# Amicus Curiae Brief — Batson v. Kentucky

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## Record

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

## Text

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)

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:

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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-

---

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