Amicus Curiae Brief — Batson v. Kentucky

Supreme Court of the United States

OcToser Term, 198%

ll —

JAMES KIRKLAND BATSON,

Petitioner.

7 ¥ —

COMMONWEALTH OF KENTUCKY,

Respondeni

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF KENTUCKY

AMICUS CURIAE BRIEF FOR ELIZABETH HOLTZMAN,

DISTRICT ATTORNEY, KINGS COUNTY, NEW YORK

ELIZABETH MOLTZMAN

District Attorney

BARBARA D. UNDERWOOD

Assistant District Attorney

Counsel of Record

PreTER A. WEINSTEIN

EVAN WOLPSON

Assistant District Attorneys

Kings County District Attorney's Office

210 Joralemon Street

Brooklyn, New York 1120!

(718) 802.2156

June 28, 1985 Counsel for Amicus Curiae

BEST AVAILABLE COPY

ULESTIONS PRESENTED

|. Whether the sixth and fourteenth amendments prohibu

the use of the peremptory challenge to exclude prospective

jurors solely on the basis of race

2. Whether the ban on the use of the peremptory challenge

to discriminate because of race should extend to defense

counsel as well as to prosecutors

ill

PAGE

POINT Il

THE SAFEGUARDS SET FORTH IN SWAIN FOR

DETECTING AND RECTIFYING UNLAWFUL

DISCRIMINATION IN THE USE OF THE

PEREMPTORY CHALLENGE HAVE PROVEN

INEFFECTIVE AND UNWORKABLE. BY

CONTRAST, THE WHEELER PROCEDURE EF-

FECTIVELY PRESERVES THE PEREMPTORY

CHALLENGE AS A MEANS OF STRIKING

BIASED JURORS WHILE PREVENTING THEIR

UNCONSTITUTIONAL USE TO ELIMINATE

PEOPLE SOLELY BECAUSE OF RACE.......... 19

POINT III

THE BAN ON RACE DISCRIMINATION IN THE

EXERCISE OF PEREMPTORY CHALLENGES

MUST EXTEND TO DEFENSE COUNSEL AS

WEI © AS TO PROSECUTORS. ................. 24

SEDs oaceccccccocccceseosocccesoccocess 30

iv

TABLE OF AUTHORITIES

Cases: PAGE

Adams v. Texas, 448 U.S. 38 (1980) ..... 2... 066.0 n. 15

Andrews v. State, 438 So.2d 480 (Fla. Dist. Ct. App.

SUUEn 6 ocedonedecusededebocescccbencescsebessee 26

Ballard v. United States, 329 U.S. 187 (1946)...... 14, 17, 27

Ballew v. Georgia, 435 U.S. 223 (1978) ...........4.. 15, 27

Carter v. Jury Commission, 396 U.S. 320 (1970)....... 5, 17,

18, 27

Casteneda v. Partida, 430 U.S. 482 (1977)... ......4.. 10

Commonwealth v. Brown, 11 Mass. App. Ct. 288, 416

SRD DE oc cccncesesescnensoeneceesonss 25

Commonwealth v. DiMatteo, 12 Mass. App. Ct. 547,

427 N.E.2d 754 (1981), appeal denied, 385 Mass.

1101, 440 N.E.2d 1173 (1962)... 6. cc ccc cee eeees 25

Commonwealth v. Little, 384 Mass. 262, 424 N.E.2d 504

DD bbscecdons dausadsobessncetaunhenseeseusel 25, 29

Commonwealth v. Perry, 1S Mass. App. Ct. 932, 444

N.E.2d 1298, appeal denied, 388 Mass. 1105, 448

PET CUD CIUEEED c cccctecccocecccecsesceccceces 25

Commonwealth v. Reid, 384 Mass. 247, 424 N.E.2d 495

GREED ccoccccescccecoscocccccesecsscososesecene 29

Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d

499, cert. denied, 444 U.S. 881 (1979).......... 16, passim

Craig v. Boren, 429 U.S. 190 (1976) .... 2... oe eee 11, 12

Duncan v. Louisiana, 591 U.S. 145 (1968)... ......... 4,7

Duren v. Missouri, 439 U.S. 357 (1979)... 6 cee 10

Edwards v. California, 314 U.S. 160 (1941)........... 11

Faretta v. California, 422 U.S. 806 (1975)... ......445. 27

Frazier v. United States, 335 U.S. 497 (1948) ......... 29

PAGE

| Gannett Co. v. DePasquale, 443 U.S. 368 (1979) ...... 25

Gilliard v. Mississippi, 104 §. Ct. 40 (1983). .......... x

Glasser v. United States, 315 U.S. 60 (1945) .......... 14

Grigsby v. Mabry, 758 F.2d 226 (8th Cir. 1985)........ 15

Harris v. Texas, 104 S. Ct. 3556 (1984)... 2... 6 eae 15

In re Winship, 397 U.S. 358 (1970)... .. 2... 6. ee ee ee 27

McCray v. Abrams, 576 F. Supp. 1244 (E.D.N.Y. 1983),

aff'd in part and vacated in part, 750 F.2d 1113 (2d

Cir. 1984), petition for cert. filed, Mar. 4, 1985 ..... passim

New Jersey v. Gilmore, No. A-870-82T4 (Super. Ct. Mar.

eh, Pt hantébebendbabinsedadbenbussbiseoceccoee 20

Nixon v. Herndon, 273 U.S. 536 (1927)... 2... 6 aoe 28

Norris v. Alabama, 294 U.S. 587 (1935)... . 2.66.66. 18

People v. Davis, 95 Wi.2d 1, 447 N.E.2d 353, cert.

ee on odkeaeeeeeneeencos 20

People v. Fuller, 136 Cal. App.3d 403, 186 Cal. Rptr.

SEE I ES PR a 25

People v. Hail, 35 Cal.3d 161, 672 P2d 854, 197 Cal.

tt Pi Machondésdvéentesdeséesneessoeeenes 22

People v. McCray, 57 N.Y.2d $42, 443 N.E.2d 915, 457

N.Y.S.2d 441 (1982), cert. denied, 461 U.S. 961

ee a ae 2, 7, 16, 20, 23, 29

People v. Thompson, 79 A.D.2d 87, 435 N.Y.S.2d 739

Fe ee DE cccccceebeddéecensteoestsavesté 2, 20, 23

People v. Wheeler, 22 Cal.3d 258, 583 P.2d 748, 148 Cal.

EE, Sea cca cecksoccacccecescosvveses 16, pass

Peters v. Kiff, 407 U.S. 493 (1972)... 66. ccc cee 46,14

Plyler v. Doe, 457 U.S. 202 (1982) .. «6.6 cece 12

Polk County v. Dodson, 454 U.S. 312 (1981)... ...... 28

PAGE

Roman v. Abrams, No. 85-Civ-0673-CLB (S.D.N_Y.

See GE, Gi ceccceccccceececencocectocessecses 16, 23

Rosales-Lopez v. United States, 451 U.S. 182 (1981)... 29

Rose v. Mitchell, 443 U.S. S45 (1979)... 6 cen 27, 29

Shelley v. Kraemer, 334 U.S. 1 (1948)... 2... 6.6 aan 28

Simpson v. Commonwealth, No. 81-1193-S (D. Mass.

By Gh ED ececdcccccsssenececcsccesesccecess 22

Singer v. United States, 380 U.S. 24 (1965) ........... 16, 25

Smith v. Texas, 311 U.S. 128 (1940) .. 0... cece 18

State v. Crespin, 94 N.M. 486, 612 P.2d 716 (1980).... 20

State v. Neil, 457 So.2d 481 (Fla. 1984)........ 17, 20, 23, 25

Stilson v. United States, 250 U.S. 583 (1919). ......... 29

Strauder v. West Virginia, 100 U.S. 303 (1880) ....... 10, 13,

16, 18, 27

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

Taylor v. Louisiana, 419 U.S. 522 (1975) ... .6, 13, 14, 15, 17

Texas Dep't of Community Affairs v. Burdine, 450 U.S.

inéetedkbosenesedecseeceseesosenseeoes 22

Thiel v. Southern Pacific Co., 328 U.S. 217 (1946) .... 6

United States v. Childress, 715 F.2d 1313 (8th Cir. 1983)

(en banc), cert. denied, 104 S. Ct. 744 (1984) ....... 8, 20

United States v. Jackson, 696 F.2d 578 (8th Cir. 1982),

cert. denied, 460 U.S. 1073 (1983)... 2... cece 20

United States v. Leslie, 759 F.2d 366 (Sth Cir.), rehearing

en banc granted, No. 83-3719 (May 14, 1985)....... 20

United States v. Newman, $49 F.2d 240 (2d Cir. 1977)... 11

Weathersby v. Morris, 708 F.2d 1493 (9th Cir. 1983) ... 7

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)........ 12

PAGE

Wengier v. Druggists Mutual Ins. Co., 446 U.S. 142

PP bietdddebaesdssdedceeceoceeeessodsedeseoss 12

Witherspoon v. Iilinois, 391 U.S. 510 (1968)... ....... 15

United States Constitutional Provisions:

SD CD cccccccccecuccocecccccccccccecs passim

Fourteenth Amendment ....... 6... 6c cee passim

Other Authorities:

Babcock, Voir Dire: Preserving “Its Wonderful Power”,

Be Gs Ge Gs PEED ccccccccoccccoesccccece 10

Brown, McGuire & Winters, The Peremptory Challenge

as a Manipulative Device in Criminal Trials: Tradi-

tional Use or Abuse? 14 N. Eng. L. Rev. 192 (1978) 9

Ciolli, Indicting the Process of Selecting Jurors, News-

Sh Pe agnenecesensseseeceseunsbensees 9

Comment, A Case Study of Peremptory Challenges: A

Subtle Strike at Equal Protection ana Due Process, \8

ls ee ies Oe Es ctconcécéconcensceseses \

De Tocqueville, Democracy in America, Vol. | (Vintage

ft 6065b66060006660600860066680606000060666 17

Kelner, Jury Selection: The Prejudice Syndrome, N.Y.

ey as Ee , i Sh cccccceseececcessess )

Miami Times, June 23, 1983, col. 1, p. 1... 66.6.6... 26

Mosk, J., Letter to New York Times, A24, col. 3 (June

ee 22

Note, The Defendant's Challenge to a Racial Criterion

in Jury Selection, 74 Yale L. J. 919 (1965)... ....... 10

Powell, Jury Trials of Crimes, 23 Wash. & Lee L. Rev. |

bh ties didi tthe ekeedeuensenseseeeset 17

viii

Saltzburg and Powers, Peremptory Challenges and the

Younger, Uniawful Peremptory Challenges, 21 Judges’

Ps Ee ED EG bakSbSdsecetcoecdesoceeseéee 9, 20

Supreme Court of the United States

OcTOBER TERM, 1985

No. 84-6263

>

JAMES KIRKLAND BATSON,

—vo—

COMMONWEALTH OF KENTUCKY,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF KENTUCKY

_a

AMICUS CURIAE BRIEF FOR ELIZABETH HOLTZMAN,

DISTRICT ATTORNEY, KINGS COUNTY, NEW YORK

AUTHORITY TO FILE BRIEF AMICUS CURIAE

Elizabeth Holtzman, District Attorney of Kings County,

New York, files this brief amicus curige with consent of the

attorneys for the petitioner and the respondent, pursuant to

Rule 42(1). Moreover, she is the authorized law officer of a

political subdivision of a state, and therefore also files this

brief emmicus curige pursuant to Rule 42(4).

2

STATEMENT OF INTEREST OF AMICUS CURIAE

Elizabeth Holtzman is the District Attorney of Kings

County, New York. For nearly four years, criminal prosecu-

tions in that county have been subject to a judicially imposed

ban on the use of the peremptory challenge to exclude potential

jurors on the basis of race. That judicial rule was first im-

posed, in a Kings County case, as a matter of state constitu-

tional law, in People v. Thompson, 79 A.D.2d 87, 435 N.Y.2d

739 (2d Dep’t. 1981). The District Attorney declined to appeal

that decision, and promulgated an office policy prohibiting the

use of the peremptory challenge to exclude jurors on the basis

of race, sex, religion, or national origin. Nearly two years

later, in another Kings County case, the New York Court of

Appeals overruled that decision over the objection of the

District Attorney. People v. McCray, 57 N.Y.2d 542, 443

N.E.2d 915, 457 N.Y.S.2d 441 (1982), cert. denied, 461 U.S.

961 (1983). At that time, the District Attorney reaffirmed her

office policy prohibiting such discrimination.

One year later, the legal ban was reestablished, this time as a

matter of federal constitutional law, in McCray v. Abrams,

576 F. Supp. 1244 (E.D.N.Y. 1983). In that federal habeas

corpus proceeding, the District Attorney represented the New

York State Attorney General, pursuant to an agreement with

that office. The District Attorney continued to urge the adop-

tion of a constitutional ban on race discrimination in the use of

the peremptory challenge, contesting only the claim that dis-

crimination had occurred in that particular case. The United

States Court of Appeals affirmed the determination that the

Constitution prohibits such discrimination, and remanded for

an evidentiary hearing. McCray v. Abrams, 750 F.2d 1113 (2d

Cir. 1984). The District Attorney filed a petition for certiorari,

on behalf of respondent Attorney General Abrams, to resolve

the conflict between the state and federal courts, to review the

procedural mechanism for enforcing the constitutional rule,

and to urge the extension of the ban to defense counsel. That

petition is still pending in this Court, Abrams v. McCray, No.

84-1426, filed Mar. 4, 1985.

3

Thus, amicus has had almost four years of experience with

both judicial and internal administrative prohibitions on the

use of the peremptory challenge to exclude potential jurors on

the basis of race. Based on that experience, amicus has found

that the ban is consistent with both effective law enforcement

and efficient judicial administration, and urges this Court to

adopt it. Moreover, amicus has observed that defense counsel

as well as prosecutors frequently use the peremptory challenge

to exclude potential jurors on the basis of race. Such dis-

crimination by defense counsel is equally widespread, equally

threatening to constitutional values, and equally amenable to

judicial control. For these reasons, amicus urges the court to

hold that the ban applies not only to prosecutors, but also to

defense counsel.

SUMMARY OF ARGUMENT

Intentional race discrimination in jury selection undermines

both the in egrity of the judicial system, and public confidence

in the fairness of jury trials. It violates the sixth and fourteenth

amendment rights of defendants, of excluded jurors, and of

the community.

In an unbroken line of decisions, this Court has condemned

such unconstitutional discrimination. The question presented

by this case is whether courts have the power to remedy race

discrimination when it occurs not at the earlier stages of jury

selection already addressed by this Court, but rather at the

stage when individual jurors are excluded by the exercise of

peremptory challenges.

Twenty years ago, in Swain v. Alabama, 380 U.S. 202

(1965), this Court held that courts could not, under the equal

protection clause, enforce a ban on race discrimination in the

use of the peremptory challenge unless such discrimination

occurred systematically, in case after case, over a period of

time. Swain never authorized race discrimination in the use of

peremptory challenges, even in an individual case; it merely

placed the isolated case of discrimination beyond the scope of

4

judicial review because of a presumption of prosecutorial good

faith and a prudential concern for orderly judicial administra-

tion. The remedial approach of Swain was based on several

premises which have been refuted by the experience of the past

twenty years.

First, Swain was decided on the erroneous assumption that

genuine invidious race discrimination in jury selection could be

controlled by the limited remedy announced in that case. The

experience of amicus and the reported cases show to the

contrary, however, that both prosecutors and defense counsel

frequently and openly engage in the practice of invidious race

discrimination, to the detriment of potential jurors, defen-

dants, witnesses, and the public at large. Thus, Swain’s pre-

sumption of good faith in the use of peremptory challenges is

no longer tenable, and the remedy it created has failed to

accomplish its purpose.

Second, Swein was decided on the erroneous assumption

that a rule permitting inquiry into the reasons for peremptory

challenges would destroy the peremptory challenge altogether,

and disrupt the expeditious conduct of trials. The experience of

California, Massachusetts, Florida, and New York, however,

proves that fear unfounded. In each of these jurisdictions,

courts have found in the state constitution a ban on the

race-based use of the peremptory challenge. The peremptory

challenge has survived the ban on its discriminatory use, and

the rule has proven both effective and consistent with the

orderly administration of justice.

Third, this Court decided Swain without addressing the

constitutional significance of a jury drawn from a fair cross-

section of the community, or the equal protection rights of

jurors who are excluded by reason of their race. Several years

after the decision in Swain, this Court held the fair cross-sec-

tion requirement of the sixth amendment applicable to the

states, Duncan v. Louisiana, 391 U.S. 145 (1968), and made

clear that the ban on race discrimination in jury selection is

part of due process as well, Peters v. Kiff, 407 U.S. 493 (1972).

Moreover, in 1970, the Court recognized that not only defen-

dants, but also excluded jurors and the community at large,

5

have a legally cognizable right against discrimination in jury

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

this jurisprudence had existed in 1965, when Swain was de-

cided, the result might well have been different.

It is time for this Court to rid the judicial system of

intentional discrimination in jury selection. This Court should

hold that both the sixth amendment and the equal protection

clause bar race discrimination by all parties to the jury selec-

tion process, at every stage of that process. The Court should

set forth a reasonable procedure for enforcing that prohibi-

tion, should hold that the ban applies to defense counsel as

well as to prosecutors, and should remand the instant case to

the state courts for reconsideration in light of its holding.

POINT I

RACE DISCRIMINATION IN) JURY SELECTION

OCCURS FREQUENTLY AND OPENLY, AND VIO-

LATES THE CONSTITUTIONAL RIGHTS OF DEFEN-

DANTS, EXCLUDED JURORS, AND THE PUBLIC.

Invidious race discrimination deserves protection in no area

of society, least of all in the administration of justice. The

Constitution cannot permit an attorney to stand in the door-

way of the jury room to block potential jurors because of the

olor of their skin. Historically, this Court has played a key

role in striking down pernicious and unfair classifications

which interfere with each individual’s fullest participation in

American society. Faced now with a claim of intentional race

discrimination within the judicial system itself, this Court

should forbid the abuse of peremptory challenges to bar jurors

simply because of their race. '

Race discrimination in jury selection denies the defendant

and the state a fair trial by a representative jury, and under-

l Discrimination based on religion, sex, or ethnic origin is as offensive

as discrimination because of race. The same logic and concerns mandating a

constitutional ban on race-based discrimination in jury selection apply to

these other pernicious classifications. Because Batson presents a claim of race

\ discrimination, this brief focuses on that issue alone.

6

mines public confidence that justice is done. Shaping a jury by

excluding individuals solely on the basis of race destroys its

“diffused impartiality” and representative spirit. Taylor v.

Louisiana, 419 U.S. 522, 530 (1975), citing Thiel v. Southern

Pacific Co., 328 U.S. 217, 227 (1946) (Frankfurter, J., dissent-

ing). As a result, the jury is deprived of “a perspective on

human events that may have unsuspected importance in any

case that may be presented.” Peters v. Kiff, 407 U.S. 493,

503-04 (1972).

“(T]he jury is designed not only to understand the case, but

also to reflect the community’s sense of justice in deciding it.”

Taylor, 419 U.S. at 529 n.7. Juries “play a political function in

the administration of the law;” when parties are permitted to

challenge arbitrarily members of disfavored groups, biased

juries are the result—“biased in the sense that they reflect a

slanted view of the community they are supposed to repre-

sent.” Jd. When people see racism, not blind justice, in the

courts, the judgments and judicial processes lose their legiti-

macy and moral power.

Race discrimination in jury selection aiso violates the funda-

mentai constitutional principle that people may not be judged

by the color of their skin. “[PJersons may not be excluded

from juries on account of race. Such exclusions are plainly

unlawful and deserving of condemnation.” Peters, 407 U.S. at

507 (Burger, C.J., dissenting). “Jury competence is an individ-

ual matter rather than a group or class matter. . . [and to]

disregard [that fact] open{s] the door to class distinctions and

discriminations which are abhorrent to the democratic ideals of

trial by jury.” Thie/, 328 U.S. at 220. Jurors “should be

selected as individuals, on the basis of individual qualifica-

tions, and not as members of a race.” Swain v. Alabama, 380

U.S. 202, 204 (1965). It is time for this Court to enforce its

injunctions against intentional race discrimination in the ad-

ministration of justice by curtailing the perversion of the

peremptory challenge.

-

A. Swain Has Been Misconstrued as a License to Use

Peremptory Chal'enges to Exclude Jurors on the Basis of

Race.

In Swain, this Court recognized the historical! roots of

peremptory challenges, but nevertheless reaffirmed that “a

State’s purposeful or deliberate denial to Negroes on account

of race of participation as jurors in the administration of

justice violates the Equal Protection Clause.” * 380 U.S. at

204. Concerned with the preservation of peremptory challenges

as a tool for justice, the Court concluded that, as a matter of

procedure, the use of peremptory challenges in any particular

case must be presumed valid. The Swain court conceded,

however, that circumstances might arise where “the purposes

of the peremptory challenge are being perverted.” 380 U.S. at

224; see McCray v. New York, 461 U.S. 961, 964 (1983)

(Marshall, J., dissenting from denial of certiorari). Thus,

nothing in Swain, not even its presumption of prosecutorial

good faith, could have been intended as a license to discrimi-

nate on the pernicious and condemned basis of race.’

Nevertheless, courts, attorneys, and commentators ave

construed Swain to permit and even encourage the use of racial

stereotypes in picking or striking jurors. Judges have explicitly

2 The Swain court did not address the sixth amendment’s prohibition

of race-based discrimination in jury selection because that amendment was

not held binding upon the states until three years later, in Duncan v.

Louisiana, 391 U.S. 145 (1968). See McCray, 750 F.2d at 1124. In any event,

even were this Court's decision in Swain deemed to embrace sixth amend-

ment analysis, see, ¢.g., McCray, 750 F.2d at 1136 (Meskill, dissenting),

nothing in Swain was meant to authorize discrimination against jurors

because of their race, under either the sixth or fourteenth amendments.

3 The Ninth Circuit recognized in Weathersby v. Morris, 708 F.2d 1493

(9th Cir. 1983), that Swain limited only the remedy, and not the right against

discrimination, to cases of syst@matic discrimination in case after case. In

Weathersby, the prosecutor had voluntarily given his reasons for exercising

peremptory challenges against black potential jurors. The court held that

Swain’s presumption of good faith had no place in such circumstances, and

that instead the court should evaluate those reasons to determine whether or

not the prosecutor had engaged in unconstitutional race discrimination.

remarked that the Swain presumptior of validity “was defin-

itely unrealistic [and that this] Court probably intended only to

state a principle but never meant for the principle to be

implemented.” E.g., Comment, A Case Study of Peremptory

Challenges: A Subtle Strike at Equal Protection and Due

Process, 18 St. Louis L.J. 662, 680 (1974) (quoting a state trial

judge). Some judges have interpreted Swain to confer upon an

attorney “not only a right but an obligation to challenge a

prospective juror” on the basis of race or other “broau

generalization{s] which may not in fact be true.” See, e.g.,

McCray v. Abrams, 750 F.2d 1113, 1138 (2d Cir 1984)

(Meskill, J., dissenting).

This misinterpretation of Swain has led lower courts to

adhere to the irrebuttable presumption of valid peremptory

challenges, even when the premises of such a presumption have

been undercut by evidence of widespread discrimination, and

when the need for it has been undercut by the development of

a workable procedure for curtailing such abuse without de-

stroying the peremptory challenge.* See, e.g., authorities col-

lected in McCray, 750 F.2d at 1128 n.6; see also cases cited in

Gilliard v. Mississippi, 104 S. Ct. 40, 42 (1983) (Marshall, J.,

dissenting from denial of certiorari); United States v.

Childress, 715 F.2d 1313 (8th Cir. 1983) (en banc), cert. denied,

104 S. Ct. 744 (1984). Swain has come to stand for the

proposition it began by expressly refuting, that in the courts of

this country, jurors may be chosen or rejected by color.

Attorneys and commentators, too, have misinterpreted

Swain as a license to discriminate against jurors merely on the

basis of their race. See, ¢.g., Saltzburg & Powers, Peremptory

Challenges and the Clash Between Impartiality and Group

Representation, 41 Md. L. Rev. 337, 343 (1982). “The time-

honored rule of thumb in jury selection is nothing more than

racist or sexist generalizations [including such] stereotypical

and fallacious {theories as]: ‘All Scandinavians are pro-police,

4 Two federal circuits and several state courts have developed effective

and efficient procedures to bar the use of race-based peremptory challenges.

See discussion in Point II.

all Jews are kind-hearted . . . all blacks will vote to acquit

blacks no matter how strong the evidence.’ ” Ciolli, /ndicting

the Process of Selecting Juries, Newsday, Mar. 8, 1983, Part II,

p.2 (quoting Professor Jon Waltz). Professor Irving Younger

has noted that a “prospective juror’s race” is “at or near the

top” of the list of factors influencing a lawyer’s juror selection.

Younger, Unlawful Peremptory Challenges, 21 The Judges’

Journal 27, 28 (Winter 1982). Many experts in trial litigation

publicly recommend that attorneys exercise their peremptory

challenges on the basis of race.°

Amicus has spoken with many prosecutors who believe they

are entitled to use the peremptory challenge to strike potential

jurors on the basis of race, and would do so to the extent this

Court permits the practice. Moreover, in the experience of

amicus, defense counsel frequently exclude jurors on the basis

of race, and they do so without inhibition in New York, where

the courts have not extended the ban to defense counsel.

Because prosecutors and defense counsel have misconstrued

Swain as a license to challenge jurors on the basis of race,

Swain’s effort to deal with the problem of discrimination has

become part of the problem itself.

5 For example, one “checklist for voir dire” advises attorneys to

develop “prototypes” and consider excluding people first on the basis of

their racial origin and second, on the basis of their religious or national

origin. Kelner, Jury Selection: The Prejudice Syndrome, N.Y. State Bar J.,

Feb. 1984, at 35-38. An instruction book for new prosecutors prepared by

the Dallas County, Texas, District Attorney's office contained this advice on

juror selection:

Ill. What to look for in a juror.

A. Attitudes

1. You are not looking for a fair juror but rather a strong,

biased and sometimes hypocritical individual who believes

that Defendants are different from them in kind, rather than

degree.

2. You are not looking for any member of a minority group

which may subject him to oppression—they almost always

empathize with accused.

3. You are not looking for free-thinkers and flower children.

Brown, McGuire, and Winters, The Peremptory Challenge as a Manipulative

Device in Criminal Trials: Traditional Use or Abuse?, 14 New Eng. L.

Rev. 192, 224 (1978).

10

The proponents of racial exclusion in jury selection contend

that race is an accurate predictor of bias or sympathy, and that

for this reason an attorney must be permitted to use peremp-

tory challenges to exclude potential jurors on the basis of race.

See, e.g., McCray, 750 F.2d at 1138 (Meskill, J., dissenting);

Saltzburg & Powers, 41 Md. L. Rev. 337. That argument is

fatally flawed for two reasons.

First, it is simply false. “[I]t is fallacious to assume that all

persons sharing an attribute of skin color, or of gender or

ethnic origin, etc., will ipso facto be partial to others sharing

that attribute.” McCray, 750 F.2d at 1121. All whites do not

view matters in the same way, nor do all members of any racial

minority.

While this truth should be self-evident, empirical support for

the proposition is also available. This Court has recognized

social science evidence that while some members of minority

groups may be sympathetic to members of their own group,

others may “respond to discrimination and prejudice by at-

tempting to disassociate themselves from the group, even to

the point of adopting the majority’s negative attitudes towards

the minority,” Casteneda v. Partida, 430 U.S. 482, 503 (1977)

(Marshall, J., concurring). See also Babcock, Voir Dire: Pre-

serving ‘Its Wonderful Power,’ 27 Stan. L. Rev. 545, 553, 553

n.30 (1975); see also Note, The Defendant’s Challenge to a

Racial Criterion in Jury Selection, 74 Yale L.J. 919, 922-23

(1965). People are more than white or black, and the views and

abilities of any individual cannot be accurately foretold by a

look at his or her face.

“TAs] early as 1880, [this] Court recognized that blacks as a

class are no less qualified to sit on juries than whites,” Duren

v. Missouri, 439 U.S. 357, 371 n.* (1979) (Rehnquist, J.,

dissenting) (citing Strauder v. West Virginia, 100 U.S. 303

{1880]), because this Court knew that individual blac’, like

individual whites, are capable of the objectivity and fairness

that are the prerequisites of a good juror. As the Second

Circuit observed:

Blacks are the major victims of wrongdoers and it is

unlikely that they hesitate to convict where the case

11

warrants it. All of the members of this Court, hearing the

present case, have served more than a decade as judges of

the United States District Court for the District of Con-

necticut. It has been our experience that Black persons,

summoned and drawn for jury panels in that court, have

been excellent jurors and have shown no predilection to

favor or harm any group, class or kind of persons but

have judged the facts on the evidence presented in court in

the light of the court’s charge.

United States v. Newman, 549 F.2d 240. 250 n.8 (2d Cir. 1977).

Clearly, no racial group is inherently more biased or incapa-

ble of objectivity than any other. Thus, “[a}ny notion that

white persons can be objective in viewing a case on its merits

and that blacks qua blacks cannot, is particularly objection-

able.” McCray, 750 F.2d at 1131. Race is simply not an

accurate predictor of a juror’s impartiality or an individual’s

attitudes and capacities.

Second, even if there were some loose association between

race and bias or sympathy, the Constitution would prohibit its

use in jury selection. Race is “constitutionally an irrelevance,”

Edwards v. California, 314 U.S. 160, 185 (1941) (Jackson, J.,

concurring), and generalizations based upon race or other

suspect classifications have no place in the judicial process.

Because of the evil which stigmatizing classifications such as

race wreak on American society and individual citizens, this

Court has refused to permit their use. This Court has correctly

discerned in the Constitution a “limiting principle” which

forbids certain suspect ways of grouping individuals regardless

of “statistically measured but loose-fitting generalities.” Craig

12

v. Boren, 429 U.S. 190, 208 n.22, 209 (1976):° see also Wengler

v. Druggists Mutual Ins. Co., 446 U.S. 142 (1980); Weinberger

v. Wiesenfeld, 420 U.S. 636, 645 (1975). Simply put, some

classifications are so pernicious, so susceptible to misinterpre-

tation and misuse, so ill-founded, and so antithetical to the

American conception of fairness and the dignity of the individ-

ual, that they have no place under the Constitution.

The Constitution “was intended to work nothing less than

the abolition of all caste-based and invidious class-based legis-

lation” and particularly those “presumptively invidious . . .

classifications that disadva.tage a ‘suspect class’.” Plyler v.

Doe, 457 U.S. 202, 212 (1982). Even if there were some

minimal support for race-based prognostications of a juror’s

potential bias, the tenuous benefits of challenges based on such

stigmatizing and harmful classifications cannot outweigh the

costs to society in skewed juries, offended jurors, and judi-

cially sanctioned racism.

Those who would interpret Swain to authorize the exclusion

of jurors on the basis of race-based stereotypes are simply

wrong. This Court has never sanctioned the use of peremptory

challenges on the basis of racial classifications. Because such

discrimination strikes at the heart of the jury system itself, it is

important now to restate the message lost in Swain, profiting

from the experience developed in the state courts and from the

6 Craig involved a challenge to gender-based discrimination arguably

supported by empirical data. In that case, Oklahoma had established dif-

ferent drinking ages for men and women based on statistics tending to show

a quantifiable disparity in the incidence of driving while intoxicated. This

Court observed that “[e]ven were this statistical evidence accepted as ac-

curate, it nevertheless offers only a weak answer to the equal protection

question presented here.” 429 U.S. at 201. The Craig court demonstrated the

intolerability of classing people by religion, sex, or race even in light of

certain statistical information, commenting that

if statistics were to govern the permissibility of state alcool regulation

without regard to the Equal Protection Clause as a limiting principle, it

might follow that states could freely favor Jews and Italian Catholics

at the expense of all Americans, since available studies regularly

demonstrate that the former two groups exhibit the lowest rates of

problem drinking [sources omitted]... .

Id. at 208 n.22.

13

developments in sixth and fourteenth amendment jurispru-

dence over the last twenty years.

B. The Race-Based Use of Peremptory Challenges Violates

the Sixth and Fourteenth Amendment Rights of Defen-

dants, Jurors, and the Public.

The race-based use of peremptory challenges violates the

rights of at least three different groups of people under two

distinct constitutional provisions. It violates the rights of

defendants, jurors, and the public at large to freedom from

invidious discrimination under the equal protection clause, and

to trials by juries drawn from a fair cross-section of the

community under the sixth amendment. Each of these groups

suffers a distinct injury, and each injury is cognizable under the

well-established constitutional precedents of this Court.

Defendants

This Court held in 1880 that a defendant is denied equal

protection of the law when tried by a jury from which mem-

bers of defendant’s own group are excluded by reason of race.

Strauder, 100 U.S. 303. In Swain, the Court recognized that

the equal protection clause is violated even when the racial

exclusion is accomplished by means of the peremptory chal-

lenge, so long as the presumption of good faith is overcome by

a showing of systematic exclusion in case after case. This Court

should abandon Swain’s requirement of systematic exclusion,

and provide a remedy to any defendant who is the victim of

intentional race discrimination in jury selection. Swain’s rem-

edy must be extended for two reasons: first, evidence of

widespread discrimination shows that Swain’s irrebuttable pre-

sumption of good faith is not warranted; and second, the equal

protection clause prohibits isolated acts of racism as well as

systematic race discrimination.

When a defendant is tried by a jury from which a group is

systematically excluded, the defendant is also denied the sixth

amendment “right to a speedy and public trial by an impartial

jury.”In Taylor v. Louisiana, 419 U.S. 522, 527 (1975), this

Court declared “that the American concept of a jury trial

contemplates a jury drawn from a fair cross-section of the

14

community.”’ Thus, the sixth amendment forbids any unrea-

sonable interference with the “fair and undistorted chance”

that the jury represent the community. McCray, 750 F.2d at

1129. The peremptory chalienge may not be used as a means of

skewing a jury or stilling the voice of individual jurors solely

because of race.

Although Taylor dealt with the selection of the venire,

clearly the logic and concerns that prompted its injunction

against interference with the cross-section extend to the final,

critical step of selecting the actual petit jury. McCray, 750 F.2d

at 1128-29; see also Childress, 715 F.2d at 1319 (“The extension

of Taylor v. Louisiana from the venire to the petit jury has

much logical and practical appeal.”). Courts that have held

otherwise rely on the dictum at the end of Taylor, noting that

there is obviously “no requirement that petit juries actually

chosen must mirror the community,” id. at 538. See, e.g., Cases

cited in McCray, 750 F.2d at 1128 n.6. But that observation

simply recognizes that the Constitution regulates the jury

selection process, and not the composition of the jury itself.

While an actual cross-section is not required, the Constitution

prohibits any selection process that unfairly restricts the possi-

bility of drawing the jury from a fair cross-section of the

community.

“{I]n given factual instances, the sixth amendment require-

ment of cross-sectional representation has been held applicable

7 Taylor followed a long line of cases in which this Court had affirmed

the importance of a fair, representative cross-section. See, e.g., Glasser v.

United States, 315 U.S. 60, 86 (1945) (“[t}he proper functioning of the jury

system and indeed, our democracy itself, requires that the jury be ‘a body

truly representative of the community’ and not the organ of any special

group or class”); Ballard v. United States, 329 U.S. 187, 193-94 (1946);

Thiel, 328 U.S. at 220 (“prospective jurors [must] be selected by court

officials withowr systematic and intentional exclusion of [racial and other]

groups”); Peters, 407 U.S. at 503-04. In Peters, even the dissenters “com-

pletely agree{d] that juries should not be deprived of the insights of the

various segments of the community, for the “common-sense judgment of a

jury’ . . . is surely enriched when all voices can be heard.” Jd. at 510-11

(Burger, C.J., dissenting).

15

to the petit jury.” Grigsby v. Mabry, 758 F.2d 226, 230 (8th Cir.

1985), citing Adams v. Texas, 448 U.S. 38, 50 (1980); Ballew v.

Georgia, 435 U.S. 223, 236-37 (1978) (five-person jury too

small to permit representative cross-section); Witherspoon vy.

Illinois, 391 U.S. 510, 518-23 (1968) (exclusion for cause of

jurors opposed to death penalty undermines representative-

ness). In Ballew, this Court refused to permit the state “to deal

with the valid venire in a way that. . . limited the possibility

that a fair cross-section might be drawn.” McCray, 750 F.2d at

1129. Witherspoon dealt specificaliy with the challenge stage of

the proceedings, and thus indicated this Court’s concern with

the petit jury itself as well as the venire. 391 U.S. at 518-23.

Were this Court to tolerate the use of any stage in the

selection process to decimate systematically and intentionally

the representative venire promised in 7Jaylor, it would coun-

tenance an exception that swallows the rule and eviscerates the

significance of the guarantee." While there is no requirement

that the “representative character of the venire be carried over

to the petit jury,” the parties cannot be permitted baselessly or

invidiously to eliminate “the possibility of such a carry-over.”

McCray, 750 F.2d at 1129.

The fair cross-section requirement assures that the jury

reflects the broad range of human experience and preserves the

“subtle interplay of influence” by which diversity leads to ihe

truth. Taylor, 419 U.S. at 530. The multiplicity of insights

brought by a representative jury promotes a “diffused impar-

tiality” that fulfills the sixth amendment’s objective. Jd. Con-

versely,

{[w]hen any large and identifiabie segment of the commu-

nity is excluded from jury service, the effect is to remove

from the jury room qualities of human nature and va-

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

known and perhaps unknowable. It is not necessary to

8 \“When the prosecution employs its peremptory challenges to remoy 2

from jury participation all Negro jurors, the right guaranteed [in Jay/or] is

denied just as effectively as it would be had Negroes not been inciuded on the

jury rolls in the first place.” Harris v. Texas, 104 S.Ct. 3556, 3557 (1984)

(Marshall, J., dissenting from denial of certiorari).

16

assume that the excluded group will consistently vote as a

class in order to conclude, as we do, that its exclusion

deprives the jury of a perspective on human events that

may have unsuspected importance in any case that may be

presented.

Peters, 407 U.S. at 503-04. Overall impartiality is achieved by

allowing the interaction of the diverse beliefs and values jurors

bring from their own experiences.

Jurors evaluate evidence in light of their own individual

experiences, including the experience of membership in a

particular group. While it is impossible to predict the specific

impact of that experience on their views, the wholesale exclu-

sion of a group from jury service eliminates an important

perspective and permits the jury to become “dominated by the

conscious or unconscious prejudices of the majority.”” People

vy. Wheeler, 22 Cal.3d 258, 276, 583 P.2d 748, 761, 148 Cal.

Rep. 890, 902, (1978).

The Public

Not only defendants, but also victims, witnesses, and the

general public are harmed by the race-based use of the peremp-

tory challenge. They have an interest equal to that of the

defendant in freedom from intentional race discrimination. See

Strauder, 100 U.S. 303. They likewise have a strong sixth

amendment interest in the diffused impartiality of juries which

is essential to fair trials. See Singer v. United States, 380 U.S.

24 (1965). These rights of the public are discussed more fully

below.'° The important point here is that discrimination in jury

selection inflicts real and substantial injury not only on defen-

dants, but on all members of society.

9 While it offends the equal protection clause and the sixth amend-

ment to strike any group on the basis of race, it is particularly offensive to

strike minority jurors, because it is often possible by this means to eliminate

a minority group altogether, see, e.g., People v. McCray, 57 N.Y.2d at 555

(Meyer, J., dissenting); Commonwealth v. Soares, 377 Mass. 461, 487-88,

387 N.E.2d 499, 516, cert. denied, 444 U.S. 881 881 (1979). The majority

group, by contrast, cannot ordinarily be eliminated even by a constitutionally

offensive effort to do so. See, e.g., Roman v. Abrams, No. 85-Civ-0673-CLB

(S.D.N.Y. May 15, 1985), discussed below at 23.

10 = See discussion in Point III.

17

The judicial system must not only be fair, it must appear fair.

This nation will not soon forget the spectacle of all-white juries

acquitting the accused murderers of civil rights workers,

whether in the 1960’s or the 1980’s. When the public perceives

the judicial system as tainted by race prejudice, its confidence

in that system is destroyed, and the system itself is injured.

Regardless of who does it, “restricting jury service to only

special groups or excluding identifiable segments playing major

roles in the community cannot be squared with the constitu-

tional concept of jury trial.” Taylor, 419 U.S. at 530."' As this

Court stated long ago in considering another instance of unfair

exclusion from jury service, “[t}he injury is not limited to the

defendant—there is injury to the jury system, to the law as an

institution, to the community at large, and to the democratic

ideal reflected in the processes of our courts.” Ballard v.

United States, 329 U.S. 187, 195 (1946). Trial by jury has a

unique civic function; it empowers individuals over their offi-

cials, educates the citizenry, and reinforces this nation’s demo-

cratic heritage.'? In an institution so important and immediate

to the people, race prejudice should find no shelter.

Excluded Jurors

“People excluded from juries because of their race are as

much aggrieved as those indicted and tried by juries chosen

under a system of racial exclusion.” Carter v. Jury Commis-

sion, 396 U.S. 320, 329 (1970). No citizen of the United States

11 Because of these sixth amendment tair trial concerns and fourteenth

amendment equal protection concerns under the analogous provisions of

their respective state constitutions, courts in California, Massachusetts, and

Florida have prohibited both parties from excluding jurors on the ground of

race. Wheeler, 22 Cal.3d at 283 n. 29, 583 P.2d at 765 n.29, 148 Cal. Rptr. at

907 n.29; Soares, 377 Mass. at 490 n.35, 387 N.E.2d at 517 n.35; State v.

Neil, 457 So.2d 481 (Fla. 1984); see discussion in Point III.

i2 Distinguished commentators as well as the courts have observed the

significant educational role which trial by jury plays in the American polity.

See, e.g., De Tocqueville, Democracy in America, Vol. |, ch. XV1 at 291-98

(Vintage 1954) (“The jury, which is the most energetic means of making the

people rule, is also the most efficacious means of teaching it to rule well.”);

see also Powell, Jury Trial of Crimes, 23 Wash. & Lee L. Rev. 1, 5 n.13, 5-7

(1966).

may be told that, because of race, he or she is unqualified to

exercise the civic duty to try cases impartially. Such an exclu-

sion is precisely the kind of classification forbidden by the

fourteenth amendment’s guarantee of equal protection of the

law. “[{FJor racial discrimination to result in the exclusion of

otherwise qualified groups not only violates our Constitution

_. . but is at war with our basic concepts of a democratic

society.” Smith v. Texas, 311 U.S. 128, 130 (1940).

in Carter, this Court reaffirmed its adherence to one of the

earliest, landmark equal protection cases, Strauder v. West

Virginia, 100 U.S. 303, 308 (1880), noting that “[t}he exclusion

of Negroes from jury service is ‘practically a brand upon them

_ . ., an assertion of their inferiority. . . .’ ” 396 U.S. at 329.

The Strauder court had reasoned that racial exclusion denies a

class of potential jurors the “privilege of participating equally

im the administration of justice” and stigmatizes the

members of the public excluded by declaring them unfit for

jury service. /d. at 308.

Citizens are equally stigmatized as unfit to serve whether

they are excluded from jury service on the basis of race by

statute, e.g., Strauder, by commissioners who summon the voir

dire, e.g., Norris v. Alabama, 294 U.S. 587 (1935), or by the

lawyers who finally select the jury. The equal protection clause

protects each citizen against race discrimination at every stage

of the jury selection process.

It is plain that potential jurors perceive racial exclusion from

jury service as stigmatizing. In a case in Kings County, New

York, where a Hispanic defendant was charged with killing a

black victim, the defense counsel systematically struck all black

potential jurors. One excluded black juror sent a letter to the

District Attorney complaining bitterly of the exclusion and

seeking some way to purge the court system of this kind of

discrimination."

The Constitution abhors the reduction of an individual to a

racial stereotype, and demands, in the name of impartiality

and legitimacy, a jury selection system that preserves the

possibility of a representative cross-section on each jury. This

13 The text of the letter is attached as an appendix.

19

Court should not countenance the distortion of its standards

for a fair trial, or immunize jury selection from the demands

of the equal protection clause, by permitting the abuse of the

peremptory challenge to strike jurors on the basis of race.

POINT Il

THE SAFEGUARDS SET FORTH IN SWAIN FOR DE-

TECTING AND RECTIFYING UNLAWFUL DIS-

CRIMINATION IN THE USE “*F THE PEREMPTORY

CHALLENGE HAVE PROVEN INEFFECTIVE AND UN-

WORKABLE. BY CONTRAST, THE WHEELER PROCE-

DURE EFFECTIVELY PRESERVES THE PEREMPTORY

CHALLENGE AS A MEANS OF STRIKING BIASED

JURORS WHILE PREVENTING THEIR UNCONSTITU-

TIONAL USE TO ELIMINATE PEOPLE SOLELY BE-

CAUSE OF RACE.

A concern for the orderly administration of justice provides

no reason to permit the racially discriminatory use of peremp-

tory challenges. It does, however, make desirable the creation

of procedures to avoid unduly burdensome inquiry while

eliminating demonstrated abuses. In Swain, this Court sought

to satisfy both of these goals by creating a procedure which

requires a defendant alleging unlawful use of the peremptory

challenge in a particular case to establish that the prosecutor

was engaging in a systematic pattern of discrimination in “case

after case.” 380 U.S at 223-24. The experience of the lower

state and federal courts under this rule shows that it has

encouraged discrimination rather than controlled it, see discus-

sion at 7-9, and that the burden of meeting the Swain test is

nearly insurmountable. See authorities collected in McCray v.

New York, 461 U.S. 961, 965-66, (Marshall, J., dissenting

from denial of certiorari).

Nevertheless, some people are opposed to overruling the

irrebuttable presumption of Swain, contending that it would

create unduly burdensome procedural problems during the

course of criminal trials, and would irreparably dismantle the

20

peremptory challenge system. See, e.g., Swain, 380 U.S. at

221-22; People v. Davis, 95 Wl.2d 1, 447 N.E.2d 353, cert.

denied, 104 S. Ct. 507 (1983); People v. McCray, 57 N.Y.2d at

$47-49, 457 N.Y.S.2d at 443-45; Saltzburg & Powers, 41 Md.

L. Rev. 337; Younger, 21 Judges’ J. at 55-56. Neither of these

arguments is correct.

Since Swain, several state courts, and two federal circuits,

have adopted more workable and fairer approaches to the

problem of discrimination in the last stage of jury selection.

See McCray, 750 F.2d 1113 (2d Cir. 1984); United States v.

Leslie, 759 F.2d 366 (Sth Cir. 1985), reh’g en banc granted, No.

83-3719 (May 14, 1985); People v. Wheeler, 22 Cal.3d 258, 148

Cal. Rptr. 890, 583 P.2d 748 (1978); Commonwealth v. Soares,

377 Mass. 46., 387 N.E.2d 499 (1979); State v. Crespin, 94

N.M. 486, 612 F.2d 716 (Ct. App. 1980); State v. Neil, 457

So.2d 481 (Fla. 1984); New Jersey v. Gilmore, No. A-870-82T4

(Super. Ct. Mar. 8, 1985); People v. Thompson, 79 A.D.2d 87,

435 N.YS.2d 739 (2d Dep't. 1981), overruled, People v.

McCray, 57 N.Y.2d 542, 457 N.Y.S.2d 441 (1982), cert. denied,

461 U.S. 961 (1983)."* The experience of these jurisdictions

shows that judicial evaluation of the reasons for suspect

peremptory challenges can be accomplished through workable

procedures which do not impose a substantial burden on the

orderly administration of justice.

Under the rule first adopted by the California courts in

Wheeler, and substantially followed by other jurisdictions

which ban discrimination in jury selection, a party who be-

lieves his opponent is using peremptory challenges to strike

jurors on the basis of race is required to raise the point in a

14 The McCray court relied on the sixth amendment for its ban on

discriminatory jury selection. In Wheeler, Soares, Crespin, Neil, Thompson,

and Gilmore, the courts all rested their decisions on their respective state

constitutions. In Leslie, the court exercised its supervisory powers in address-

ing the issue. The Eighth Circuit has also encouraged its trial courts to use

their supervisory powers to prevent the abuse of peremptory challenges to

exclude jurors because of race. Childress, 715 F.2d at 1321; see also United

States v. Jackson, 696 F.2d $78 (8th Cir. 1982), cert. denied, 460 U.S. 1073

(1983).

21

timely fashion, make a complete record to support the claim,

and make a prima facie case of such discrimination to the

satisfaction of the trial court. That court should begin with a

strong presumption that the party exercising a peremptory

challenge is doing so on a constitutionally permissible ground

This presumption gives deference to the legislative decision to

permit and encourage such challenges, and gives respect to

counsel as officers of the court.

In considering whether there is a prima facie case of dis-

crimination, a court might find persuasive some or all of the

following: counsel has eliminated or nearly eliminated mem-

bers of one race from the venire; counsel has used a dispropor-

tionate number of peremptory challenges against members of

one race; counsel has struck jurors that have in common only

their race and nothing else; counsel has asked no questions of

challenged jurors on voir d.re and has obtained no informa-

tion, other than appearance, on which to base a challenge; the

defendant and the victim are of different races, and counsel

appears to be excludiig members of the opponent’s race.

The primary responsibility for evaluating this evidence

should rest with the trial court. The trial court should consider

the evidence in light of its observations of counsel in the

particular case, and its general knowledge of local conditions

and local counsel. The trial court may find no prima facie case,

and reject the claim of discrimination.

In the alternative, if the court finds a prima facie case, that

does not end the matter. At that point, the burden of coming

forward with evidence shifts, although not the ultimate burden

of persuasion. Opposing counsel may be asked to explain his

or her peremptory challenges, giving reasons that rebut the

prima facie case of discrimination. The reasons need not

justify a challenge for cause, but need only be plausible

reasons, sufficient to satisfy the court that no discrimination

was present. The trial court, of course, has the responsibility of

assessing the genuineness of the proffered explanations, and

should reject those which are clearly pretextual.

The ultimate burden of proof remains on the litigant who

claims discrimination. If that party proves the claim, and

22

opposing counsel fails to justify the challenges to the satisfac-

tion of the court, then all jurors must be dismissed, the venire

must be quashed, and the jury selection must begin anew. This

procedure follows the thoughtful analysis of this Court in

Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248

(1981).

The Wheeler approach has proven an effective and efficient

ban on discrimination. “Since the Wheeler decision, com-

plaints about the racial composition of trial juries have been

virtually eliminated in California.” Letter from Justice Stanley

Mosk, Sup. Ct. of Calif. to New York Times, A24, col. 3 June

24, 1983). Moreover, the rule has posed no practical problems

whatsoever. See, e.g., People v. Hall, 35 Cal.3d 161, 672 P.2d

854, 197 Cal. Rptr. 71 (1983) (observing that the People had

not produced or cited any empirical evidence in support of

their criticism of Wheeler, and that there is, in fact, a “dearth”

of such evidence). The Hail court remarked:

In particular, the assumption underlying some articles

critical of Wheeler [these sources omitted], and echoed by

35 Cal.3d at 170. Because the Wheeler approach requires a

genuine prima facie showing of discrimination imination before any

judicial inquiry may occur, the rule has not led to the numer

ous or protracted mid-trial hearings predicted by defenders of

23

prosecutor and not a single defense counsel expressed any

-riticism of the rule.

In Florida, a ban on race discrimination in jury selection has

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

There is absolutely no evidence that the rule has imposed any

undue burden on attorneys or the courts.

In New York, a similar rule against discriminatory peremp-

tory challenges was the law of the Second Judicial Department

for almost two years, as a result of People v. Thompson, 79

A.D.2d 87, 435 N.Y.S.2d 739 (2d Dep’t 1981), overruled,

People v. McCray, 57 N.Y.2d 542, 457 N.Y.S.2d 441 (1982),

cert. denied, 461 U.S. 961 (1983). During that period, it

created no difficulties, as amicus has consistently maintained

based on the experience of her office and conversations with

other attorneys and judges. See McCray, 750 F.2d at 1118.

Under the Second Circuit’s version of the rule in McCray,

750 F.2d 1113, there has been at least one hearing to consider

allegations of improper peremptory challenges. Roman v.

Abrams, No. -85-Civ. 0673-CLB (S.D.N.Y. May 15, 1985).'°

Despite the disiike for the rule of the particular judge presiding

at that trial, reflected in the tone of his opinion, and his failure

to require a prima facie showing prior to obliging the prosecu-

tor to rebut the challenge, the hearing actually served its

purpose with a minimum of difficulty. Having considered the

evidence, the court concluded that “the prosecutor used his

peremptory challenges deliberately, insofar as possible, to ef-

fect the invidious purpose of eliminating or reducing the

number of white jurors who would try Roman’s case.” /d., slip

op. at 15. A new trial was ordered, and the perceived injustice

rectified.

15 Roman involved a claim by a white defendant that a prosecutor had

used ten of his eleven peremptory challenges to exclude white and other

“light-skinned” jurors. Slip op. at 7. An additional peremptory challenge

was made against a white juror and then withdrawn when the court asked the

prosecutor to explain his reasons. At the hearing, the prosecutor offered

reasons for these challenges, but the court rejected them as pretextual

because he had failed to strike other jurors of different races who had met

the same criteria. Amicus takes no position on the accuracy of the court’s

factual finding, but merely notes that it was accomplished without substan-

tial burden on counsel or the court system.

24

Once this Court eliminates the ambiguity that has followed

in the wake of Swain, and makes clear that the Constitution

prohibits jury selection based on race, most lawyers will adjust

their practices and obey this Court’s command. The Wheeler

rule provides an efficient and effective enforcement mechanism

to deal with those who do not. Trial judges are fully capable of

distinguishing between bona fide justifications and sham ex-

cuses for discriminatory conduct.

California and other jurisdictions have provided a proce-

dural model for curtailing the impermissible use of peremptory

challenges. This Court should extend to citizens in the other

states the same protection for their constitutional rights.

POINT Il

THE BAN ON RACE DISCRIMINATION IN THE EX-

ERCISE OF PEREMPTORY CHALLENGES MUST EX-

TEND TO DEFENSE COUNSEL AS WELL AS TO

PROSECUTORS.

The ban on race discrimination in jury selection must extend

to defense counsel as well as to prosecutors if constitutional

rights are to be adequately protected. Sixth and fourteenth

amendment interests are equally offended regardless of who

skews the jury and discriminates against jurors on the basis of

race. Such discrimination is pervasive among defense counsel

as well as prosecutors. As the California, Massachusetts, and

Florida courts have recognized, the prohibition must extend to

defense counsel in order to guarantee that potential jurors are

not excluded and stigmatized in violation of their rights, and to

preserve the impartiality, representativeness, and appearance of

16 The Second Circuit has rightly observed that the

process of identifying discriminatory conduct and pretextual explana-

tions is performed daily in the course of litigation under Title VII of

the Civil Rights Act of 1964 and a host of other statutes.

McCray, 750 F.2d at 1132. Moreover, the need for such an evaluation does

not even arise unless an aggrieved litigant has made out a prima facie case.

25

fairness in the criminal jury trial system. Wheeler, 22 Cal.3d at

283 n.29, 583 P.2d at 765 n.29; Soares, 377 Mass. at 490 n.35,

387 N.E.2d at 517 n.35; Neil, 457 So.2d 481.

The defendant’s rights are not the only ones implicated in

the sixth amendment’s guarantee of a fair trial. This Court has

affirmed the state’s interest in prosecutions “tried before the

tribunal which the Constitution regards as most likely to

produce a fair result.” Singer v. United States, 380 U.S. 24, 36

(1965); see also Gannett Co. v. De Pasquale, 443 U.S. 368,

382-83 (1979) (“independent public interest in the enforcement

of Sixth Amendment guarantees”). Thus, the public is equally

entitled to a representative jury, fairly drawn from a cross-sec-

tion of the community unimpaired by a defendant’s improper

exercise of peremptory challenges.

A one-sided rule would unbalance the jury selection process

and undermine the possibility of a cross-section essential to

fairness and representativeness. The risk is real and substantial

because the practice of striking jurors on the basis of race is

widespread among defense counsel as well as prosecutors. See,

e.g., Commonwealth v. Little, 384 Mass. 262, 424 N.E.2d 504

(1981); Commonwealth v. Perry, 15 Mass. App. Ct. 932, 444

N.E.2d 1298, appeal denied, 388 Mass. 1105, 448 N.E.2d 766

(1983); Commonwealth v. DiMatteo, 12 Mass App. Ct. 547,

427 N.E.2d. 754 (1981), appeal denied, 385 Mass. 1101, 440

N.E.2d 1173 (1982).'’ Because the diversity of the community

contributes to impartiality, that possibility of a cross-section

must be preserved against illicit encroachment by either liti-

gant.

17 Prosecutors charged with engaging in the practice frequently re-

spond by pointing to similar behavior by defense counsel. See, e.g., People v.

Fuller, 136 Cal. App.3d 403, 417, 186 Cal. Rptr. 283, 291 (1982); Soares, 377

Mass. at 489 n.35, 389 N.E.2d at 517 n.35; Commonwealth v. Brown, 11

Mass App. Ct. 288, 416 N.E.2d 218 (1981). Of course, discrimination by

defense counsei does not justify discrimination by the prosecutor. It does,

however, demonstrate the need for a rule that prohibits discrimination by

both parties.

26

Moreover, a balanced rule serves to protect minority groups

in the community.

For example, when a white defendant is charged with a

crime against a black victim, the black community as a

whole has a legitimate interest in [the fair possibility of]

participating in the trial proceedings; that interest will be

defeated if the prosecutor does not have the power to

thwart any defense attempt to strike all blacks from the

jury on the ground of group bias alone.

Wheeler, 22 Cal.3d at 282 n.29, 148 Cal. Rptr. at 907 n.29, 583

P.2d at 765 n.29; Soares, 377 Mass. at 490 n.35, 387 N.E.2d at

$17 n.35. Minorities are particularly vulnerable to race-based

exclusion and the unfairness that results. See discucsion at

16n.9.

The consequences of permitting unrestrained use of peremp-

tory challenges by defense counsel were demonstrated in

Miami in 1980. White police officers were tried on charges that

they had beaten to death a black insurance executive. After the

defendants exercised their peremptory challenges to remove all

blacks from the panel, the all-white jury acquitted the defen-

dants. The verdict touched off rioting in which fourteen people

were killed and $200 million was lost in property damage,

inventory losses, lost wages, and lost tourist dollars. The

Florida governor’s report on the disturbance specifically identi-

fied the practice of excluding blacks from juries in racially

sensitive cases as a cause of the riots and a reason why blacks

in Dade County distrust the criminal justice system. See An-

drews v. State, 438 So.2d 480, 482 n.4 (Fla. Dist. Ct. App.

1983) (Ferguson, J., dissenting), quoting Miami Times, June

23, 1983, p. 1, col. 1.

Again, in 1984, violence and outrage followed the acquittal

of four Miami police officers acccused of killing black men. In

each of the cases, defense lawyers had used their peremptory

challenges to strike all blacks from the juries. New York Times,

Mar. 18, 1984, p. 23, cols. 1, 4. The exclusion of qualified

jurors solely on the basis of race outraged the community and

undermined the legitimacy of the judicial process. American

27

society cannot afford the loss of public confidence in the

fairness and integrity of this nation’s system of justice. See

Rose v. Mitchell, 443 U.S. 545, 555-56 (1979); Ballard, 329

U.S. at 195.

® Because impartiality, representativeness, and also the ap-

pearance of fairness are essential interests of society as well as

the defendant, these sixth amendment interests do not belong

to the defendant alone, and the Constitution does not permit

the defendant to abandon or defeat them. The Constitution

would not permit a defendant to elect to go to trial before a

five-person jury, see Baliew, or to waive the state’s constitu-

tional burden of proving guilt beyond a reasonable doubt, see

In re Winship, 397 U.S. 358 (1970).'* Neither does the Consti-

tution leave the important interests of a fair trial solely at the

mercy of either party to the judicial proceeding.

Moreover, when defense attorneys exclude jurors on the

basis of race, just as when prosecutors do, they violate the

rights of those citizens to equa. treatment irrespective of race.

Such an exclusion improperly denies the challenged, qualified

jurors their protected opportunity to participate in a funda-

mental governmental process. Carter, 396 U.S. 320; Strauder,

100 U.S. at 308. Furthermore, it stigmatizes them in their own

eyes and in those of any observers of the trial, which is, of

course, a public event. /d.

Thus, under the sixth and fourteenth amendments, a defen-

dant’s race-based use of the peremptory challenge violates the

rights of both the jurors and the public, even though the

discrimination is perpetrated by an ostensibly private actor. A

state cannot avoid its obligation to maintain a nondiscrimina-

tory jury selection system by delegating part of the selection

process to private parties. A state’s jury selection system is the

mechanism by which citizens are selected to participate in the

18 The existence of a constitutional right does not necessarily create a

coextensive power to waive that right. For example, in Faretta v. California,

422 U.S. 806 (1975), this Court rejected the notion that a defendant’s right to

counsel gave him an automatic right to represent himself at trial. Instead,

such right had to be “independently found in the structure and history of the

constitutional text.” /d. at 819 n.15.

28

judicial process. In selecting a jury, defense counsel is perform-

ing a governmental function, and therefore counsel is bound

bv the constitutional constraints by which all state actors must

abide."

The state action issue posed here ‘< analogous to that posed

in one of the White Primary Cases. Nixon v. Herndon, 273

U.S. 536 (1927). In Herndon, the Supreme Court held that

Alabama could not exclude blacks from voting by delegating

to a private political party the task of determining qualifica-

tions for primary voters, and permitting that party to bar

blacks from the party primary. Similarly, the state may not

exclude blacks or any racial groups from jury service by

delegating the task of jury selection in part to a private

attorney, and permitting that attorney to exclude a class of

jurors through discriminatory exercise of the peremptory chal-

lenge.

Moreover, defense counsel’s challenges would have no effect

unless they were enforced by the court, and the Constitution

prohibits the courts from enforcing an exclusion of jurors

solely on the basis of race. See, e.g., Shelley v. Kraemer, 334

U.S. 1 (1948).”° If a state’s peremptory challenge statute were

interpreted so as to authorize race discrimination, it would be

unconstitutional. The state simply may not maintain a dis-

criminatory jury selection system whether the discrimination is

practiced by government officials or private individuals.

Defendants have claimed that the prohibition cannot apply

to them because any restriction on their exercise of the peremp-

tory challenge inhibits their ability to obtain an impartial jury

19 A contrary conclusion is not required by Polk County v. Dodson,

454 U.S. 312 (1981), which held that a public defender does not ordinarily

act under color of state law for purposes of suit under 42 U.S.C. § 1983. In

fact, Polk County recognized that a public defender may act under color of

state law for some purposes. 454 U.S. at 324-25.

20 In Shelley, the Court held that the judicial enforcement of a racially

restrictive real estate covenant violates the fourteenth amendment. Similarly,

the Constitution prohibits the courts from serving as defendant's instrument

of discrimination on the basis of race.

29

and fair trial. The state courts have rightly rejected this claim.

See, e.g., Little, 384 Mass. 262, 424 N.E.2d 504; Common-

wealth v. Reid, 384 Mass. 247, 424 N.E.2d 495 (1981). While a

defendant is entitled to an unbiased jury, a defendant has no

constitutional right to peremptory challenges, which are exer-

cised only after biased jurors have been struck for cause.

Rosales-Lopez v. United States, 451 U.S. 182, 188 n.6 (1981);

Swain, 380 U.S. at 224. The right to an impartial jury can be

protected without granting a defendant the right to remove

unbiased jurors solely on the basis of race. Frazier v. United

States, 335 U.S. 497, 505 n.11 (1948); Stilson v. United States,

250 U.S. 583, 586 (1919).

Critics of the Wheeler rule maintain that because genuine

individual bias is difficult to reveal during voir dire, defen-

dants cannot obtain an impartial jury without relying on the

assumption that certain groups of people characteristically

harbor certain biases. See, e.g., People v. McCray, 57 N.Y.2d

at 547-548, 457 N.Y.S.2d at 443-445. This assertion is no more

valid for defendants than for prosecutors, and rests on an

invidious fallacy about the correlation between race and indi-

vidual bias. Because it is unfounded and unfair, this Court

should reject it.

Moreover, the claim that individuals can properly be consid-

ered and dismissed by class would defeat all antidiscrimination

laws. Opponents of such laws frequently say they cannot select

employees, or students, or tenants without relying on assump-

tions about group characteristics. The Constitution and the

laws of this nation do not permit that response. As discrimina-

tion has been outlawed in various aspects of life, people have

learned how to get the specific information about individuals

they need in order to make the choices formerly made on the

basis of impermissible group affiliations. Encouraging defense

counsel and prosecutors to do what the rest of society must is

mandated by “the strong policy the Court has consistently

recognized of combating racial discrimination in the adminis-

tration of justice.” Rose, 443 U.S. at 558.

CONCLUSION

The courts of this country have taken great strides in

eliminating race discrimination in education, in employment,

in access to public accommodations, and in many other areas.

Surely it is time for this Court to rid the judicial system of

intentional race discrimination. Trial by jury is the heart of the

judicial system, and one of its most important functions is to

command the confidence of the community in the justice of its

results. Any selection process which permits either party to

exclude jurors solely on the basis of race cannot hope to

command that confidence. In order to vindicate the constitu-

tional rights of defendants, jurors, and the public, this Court

should adopt the procedure urged by amicus and should purge

the jury selection process of intentional discrimination based

on race.

Respectfully submitted,

ELIZABETH HOLTZMAN

District Attorney

BARBARA D. UNDERWOOD

Assistant District Attorney

Counsel of Record

PETER A. WEINSTEIN

EVAN WOLFSON

Assistant District Attorneys

Kings County District Attorney’s Office

210 Joralemon Street

Brooklyn, New York 1120!

(718) 802-2156

Counsel for Amicus Curiae

June 28, 1985

APPENDIX

APPENDIX

11/21/84

Elizabeth Holtzman

District Attorney

210 Jorelmon Street

Brooklyn, N.Y.

e

Dear Mrs. Holtzman:

I am not sure that | am writing to the right person, if not

possible you will be able to put this bit of information in the

right place.

I am writing concerning the New York (Brooklyn) Judicial

system. Which has turned out to be one big joke, a waste of

time and the tax payers money.

l am a common laborer not professing to know law, but | do

have common sense and understanding. | was summon to

Supreme Court 11/15/84 to serve as a possible Trial Juror.

After walking about for four days, | was finally called and sent

to court room 574 part Il, 11/21/84. Presiding Judge Leone,

defendant Mr. Rosada. There were a least sixty or seventy

people sent to room 574 to pick a jury of twelve plus two

alternates. The majority of the groups sent were Blacks. Mr.

Rosado is being tried for Murder 11/23/84.

After telling us what the law expected of us as possible

Jurors, which as the Judge stated was common sense and a

promise from each of us to be fair and impartial then the

selection began; it made no difference to the Judge the District

Attorney or the defendants Lawyer that the majority of the

prospective Jurors were Black. They manage to pick thirteen

(13) whites and one black second alternate making sure of an

all white Jury.

We were also reminded that we if selected as a Juror, were

not suppose to take Sympathy into the founding of a Verdict.

But Mrs. Rosado was in the court room while the selection was

being made she is about seven months pregnant. She was

seated right a long with the prospective Jurors and if that isn’t

a sympathy pitch I've never seen one. Some of us do have

common sense.

And so I ask you Mrs. Holtzman if we Blacks don’t have

common sense and don’t know how to be fair and impartial,

why send these Summons to us? why are we subject to finds of

250.00 if we dont appear and told it’s our civic duty if we ask

to be excused. Why bother to call us down to these courts and

then over look us like a bunch of niave or better yet ignorant

children. We could be on our jobs or in schools trying to help

our selves instead of in court house Halls being Made fools of.

I will not sign my name because | am a little person and will

surely get the short end of the stick. I just thought it was time

for some one to Know about the Judicial system and if there is

anything that can be done or anyone who wants to do it, the

matter will be taken care of. A Copy of this letter will be sent

to Eye Witness News.

Thanking You