Amicus Curiae Brief — Batson v. Kentucky

No. 84-6263

Supreme Court of the Cnited States

Ocroser Term, 1984

JAMES KIRKLAND BATSON,

Petitioner,

Vv.

COMMONWEALTH OF KENTUCKY,

Respondent.

On Writ Of Certiorari To

The Supreme Court Of Kentucky

BRIEF FOR THE LAWYERS’ COMMITTEE

FOR CIVIL RIGHTS UNDER LAW

AS AMICUS CURIAE

Frep N. Fisuman Barry Svuixivan

Rosert H. Karp Counsel of Record

Co-Chairmen Ricuarp P. Sremvxken

Norman Repiica Micuart T. Bropy

Trustee JENNER & BLOCK

Wuium L. Rosrmsox One IBM Plaza

Norman J. CHAcHKIN Suite 4400

LAWYERS’ COMMITTEE FOR Chicago, Illinois 60611

CIVIL RIGHTS UNDER LAW (312) 222-9350

Suite 400

1400 Eye Street, N. W.

Washington, D.C. 20005

(202) 371-1212

Attorneys for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................

STATEMENT OF INTEREST

OF AMICUS CURIAE ....................

PTT TTT TTT TTT TTT TTT

INTRODUCTION AND SUMMARY

Be BT ccccccsccccccccccccscccces

ARGUMENT:

I. THE USE OF PEREMPTORY CHAL-

Il.

LENGES TO EXCLUDE MEMBERS OF A

RACIAL GROUP FROM JURY SERVICE

IN AN INDIVIDUAL CASE VIOLATES

BOTH THE SIXTH AND FOURTEENTH

AMENDMENTS ...........0-eeeeeeees

A. The Use of Peremptory to

Exclude Members of a Racial

B. The Use of

STATE AND FEDERAL COURTS HAVE

DEVELOPED A WORKABLE ALTER-

NATIVE TO SWAIN WHICH PROTECTS

THE CONSTITUTIONAL RIGHTS OF

CRIMINAL DEFENDANTS AND PRE-

SERVES THE DISCRETION OF PROSE-

CUTORS IN EXERCISING PEREMPTORY

CHALLENGES ...... 2... ceeeeceeeees

PAGE

11

18

20

COMCEAITBON oc cccccccessosenceseusenen 25

i i ee A-l

TABLE OF AUTHORITIES

Cases PAGE

Adams v. Texas, 448 U.S. 38 (1980) .......... 10

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

occcccccececesee‘esseeseeeene 3, 5, 12, 14

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

Avery v. Georgia, 345 U.S. 559 (1953) ........ 3, 12

Ballard v. United States, 329 U.S. 187 (1946) .. 12

Ballew v. Georgia, 435 U.S. 223 (1978) ........ 9

Board of Regents v. Roth, 408 U.S. 564 (1972) .. 24

Bordenkircher v. Hayes, 434 U.S. 357 (1978) .. 24

Carter v. Jury Commission, 396 U.S. 320 (1970) . i)

Cassell v. Texas, 339 U.S. 282 (1950) ......... 3

Castaneda v. Partida, 430 U.S. 482 (1977) .... 12

Commonwealth v. Brown, 11 Mass. App. Ct. 288,

416 N.E.2d 218 (1981) ..............000e0 22

Commonwealth v. Gagnon, 16 Mass. App. Ct. 110,

449 N.E.2d 686 (1983), rev’d sub nom., Common-

wealth v. Bourgeois, 391 Mass. 869, 465 N.E.2d

NTE ee og cc eccccces 22

Commonwealth v. Martin, 461 Pa. 289, 336 A.2d

LE LLL I 16

Commonwealth v. Soares, 377 Mass. 461, 387

N.E.2d 499, cert. denied, 444 U.S. 881 (1979) . 20, 22

Connecticut v. Teal, 457 U.S. 440 (1982) ...... 14

Davis v. Georgia, 429 U.S. 122 (1976) (per curiam) . 10

Duncan v. Louisiana, 391 U.S. 145 (1968) .... 4,7,8

Ex parte Virginia, 100 U.S. 339 (1880) ....... 12

Gibson v. Mississippi, 162 U.S. 565 (1896) .... 12

Hernandez v. Texas, 347 U.S. 475 (1954) ...... 12

Hoyt v. Florida, 368 U.S. 57 (1961) .......... 4,8

Jones v. Georgia, 389 U.S. 24 (1967) .......... 14

Lane v. Wilson, 307 U.S. 268 (1939) .......... 11

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

petition for cert. filed, No. 84-1426 (March 4,

APEC Eee en eeeccsececcoccsceess 10, 16, 20

McCray v. New York, 461 U.S. 961 (1983) .... 15, 21

McDonnell Douglas Corp. v. Green, 411 U.S. 792

Ree eee cdeceseccescecees 6

Mt. Healthy City School District Board of Educa-

tion v. Doyle, 429 U.S. 274 (1977) ......... 5, 24

People v. Allen, 23 Cal. 3d 286, 590 P.2d 30(1979). 21

Peopie v. Fuller, 136 Cal. App. 3d 403, 185 Cal.

i Cire e ceeds sececcceccces 22

iv

People v. Hall, 35 Cal. 3d 161, 672 P.2d 854 (1983) . 21, 22

People v. McCray, 57 N.Y.2d 542, 443 N.E.2d 915

(1982), cert. denied, 461 U.S. 961 (1983) .... 20

People v. Mack, 27 Cal. 3d 145, 611 P.2d 454

DD ¢sdsbeduntsesdecsasenndambeidant 21

People v. Payne, 106 Ill. App. 3d 1034, 436 N.E.

2d 1046 (1982), rev'd, 99 Ill. 2d 135, 457 N.E.2d

1202 (1983), cert. denied, 105 S. Ct. 447 (1984) .. 20

People v. Thompson, 79 A.D.2d 87, 485 N.Y.S.2d

739 (1981), overruled by People v. McCray, 57

N.Y.2d 542, 443 N.E.2d 915 (1982), cert. denied,

GE UA. GER GERD cv cccescccccvdccccsesss 20

People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748

GIDE occcvescccvccewecceucceuascesssocss passim

Peters v. Kiff, 407 U.S. 493 (1972) .......... 3, 10, 12

Reddick v. Commonwealth, 381 Mass. 398, 409

Ree. Tee, GED bednendeeccbencsccecaecs 21

Smith v. Texas, 311 U.S. 128 (1940) .......... 12

State v. Crespin, 94 N.M. 486, 612 P.2d 716 (Ct.

Ba, TEED cccccccpeccccdcccevocsaeseseces 20, 23

State v. Davis, 99 N.M. 522, 660 P.2d 612 (Ct. App.

REED 6s bncden cécvecncucecssenemnennucuiens 23

State v. Gilmore, 199 N.J. Super. 389, 489 A.2d

1175 (Super. Ct. App. Div. 1985) .......... 20

State v. Neil, 457 So. 2d 481 (Fla. 1984) ...... 20

Strauder v. Wesi Virginia, 100 U.S. 303 (1880) ..

pccedsdeveceddbesdebeseteneeubedesessens 3, 12, 17

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

Taylor v. Louisiana, 419 U.S. 522 (1975) ...... 4,8

Vv

Thiel v. Southern Pacific Co., 328 U.S. 217 (1946). 9, 12

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

granted, 759 F.2d 366 (5th Cir. 1985) ...... 20

Wayte v. United States, 105 S. Ct. 1524 (1985) .. 24

Whitus v. Georgia, 385 U.S. 545 (1967) ....... 14

Williams v. Florida, 399 U.S. 78 (1970) ....... 8

Witherspoon v. Illinois, 391 U.S. 510 (1968) ... 9

Rule

Supreme Court Rule SBS .....ccccccccccccecs 2

In THE

Supreme Court of the United States

Octoser Term, 1984

No. 84-6263

JAMES KIRKLAND BATSON,

Petitioner,

v.

COMMONWEALTH OF KENTUCKY,

Respondent.

BRIEF FOR THE LAWYERS’ COMMITTEE

FOR CIVIL RIGHTS UNDER LAW

AS AMICUS CURIAE

STATEMENT OF INTEREST OF

AMICUS CURIAE

The Lawyers’ Committee for Civil Rights Under Law

was organized in 1963, at the request of the President

of the United States, to involve private attorneys in the

national effort to assure the civil rights of all Americans.

affies

During the past 22 years, the Lawyers’ Committee and

its local affiliates have enlisted the services of thousands

of members of the private bar in addressing the legal

problems of minorities and the poor. The Committee’s

membership today includes past presidents of the

American Bar Association, a nvmber of law school deans,

and many of the nation’s leading lawyers. The importance

of this case to the principle of equal justice under law,

and the widespread perception of minority group members

that prosecutors can exercise peremptory challenges in

a discriminatory manner, have prompted the Lawyers’

Committee to file this brief amicus curiae in support of

petitioner. The parties have consented to the filing of this

brief, which is therefore submitted pursuant to Supreme

Court Rule 36.2.

STATEMENT

Petitioner James Kirkland Batson, a black man, was con-

victed by a Kentucky jury of second degree burglary and

receipt of stolen property, based upon his alleged theft

of two purses (J.A. 5). He was sentenced to 20 years’

imprisonment (J.A. 5).

Although the venire in petitioner’s case included four

blacks, the Commonwealth useJ four of its six peremptory

challenges to exclude each of them (J.A. 2-2). Petitioner

timely objected to this deployment of the Commonwealth’s

peremptory challenges, moved to discharge the jury panel,

and later objected to the swearing of the jury (J.A. 2-4).

The trial court overruled petitioner’s objections, refused

to inquire into the Commonwealth’s reasons for striking

all of the black veniremen, and refused even to determine

whether the record showed a strong likelihood that the

afin

Commonwealth had stricken the black veniremen solely

because of their race (J.A. 3).

The Supreme Court of Kentucky affirmed petitioner’s

conviction (J.A. 9). The Supreme Court rejected peti-

tioner’s constitutional claim, based on the Commonwealth’s

exercise of its peremptory chailenges, oi the ground that

petitioner had not satisfied the standard established by

this Court in Swain v. Alabama, 380 U.S. 202 (1965)

(J.A. 8).

INTRODUCTION AND SUMMARY

OF ARGUMENT

For more than 100 years, this Court has consistently

held that the Equal Protection Clause of the Fourteenth

Amendment precludes the exclusion of blacks, based solely

on their race, from service on grand and petit juries. See,

e.g., Peters v. Kiff, 407 U.S. 493 (1972); Alexander v.

Louisiana, 405 U.S. 625 (1972); Avery v. Georgia, 345 U.S.

559 (1953); Strauder v. West Virginia, 100 U.S. 303 (1880).

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

noted the “unquestioned” soundness of that principle (id.

at 205) and reaffirmed that “ {jjurymen should be selected

as individuals, on the basis of individual qualifications, and

not as members of a race’ ”’ (id. at 204, quoting Cassell

v. Texas,-339 U.S. 282, 286 (1950)). Thus, as the Court

held in Swain, “a State’s purposeful or deliberate denial

to Negroes on account of race of participation as jurors

in the administration of jurtice violates the Equal Pro-

tection Clause” (380 U.S. at 203-04). Based, however, on

~~

the perceived need to balance an individual’s Fourteenth

Amendment rights against the state’s traditional discre-

tion in exercising peremptory challenges, the Court also

held that a criminal defendant could not establish a viola-

tion of the Fourteenth Amendment by proving that the

case (id. at 221-22). In Swain, the Court held that a defen-

dant could establish a violation of the Equal Protection

Clause in this context only by proving that the state had

a longstanding, systematic practice of deploying peremp-

tory challenges to exclude members of particular racial

groups from jury service (id. at 223-24).

Insofar as it creates a virtually irrebuttable presump-

tion in favor of the state’s exercise of peremptory

challenges and limits the kind of proof which may be ad-

duced to establish a constitutional violation in this con-

text, the Court’s holding in Swain is doctrinally unsound

and must be overruled for at least three separate reas ns.

First, Swain is inconsistent with this Court’s more re-

cent decisions under the Sixth Amendment. In 1968, three

years after Swain was decided, this Court held for the

first time that the Sixth Amendment requirement of trial

by an impartial jury applies to state prosecutions. Dun-

can v. Louisiana, 391 U.S. 145 (1968). Under the Sixth

Amendment, as the Court later held in Taylor v. Loui-

siana, 419 U.S. 522, 527 (1975), a criminal defendant is

entitled to be tried by “a jury drawn from a fair cross

section of the community.” To withstand Sixth Amend-

ment scrutiny, as the Taylor Court observed, the exclu-

sion of a distinctive class from that cross-section must be

justified by “weightier reasons” than the “merely rational

grounds” sufficient to satisfy the equal protection stand-

ard (id. at 534). Compare Taylor v. Louisiana, 419 US.

522 (1975), with Hoyt v. Florida, 368 U.S. 57 (1961). Thus,

-§—

even if the Swain Court was correct in holding that the

use of peremptory challenges to practice racial discrimina-

tion in an individual case does not violate the Equal Pro-

tection Clause of the Fourteenth Amendment, the same

conduct clearly deprives a criminal defendant of his Sixth

Amendment right to be tried by a jury drawn from a fair

cross-section of the community.

Second, the equal protection analysis articulated in

Swain is doctrinally unsound and inconsistent with this

Court’s more recent cases under the Fourteenth Amend-

ment. The distinction posited in Swain—between sys-

tematic and individual discrimination—is analytically un-

sound because it confuses the separate and distinct ques-

tions of what constitutes a constitutional violation and how

such a violation may be proved. Proof that discrimination

has occurred in previous cases may indeed be probative

of present discrimination, but the existence of present

discrimination cannot be determined by reference only to

historical practice. Because the right to be tried by an

impartial jury is a personal right, a defendant is entitled

to constitutional protection of that right even if the state

has not previously denied it to others. See, e.g., Alexander

v. Louisiana, 405 U.S. 625, 628-29 (1972).

Finally, the Swain Court erred in finding that respect

for the historical nature of peremptory challenges 1. e-

cluded any inquiry into the racially discrit.anatory exer-

cise of those challenges in an individual case. The balance

struck by the Court in Swain, which elevates the goal

of preserving the absolute discretion traditionally em-

bodied in- the peremptory challenge (without possibility

of even the most minor alteration), in preference to the

protection of individual constitutional rights, conflicts with

the Court’s more recent decisions in analogous areas in

volving similarly competing values. See Mt. Healthy City

Gen

School District Board of Education v. Doyle, 429 U.S. 274

(1977); McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). A balance more consistent with this Court’s re-

cent cases was struck by the California Supreme Court

in People v. Wheeler, 22 Cal. 3d 258, 583 P.2d 748 (1978).

In Wheeler, the court held that where a defendant has

established a prima facie case of discrimination in the use

of peremptory challenges in an individual case, the state

must show that the challenges were based on grounds

reasonably relevant to the particular case, rather than on

group bias. Only if the state’s explanation is pretextual

will the trial court dismiss the jurors already selected and

begin the process anew. The Wheeler rule gives adequate

protection both to the prosecutor’s discretion and to indi-

vidual constitutional rights; it is the logical and constitu-

tionally mandated culmination of constitutional develop-

ments since Swain.

THE USE OF PEREMPTORY CHALLENGES TO EX-

CLUDE MEMBERS OF A RACIAL GROUP FROM JURY

SERVICE IN AN INDIVIDUAL CASE VIOLATES BOTH

THE SIXTH AND FOURTEENTH AMENDMENTS.

In the 20 years since the Court decided Swain v.

Alabama, 380 U.S. 202 (1965), the Court has consistent-

ly held that the Sixth Amendment applies to state as well

as federal prosecutions. Thus, a state criminal defendant

is constitutionally guaranteed the right to trial by an im-

partial jury of his peers drawn from a fair cross-section

of the community. The use of peremptory challenges to

exclude an identifiable class from jury service irrecon-

cilably conflicts with that individual right. In addition, the

law relating to racial discrimination has developed great-

ly in the past twenty years. Since Swain, this Court has

consistently held that the Equal Protection Clause of the

Fourteenth Amendment prohibits race-based discrimina-

tion against individuals; an individual’s entitlement to

relief cannot depend upon whether he stands first or last

in a line of victims. Developments in both of these areas

have eviscerated the doctrinal underpinnings of the rule

announced in Swain.

A. The Use of Peremptory Challenges to Exclude Members

of a Racial Group from Jury Service Violates the Sixth

Amendment.

In 1968, three years after the Court’s decision in Swain,

the Court held that the Sixth Amendment requirement

of trial by an impartial jury applies to state criminal pros-

ecutions. Duncan v. Louisiana, 391 U.S. 145 (1968). The

==

Sixth Amendment right to trial by an impartial jury “con-

templates a jury drawn from a fair cross section of the

community.” Taylor v. Louisiana, 419 U.S. 522, 527

(1975). See Williams v. Florida, 399 U.S. 78, 100 (1970).

In Taylor v. Louisiana, this Court recognized that the

“fair-cross-section requirement [is not only] fundamental

to the jury trial guaranteed by the Sixth Amendment,”

but mandated by the basic purpose of the jury, which is

“to guard against the exercise of arbitrary power—to

make available the commonsense judgment of the com-

munity as a hedge against the overzealous or mistaken

prosecutor and in preference to the professional or

perhaps overconditioned or biased response of a judge”

(419 U.S. at 580). See also Duncan v. Louisiana, 391 U.S.

145, 155-56 (1968).

The Court in Taylor also recognized that the Sixth

Amendment right to a jury drawn from a representative

cross-section of the community imposes restrictions on the

exclusion of members of identifiable groups from jury par-

ticipation, which are more stringent than those applicable

under the equal protection standard articulated in Swain.

Thus, the Court invalidated on Sixth Amendment grounds

the conviction of a male defendant who had been tried

by a jury selected from a venire from which most women

had been excluded by statute. Just 14 years earlier, in

Hoyt v. Florida, 368 U.S. 57 (1961), this Court had upheld

a virtually identical statutory provision against an attack

brought on due process and equal protection grounds,

although, as Justice Rehnquist noted in Taylor, the earlier

case presented “circumstances which were much more

suggestive of possible bias and prejudice” (419 U.S. at

539 (Rehnquist, J., dissenting)). The Louisiana statute

violated the Sixth Amendment because, as the Taylor

Court explained, “(rjestricting jury service to only special

groups or excluding identifiable segments playing major

=

roles in the community cannot be squared with the

constitutional concept of jury trial” (419 U.S. at 530). The

central principle was stated, albeit in a different context,

almost 40 years ago: “Jury 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 discriminations which are abhorrent to

the democratic ideals of trial by jury.” Thiel v. Southern

Pacific Co., 328 U.S. 217, 220 (1946). See also Carter v.

Jury Commission, 396 U.S. 320, 330 (1970) (exclusions

base. on class or race “contravene[ | the very idea of a

jury—‘a body truly representative of the community’ ”’).

The Court has applied the more exacting standard of

the Sixth Amendment, not only in the context of venire

composition, but also with respect to actions affecting the

jury selection process where the venire itself is deemed

acceptable. In Ballew v. Georgia, 435 U.S. 223 (1978), the

Court held that the Sixth Amendment prohibits the use

of a five-person petit jury in a criminal misdemeanor trial.

There was no suggestion in Ballew of an improper venire;

nor was there any suggestion that the venire did not con-

tain a fair cross-section of the community.' Similarly, in

Witherspoon v. Illinois, 391 U.S. 510, 518 (1968), the

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(1980); Davis v. Georgia, 429 U.S. 122 (1976) (per curiam).

If the rights secured by the Constitution are to be ef-

fectively safeguarded, the exacting standard established

by the Sixth Amendment must be applied to every stage

of jury selection. Even in the face of this Court’s deci-

sion in Swain, several state and federal courts have now

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The deployment of peremptory challenges to practice

racial discrimination in a particular case cannot be

tolerated because it violates the individual defendant’s

right to be free from official discrimination. The peremp-

tory challenge cannot be deemed sacrosanct because the

Sixth Amendment, like the Fifteenth, prohibits “sophis-

ticated as well as simple-minded modes of discrimination.”

Lane v. Wilson, 307 U.S. 268, 275 (1939) (Frankfurter, J.).

B. The Use of Peremptory Challenges to Exclude Members

of a Racial Group from Jury Service Violates the Equal

Protection Clause of the Fourteenth Amendment.

Although the Swain Court reaffirmed the principle that

racial discrimination can play no role in jury selection (380

U.S. at 204-05), the Court’s holding—that an equal pro-

tection violation may be proved only through evidence of a

long-standing and systematic pattern of discrimination—

marks the case as an aberration in an otherwise un-

broken line of jury selection cases that stretches back for

more than 100 years of our history. In addition, the Four-

teenth Amendment analysis articulated in Swain conflicts

with this Court’s more recent decisions under the Four-

teenth Amendment. By focusing entirely on proof of

systematic discrimination, the Court in Swain lost sight

of the central meaning of the Equal Protection Clause: that

every defendant is individually entitled “‘to require that

the State not deliberately and systematically deny to

members of his race the right to participate as jurors in

2 continued

ernment’s evidence is relatively weak and the defendant is

TEE bs ceet enen cach empitedd evidence, mane com-

mentators have taken the position that the Swain rule affords in-

adequate protection to indivi constitutional rights, and they

have therefore advocated adoption of the Wheeler rule. The most

a ee & Append A,

—12—

the administration of justice.” Alerander v. Louisiana,

405 U.S. 625, 628-29 (1972), citing Ex parte Virginia, 100

U.S. 339 (1880), and Gibson v. Mississippi, 162 U.S. 565

(1896). See also Castaneda v. Partida, 430 U.S. 482 (1977).

The cross-section of the community principle embodied

in the Sixth Amendment was first articulated by this

Court as a component of equal protection. In a long line

of cases, this Court has relied on the cross-section prin

ciple in holding that the deliberate exclusion of black

potential jurors because of their race, in whatever stage

of jury selection, is a violation of equal protection. In

Strauder v. West Virginia, 100 U.S. 303, 309 (1880), this

Court struck down a state statute which barred blacks

from jury service, noting that “prejudices often exist

against particular classes in the community, which sway

the judgment of jurors, and which, therefore, operate in

some cases to deny to persons of those classes the full

. . . protection which others enjoy.” Thus, the protection

of a black defendant “against race or color prejudice’’ is

an individual constitutional right, which is violated by

“compelling [him] to submit to a trial . . . by a jury drawn

from a panel from which the State has expressly excluded

every man of his race, because of color alone, however

well qualified in other respects” (100 U.S. at 309). See

also Alexander v. Louisiana, 405 U.S. 625, 630-32 (1972);

Hernandez v. Texas, 347 U.S. 475, 478-79 (1954); Avery

v. Georgia, 345 U.S. 559, 561-62 (1953); Ballard v. United

States, 329 U.S. 187, 195 (1946); Thiel v. Southern Pacific

Co., 328 U.S. 217, 221-22 (1946); Smith v. Texas, 311 U.S.

128, 130-31 (1940).

More recently, in Peters v. Kiff, 407 U.S. 493 (1972),

the Court reversed the conviction of a white defendant

because blacks had been excluded from jury service. As

Justice Marshall explained in a plurality opinion in which

he was joined by Justice Douglas and Justice Stewart,

oftin

“the exclusion from jury service of a substantial and iden-

tifiabie class of citizens has a potential impact that is too

subtle and too pervasive to admit of confinement to par-

ticular issues or particular cases” (id. at 503). Similarly,

“{wjhen any large and identifiable segment of the com-

munity is excluded from jury service, the effect is to

remove from the jury room qualities of human nature and

varieties of human experience, the range of which is un-

known and perhaps unknowable” (id.). The exclusion of

such a range of human nature and experience “may have

unsuspected importance in any case that may be pre-

sented” (id. at 504). See also Apodaca v. Oregon, 406 U.S.

404, 410-11 (1972).

The Court’s decision in Swain is aberrational insofar as

it holds that an equal protection violation may be estab-

lished in a particular case only through evidence of an

historical pattern or practice of discrimination in jury

selection. The Court reached this conclusion only after

declining to “hold that the striking of Negroes in a par-

ticular case is a denial of equal protection of the laws”

(380 U.S. at 221). The Court refused to subject a prose-

cutor’s use of peremptory challenges to equal protection

scrutiny because the Court believed that doing so “would

entail a radical change in the nature and operation of the

challenge” (id. at 221-22). Because the Swain Court felt

compelled to preserve the common law peremptory chal-

lenge without any alteration, however minor, the Court

effectively sacrificed the defendant’s individual right to

equal protection in the jury selection process, and there-

fore put in place an unprecedented and unworkable rule

of equal protection analysis. Where the protection of in-

dividual constitutional rights required accommodation, the

Court instead installed the peremptory challenge in a

preferred position. For that reason alone, this prong of

the Swain holding must be overruled.

afiie

In the 20 years since Swain was decided, experience

has demonstrated that its holding is both doctrinally un-

sound and practically unworkable. Swain’s equal protec-

tion analysis, which requires proof of an historical pat-

tern of discrimination to establish a violation of equal pro-

tection, has been eroded in subsequent decisions of this

Court. In Alexander v. Louisiana, 405 U.S. 625 (1972),

for example, this Court found an equal protection viola-

tion in the selection of a particular all-white grand jury,

based on: (1) statistical evidence that the percentage of

blacks eligible to participate in that grand jury decreased

in each succeeding phase of the selection process, and (2)

nee that the state listed each potential grand juror’s

race Gn his identification form. The Court concluded that

the ion of an all-white grand jury, together with the

incorporation in the jury selection process of a mechanism

susceptible to discriminatory application, sufficed to es-

tablish a prima facie equal protection violation, which the

state had not rebutted (id. at 630-32). See also Whitus

v. Georgia, 385 U.S. 545 (1967); Jones v. Georgia, 389 U.S.

24 (1967). Notably, the Court did not consider whether

this jury selection practice was part of an historic or long-

term pattern or practice of discrimination, nor did the

Court consider any long-term effect which any such prac-

tice may have had on the representation of blacks on

grand juries in Louisiana.

No less than the grand jury selection process challenged

in Alexander, the prosecutor’s use of peremptory chal-

lenges provides “an easy opportunity for racial discrim-

ination” (405 U.S. at 630). Where individual rights have

been abridged in a particular case, correction of that

wrong logically cannot be made to depend upon proof that

the state has previously violated the constitutional rights

of others. Cf. Connecticut v. Teal, 457 U.S. 440, 445 (1982)

(‘an employer [cannot] discriminate against some employees

=i

on the basis of race or sex merely because he favorably

treats other members of the employees’ group”’). While

evidence of an historical pattern or practice of discrimina-

tion may provide relevant and useful proof of discrimina-

tion in a particular case, the lack of such evidence can-

not establish the absence of a constitutional violation in

a particular case. Logically, other competent evidence may

also be used to prove discrimination. For example, a

prosecutor may admit that his purpose was to exclude

blacks from the jury. Alternatively, the prosecutor may

offer an explanation which cannot withstand the most

minimal scrutiny. He may say, for instance, that his deci-

sion to exclude all black veniremen was based on their

responses to particularly significant questions, while the

record reflects that he never bothered to ask those same

questions of the white veniremen whom he did not chal-

lenge. Such evidence is no less (and probably more) pro-

bative of discrimination in a particular case than is evi-

dence derived by inference from a prior pattern or prac-

tice.

Swain’s stringent limitation on the type of proof accept-

able in demonstrating racial discrimination in this con-

text has erected a practically impenetrable barrier to the

protection of this important right. Efforts to prove a pat-

tern of discrimination are necessarily limited by the ex-

tent to which relevant facts, such as the race of challenged

jurors, have been made a part of the record in prior cases.

As Justice Marshall has observed, “ijt is doubtful that

many jurisdictions maintain comprehensive records of per-

emptory challenges, let alone information regarding the

race of those individuals challenged.” McCray v. New

York, 461 U.S. 961, 965-66 n.4 (1983) (Marshall, J., dissent-

ing from denial of certiorari). In most cases, therefore,

defense counsel will bear the burden of developing a

record concerning the prosecutor’s use of peremptory

=~

challenges, often at the price of annoying the trial judge,

who will be understandably anxious to commence the trial.

There may be little incentive for defense counsel to make

such a record in an individual case, however, because that

record will not assist the defendant on trial, but only some

future defendant, to whom defense counsel owes no duty

of loyalty. Indeed, given defense counsel’s duty to the

defendant on trial, it might well be unethical for him to

risk incurring the disapproval of the trial judge by per-

sisting in an unwanted attempt to develop the record.

Even in those cases in which evidence, albeit often anec-

dotal, has been presented, courts have almost uniformly

rejected challenges brought under Swain. See McCray v.

Abrams, 750 F.2d 1113, 1120 & n.2 (2d Cir. 1984), peti-

tion for cert. filed, No. 84-1426 (March 4, 1985). In sum,

the requirements of proof established by Swain, being vir-

tually unattainable in practice, have eviscerated the consti-

By turning back blacks at the threshold of the jury box,

the state discriminates not only against black defendants,

but also against the black veniremen who are inexplicably

barred from fully exercising the rights and duties of

citizenship. To excuse blacks, one by one, from the venire,

until the only remaining faces are white, with no obvious

explanation but for the color of their faces, not only dis-

—j]7—

credits the judicial process, but puts “a brand upon them,

affixed by the law; an assertion of their inferiority, and

a stimulant to that race prejudice which is an impediment

to securing to individuals of the race that equal justice

which the law aims to secure to all others.” Strauder v.

West Virginia, 100 U.S. 303, 308 (1880). The imposition

of that badge of slaverv, within the four walls of a court

of law, cannot be tolerated in a society which stands upon

the principle that justice may not be rationed according

to wealth, race, color or creed.

STATE AND FEDERAL COURTS HAVE DEVELOPED A

WORKABLE ALTERNATIVE TO SWAIN WHICH PRO-

TECTS THE CONSTITUTIONAL RIGHTS OF CRIMINAL

DEFENDANTS AND PRESERVES THE DISCRETION OF

PROSECUTORS IN EXERCISING PEREMPTORY CHAL-

LENGES.

In Swain, the Court sought to preserve “the per-

emptory system and the function it serves in a pluralistic

society in connection with the institution of the jury trial”

(380 U.S. at 222). Recognizing that racial discrimination

in jury selection violates individual constitutional rights,

the Court in Swain nonetheless declined to require any

inquiry into the prosecutor’s reasons for exercising his

peremptory challenges because the Court feared that such

a rule would emasculate the peremptory challenge. As a

result, the Swain Court adopted an equal protection analy-

sis which has proven ineffective and unworkable as well

as doctrinally unsound.

Recognizing both the failure of the Swain rule and the

need for an alternative that would protect both the con-

stitutional rights of individual defendants and the con-

tinued efficacy of the peremptory challenge, several state

and federal courts have reexamined Swain in light of

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has observed, the Wheeler procedure “appears to be quite

workable.” McCray v. New York, 461 U.S. 961, 969 (1983)

(Marshall, J., dissenting from denial of certiorari). The ac-

curacy of that observation is confirmed by the experience

of those states that have adopted the Wheeler rule.

In the seven years since the Wheeler rule was adopted,

the California Supreme Court has been required to decide

only one case tried since the decisien in Wheeler, involv-

ing the use of peremptory challenges to exclude qualified

citizens from juries because of group bias.* In that case,

People v. Hall, 35 Cal. 3d 161, 168-69, 672 P.2d 854, 858-59

(1983), the California Supreme Court reversed a criminal

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protect the constitutional rights of public employees and

criminal defendants, this Court has held that these tra-

ditional elements of unreviewable governmental discretion

must yield in some small way to accommodate individual

constitutional rights. The Wheeler rule likewise imposes a

reasonable and minimal limitation on the power of prose-

cutors to use peremptory challenges for racially discrimi-

natory reasons. This Court should adopt the Wheeler rule

as the least intrusive method for giving effect to the Sixth

and Fourteenth Amendment rights which are clearly

abridged by the practice of racial discrimination in the

The judgment of the Supreme Court of Kentucky should

be reversed and the cause remanded.

Respectfully submitted,

FrepD N. FISHMAN Barry SULLIVAN

Ropert H. Kapp Counsel of Record

Co-Chairmen RicuarD P. STEINKEN

NoRMAN REDLICH Micuae.t T. Bropy

Trustee JENNER & BLOCK

Witiiam L. Ropinson One IBM Plaza

Norman J. CHACHKIN Suite 4400

LAWYERS’ COMMITTEE FOR Chicago, Illinois 60611

CIVIL RIGHTS UNDER LAW (312) 222-9350

Attorneys for Amicus Curiae

Dated: June 28, 1985

A-l

APPENDIX A

I. Legal Commentary Concerning Swain and Alter-

native Rules

Brown, McGuire & Winters, The Peremptory Chal-

lenge as a Manipulative Device in Criminal

Trials: Traditional Use or Abuse, 14 New Eng.

L. Rev. 192 (1978);

Kuhn, Jury ——“yOrO The Next Phase, 41

S. Cal. L. Rev. 235 (1968);

Winick, Prosecutional Peremptory Challenge Prac-

tice in Capital Cases: An Empirical Study and

a Constitutional Analysis, 81 Mich. L. Rev. 1

(1982);

Comment, Deterring the Discriminatory Use of

Peremptory Challenges, 21 Am. Crim. L. Rev.

477 (1984);

Note, Peremptory Challenges: United States v.

Childress: Discriminatory Use of Peremptory

Challenges: The Sixth Amendment as an Alter-

native Approach, 17 Creighton L. Rev. 1433

(1983-84);

Note, Systematic Exclusion of Cognizable Groups

by Use of Peremptory Challenges, 11 Fordham

Urb. L. J. 927 (1982-83);

Note, The Defendant’s Right to Object to Prose-

cutorial Misuse of the Peremptory Challenge,

92 Harv. L. Rev. 1770 (1979);

Comment, The Sixth Amendment: Limiting The

Use of Peremptory Challenges, 16 J. Mar. L.

Rev. 349 (1983);

A-2

Note, Peremptory Challenges in Transition, 5 Pace

L. Rev. 185 (1984);

Comment, Swain v. Alabama: A Constitutional

Blueprint for the Perpetuation of the All-White

Jury, 52 Va. L. Rev. 1157 (1966);

Note, Limiting the Peremptory Challenge: Repre-

sentation of Groups on Petit Juries, 86 Yale L.

J. 1715 (1977).

II. Sociological Literature Concerning Blacks and the

Jury System

H. Kalven & H. Zeisel, The American Jury 196-98,

210-13 (1966);

R. Simon, The Jury and the Defense of Insanity

111 (1967);

J. Van Dyke, Jury Selection Procedures: Our Un-

certain Commitment to Representative Panels,

33-35, 154-60 (1977);

Rhine, The Jury: A Reflection of the Prejudices

of the Community, in Justice on Trial (D.

Douglas & P. Noble eds. 1971);

Adler, Socioeconomic Factors Influencing Jury

Verdicts, N.Y.U. Rev. L. & Soc. Change 1-10

(1973);

Bell, Racism in American Courts: Cause for Black

Disruption or Despair? 61 Cal. L. Rev. 165-203

(1973);

Bernard, Interaction Between the Race of the

Defendant and That of Jurors in Determining

Verdicts, 5 Law & Psychology Rev. 103, 107-08

(1979);

A3

Broeder, The Negro in Court, 1965 Duke L.J. 19,

22:

Davis & Lyles, Black Jurors, 30 Guild Prac. 111

(1973);

Gerard & Terry, Discrimination Against Negroes

in the Administration of Criminal Law in

Missouri, 1970 Wash. St. U.L.Q. 415-37;

Ginger, What Can Be Done to Minimize Discrimi-

nation in Jury Trials? 20 J. Pub. L. 427, 427-28

(1971);

Gleason & Harris, Race, Socio Economic Status,

and Perceived Similarity as Determinants of

Judgments by Simulated Jurors, 3 Soc. Behav.

& Personality 175-80 (1975);

mean, ae © Sone, Sn and Ras on Feo

the Attribution of Insanity in a

Murder Tridt, 98 J. Psychology 93-99 (1976);

Miller & Hewitt, Conviction of a Defendant as a

Function of a Juror-Victim Racial Similarity,

105 J. Soc. Psychology 156-60 (1978);

Ugwuegbu, Racial and Evidential Factors in

Juror Attribution of Legal Responsibility, 15

J. Experimental Soc. Psychology 133, 143-44

(1979);

Comment, A Case Study of the Peremptory Chal-

lenge: A Subtle Strike at Equal Protection and

Due Process, 18 St. Louis U.L.J. 62 (1974).