two federal

circuits. United States v. Leslie, supra;

McCray v. Abrams, Supra; State v. Neil,

Supra; State v. Crespin, Supra; Commonwealth

v. Soares, Supra; People v. Wheeler, Supra.

In all these instances, the modification of

Swain has been essentially the same.

e $3 «

Under the so-called Wheeler rule first

announced by the California Supreme Court,

the exercise of peremptory challenges in any

given case is presumed to be valid. But

unlike Swain, that presumption can be

rebutted by a showing that prospective jurors

are being challenged “because of their group

association rather than because of any

specific bias." 22 Cal.3d at 280. Among the

relevant factors identified by Wheeler in

making that showing are whether all or most

of an identifiable group have been excluded

from jury service, whether a disproportionate

number of peremptories have been used ayainst

a specific group and whether members of that

group have been excused with little or no

questioning. If a prima facie case is made,

the burden shifts and the prosecutor must

offer some reason for the peremptory chal-

lenges other than group bias. The burden is

@ minimal one, however, and “need not rise to

» 86 <

the level of a challenge for cause." 22

Cal.3@ at 281-82.*>

This analytic model is a familiar one in

discrimination law, e.g. McDonnell Douglas v.

Green, 411 U.S. 792 (1973), and it has been

applied by this Court in jury discrimination

cases following Swain. See Castaneda v.

Partida, 430 U.S. 482, 494 (1977): Alexander

v. Louisiana, 405 U.S. 625, 632 (1972).

The elements of a prima facie case in

the peremptory challenge context are illus-

trated by the facts of McCray. The only

IS. The Second Circuit adopted a roughly

equivalent rule in as » holding that a

Gefendant can estab @ prima facie case by

showing, first, that the group allegedly

excluded from jury service is a “cognizable

group in the community,” 750 F.2d at 1131-32,

and second, a “substantial likelihood” that

the challenged exclusions were based on group

membership rather than individual biases.

Id.

eight minorities in the jury pool were chal-

lenged peremptorily by the prosecution; no

minorities. were eliminated by the defense,

either through peremptory challenges or

challenges for cause. Moreover, as McCray's

counsel pointed out in a timely objection,

there was no discernible reason for several

of the peremptory challenges. To the con-

trary, at least one minority juror was

excused despite indications during voir dire

that he was likely to be sympathetic to the

prosecution. And significantly, this pattern

of peremptory challenges came on the heels of

a hung jury, whose minority members had voted

for acquittal.

Based on the record in McCray's case,

neither the district court nor the Second

Circuit had any difficulty concluding that

"McCray's showing was ample to shift the

burden of coming forward with some reason

other than group affiliation for the

e $6 «

challenges." 750 F.2d at 1133. Once the

burden shifts, the prosecution's explanation

“of its legitimate reasons must be clear and

reasonably specific." Texas Dept. of

Community Affairs v. Burdine, 450 U.S. 248,

258 (1981). “{A] simple protestation.. .-

that racial considerations played no part in

the selection would [not] be enough."

Castaneda v. Partida, 430 U.S. at 498 n.19

(and cases cited therein). *°

The reported decisions from California

and elsewhere do not reveal any disruption in

the system of peremptory challenges as a

result of the Wheeler rule. Indeed, in the

Ié. The unwillingness to accept “a simple

protestation" of innocence in jury

discrimination cases suggests a shift in the

burden of persuasion as well as the burden of

production. This is entirely appropriate.

Otherwise, a prosecutor's pretextual

explanation would almost always prevail,

since under the Wheeler/McCray scheme, the

criminal defendant has neither the advantage

of discovery nor the opportunity for

rebuttal. Compare Burdine, 450 U.S. at 258.

» $9 «

seven years since Wheeler was decided, the

issue seems to have reached the California

appellate courts in fewer than a dozen cases.

The paucity of appellate decisions is

not surprising. Most prosecutors will comply

with their legal obligation to exercise

peremptory challenges in a racially neutral

“way once those obligations are clarified.

For those few prosecutors who do overstep

proper bounds, the constitutional remedy will

generally occur at the trial court level and

involve little more than a new beginning to

jury selection. Obviously, there are trans-

actional costs whenever jury selection is

interrupted. But those costs are relatively

small and cannot be compared with the con-

Stitutional injury inflicted by a discrimi-

natory jury selection. See Taylor v.

Louisiana, 419 U.S. at 535 ("the adminis-

trative convenience in dealing with women as

a class is insufficient ‘justification for

o 0 «

diluting the quality of community judgment

represented by the jury in criminal trials").

Thus, the California Supreme Court

recently found that Wheeler had been both

effective and workable. People v. Hall, 35

Cal.3d 161, 672 P.2d 854, 859 & n.1l (1983).

Reinforcing that view, the prosecutor in

McCray has asserted that a Wheeler-type rule

could be implemented in New York without

significant disruption in the criminal

justice system. Her views in this regard, as

the district attorney of New York's most

populous county, are entitled to respect.

Any deviation from the bright line of

Swain undoubtedly raises certain line-drawing

problems. See McCray v. New York, 103 S.Ct.

at 2439 n.* (Stevens, J., concurring in the

denial of certiorari). However, the clarity

of Swain derives from the fact that it is

unwilling to question the use of peremptory

challenges in a given case no matter how

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apparent the prosecutor's discriminatory

actions may be. Wheeler and its progeny,

imeluding McCray, amply demonstrate that such

judicial passivity in the face of racial

discrimination is both unnecessary and

unwise.

Nor should this Court be deterred by the

claim that a modification of Swain will

present insuperable problems in classifying

groups as sufficiently cognizable or not to

trigger the fair cross-section requirement.

Similar objections were considered and dis-

missed in Hernandez v. Texas, 347 U.S. 475

(1954), which held that persons of Mexican

descent could not be systematically excluded

from Texas criminal’ juries.

Hernandez ends with the following justi-

fication of its conclusion:

To say that this decision

revives the rejected contention

that the Pourteenth Amendment

requires proportional repre-

sentation of all the component

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ethnic groups of the community

on every jury ignores the facts.

The petitioner did not seek

proportional representation,

nor did he claim a right to

have persons of Mexican descent

sit on the particular juries

which he faced. His only claim

is the right to be indicted and

tried by juries from which all

members of his class are not

systematically excluded --

juries selected from among all

qualified persons regardless

of national origin or descent.

To this much, he is entitled

by the Constitution.

347 U.S. at 482 (footnotes omitted).

The Constitution requires as much in the

present case. Whatever subtleties may remain

to be resolved in future cases, our

constitutional heritage cannot be reconciled

with a rule of law that permits a public

prosecutor to bar potential jurors from

performing one of democracy's most sacred

functions solely on account of their race.

With twenty years experience, Swain's flaws

are too apparent to be further ignored. Its

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remedial approach to the problems of

discrimination in peremptory challenges must

now be modified in order to uphold the

principles of racial equality that Swain

itself so eloquently affirms.

°e 62 «

CONCLUSION

Two years ago, three members of this

Court suggested that the issues presented by

this case should be further examined in the

laboratory presented by the lower state and

federal courts. As part of that experiment,

and one of a growing number of courts

departing from Swain, the Fifth Circuit

recently wrote: "Ugly in its practice and

insidious in its effect, invidious racial

discrimination deserves protection in no area

of society, least of all in the administra-

tion of justice in the federal courts."

United States v. Leslie, supra, slip op. at

3955.

Amici concur in that judgment. The use

of race-based peremptory challenges has

Simply become an expedient way t6 accomplish

indirectly what can no longer be achieved

» @. «

through the direct and open exclusion of

minority group members from the criminal

justice system. In a multitude of other

contexts, this Court has forbidden such end

runs around the Constitution. Likewise in

this case, the anomalous loophole that Swain

produced should finally be closed.

For the reasons stated herein, amici

urge reversal of the decision below.

Respectfully submitted,

Sven P. Shapno

Steven R. Shapiro

New York Civil Liberties

Union

132 West 43 Street

New York, NY 10036

(212) 382-0557

Attorney for amici auriae

Dated: New York, NY

June 21, 1985

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