# Amicus Curiae Brief — Batson v. Kentucky

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1288%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 79

## Text

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

concluded that the peremptory challenge cannot be used

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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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—25—

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1288%3A09. Public record. Not legal advice.