Amicus Curiae Brief — Batson v. Kentucky

IN THE

Supreme Court of the United

OCTOBER TERM, 1984

—<_-

JAMES KIRKLAND BATSON,

Petitioner,

—vs—

COMMONWEALTH OF KENTUCKY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF KENTUCKY

BRIEF OF THE NATIONAL LEGAL AID AND

DEFENDER ASSOCIATION AS AMICUS CURIAE

PATRICIA UNSINN

Assistant Appellate Defender

Office of the State

Appellate Defender

State of Illinois Center

100 West Randolph Street

Suite 5-500

Chicago, Illinois 60601

(312) 793-5472

National Legal Aid and

1625 K Street N.W.

8th Floor

Washington, D.C. 20006

BEST AVAILABLE COPY

TABLE OF CONTENTS

Table of Authorities........6eeeee8%

Interest of Amicus Curiae..........+.

Summary of Argument.......-seececees

ATMUMOENE .. cece cece ee eeeeeeeeeeeeeee

TRE SIXTH AND FOURTEENTH AMEND-

MENTS PROHIBIT TFE USE OF THE

PEREMPTORY CHALLENGE TO RESTRICT

UNREASONAELY THE POSSIBILITY THAT

THE PETIT JURY WILL COMPRISE A

FAIR CROSS SECTION OF THE COM-

MUNITY *e effet eff © se rnereneneeneneneneneeneee

A.

The Sixth And Fourteenth

10

15

26

TABLE OF AUTHORITIES

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

TENE Le HE Tiot eee

‘ he OES) cccccecce

Cc lth v t , 12 Mass.

. , . (1981)....

Commonwealth v. capo : 16 Mass.App.

‘ . . BSS) coccccces

Commonwealth v. sees: 18 Mass .App.

, . . GES) cccocccces

Commonwealth v. ae 10 Mass .App.

, . . (1980)... cccees

Commonwealth v. inson, 382 Mass.

. . . Prrrrriire

Commonwealth v. Soeres, 377 Mass.

tBYT, 387 W.E.7d r35 TEpTe? ccoceeeess

Commonwealth v. Thomas, 19 Mass.App.

IT, 471 V.¥.7¢2 775 Tee) ccceecceeses

Commonwealth v. Walker, 379 Mass.

797, cL? ae | Tres ¢ 2, eee

Duren v. Missouri, 439 U.S. 357

TIs7 ss oeoeeeeeeeeeeeeneeneeeneneneneneneneeee

Marbury v. Madison, 1 Cranch 137

TISUS).

le v. tet: 23 Cal.3d 286, .

ptr. 590 P.2d 30 (1979).

16,17,

19,21

Page

People v. Hall, 35 Cal.3d 161, 197

Cal.Rptr. 71, 672 P.2d 854 (1983).. 23,24,

26

People v. Harvey, Cal.App.3d__,

208 Cal.Rptr. St6 he e66eeee ce 22

People v. Randle, 130 Cal.App.3d 286,

ISI Cal. Rptr. 745 (1982)........... 22

People v. Rousseau, 129 Cal.App.3d

al.Rptr. 892 (1982)...... 20

People v. Walker, 157 Cai.App.3d

; al.Rptr. 278 (1984)..... 22

People v. Wheeler, 22 Cal.3d 253,

148 Cal. Rptr. 890, 583 P.2d 748 (1978). 17,19,

21,22

Peters v. Kiff, 407 U.S. 493 (1972). 5,11

Ristaino v. Ross, 424 U.S. 5&9

(1976)... se eeeenerteees ee #eeeeeee#see*###e**#e#*#e*#e** *« « 15

Swain v. Alabama, 380 U.S. 20?

I no oo oo se eeeeeefeeerfee#e#ee85eee#e#e* *#® # # « 12

ees v. Louisiana, 419 U.S. 522

ee eeeeeeee#eee#e#ee*e @#e#e#eee#ee#*e*e#**e*e#e 6,7,9,

10,12

Thiel v. Southern Pacific Co., 328

ote 718 TISa5) ne feeee eeeteee#seeefe#se##e#*##** *« « « « 5,14

United States v. Clark, 737 F.2d

nw ccc ccece 16

United States v. Leslie, F.2d

(No. 35-3719, Sth Cir., April 10,

ee ee ccc cccces 10

Williams v. Florida, 399 U.S. 78

ee 6

“ts,

a)

a)

Gy

_

:

a

No. 84-6263

IN THE

SUPREME COURT OF TFE UNITED STATES

OCTORER TERM, 1984

JAMES RATSON,

Petitioner,

-vs-

COMMONWEALTH OF KENTUCKY,

Respondent.

On Petition For Writ Of Certiorari

To The Supreme Court of Kentucky

Brief of The National Legal Aid And

Defender Association As Amicus Curiae

INTEREST OF AMICUS CUPIAE

The National Legal Aid and Defender

Association (NLADA) is a private, non-profit,

national membership organization headquartered

in Washington, D.C. whose purpose is to ensure

the availability of quality legal services in

civil and criminal cases to all persons

unable to retain counsel. Specifically,

NLADA represents approximately 1,753 programs

engaged in providing representation to

indigents in civil cases, and 586 defender

offices engaged in providing representation

to indigents accused of criminal offenses.

The membership of NLADA, therefore, comprises

most public defender

offices and legal service agencies around the

nation, as well as assigned counsel plans and

private practitioners.

The NLADA is vitally interested in

ensuring that the indigent criminal defen-

dants its members represent are guaranteed

their right to be tried by fair and impartial

juries. In this case the Court wiil be

deciding whether the fair cross section

requirement of the Sixth Amendment, which

is one of the means by which the impartiality

of the jury is maintained, is violated where

ie

prosecutors employ the peremptory challenge

to eliminate the possibilty of representation

of a racial minority on the jury. The NLADA

urges this Court to recognize that the

peremptory challenge can become an obstacle

to the ability of the accused to be tried by

a jury of his peers and to outlaw the

practice of the discriminatory use of the

challenge to restore the confidence of the

public and the accused in the fairness of the

jury system.

SUMMARY OF ARGUMENT

A prosecutor's use of the peremptory

challenge to exclude iurors solely on the

basis of race interposes an obstacle to the

possibility of the accused obtaining a

representative cross section of the communitv

on a jury in violation of the Sixth and

Fourteenth Amendments. No significant

state interest exists which could justify

oSe

allowing unrestricted use of the peremptorv

challenge because the continued existence of

the unrestricted right of peremptory chal-

lenge is not essential to the ability of the

prosecution to select fair and impartial

jurors. Pecognition of the impermissibility

of a prosecutor's discriminatory use of the

peremptory challenge will not cause any undue

burden on the judicial system as demonstrated

by the experience of the California and

Massachusetts courts.

ARGUMENT

TRE SIXTH AND FOURTEENTP AMENDMENTS

PPROPIRIT THE USE OF THE PEREMPTORY

CFALLENGE TO RESTRICT UNPEASONABLY

TRE POSSIBILITY THAT THF PETTITT JURY

WILL COMPRISE A FAIR CROSS SECTION

OF THE COMMUNITY.

A. The Sixth and Fourteenth

Amendments Cuarantee An

she

Accused The Possibili

e ury ee

ative ross section

2M. 7138

The American “radition of trial by iury

necessarily contemplates a jiurv drawn from a

fair cross section of the community. Thiel

v. Southern Pacific Co., 328 U.S. 218, 220

(1945). The exclusion of «lements of the

community from participation contravenes the

very idea of a jury composed of the peers or

equals of the person whose rights it is

selected or summoned to determine. Ballew v.

Georgia, 435 U.S. 223, 237 (1978). A State

cannot, consistent with due process, subject

defendant to trial by a jury selected in an

arbitrary or discriminatory manner. Such

procedures cast doubt on the integrity of the

whole judicial process, as well as creating

the appearance of bias in the decision of

individual cases and increasing the risk of

actual bias as well. Peters v. Fiff, 407

-S-

U.S. 493, 402, 503 (1972). Consistent with

these principles this Court should hold that

a prosecutor's discriminatory use of the

peremptory challenge to exclude jurors on the

basis of their race violates the Sixth and

Fourteenth Amendments.

While defendants are not entitled to a

jury of any particular composition and no

requirement exists that petit juries actually

chosen must mirror the community and reflect

the various groups in the population, Taylor

v. Louisiana, 419 U.S. 522, 538 (1975), the

Sixth Amendment comprehends a jury selected

in accordance with procedures that provide a

fair possibility for obtaining a represen-

tative cross section of the community.

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

Taylor, 419 U.S. at 528. Trial by a jury of

less than six persons violates the Sixth

Amendment because it decreases the oppor-

tunity for meaningful and appropriate

a6e

representation of a cross section of the

community. Ballew, 435 U.S. at 237.

Permitting the prosecution to exercise its

peremptory challenges to excuse prospective

jurors on the basis of race alone similarly

violates the fair cross section requirement

because it presents no less an obstacle to

the possibility of minority representation

on the jury.

That the Sixth Amendment is violated

not only when identifiable segments of the

community are excluded from the venire but

also when they are prevented from partici-

pating in the deliberative process as petit

jurors is apparent from this Court's recog-

nition in Taylor that Louisiana's special

exemption for women was unconstitutional

because it operated to exclude them from

petit juries, 419 U.S at 538, not merely

because they were excluded from the jury

pool. Selection of a jury from a pool

offs

drawn from a fair cross section of the

community is not an end in itself, but

contemplates the possibility that the petit

jury will be similarly comprised. The fair

cross section requirement would be illusory

if no restriction existed on the ability of

the prosecution to interpose an obstacle to

minority representation on the petit jury so

long as minorities were not excluded from the

4ury venire.

Recognition that the fair cross section

requirement is applicable to the petit jury

is compatible with the constitutional concept

of a jury trial. The purpose of a jury is to

guard against the exercise of arbitrary power

by making available the common sense judgment

of the community as a hedge against the

overzealous or mistaken prosecutor and in

preference to the professional or perhaps

overconditioned or biased response of a

judge. Just as this prophylactic purpose 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, Taylor, 419 U.S. at 530, neither is

it served if jurors are excluded from the

petit jury on the basis of their race. The

counterbalancing of various biases is

critical to the accurate application of the

common sense of the community to the facts of

any case. Ballew, 435 U.S. at 234. If the

discriminatory use of the peremptory

challenge is sustained, the counterbalancing

envisioned by the fair cross section

requirement cannet occur and the possibility

of application of the common sense of the

community to the facts of the case is

diminished. The broad represertative

character of the jury must be maintained as

an assurance of diffused impartiality.

Taylor, 419 U.S. at 530.

Community participation in the

administration of criminal law is also

critical to public confidence in the fairness

of the criminal justice system. Taylor, 419

U.S. at 530. When the public perceives that

the prosecution is determined to employ its

peremptory challenges to exclude a racial

group from participation on the jury,

misgivings will inevitably arise regarding

the quality of justice being sought, no less

than when identifiable groups are ercluded

from jury service by an automatic exemption.

See United States v. Leslie, F.2d (No.

83-3719, Sth Cir., April 10, 1985), where the

Court exercised its supervisory power to

prohibit the prosecution's use of its

peremptory challenges for unjustifiable,

racially discriminatory reasons because

approval of the practice undermines public

confidence in the tudicial system.

Exclusion of persons from service on

juries harms not only the defendant and the

public, but also other members of the

excluded class. It denies that class of

potential ‘urors the privilege of partici-

pating equally in the administration of

justice and it stigmatizes the whole class,

even those who do not wish to participate,

by declaring them unfit for jury service and

thereby putting a brand upon them, affixed by

law, an assertion of their inferiority.

Peters, 407 U.S. at 499.

If the use of the peremptory challenge

to exclude jurors on the basis of race

constitutes an infringement on the constitu-

tional right to a jury drawn from a fair

cross section of the community, the State

-ll-

bears the burden of justifying this infringe-

ment by showing attainment of a fair cross

section to be incompatible with a significant

state interest which is manifestly and

primarily advanced by that aspect of the jury

selection process that results in the

disproportionate exclusion of a distinctive

group. Duren v. Missouri, 439 U.S. 357,

367, 368 (1979). The right to a proper jury

cannot be overcome om mere rational grounds

as can an equal protection challenge such as

was wade in Swain v. Alabama, 380 U.S. 202

(1965). Taylor, 419 U.S. at 534.

The exclusion of a racial group from

service on a jury by peremptory challenge

camnot be excused on the ground that to

disallow this practice would be to emasculate

the right to peremptory challenge. The right

of peremptory challenge being a statutory

creation, the interest in its preservation

cannot be relied upon to justifw diluting

the quality of community judgment repre-

sented by the jury. Where the Constitution

and a statute are in conflict, the Constitu-

tion prevails. Marburv v. Madison, 1 Cranch

137 (1803). Moreover, the right of peremp-

tory challenge will continue to be available

to the prosecutor who does not exercise

challenges in a racially discriminato’y

manner. Disallowing a prosecutor's use of

the peremptory challenge on the basis of race

alone no more abolishes the peremptory

challenge than does this Court's decision

in Swain: in either instance the trial court

controls the use of the p¢remptory challenge

only if the prosecutor employs the challenge

so as to violate the Constitution. Consider-

ation should also be given to the fact that

survival of the peremptory challenge is not

indispensible to an acceptable judicial

system. So long as challenges for cause are

available, the parties have adequate means

ehBe

for selecting a fair and impartial jury.

Neither can the discriminatory use of

challenges be justified on the basis of the

assumption that Black jurors are necessarily

biased in favor of Black defendants. 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 distinctions and

discriminations which are abhorrent to the

democratic ideals of trial by jury. Thiel,

328 U.S. at 220. Since prosecutors are able

to make individualized judgments as to the

qualifications of white jurors, no hardship

results if prosecutors are required to make

the same kind of judgments as to Black

jurors. If the fact that the defendant is

Black and the complaining witness is white

does not create any significant likelihood

that racial prejudice will infect the trial

elhe

so as to require that the jurors be voir

dired specifically about racial prejudice,

Ristaino v. Ross, 424 U.S. 589 (1976), then

the fact that both the accused and a

prospective juror are of the same racial

background does not create any significant

likelihood that racial affinity will

affect their judgment. The convenience of

the assumption that a Rlack juror will be

partial to a Black defendant cannot justify

the exclusion of the juror by peremptory

challenge any more than the administrative

convenience of the automatic exemption could

justify the exclusion of women in Taylor.

6. Workable Procedures That

Fave Been Successiull

Implemented Provide Ka

ropriate ch

Would Result In No Undue

Burden On The Trial Or

eviewing Courts.

Criticism has been made that disallow-

of Se

ance of a prosecutor's use of peremptory

challenges on racial grounds is compatible

with certain practical considerations,

especially the “potential for stretching out

criminal trials that are already too

long, by making the voir dire a Title VII

proceeding in miniature." United States v.

Clark, 737 F.2d 679, 682 (7th Cir. 1984). An

examination of the remedy proposed and

successfully implemented by various courts

reveals such criticism to be unwarranted.+

First, a presumption would exist that

the prosecutor was employing his peremptory

challenges in a constitutionally permissible

manner. Commonwealth v. Soares, 377 Mass.

Assuming, arguendo, that violation of a

wohseuming, af Tight could be overlooked or

ignored because of the added burden which

would result to the judicial process if a

remedy were provided or the violation not

permitted to occur.

-16-

461, 387 N.E.2d 499, 517 (1979); People v.

Wheeler, 22 Cal.3d 753, 148 Cal.Rptr. 890,

583 P.2d 748 (1978). If the defendant

believes the prosecutor is using his chal-

lenges to exclude jurors on the basis of

race, he must raise the point in timely

fashion, make as complete a record of the

circumstances as feasible and must establish

a prima facie case of such discrimination

to the satisfaction of the trial court.

Wheeler, 583 P.2d at 764. A prima facie case

consists of a demonstration that the jurors

being peremptorily challenged are Black and

that a likelihood exists that they are being

challenged on the basis of their race.

Soares, 387 N.E.2d at 517. The Wheeler Court

gave the following description of the kind of

evidence which might satisfy the defendant's

burden:

x\ >

...-The party may show that

his onent has struck most

or all of the members of the

identified group from the venire,

or his used a disproportionate

number of his peremptories against

the group. He may also demonstrate

that the jurors in question share

only this one characteristic - their

ership in the group - and that

in all other respects thev are as

heterogeneous as the community as a4

whole. Next, the showing may be

suppsapenese when rT by

such circumstances as the failure

of his opponent to engage these same

jurors in more than desultory voir

dire, or indeed to ask them any

estions at all. Lastly...the

fendant need not be a member of

the excluded group in order to

complain of a violation of the

representative cross-section rule;

yet if he is and especially if in

addition his alleged victim is a4

member of the group to which the

majority of the remaining jurors

be , these facts may also be

called to the court's attention.

583 P.2d at 764.

Both the Massachusetts and California

Supreme Court have expressed confidence in

the ability of trial judges to weigh this

evidence and distinguish a true case of

-18-

discrimination by peremptory challenge from

a spurious claim interposed simply for

purposes of harrassment or delay, given

trial courts’ extensive experience with ‘ury

empanelment, powers of observation, knowledge

of local conditions, familiarity with

attorneys on both sides and broad judicial

experience. Wheeler, 583 P.2d at 764;

Soares, 387 N.E.2d at 517.

Both the Massachusetts and California

courts thus appropriately give much deference

to the trial iudge's assessment of whether

the presumption of proper use of the peremp-

tory challenge has been rebutted. The mere

number of jurors challenged by the prosecution

in and of itself may not be sufficient to

rebut the presumption of proper use of chal-

lenges if the trial tudge's judgment is that

the numbers alone are not compelling. See

Commonwealth v. Robinson, 382 Mass. 189, 415

-19-

N.E.2d 805 (1981) (three of four Placks

excluded but record otherwise insufficient to

rebut presumption); Commonwealth v. Benbow,

16 Mass.App. 970, 452 ¥.E.2d 1164 (1983)

(presumption not rebutted by fact that of ten

Blacks on the venire, prosecution challenged

four, defense two and two served on the ‘ury);

People v. Rousseav, 129 Cal. App. 3d 526, 179

Cal.Rptr. 892 (1982)(mere statement that only

two Blacks on venire and prosecution excused

both insufficient to sustain defense burden

of rebutting presumption). Of course, as the

number of a particular group who are

challenged grows larger, the presumption of

proper use ~f the peremptory challenge grows

weaker. Commonwealth v. Gagnon, 16 Mass.App.

110, 449 N.E.2d 686 (1983). But it is not

essential to demonstrate that the prosecutor

has engaged in a pattern of conduct.

Dismissal of one member of the banished group

-20-

is as repugnant as dismissal of all but one

of its members. Commonwealth v. DiMatteo, 12

Mass.Apr.547, 427 N.E.2d 754, 758 (1981).

If the court finds a prima facie case of

discrimination has been made, the burden

shifts to the prosecution to demonstrate the

furor was not struck on racial grounds. The

showing need not rise to the level of a

challenge for cause. Wheeler, 583 P.2d 764,

765; Soares, 387 N.E.2d 517. The trial

judge retains discretion and reviewing courts

will rely on his good judgment to distinguish

between bona fide and belatedly contrived

sham excuses. Wheeler, 583 P.2d at 765. The

distinction to be drawn is between good and

bad faith, not good and bad explanations.

Commonwealth v. Thomas, 19 Mass.App. 1, 471

N.E.2d 376 (1984). The prosecutor may also

support his showing by the totality of cir-

cumstances, e.g., it is relevant that he

o21e<

challenged similarly situated white jurors on

identical or comparable grounds in the course

of the same voir dire. Wheeler, 583 P.2d at

765.

Reviewing courts, mindful of the fact

that the trial judge is in a better position

to iudge the motivations of the parties, give

deference to the trial judge's finding with

respect to whether the presumption of proper

use has been rebutted and whether the

prosecutor is making proper use of his

challenges, unless his finding is unsupported

by the record. See People v. Randle, 130

Cal.App.3d 286, 181 Cal.Rptr. 745 (1982);

People v. Harvey, _ Cal.App.3d___, 208

Cal.Rptr. 910 (1994); People v. Walker, 157

Cal.App.3d 1060, 205 Cal.Rptr. 278 (1984);

Commonwealth v. Joyce, 18 Mass.App. 417,

467 N.F.2d 214 (1984); Commonwealth v. Kelly,

10 Mass.App. 847, 406 N.E.2d 1327 (1980);

Commonweeth v. Walker, 379 Mass. 297, 397

N.E.2d 1105 (1979). If, however, the trial

judge fails to make a sincere and reasoned

evaluation of the genuiness of the

prosecution's explanation, relief will be

granted the accused on appeal. People v.

Hall, 35 Cal.3d 161, 197 Cal.Rptr. 71, 672

P.2d 854 (1983).

The task delegated to the trial judge of

discerning the intent of the prosecutor is

not an impossible one. As noted in Oregon v.

Kennedy, 456 U.S. 667, 656 (1982), it merely

calls for the court to make a finding of

fact. Inferring intent from objective facts

and circumstances is a familiar process in

our criminal ‘ustice system, and is similar

to the judgments trial judges routinely make

in judging the credibility of witnesses or

the good or bad faith of the prosecution.

o23-

No reason exists to conclude that the

solution proposed and followed in Wheeler and

Soares is unworkable. The California Supreme

Court noted recently in response to such a

complaint by the prosecution:

The People have not produced,

or called our attention to, any

empirica. evidence in t of

their criticisms of . There

have been three 1 opinions

of the Court of 1 since Wheeler

and none of these lends support to

the People's claims. In particular,

the assumption underlying some

articles critical of (e.

Younger,

SSEESE LfEES people th

ec by the People that restricting

the exercise of peremptory challenges

to proscribe those p ted group

bias may eliminate Die Pench chal-

lenge is without demonstrable merit.

A prosecutor may act freely on the

basis of “hunches,” unless and until

these acts create a prima facie case

of gr bias, and even then he ma

rebut ¢t inference. Fall, 672 P.2d

at 859.

If this Court makes it clear that use

of the peremptory challenge to practice

-24-

racial discrimination will not be tolerated,

the frequency with which a trial court will

be required to distinguish between bona fide

and discriminatory use of the peremptory

challenge will undoubtedly be reduced.

The threat of mistrial or loss of a convic-

tion will deter misuse of the challenge and

the vast majority of prosecutors will

obligingly conform their conduct to the law.

The refusal or neglect of the trial judge

to perform the function of assessing the

validity of the prosecutor's use of

peremptory challenges may in some cases

result merely in remand for a hearing before

the trial judge. In other instances this

procedure may not be preferable if due to

passage of time it is unrealistic to expect

the prosecutor to recall in greater detail

the reasons for his erercise of his chal-

lenges or the trial court to assess those

o2$-

challenges, which would demand that he be

available and able to recall the circus-

stances of the case end the manner in

which the prosecutor examined the venire and

exercised his other challenges. Fall, 672

P.2¢ at 860, People v. Allen, 23 Cal.3d 286,

152 Cal.Rptr. 454, 590 P.2¢ 30, 35 n. &

(1979).

CONCLUSION

The practice of employing peremptory

challenges to prevent an accused froe

obtaining a ‘ury representative of the

community violates the fair cross section

requirement of the Sixth Amendment and should

be condemned by this Court. The procedures

followed by the California and Massachusetts

courts, which have been tested by time and

proven to be a workable remedy, should be

-~76-

adopted by this Court as the solution to

discontinue further abuse of the peremptory

challenge by prosecutors. Failure or neglect

of .a trial court to discharge its

responsibility to regulate, if warranted, a

prosecutor's use of peremptory challenges,

justifies granting the defendant relief from

his conviction so obtained.

Respectfully submitted,

PATRICIA UNSINN

Assistant ~ ag eee Defender

Office of the State Appellate Defender:

State of Illinois Center

100 West Randolph Street

Suite 5-500

Chicago, Illinois 60601

(312) 793-5472

-27-