Amicus Curiae Brief — Batson v. Kentucky
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OQvestion Presented
Whether 4 prosecutor's use of
peremptory challenges to exclude Blacks
from iury service because of their race
violates the Sixth and Fourteenth Amend-
ments to the Constitution of the United
States?
Page
Interest of the Amici
Summary of Argument
ARGUMENT
INTRODUCTION
I.
~
foal
47
Conclusion
» 44 «
Table of Authorities
Cases:
Akins v. Texas, 325 U.S. 398 (1945)
Alexander v. Louisiana, 405 U.S.
625 (1972) 3, 10, 35,
Apodaca v. Oregon, 406 U.S. 404
(1972)
Arlington Heights v. Metropolitan
Housing Corp., 429 U.S. 252
(1977) 30,
Ballard v. United Stated, 329 U.S.
187 (1946)
Ballew v. Georgia, 435 U.S. 223
(1978)
Bob Jones University v. United
States, U.S. _, 76 L.Ed.2d
157 (1983)
Broadway v. Culpepper, 439 F.2d 1253
(Sth Cir. 1971)
Brown v. Allen, 344 U.S. 443 (1953)
Carter v. Jury Commission, 396 U.S.
320 (1970) 3,
Cassell v. Texas, 339 U.S. 282 (1950)
- iii -
Page
15
44
42
35
38
44
Columbus Bd. of Ed. v. Penick, 443
U.S. 449 (1979)
Commonwealth v. Joyce, 18 Mass. App.
417, 467 N.E.2d 214 (Mass. App.
Ct. 1984), further a llate
review denied, 470 WE za
758 (T1984)
Commonwealth v. Kelley, 10 Mass. App.
847, 406 N.E.2d 1327 (Mass. App.
Ct. 1980)
Commonwealth v. Perry, 15 Mass. App.
932, 444 N.F.2d 1298 (Mass. App.
Ct. 1983), further a llate
review denied. 368 Mase 1104,
788 N.E.2d 766 (1983)
Commonwealth v. Reid, 384 Mass. 247,
424 N.E.2d 495 (Mass. 1981)
Commonwealth v. Soares, 377 Mass. 461,
387 N.E.2d 499, cert. denied, 444
U.S. 1 881 (1979) 13, 37, 53, 55,
Duncan v. Louisiana, 391 U.S. 145
(1968)
Ex parte Virginia, 100 U.S. 339 (1880)
Pay v. New York, 332 U.S. 261 (1947)
- iv-
30
55
46
54
55
58
37
10
42
Hill v. Texas, 316 U.S. 400 (1942) 15
Hirabayashi v. United States, 320 U.S.
R1 (1943) 26
Hobby v. United States, U.S. ’
82 L.Ed.2d 260 (1984) 12
Korematsu v. United States, 323 U.S.
214 (1944) 26
Loving v. Virginia, 388 U.S. 1 (1967) 26
McCray v. Abrams, 750 F.2d 1113 (2nd
Cir. 1984), reh. en banc
denied , 756 F.2d 177 (1985) 37
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) 30, 32
Mitchell v. Johnson, 250 F. Supp. 117
(M.D. Ala. 1966) 3
Palmore v. Sidoti, U.S. __, 80
L.Ed.2a 421 (1984) 26
Patton v. Yount, U. 8S. — 81
L.Ed.2d 847 (1984) 49, 56
People v. Boone, 107 Misc. 2d 301,
433 N.Y.S.2d 955 (Sup. Ct. 1980) 13
People v. Cobb, 97 I11.2d 465, 455
N.E.2d 31 (1983) 58
People v. Hall, 672 P.2d 854,
859, 197 Cal. Rptr. 71 (1983) 54, 57
People v. Johnson, 22 Cal. 3rd 296,
583 P.2d 774, 148 Cal. Rptr.
914 (1978) 26
People v. Kagan, 420 N.Y.S.2d 987
(N.Y. Sup. Ct. App. Div. 1979) 13
People v. McCray, 57 N.Y¥.2d 542,
457 N.Y.S.2d 441, 443 N.E.2d
915 (1982) 13
People v. Payne, 106 Ill. App.
34 1034, 62 Ill. Dec. 744,
436 N.E.2d 1046 (Ill. Ct. App.
1982), rev'd, 9 I11.2d 135,
457 N.E.2d 1202 (1983) 13, 22
People v. Thompson, 79 A.D.2d 87,
435 N.Y.S.2d 739 (N.Y. Sup.
Ct. App. Div. 1981) 13
People v. Walker, 157 Cal. App.3d
1060, 205 Cal. Rptr. 278
(Ct. App. 1984) 54
People v. Wheeler, 22 Cal. 258, 148
Cal. Rptr. 890, 583 P.2d 748
(1978) 13, 37, 53, 54, 55, 56, 58
- vi -
People v. Williams, 628 P.2d 869,
174 Cal. Rptr. 317 (Cal. 1981)
(en banc)
Peters v. Kiff, 407 U.S. 493 (1972)
Rogers v. Lodge, 458 U.S. 613 (1982)
Roman v. Abrams, No. 85 Civ. 0763-CLB
(S.D.N.Y. May 15, 1985)
Rosales-Lopez v. United States, 451
U.S. 182 (1982)
Rose v. Mitchell, 443 U.S. 545
(1979) 12,
Smith v. Texas, 311 U.S. 128 (1940)
State v. Brown, 371 So.2d 751
(La. 1979) 14,
State v. Crespin, 94 N.M.2d
486, 612 P.2d 716 (1980) 13, 37,
State v. Gilmore, No. A-870-82 T4
(NJ. Super. ct. App. Div.,
March 8, 1985)
State v. Neil, 457 So.2d 482
(Pla. 1984) 13, 37,
State v. Washington, 375 So.2d
1162 (La. 1979) 15, 25,
- vii -
59
30
Strauder v. West Virginia,
100 U.S. 303 (1880) 5, 9, 10
Swain v. Alabama, 380 U.S. 202
(1965) passim
Taylor v. Louisiana, 419 U.S.
522 (1975) 38, 39, 40, 41, 43
Thiel v. Southern Pacific Co.,
328 U.S. 217 (1946) 26
Turner v. Fouche, 396 U.S. 346
(1970) 3, 10
United States v. Childress, 715
F.2d 1313 (8th Cir. 1983) 13, 28
United States v. Clark, 737 F.2d
679 (7th Cir. 1984) 13
United States v. Jackson, 696 F.2d
578 (8th Cir. 1982) 14
United States v. Leslie, 759 F.2d 31
366 (Sth Cir. 1985), rehearing
en banc granted
United States v. McDaniels, 13, 31
379 FP. Supp. 1243 (E£.0. La. 1974)
United States v. Marchant, 25 U.S.
480 (1827) 23
- viii -
United States v. Newman, 549 F.2d
240 (2nd Cir. 1977)
United States v. Pearson, 448 F.2d
1207 (Sth Cir. 1971)
United States v. Schackleford,
59 U.S. 588 (1856)
United States v. Whitfield,
715 F.2€ 145 (4th Cir. 1983)
United States Postal Service Bd.
of Governors v. Aikens, 460
U.S. 711 (1983)
Virginia v. Rives, 100 U.S. 313
(1880)
Wainwright v. Witt, U.S. __, 83
'..24.24 841 (1985)
Wheathersby v. Morris, 708 F.2d
1493 (9th Cir. 1983)
Whitus v. Georgia, 385 U.S. 545
(1967)
Williams v. Plorida, 399 U.S. 78
(1970)
Williams v. Illinois, U.S. _,
S.Ct. 2634 (1984)
13
28
23
13
34
49
13
36
39
Willis v. Zant, 720 F.2d 1212
(11th Cir. 1983) 13
Yick Wo v. Hopkins, 118 U.S. 356
(1886) 26
Statutes:
Act of March 3, 1865, ch. 86,
§ 2, 13 Stat. 500 23
Colo. Rev. st. s§ 13-71-1007, et seq. 41
Federal Jury Selection and Service
Act, Pub. L. 90-274, 82
Stat. 53 11, 41
Idaho Code §§ 2-201 et seq. 41
Hawaii Rev. Stat. §§ 612-1 et seq. 41
Indiana Code §§ 33-4-5.5-1 et seq. 41
Maine Rev. St. §§ 1211 et seq. 41
Md. An- Code § 8-1-13 4)
Minn. Stat. Ann. §§ 593-31 et seq. 41
Miss. Code 1972, §S 13-5-2 et seq. 4)
No. Dakota Code $§ 17-09.1-01 et seq. 41
1 Stat. 119 (1790) 23
The Ordinance of Inauests, 33 Edw. 1. 21
e.2 (1305)
28 U.S.C. § 1861 11, 41
Uniform Jury Selection and
Service Act 11, 41
Other Authorities:
4W. Blackstone, Commentaries 21
Brown, McGuire, and Winters,
The Per Challenge
an a Nanloulat ive Deine
Ta tr TmInel Friels;
Traditional Use or Abuse?
Tt Wew Eng. LC. rev. TST 71978)
16, 20, 22
Comment, A Case Study of the
. rike a al
Protection and Due ns
Te St. Louis ©.J. ) 14
Comment, Swain v. Alabama: A 20, 22
Constitutional BI int for
20, 22
the Berpetostt
Ril-hite Jory, ST Va-L. Rev.
-~ xi -
Jackson, Mississippi, Clarion
Ledger, July 25, 1983 16
New Orleans Times-Picayune,
April 7, 1985 16
Sullivan, Deterri the
Discriminat vee of
r alle Ss, 21 Am.
Ferenptory © ee hes 177 T1884) 27, 45
- xii -
No. 84-6263,
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1984
JAMES KIRKLAND BATSON,
Petitioner,
v.
COMMONWEALTH OF KENTUCKY,
Respondent.
On Writ of Certiorari to the
Supreme Court of Kentucky
a Ict EFFH fy
EDUCATIONAL FUND, INC., THE
AMERICAN JEWISH COMMITTEE, AND
THE AMERICAN JEWISH CONGRESS
Interest of the Amici*
The NAACP Leaal Defense and Educa-
tional Pund, Inc., is a non-profit
*Letters from the parties consenting to
the filing of this Brief have been lodged
with the Clerk of the Court.
corporation, incorporated under the laws
of the State of New York in 1939. It was
formed to assist Blacks to secure their
constitutional rights by the prosecution
of lawsuits. Its charter declares that
itu purposes include rendering leaal aid
without cost to Blacks suffering injustice
by reason of race who are unable, on
acccunt of poverty, to employ legal
counsel on their own behalf. for many
years its attorneys have represented
parties and have participated as amicus
curiae in this Court and in the lower
federal courts in cases involving many
facets of the law.
The Fund has a long-standing concern
with the issue of the exclusion of Blacks
from service on juries. Thus, it has
raised iury discrimination claims in
appeals from criminal convictions, ;
pioneered in the affirmative use of civil
actions to end discriminatory practices, ;
and, indeed, represented the petitioner in
Swain v. Alabama, 380 U.S. 202 (1965), the
case which first raised the issue of the
use of peremptory challenges to exclude
Blacks from jury venires.
The American Jewish Committee is a
national organization of approximately
50,000 members which was founded in 1906
for the purpose of protecting the civil
an@ religious rights of Jews. Tt has
always been the conviction of this
organization that the security and the
constitutional rights of American Jews can
V E.gs» Alexander v. Louisiana, 405 U.S. 625 (1972).
2 v ion, 396 U.S. 320 (1970);
, : Me ge
" 117 (M.D. Ala. .
|
best be protected by helping to preserve
the security and the constitutional rights
of all Americans, irrespective of race,
religion, sex or national origin. The
American Jewish Committee believes that
the exclusion of Blacks from juries
through the use of peremptory challenges
is a @erievous deprivation based on race
which violates the Sixth and Fourteenth
Amendments to the Constitution.
The American Jewish Congress is a
netionel organization of American Jews
founded in 1918 and concerned with the
preservation of the security and constitu-
tional rights of all Americans. Since its
creation it has vigorously opposed racial
and religious discrimination in all areas
eof American life, including the adninis-
tration of justice. The American Jewish
Congress believes that the use of peremp-
tory challenges by prosecutors to exclude
persons from juries solely on the basis of
their race or religion is in violation of
the United States Constitution.
SUMMARY OF ARGUMENT
I.
The misuse of peremptory challenge:
to exclude Blacks from juries is a
pervasive and pernicious practice. Its
use has supplemented earlier and more
obvious devices for preventing minorities
from participating in this most fundamen-
tal of democratic institutions. The
practice violates both the Sixth and
Fourteenth Amendments to the Constitution
and must be ended to make the promise of
Strauder v. West Virginia at last a
reality..-
Il.
Historically, the prosecution did not
have the riaght to challenge jurors
peremptorily. Under the common law,
peremptory challenges were given to the
defense for the purpose of enforcing the
defendant's underlying right to a fair
and impartial jury of his peers. The
right was extended to the prosecution by
statute only in the mid-nineteenth
century. Nothing in the history of the
exercise of peremptory challenges by the
prosecution suggests any reason. for
permitting them to be exercised in a way
that is inconsistent with the Sixth and
Fourteenth Amendments.
IIl.
The intentional exclusion of a black
potential juror from actual service on a
— es
jury violates the Fourteenth Amendment's
guarantee of equal protection. Swain v.
Alabama has been consistently misinter-
preted by the lower courts as permitting a
successful objection to the racially
discriminatory exercise of peremptory
challenges in only an unduly limited and
virtually unprovable set of circumstances.
Trial courts should be no less free to
infer intentional discrimination by
prosecutors in a variety of factual
contexts than they are in a wide range of
other cases involving proof of intentional
discrimination.
IV.
For a prosecutor to strike black
jurors from a venire so as to render it
unrepresentative of the community violates
the Sixth Amendment. Although there is no
right to a jury that mirrors the communi-
ty, the Constitution prohibits the use of
devices which affirmatively defeat a fair
opportunity to be tried by a jury that
reflects a fair cross-section of that
community.
Vv.
There are a variety of remedies to
correct the unconstitutional use of
peremptory chalienges. Although any
method that is selected must realistically
promise effectively to guard against
discrimination, the states should be given
some leeway to experiment with solutions
that are consistent with their particular
jury selection procedures.
et
INTRODUCTION
One hundred and five years ago this
Court held that “the very fact" that black
people were prevented from serving on
juries:
- « «+ because of their color,
though they are citizens and may
be in other respects fully
qualified, is practically 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 (188.1). More than a century later,
the promise of Strauder -- that all dis-
criminatory acts directed towards black
citizens in the administration of justice
will be ended -- remains unfulf. ied.
Until the 1970's, the primary device
for excluding Blacks from jury service was
simply to keep them off of the jury rolls.
Since Blacks never appeared on venires to
beain with, the use of the peremptory
challenae to get rid of therm was rarely
reauired. When 100 years of decisions of
this Court reversing convictions for jury
discrimination, ; injunctions issued by
4
federal district courts, and the reform
=
Strauder v. West vies 100 U.S. 303 (1880);
nia v. ves, -5. 313 (1880); Ex
Virgini 100 U.S
qo! -5. 339 (1880); see cases
v. Louisiana, 405 U.S. at 628-29, 632
t
F.a., Carter v. Cammission, a; Turner v.
(Sth Cir. 1).
e 99 «
5
of federal and state jury selection laws
made total exclusion impractical, the use
of peremptory challenges to exclude those
Blacks who were placed on venires became
the method of choice to achieve the same
historic goal of preventing Black citizens
from participating in the criminal justice
system. Although the means used to exclude
Blacks has changed, the same pernicious
consequence continues: black citizens do
not have their rightful voice in an
institution that is at the heart of a free
and democratic society.
The exclusion of Blacks from juries
not only stigmatizes them and deprives
them of their riaht meaningfully to
participate in the criminal justice
system. It “des roys the appearance of
3
Ng A ye Age: A ty ~ Ag 28
-5.C. S§ 1861 et sec.; Uniform Jury Selection and
Service Act, National Conference of Commissioners on
Umiform State Laws, 1971.
e 92
justice and thereby casts doubt on the
intearity of the judicial process ...,
impair{ina] the confidence of the public
in the administration of justice.” Rose
v. Mitchell, 443 0.8. 545, 555-56 (1979);
accord Hobby v. United States, U.S.
, 82 L.€4.2d 260, 277 (1984) (Stevens,
J., Gissentina). Nothing could be more
destructive to public confidence in the
legitimacy of criminal justice than the
specter of a4 prosecutor deliberately
manipulating the process to exclude
identifiable segments of the community on
the basis of race, in contravention of
"deeply and widely accepted views of
elementary justice ... «* Bob Jones
University v. United States, _(U.S._,
76 L.B4.24 157, 174 (19863).
The proliferation of cases raising
@ 93 «
the issue of this misuse of peremptory
challenges demonstrates that the practice
is nationwide, arising in states from
California to New York and Massachusetts
to Plorida. : Thus, the Illinois Supreme
Court has reviewed “at least 33 cases in
which criminal defendants have alleged
prosecutorial misuse of peremptory
t
sa ae ome, 22 Cal. 34 258, 148
1978); State v. Neil,
v .
1046 (Til.
TL. 24 135, 457 N.B.24 1202
rT 377 Mass. 461, 387
U.8. 1 881 (1979);
+ 612 P.24 716 (1980);
+24 987 (N.Y. Sup. Ct. NP.
’ 7” A.D. 87, 435
. . Div. 1981); os
v. Boone, 107 Misc, on 301, 433 N.Y.S.24 955 (
; v , 57 N.Y.24 542, 457 N.Y.S.24
441,
549 7.28 240 (2nd Cir.
145
+ 737 ¥.24 679
708 F.2d 1493
(4th
(7th
(9th
O F.20 1212 (11th
7
challenges to exclude Negro jurors.* The
Eighth Circuit has noted “the frequency
with which we have been called upon to
examine the prosecutor's practices in this
regard in the Western District of Mis-
souri.” United States v. Jac: son, 696 F.2d
5768, 592 (8th Cir. 1982). And the
Louisiana Supreme Court reviewed 9 cases
in 7 years from the same parish, 5 of
which involved the same prosecutor. State
v. Brown, 371 80.24 751 (La. 1979).
In addition to the many reported
decisions, our experience and that of our
cooperating attorneys has convinced us
that the pra tice is common and flagrant.
» 2365
ing).
tae ne a eT ct.
(1 . l, Jes
e 1§ «
Indeed, prosecutors have publicly admitted
that they seek to keep Blacks from sitting
on criminal trials as a matter of course
because they ere afraid that Blacks will
be too sympathetic to a defendant. Thus,
an instruction book used by the prosecu-
tor's office in ener County, Texas, the
10
site of Hill v. Texas, Az ine v. Texas,
ond Cassell v. Texas, advised
prosecutors that they did not want a
“member of a minority group" on a jury
because he will “almost always empathize
12
with the accused.* See also, State v.
316 U.S, 400 (1942),
° 325 U.S. 398 (1945).
' 339 U.S. 282 (1950).
2 the book states:
"rrr. _ What to look for in a juror.
strong,
hypocritical individual who believes
Washington, 375 So.2¢ 1162, 1163 (La.
1979), where the prosecutor testified that
he routinely struck Blacks because of his
paseegeemn that they favored the
accused,
but rather a strong, biased ant sometimes
hypocritical individual who believes that
Defendants are different fran thes in kini,
rather than degree.
"2. You are not looking for any member of
him to
a minority which may subject
quumin—iee ceash al with
= ways emphathize
County
to similar effect.
e 99 «
Our position is simple. The exclu-
sion of a single juror because of his or
her race or national Origin violates the
Fourteenth Amendment's guarantee of equal
protection. The issue in Swain, we
single juror because of race violates the
constitution, but rather how one proves
the discriminatory motive of such a single
exclusion. The lower courts have confused
the two issues and have improperly read
Swain as limiting the finding of a
constitutional violation to those rare
circumstances where it can be shown that
prosecutors in case after case, over a
long period of time, have used peremptory
chellenges to exclude Blacks. The con-
tinued misinterpretation of Swain that
allows the decision to be used as a cover
for « discrisminetory prectice should be
repudiated.
We would also urge that the exclusion
of Blacks from juries through the use of
peremptory challenges violates the right
to « jury representative of a fair
cross-section of the community, by
destroyine the opportenity of having a
representative jury seated. The lower
courts have sisconstrued holdings of this
Court thet there is no requirement that a
particeler tery eirror the community.
These decisions do not hold that nothing
can be done to end «a practice which
afficmatively prewents a representative
jury from being seated.
Tm thie brief we will discuss the
Fourteenth and Sixth Amendments and will
eueeest remedies to end the misuse of
e 99 «
peremptory challenges that will not
interfere with their proper use. FPirst,
however, we will briefiy discuss the
history of the peremptory challenge, and
particularly its use by the prosecution.
In this way the interest involved in the
prosecutor's right to peremptorily
challenge jurors, on the one hand, and the
interest in ensuring that the criminal
justice system is free from any taint of
racial discrimination, on the other, will
be put into proper perspective.
Il.
THE HISTORY OF THE PEREMPTORY
CHALLENGE
At common law, the prosecutor did sot
have the right to excuse peremptorily
4
- 20 «
potential jurors. Rather, that right
derives solely from statute, and gained
wide acceptance only in the last one
hundred years -- around the time that the
post-Civil War constitutional amendments
were ratified and this Court began to
apply the Fourteenth Amendment's guarantee
of equal protection to the wholesale
exclusion of blacks from the jury and
grand jury systems. ey
In early English law, jurors func-
tioned essentially as witnesses -- as
fact-givers rather than fact-finders. The
Crown therefore initially exercised
complete control over their selection; any
unacceptable juror could be removed by the
15
prosecution. Parliament enacted the
rt
15
See, op. cite supra n. 12, at 195.
at cite eybto. n. 12, at 194; Comment, Swain v.
3 itutional Bl int for the .
e 29 «
16
Ordinance of Inquests in 1305, which
limited the Crown to challenging jurors
for “cause certain.” On the other hand,
by the time of the American Revolution,
the peremptory challenge was firmly rooted
in the common law as one of a defendant's
qreatest protections -- in the words of
Blackstone, “a provision full of that
tenderness and humanity to prisoners, for
which ouwr English laws are justly fa-
17 “
mous.” —
33 Edw. 1. c.2 (1305).
7 4 W. Blackstone, Commentaries 353.
In reaction to the Ordinance of Inquests the
English courts did fashion the practice of “standing
aside” jurors. The prosecution can require a juror
to wham it abjects to “stand aside" until all other
potential jurors have been called; after the defen-
dant has exercised all his challenges, if there are
too few veniremen remaining to compose a jury, only
uror “stood aside” allowed to —
because, even
employed by the Crown, which is seldom, the
e 22 «
The peremptory challenge for thi
defendant was thus a part of the commo.
law received by the American states, whil:
the grant of a similar privilege to th
prosecution was not. - Extension of tha
privilege to the prosecution was strong];
resisted in early state histories, and wat
slow in gaining legislative acceptance. 7
Thus, while one early decision of thi:
Court asserted that the English practics
of standing jurors aside was part of this
juror who has been stood aside may be
actually seated as a juror after the
defendant has exercised his challenges.
Specifically, 26 Halsbury's Laws of
England, par. 624 (4th ed. 1579) states:
“The Crown has no right to make peremptory
challenges."
ee Vv. Ses 105 Tll. App. 34 1034, 1039 n. 4
. . . ).
See op. cit. supra note 12, at 194.
19
' For a review of this history, see op. cit. supra note
15, at 1170-73, : —
18
e 23 «
20
country's common law heritage, the Court
correctly held in 1856 that the prosecu-
tor's riaht to stand jurors aside was not
part of American common law, and therefore
only applied in federal court if the state
in which the federal court was sitting
extended that right to prosecutors. vs
Although defendants in federal prosecu-
tions were quaranteed the peremptory
challenge by statute in 1790, o it was not
extended to all federal prosecutors until
1865. ”
In short, the peremptory challenge
was not recognized in the Colonies and new
States as a riqght of the prosecution.
w
21
United States v. Marchant, 25 U.S. 480, 483 (1827).
United States v. Shackleford, 59 U.S. 588, 590
22 + Stat. 119 (1790).
23 act of March 3, 1865, ch. 86, § 2, 13 Stat. 500.
Rather, it was given to the defense as :
means of assuring the underlying right t«
a fair and impartial jury quaranteed by
the Bill cf Rights. It was a protectior
of the people against aovernmenta!
overreaching. The use of peremptor;
challenges by the prosecution to undermins
the right to a jury representative of the
community stands history on its head. As
we show below, it is at odds with the
Constitution.
Itt.
THE EXCLUSION OF BLACKS FROM JUR!
SERVICE THROUGH THE USE OF PEREMPTOR!
CHALLENGES VIOLATES THE FOURTEENT!
AMENDMENT.
In order to illustrate our argumen
that the use of the peremptory cha} leng
to exclude Blacks is a denial of equa
protection, we will use the followin
—
hypothetical. By random selection from a
truly representative jury wheel, a single
Black is selected for the venire. The
prosecutor uses a peremptory challenge to
strike the sole Black juror, and announces
that he has done so for the specific
purpose of excluding any Blacks from
sitting on the jury. ™ Finally, the
prosecutor confesses that it is his
experience that black jurors tend to favor
defendants, and therefore he believes it
is to his advantage not to have them sit
on the jury.
We submit that this hypothetical set
of facts would establish a clear violation
of the Equal Protection Clause of the
Fourteenth Amendment. Indeed, the
hypothetical prosecutor's action is of the
type most clearly contemplated to be in
see State v. Washington, 375 So.24 1162 (La. 1979).
= 2% -
violation of the Equal Protection Clause
whose “central purpose . . .- is tr
|
prevention of official conduct discrim:
natory on the basis of race." Washingt«
vy. Davis, 426 U.S. 229, 239 (1976). Nc
only is it am adverse action deliberate:
taken on the basis of race, and there fo!
presumptively illegal under many decisiol
25
of this Court, but it is based °
notions of racial characteristics whi:
are anathema to the most fundament.
principles that the equal protecti
26
clause seeks to protect.
25 palmore v. Sidoti, U. S. , 80 L.Bé.2d 421, 42!
71964); Loving v. Virginia, 388 U.S. 1 (1967)
Korematsu v. Onited Kates, 323 U.S. 214, 216 (19
26 vick Wo v. Borkins, 118 U.S. 356 (1886); Birebayesh!
ve , 320 U.S. 81, 100 (1943); Vv
Southern Pacitic Co., 328 U.S. 217, 220 (1946)
; e Vv. 22 Cal. 34 296, 299, 58
p.2d 774, 175, —Rotr. 914, 916 (1978).
i~
4).
e 27 «
The problem presented by the misuse
of peremptory challenges arises only
because it will be the rare case in which
a prosecutor admits that the reason for
his action was race. In Swain, this Court
hypothesized another set of facts in which
a violation could be proven by a statisti-
cal showing that over a long period of
time, in case after case, the me
consistently struck Blacks from juries.
However, the hypothetical facts set out in
Swain were taken by lower courts to be the
only circumstances in which a constitu-
28
tional violation could be found, and the
difficulty of assembling such a showing
380 U.S. at ‘223.
Sullivan, Deterr
@- 26 -
made it virtually impossible to prevail
reqardless of the actual discriminatory
29
practice.
There are a number of reasons why, in
the twenty years since Swain, there have
been virtually no cases in which @
defendant has been able to demonstrate
that prosecutors have stricken Blacks ir
case after case over a iong period of
time. First, courts do not routinely
record voir dires, the race of jurors that
are excused, or the grounds of excusal.
Second, even where there are any records.
such as transcripts of voir dires, ther:
is no ready means to determine in whic!
29 sce, e.q., United States v. Pearson, 448 F.2d 1207,
1217 (Sth Cir. 1971); United States v. Childress, 715
F.2d 1313, 1317 (8th . , en ° the
cases cited in the Appendix, in only two, have
defendants been able to meet the Swain burden of
proof, and both involved the same prosecutor, who had
admitted under oath that he customarily struck all
black jurors. State v. Brown, 371 So.2d 751 (La.
1979); State v. Washington, 375 So.2d 1162, 1163-64
(La. 15979).
@ 29 «
cases they have been made or kept. Third,
most criminal defendants lack the re-
sources to conduct an_ investigation
adequate to assemble the necessary data.
Fourth, the issue will usually arise in
the middle of voir dire when Blacks are
struck; there will simply not be enough
time to conduct an inquiry unless a
lenqthy continuance of the trial is
granted, with the accompanying disruption
of the orderly course of justice. Fifth,
for all of the above reasons, the only
evidence awailable as a practical matter
will be the testimony of presiding judges,
court clerks, and members of the bar as to
their recollection of events that occurred
in years past. Finally, unlike an
ordinary challenge to the make-up of the
jury rolls, it is also totally impractical
to raise the peremptory challenge issue in
an affirmative injunctive action. In
- 30 -
addition to the impossibility of assem-
bling the proof, an order prohibiting the
prosecutor from striking Blacks because of
their race would be unenforcible without
proof that that was his intent in a
specific case.
The restrictive reading of Swain by
lower courts is inconsistent with other
decisions of this Court. In every other
context, the Court has recognized the
ability of a trial judge to infer
discrimination from a wide variety of
circumstances. . Thus, the misinterpreta-
tion of Swain has resulted in anomalous
results in comparison to every other area
of discrimination. In one federal case,
Ki)
E.a., McDonnell as . v. Green, 411 U.S. 792
(1973) Aromat): hited states Postal Service Bd.
of Gorecmexs 9. Meee, S50 0-5. TY (Oe) CO
x. v. Oe alin 443 U.S. 449 oo
soon Saea (echo! desegregation); KeTington AST Gove Vv.
» 29 «
for example, the defendants challenged the
make-up of the jury rolls as unlawfully
excluding Blacks. The district court
rejected the claim, holding that, although
it was a close question, the under-repre-
sentation of Blacks was not enough to
establish a violation. The prosecutor
then proceeded to strike all the Blacks
from the venire when the actual jury was
assembled. Despite the mutually con-
firming discriminatory practices, the
district court held that because of the
absence of a Swain showing of a lone
history of striking Blacks, there was not
a constitutional violation under Swain.>
ay United States v. Maniels, 379 F. Supp. 1243 (D. La.
“1574). The court did order a new trial, however, “in
the interests of justice" pursuant to Ped. R. Crim.
P. 33. See also United States v. Leslie, 759 F.2d
366 (Sth Cir. 1985), rehearing en banc granted, May
14, 1985.
» 32 -
Under ordinary rules for adjudication
of a claim of intentional discrimination,
however, these circumstances would have
allowed the court to draw the inference
that the prosecutor had a discriminatory
motive. Similarly, when a prosecutor with
a limited number of peremptories uses all
of them to exclude the few Blacks on the
panel, as occurred in petitioner Batson's
case, a court should be permitted to
infer a discriminatory motive sufficient
to cast upon the prosecutor the burden of
coming forward with 3 "legitimate,
non-discriminatory reason"® 7 for his
33
action.
32 cdonnell Douglas v. Green, 411 U.S. 792, 803 (1974)
33 In the present case the trial court did not make such
a jurigment because he specifically declined to make
any factual inquiry on an erroneous Tegal theory. The
court took the view that, as a matter of law, the
constitutional cross-section requirement was limited
to "the whole, entire panel and the selection
process," and that "[a]ny body can strike anybody
they want to” without constitutional restraint.
(Appendix to Petition for Certiorari, at p. 16.) This
.
-
4
e 33 «
Other inguiries would permit a judge
to infer discrimination. Did the prosecu-
tor strike all the Blacks called to the
jury box, or only some of them? How many
Blacks, absolutely or in comparison to
whites, were struck? What proportion of
peremptories were use to strike Blacks?
Were Blacks questioned on voir dire, and,
if so, in the same way or as extensively
as the whites whom the prosecution
struck? What was the demeanor of the
prosecutor and the black potential jurors
during their exchanges? Did they appear
to be fair and impartial jurors? Did the
white jurors who were struck have common
attributes, visibly adverse reactions to
rule of law was expressly endorsed by the Kentucky
Supreme Court as the basis for affirming Batson's
conviction on appeal: “an allegation of the lack of
a fair cross section which does not concern a
systematic exclusion from the jury drum does not rise
to constitutional proportions." (Id., at p. 5)]
——_+
@ 34 -
the prosecutor, Or obvious drawbacks from
a prosecutorial perspective? Did the
Blacks? Conversely, did the prosecutor
retain whites who had the same attributes
as the Blacks that were struck? Did the
prosecutor attempt to purge the jury of
Blacks by other meanS, €-9+,s did he
challenge Blacks for cause while passing
up equally available for-cause challenges
to whites? Did the prosecutor use his last
peremptory challenge to get rid of a
Black, in contravention of the well-recog-
nized tactic of trial lawyers not to run
the risk of getting a worse replacement?
In short, trial court judges should
be given the freedom to infer intentional
discrimination from the totality of the
circumstances in the particular casé
34
before them in the same way “ney maj
34 united States Postal Service Bd. of Governors v.-
Rikens, 460 U.S. 711 (1983).
ee ee
@ 38 «
oo |
infer such discrimination in a variety of
other types of cases decided since Swain.
Thus, as-this Court noted in Arlington
Heights v. Metropolitan Housing Corp., 429
U.S. 252, 266 nw 14 (1977),
- « « {A} consistent pattern of
official racial discrimination is
[not] a mecessary predicate to a
violation of the Equal Protection
Clause. A single invidious dis-
criminatory governmental act would
not necessarily be immunized by the
absence of such discrimination in the
making of other comparable deci-
sions.
In jury discrimination cases this
Court has also found a violation of the
Fourteenth Amendment by a showing that
os 5gsase Blacks had been eliminated “at
each stage of the selection process until
ultimately an all-white grand jury was
selected to indict him" in the particular
case of the d@efendant. Alexander v.
e 36 <-
Louisiana, 405 U.S. 625, 629 (1972).
\
In sum, the Fourteenth Amendment is
violated whenever the State denies equal
protection of the laws, even in a single
instance. Repeated denials of equal
protection need not be shown in order to
trigger the Amendment's protection in an
individual case.
35 The Court noted that Alexander was not a case where
the systematic exclusion of Blacks over a period of
years had been shown. Rather, the proof went only to
the selection process for the particular venire and
jury. Id. See also Whitus v. ia, 385 U.S. 545,
549-50 (1967): it is “the law of this Court as
applied to the States through the Bqual Protect ion
Clause of the Fourteenth Amendment, that a conviction
cannot stand if it is based on an indictment of 3
grand jury or the verdict of a petit jury from which
Negroes were excluded by reason of their race."
(Emphasis added.)
« $9 «
IV.
THE EXCLUSION OF BLACK JURORS
VIOLATES THE RIGHT TO HAVE A JURY
REPRESENTATIVE OF THE COMMUNITY.
A number of lower courts have held
that Swain should be reexamined in light
of subsequent decisions = that have held
the Sixth Amendment guaranty of a repre-
sentative jury applicable to the states.
The question is: since the use of
peremptory challenges to exclude Blacks
results in unrepresentative juries, is the
practice unconstitutional?
Duncan v. Louisiana, 391 U.S. 145 (1968); Taylor v.
Louisiana, 419 U.S. 522 (1975).
” McCray v. Abrams, 750 F.24 1113 (2nd Cir. 1984), reh.
en banc denied, 756 F.2d 177 (1985). le v.
Wheeler, 22 Cal.3d 258, 148 Cal. Rptr. 690, 807 Bod
748 (1978); State v. Neil, 457 So.2d 482 (Fla. 1948);
Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499
“(1575) ;State v. Crespin, 94 N.M. 486, 612 P.2d 716
(1980).
- 38 -
Taylor v. Louisiana, 419 U.S. 522
(1975), held that "“[t]he unmistakable
import of this Court's opinions, at least
since 1940... is that the selection of
a petit jury from a representative cross
section of the community is an essential
component of the Sixth Amendment right to
a jury trial." 419 U.S. at 528. In Smith
vy. Texas, 311 U.S. 128, 130 (1940), the
Court declared that exclusion of racial
groups from jury service was “at war with
our basic concepts of a democratic society
and a representative goverr ent." Ballard
v. United States, 329 U.S. 187 (1946),
reversed a conviction by a jury from which
women had been excluded, relying on a
federal statutory "design to make the jury
a ‘cross-section of the cowmunity.'” In
Brown v. Allen, 344 U.S. 443, 474 (1953),
» 30 «
the Court asserted that the source of jury
lists must “reasonably reflect .. . a
cross-section of the population suitable
in character and intelligence for that
civic duty."
In Taylor the Cowrt also relied on
its decision in the six-person jury case,
which had stated that a jury should “be
large enough to promote group deliberation
»- « « and to provide a fair possibility
for obtaining a representative cross-sec-
tion of the community." Williams v.
Plorida, 399 U.S. 78, 100 (1970). On the
basis of this precedenc, the Court
declared:
We accept the fair-cross-section
as fundamental to the jury trial
guaranteed by the Sixth Amendment and
are convinced that the requirement
has solid foundation. The purpose of
a jury is to guard against the
e @e
exercise of arbitrary power -- to
make available the common sense
judgment of the community as a hedge
against the over-zealous or mistaken
prosecutor . . . This prophylactic
vehicle is not provided if the jury
pool is made up of only special
segments of the populace or if large,
distinctive groups are excluded from
the pool. Community participation in
the administration of the criminal
law, moreover, is not only consistent
with our democratic heritage but is
also critical to public confidence in
the fairness of the criminal justice
system .. . [T)he broad representa-
tive character of the jury should be
maintained, partly as assurance of a
diffused impartiality and partly
because sharing in the administration
of justice is a phase of civic
responsibility.' Thiel v. Southern
Pacific Co., 328 U.S. 217,
TPrankturter, J., dissenting).
Taylor v. Louisiana, 419 U.S. at 530-31.
i
e 43 «
The requirement of a fair cross-sec-
tion theory in jury selection has also
been adopted by statute as “the policy of
38
the United States." Taylor quoted
approvingly from the House Report on the
Federal Jury Selection and Service Act:
It must be remembered that the
jury is designed not only to under-
stand the case, but also to reflect
the community's sense of justice in
deciding it. As long as there are
significant departures from the cross
38
Pederal Jury Selection and Service Act of 1968, Pub.
L. 90-274, 82 Stat. 53, 28 U.S.C. S§ 1861 et seq.
Section 1862 provides that:
No citizen shall be excluded from service as a
grand or petit juror .. . on account of race,
color, religion, sex, national origin, or
econamic status.
See also, Section 2 of the Uniform Jury Selection and
Service Act (National Conference of Commissioners on
Uniform State laws, 1970), and Md. Ann. Code §
8-1-13. The Uniform Act has been substantially
adopted by eight states. Colo. Rev. St. §§ 13-71-107
to 13-71-121 (1971); Idaho Code §§ 2-201 to 2-221
(1971); Hawaii Rev. Stat. §§ 612-1 to 612-26 (1973);
Indiana Code §§ 33-4-5.5-1 to 33-4-5.5-22 (1973); 14
Maine Rev. St. S§ 1211 et seq. (1971); Minn. Stat.
Am. §§ 593-31 to 593-50 (1977); Miss. Code 1972, §§
1-5-2 et sea. (1974); No. Dakota Code §§ 17-09.1-01
to 27-09,1-22 (1971).
eo 42 «
sectional goal, biased juries are the
result -- biased in the sense that
they reflect a slanted view of the
community they are supposed to
represent.
419 U.S. at 26 n. 37.
The argument based on the Sixth
Amendment is not inconsistent with
decisions of this Court which hold that
the defendant has no right to have his
particular jury represent the community
39
with precision. Thus, for example, in @
community in which one third of the
persons eligible for jury service are
Black there is no right to have a jury
with four Blacks out of the 12 jurors.
Although this proposition is correct,
it does not negate the conclusion that the
3,
aca v. Oregon, 406 U.S. 404, 413 (1972) (plu-
(1947).
= 43 «
affirmative use of peremptory challenges
to produce an unrepresentative jury
violates the Sixth Amendment. What the
Court has held is that, assuming a system
of jury selection which results in jury
lists that are representative of the
community, the use of a neutral device to
select particular juries does not violate
the Fourteenth Amendment just because in a
particular case the jury may not precisely
mirror that community. as Put another
way, although there is an affirmative
obligation to have a process by which a
representative jury can be chosen, there
is not an affirmative obligation to
achieve the result of juries that are
precisely representative.
10
See, e.g., Taylor v. Louisiana, 419 U.S. at 538.
» 44 <
But the converse must also be true:
there is a right not to have selection
methods that result in unrepresentative
juries. The protections of the Sixth and
Fourteenth Amendments cannot stop with the
composition of the jury roll (or “drum” in
this case), but extend to the selection of
the specific jury itself. See Ballew v.
Georgia, 435 U.S. 223 (1978); Alexander v.
Louisiana, 405 U.S. 625 (1972). Thus, a
defendant has the right to a fair oppor-
— for a jury on which are represented
the various groups that make up the
community in which he is tried. To allow
the unscrutinized use of peremptory
challenges on the basis of race biases the
process as surely as the exclusion of
Blacks from the jury lists or drum.
The right to a fair cross-section is
- 45 «
not based on the notion that individuals
vote to convict or acquit because of the
racial group to which they belong; rather,
it derives from the principle that juries
should contain representatives of the
various groups in the community so that
their opinions, voices, points of view,
and perceptions come to bear on the
deliberative process. When a prosecutor
removes Blacks from the jury the result is
a jury which is insulated from one of
those viewpoints and voices. si
The question of whether the use of
peremptory challenges has violated the
cross-section requirement will, after all,
only arise in a particular case when a
fair system has produced a panel of
potential jurors that includes Blacks.
*) peters v. Kiff, 407 U.S. 493, 503-04 (1972); see op.
cit. n. 28, for an example of the impact on a
jury"s deliberations of the experiences of a black
juror.
@ @ «
Unless the prosecutor strikes them, a
representative jury will sit. If then the
prosecutor makes the jury unrepresentative
by striking some or all of the Blacks, his
abuse of the peremptory challenge violates
42
the Sixth Amendment.
42 to illustrate, one may assume a county that is
black and that has a jury roll that is
black. In trial #1, 20 potential jurors are randomly
the range of probability. That single Black is
excused for a valid, racially-neutral reason, and an
all-white jury sits. That result does not violate
the Sixth Amendment.
In trial #2, twenty potential
randomly selected, 4 of whom, or 20%, are black
Through neutral selection criteria of
jurors to sit will be black, or almost 20%. The
prosecutor then affirmatively creates a non-repre-
sentative jury by striking the two Blacks. That
result does violate the Sixth Amendment.
- 67 «-
V.
EFFECTIVE, MINIMALLY INTRUSIVE MEANS
EXIST TO REMEDY THE UNCONSTITUTIONAL
MISUSE OF PEREMPTORY CHALLENGES
Amici believe that it is clear that
the exclusion of Blacks from juries
through the use of peremptory challenges
violates both the Sixth and Fourteenth
Amendments to the Constitution. There are
numerous ways in which these violations
can be remedied. They will of necessity
vary from locality to locality depending
on the particular jury selection practices
in use. The appropriate remedy may also
vary with the nature of the constitutional
violation, depending on the amendments
invoked. Amici therefore suggest that the
lower state and federal courts be given
ee eget
——
e 46 «
leeway to develop appropriate remedies in
light of local practices and _ condi-
tions.
In the first analysis, however, the
prophylactice effect of a pronouncement by
this Court that the misuse of peremptory
challenges violates both the Sixth and
Fourteenth Amendments cannot be over-esti-
mated. At present, prosecutors can and do
indulge the same misinterpretation of
Swain that prevails in the lower courts.
They think that the “case after case"
language in the Swain opinion defines a
substantive principle of constitutional
law rather than a principle relating to
the sufficiency of factual proof based on
statistics (see page 27, supra). Thus,
the prosecutor who is conscientious in his
desire to obey the Constitution never-
- 49 -
theless sees nothing unconstitutional
about peremptorily challenging blacks qua
blacks in particular cases, so long as he
does not do it in all cases. Told that
this is indeed unconstitutional, the
conscientious prosecutor will stop doing
it.
To the extent that prosecutors do not
! stop misusing peremptory challenges, the
primary agency for enforcing the Constitu-
tion will be the trial judge, in pro-
ceedings prior to the attachment of
| jeopardy. As this Court has recognized in
| other contexts, es trial judges are
experienced and discerning in the inter-
pretation and understanding of what is
being conveyed by the demeanor. and
interaction of the participants during the
’ See, Rosales-Lopez v. United States, 451 U.S. 182
(1982); Patton v. Yount, U.S. _, 81 L.Ed.2d 847
(1984); Wainwright v. Witt, U.S. , 83 L.Ed.2d
841 (1985). ce
« $0 -
process of jury selection. They are fully
capable both of recognizing a prima facie
case of racially discriminatory peremptory
challenges by the totality of the circum-
stances of the case before them, and of
taking effective action to remedy the
abuse.
The first thing that a trial judge
faced with an apparent’ prosecutorial
misuse of peremptories may do is to ask
the prosecutor for an explanation. This
alone will often suffice to warn the
prosecutor that his behavior is under
scrutiny, and make him change his ways. If
his explanation for his past behavior is
unsatisfactory, or if his behavior
persists under circumstances that render
the explanation hollow, the trial judge
then has numerous options to correct the
» 81 -
problem. He can disallow a peremptory,
dismiss the partially-selected jury and
bring in a new panel, or take other
pretrial corrective action.
For example, there exists a simple,
direct, and highly effective way both to
correct the exclusion of Blacks and to
leave undisturbed the proper use of
peremptory challenges. A state need cnly
adopt a practice that would permit defense
counsel to object upon the exclusion of a
member of a raciai or national origin
minority group member. From that point on,
if a black, Hispanic, etc., juror were
excluded by use of a peremptory challenge,
he or she would be replaced by a member of
the same group. This would be directly
responsive to the nature of the violation,
insuring a representative cross-section of
@» @2 -
the community on the jury. At the same
time, it allows the prosecution to strike
a juror for any reason other than race.
Such a rule would also have the great
advantage of not requiring the prosecutor
to explain the reasons for any challenge.
Moreover, the mere existence of the rule
would do much to end any discriminatory
practice since prosecutors would know
ahead of time that they would be unable,
as a practical matter, to use challenges
to exclude all Blacks from juries. ms
Another possibility is the highly
successful remedy that has been working
for more than six years in California and
44
Although this particular rule would be a race-con-
scious remedy, it would not ativersely affect the
rights of a person who was not a member of the
minority group, since that person would simply be
selected later and would not lose his or her right to
jury service.
» $3 «
45
Massachusetts without impeding’ the
efficient administration of justice, or
infringing significantly upon the wide
discretion that has been traditionally
accorded to prosecutors in the exercise of
their peremptory challenges.
Briefly stated, the system developed
by California and Massachusetts requires
that the defendant demonstrate a prima
facie case of discriminatory intent before
the trial judge will look beyond tne
traditional presumption that the prosecu-
tor is using his peremptory challenges in
a permissible manner. If the judge finds
that a prima facie case has been made, the
prosecutor is given the opportunity to
® see e v. Wheeler, 583 P.2d 748, 148 Cal. Rptr.
B90 (Mosk, J.); Commonwealth v. Soares, 377
Mass. 461, 387 N.E.2d 499 (1979). This model has
been adopted elsewhere. See State v. ee aes
N.M. 486, 612 P.2d 716 (1980); State v. Neil, 457
So.2d 481 (Fla. 1984), and State v. Gilmore, No.
A-870-82 T4 (N.J. Super. Ct. Apo. Div., March 8,
1985).
- $4 -
show that his challenges are not predi-
cated on group bias. The reasons for the
challenges do not have to be sufficient to
sustain a challenge for cause, but could
relate to any of the many legitimate
46
reasons for peremptory challenges. The
judge will examine the prosecutor's
reasons and will dismiss the venire or
47
panel or disallow the particular
48
challenge only if the prosecutor fails
46
ee v. Hall, 672 P.2d 854, 859, 197 Cal. Rptr.
; e v. Wheeler, 583 P.2d at 760, 148
Cal. Rptr. 890. » og." Commonwealth v. Kelly, 10
Mass. App. 847, 06 WN. . , . . ct.
1980) (accepting prosecutor's challenge based on the
prospective juror's “demeanor, manner and the ‘smirk
on her face'"); ase 2s vy. Walker, 157 Cal. App. 34
1060, 205 Cal. Rptr. , . App. 1984) (trial
court accepts prosecutor's explanation that a
prospective juror “stood out as ‘a comic'").
47 people v. Wheeler, 583 P.2d at 765. Whether the
vyenire as a whole or only the panel drawn for the
particular case would be dismissed, could depend on
the procedures used in the jurisdiction and the
| remand of assembling a new venire without
ay.
48 Qmorwealth v. , 15 Mass. App. 932, 444 N.E.2d
1238, 1300, a Ct. 1983), further late
review denied, 388 Mass. 1104, 448 N.E. ;
@ $8 «
to persuade the court that the challenges
were exercised for nondiscriminatory
reasons.
This remedy for the discriminatory
use of peremptory challenges leaves the
jury selection process unaffected in the
vast majority of hacia In order to
precipitate such an inquiry, the defen-
50
dant must demonstrate a “strong likeli-
Commonwealth v. Reid, 384 Mass. 247, 424 N.E.2d 495,
than 2 a year.) In Massachusetts, where the Soares
case has been in effect for six years, there have
been 13 such cases. (In New Mexico, which
Wheeler-Soares approach five years ago, there has
y me reported case involving a claim under
|
the rule.)
In Massachuetts, jutiges occasionally investigate the
discriminavory use of peremptory challenges on their
own initiative. , 18 Mass.
App. 417, 467 N.E. ° e + Ct.1984),
further appellate review denied, 470 N.E.2d 798
e $6 -
hood" that Blacks “are being challenged
because of their group association rather
than because of any specific bias". This
showing may be on the basis of evidence
such as that suggested at pp. 30-34,
51
SURES, the nature of the questioning,
the demeanor of the potential jurors or
the prosecutor, cf. Patton v. Yount,
U.S. , 81 L.Bd.2d 847 (1984), or any
other of a number of factors that ordi-
narily permit a trier of fact to infer
bias.
aT
Pecpie v. Wheeler, 583 P.2d at 764. The California
game of the factors the defendant might
e 87 «
One trial judge, disagreeing with his
own Circuit Court of Appeals, has argued
that providing a remedy for the misuse of
peremptory challenges will necessitate
“twelve mini-trials" in every case. See
Roman _v. Abrams, No. 85 Civ. 0763-CLB,
Slip. op. at 20 (S.D.N.Y. May 15, 1985).
The record in California and Massachu-
setts, the two states with the longest
experience with this remedy, refutes this
charge. The California Supreme Court has
recently found no empirical evidence to
Support a claim that this remedy has
proved “unworkable” in the trial courts.
People v. Hall, 672 P.2d 854, 859, 197
Cal, Rptr. 71 (1983) (en banc).
Even though minimally intrusive, the
Wheeler-Soares remedy has been effective
in reducing the intentionally discrimi-
- 58 -
natory use of peremptory challenges, as
the recent reported decisions in Cali-
fornia and Massachusetts attest. None of
these cases involves a fact pattern
showing as blatant a misuse of peremptory
challenges as occurred before Wheeler and
52
Soares were decided.
Compare, @-9+,
People v. Cobb, 97 Ill. 2d 465, 455 N.E.2d
31 (1983). The experience in California
and Massachusetts demonstrates that the
discriminatory use of peremptory chal-
lenges is not only reprehensible but also
53
remediable.
52 In Soares itself, the used
ion peremptory
chal Tenges to eliminate twelve of the thirteen black
venirepersons. 387 N.f&.2d at 508. In Wheeler, the
state excluded all of the blacks in the venire
(approximately seven) by using peremptory challenges.
583 P.2d at 752-54.
33 There are, of course, other possible remedies,
including abolishing peremptory challenges or
limiting them to the defense as under the common law.
A state may want to provide for additional voir dire,
so that the prosecutor (and defense counsel) will
have a more informed basis for exercising their
challenges. Indeed, the California Supreme Court has
@ $9 «
None of the potential available
remedies impedes the vigorous and
effective prosecution of crime; none
delays trials more than momentarily or
encumbers them significantly. Indeed,
administration of the rule would involve
less disruption of trials than the
"case-after-case” rule currently applied:
under the prevailing misinterpretation of
Swain jury selection must be suspended
pending an evidentiary hearing into the
prosecutor's record in past cases.
recently expanded the scope of voir dire by holding
that counsel may ask questions reasonably designed to
assist in the intelligent exercise of peremptory
challenges even if such questions may not uncover
greunts sufficient to sustain a challenge for cause.
v. Williams, 628 P.2d 869, 174 Cal. Rptr. 317
. en ). Thus, prosecutors are given
an opportunity to uncover evidence of specific bias
and to exercise their peremptory challenges in a
constitutional manner. Id. at 875.
Conclusion
No one can “deny that, [more than 114
years after the close of the War Between
the States and nearly 160 years after
Strauder, racial and other forms of
discrimination still remain a fact of
life. . . ." Rose v. Mitchell, 443 U.S.
at 558. The final cutting off of all
means to perpetuate the practices first
condemned in Strauder is not only overdue,
but essential to ensure both the reality
and the appearance of justice in our
society.
Por the foregoing reasons, the
decision below should be reversed.
= 61 -
Respectfully submitted
JULIUS LeVONNE CHAMBERS
CHARLES STEPHEN RALSTON *
STEVEN L. WINTER
NAACP Legal Defense and
Educational Fund, Inc.
99 Hudson Street
16th Floor
New York, N.Y. 10013
(212) 219-1900
ANTHONY G. AMSTERDAM
New York University
Law School
40 Washington Square South
New York, N.Y. 109012
SAMUFL RABINOVE
The American Jewish
Committee
165 East 56th Street
New York, N.Y. 10022
LOIS WALDMAN
The American Jewish
Congress
15 East 84th Street
New York, N.Y. 10028
attorneys for Amici Curiae
* Counsel of Record
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