Amicus Curiae Brief — Batson v. Kentucky

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‘ | Qepreme Cout, 08,

J FILED

we. 6645S AUG 16 1985

In the Supreme Court of the

OcToser TERM, 1985

James KIRKLAND BATSON, PETITIONER

Vv.

COMMONWEALTH OF KENTUCKY

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF KENTUCKY

BRIEF FOR THE UNITE’) STATES AS

AMICUS CURIAE SUPPURTING AFPFIRMANCE

CHARLES FRIED

Acting Solicitor General

STEPHEN 8S. Trott

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solic’ or General

Srpney M. GLAZER

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether judicial supervision of the prosecution's per-

emptory challenges is constitutionally required where a

defendant's claim of racially-based exclusion is predicated

only on the exercise of peremptory challenges in his own

(1)

TABLE OF CONTENTS

Argument:

Petitioner did not establish that he was deprived of

a properly constituted petit jury or denied equal

Bg EE

A. Under Swain v. Alabama a defendant cannot

establish an equal protection violation by show-

ing only that black veniremen were subjected

to peremptory challenge by the prosecution in

B. A prosecutor’s consideration of the group iden-

tity of veniremen in exercising perempt :ry

challenges, in the manner permitted by Swain,

does not violate the Sixth Amendment fair

cross-section principle recognized by this Court.

C. Other criticisms of Swain are unpersuasive___..

TABLE OF AUTHORITIES

Cases :

Aldridge v. United States, 283 U.S. 308

Apodaca Vv. Oregon, 406 U.S. 404 000

Arlington Heights v. Metropolitan Housing De-

velopment Corp., 429 U.S. 252 00 eeeee

Belino v. State, 465 So. 2d 1043

Castaneda Vv. Partida, 430 U.S. 482 0

Commonwealth Vv. Henderson, 497 Pa. 23, 438 A.2d

EE a ee

Commonwealth vy. Reid, 424 N.E.2d 495...

Commonwealth vy. Soares, 377 Mass. 461, 387

N.E.2d 499, cert. denied, 444 U.S. 881...

(111)

SRB

Cases—Continued : Page

Duncan Vv. Louisiana, 391 U.S. 145 —...................... 4

Duren V. Missouri, 439 U.S. 357 .......... 5, 13, 14, 17, 18, 19

Grigsby v. Mabry, 758 F.2d 226 — .........-----.-.. 14

Ham v. South Carolina, 409 U.S. 524 —................ 27

King Vv. Nassau County, 581 F. Supp. 493 ............... 30

Lewis v. United States, 146 U.S. 370 0... 9

McCray V. Abrams, 750 F.2d 1113, petition for cert.

pending, No. 84-1426 0... 15, 16, 17, 23, 27, 29

McCray v. New York, 461 U.S. 961 —...................... 23, 25

Nevius v. State, 699 P.2d 1068 _............................... 15

Patton v. Yount, No. 83-95 (June 26, 1984)... 22

People v. Hall, 35 Cal. 3d 161, 672 P.2d 854, 197

OO, 16

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

915, cert. denied, 461 U.S. 960 0000. 15

People v. Payne, 99 Ill. 2d 135, 457 N.E.2d 1202,

cert. denied, No. 84-5330 (Nov. 13, 1984) _....... 26

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

Oe 4, 15, 16, 17

People v. Williams, 29 Cal. 3d 392, 628 P.2d 869,

Rn 17

People v. Williams, 97 Ili. 2d 252, 454 N.E.2d 220,

cert. denied, No. 83-5785 (May 14, 1984)... 15, 26

Pointer v. United States, 151 U.S. 396 9, 29

Rosales-Lopez v. United States, 451 U.S. 182........ 27

Smith ¥. Tewas, 311 U.S. 128 .....2......202.-ccceceeeeeeseseeeee 21, 22

State v. Crespin, 94 N.M. 486, 612 P.2d 716........ 15

State v. Gilmore, 199 N.J. Super. 389, 489 A.2d

ne ee 15

State v. Grady, 93 Wis. 2d 1, 286 N.W.2d 607 _........ 15

State v. Neil, 457 So. 2d 481 2... oon 15, 17

State v. Wiley, 698 P.2d 1244 — 15

Strauder v. West Virginia, 100 U.S. 308 2.0... 28

Swain v. Alabama, 380 U.S. 202 0000 passim

Tayor Vv. Lowisiana, 419 U.S. 522 000000 passim

Thiel v. Southern Pacifie Co., 328 U.S. 217 ........... 18

United States v. Canel, 708 F.2d 894, cert. denied,

| RRC ee Te 14

United States v. Carter, 529 F.2d 844, cert. de-

nied, 425 U.S. 961

Cases—Continued : Page

United States v. Childress, 715 F.2d 1313, cert.

denied, No. 83-5659 (Jan. 9, 1984) —.......... aiialad 14

United States v. Clark, 737 F.2d 679 —.................... 14

United States vy. Jenkins, 701 F.2d 850 00000... 14

United States v. Leslie, 759 F.2d 366 .....0000...... 15, 23, 28

United States v. Newman, 549 F.2d 240 0. 26

United States v. Thompson, 730 F.2d 82, cert. de-

nied, No. 83-6809 (Nov. 13, 1984) 00000000. 14

United States v. Whitfield, 715 F.2d 145 14

United States ex rel. Palmer v. DeRobertis, 738

SR ID cicsatcenesetadensiteecetetehdthatiasiddeatebl cathe eaneaeintseeeneeees 14

Washington v. Davis, 426 U.S. 229 0000 26

Weathersby V. Morris, 708 F.2d 1493, cert. denied,

8 ES ee 14

Williams v. Florida, 399 U.S. 78 0.000000. 5, 19

Willis v. Zant, 720 F.2d 1212, cert. denied, No. 83-

fg EE ES 14

Constitution, statutes, rules:

U.S. Const. :

Sy TEE cntigutteimnsineiemmenammannatitiniineel passim

SS EE NE ee 8, 12, 20

Equal Protection Clause 2... 7

Jury Selection and Service Act of 1968, 28 U.S.C.

ee GUE ctilicticterienrssheerecntentinshitninninienantitintatbindaniemniadeanie 12, 20

ag AEE SEE RESO NSPE EEC 20

ta ia 27

i Ee 1

Ky. Rev. Stat. (1985)

EE i ce 2

Ee siiieiaiemenndi 2

Fed. R. Crim. P.:

Rule 24(b).................... sceeitideleadiieskanebhamsesiehimeesinilansiiteia 1

Ky. R. Crim. P.:

a secteiiaednmndiiaeaemmmaniaiadeniiiaiat 3

Miscellaneous : Page

H.R. Rep. 1076, 90th Cong., 2d Sess. (1968) .......... 20

Note, Peremptory Challenges and the Meaning of

Jury Representation, 89 Yale L.J. 1177 (1980).. 22

Bureau of the Census, U.S. Dep’t of Commerce,

Statistical Abstract of the United States 1985

CC Ee 24

J. Van Dyke, Jury Selection Procedures (1977)... 29

Iu the Supreme Court of the United States

OCTOBER TERM, 1985

No. 84-6263

JAMES KIRKLAND BATSON, PETITIONER

COMMONWEALTH OF KENTUCKY

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF KENTUCKY

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING AFFIRMANCE

INTEREST OF THE UNITED STATES

Because Federal Rule of Criminal Procedure 24(b)

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In Part III of the Court’s opinion the Court turned to

Swain’s assertion that “there ha([d| never been a Negro

on a petit jury in either a civil or criminal case in Tal-

ladega County and that in criminal cases prosecutors

have consistently and systematically exercised their

strikes to prevent any and all Negroes on petit juz

venires from serving on the petit jury itself’ (380 U.S.

at 223). As indicated above, the Court ultimately con-

cluded that the record did not sufficiently support this

claim to require its definitive resolution. But the Court

tentatively suggested an important distinction raised by

the broad claim advanced in Swain. On the one hand,

the Court had in Swain decided “that it is permissible to

insulate from inquiry the removal of Negroes from a

particular jury on the assumption that the prosecutor

is acting on acceptable considerations related to the case

he is trying, the particular defendant involved and the

particular crime charged” (ibid.). On the other hand,

the equal protection claim was seen to take on “added

significance” when “the prosecutor in a county, in case

after case, whatever the circumstances, whatever the

crim. and whoever the defendant or victim may be” re-

moves black jurors by peremptory challenge, “with the

result that no Negroes ever serve on petit juries.” /bid.

The Court added (id. at 224 (emphasis added) ) :

If the State has not seen fit to leave a single Negro

proof might support a easonable inference that Ne-

There is no suggestion in the record that the prosecution

struck black prospective jurors in criminal

trials when the defendant was black, much less that the

prosecutor habitually struck black jurers regardless of

the circumstances of the particular case, so as to deny

black citizens the opportunity to participate as jurors in

the operation of the criminal justice system. Accordingly,

Swain is controlling here unless it is to be overruled. Be-

cause the basis most commonly cited for doing just that

(see, ¢.g., Pet. 4-5) lies in this Court’s Sixth Amend-

ment jurisprudence developed subsequently to Swain, we

turn to those cases before addressing directly the argu-

ments made for abandoning Swain.

B. A Prosecutor’s Consideration Of The Group Identity Of

Veniremen In Exercising Peremptory Challenges, In

‘The Manner Permitted By Swain, Does Not Violate The

Sixth Amendment Fair Cross-Section Principle Rec-

ognized By This Court

1. The Sixth Amendment provides in pertinent part

that in federal criminal prosecutions “the accused shall

enjoy the right to a speedy and public trial by an im-

partial jury” (emphasis added). In Duncan v. Louisiana,

391 U.S. 145 (1968), this Court held that the Sixth

Amendment right to trial by jury is made applicable to

state criminal trials by the Fourteenth Amendment.

Then, in Taylor v. Lowisiana, 419 U.S. 522, 526 (1975),

the Court made explicit what was implicit in prior deci-

sions: that “the presence of a fair cross-section of the

community on venires, panels, or lists from which petit

juries are drawn is essential to the fulfillment of the

Sixth Amendment’s guarantee of an impartial jury trial

in criminal prosecutions”. In reaching this result, the

Jury Selection and Service Act of 1

seq. (419 U.S. at 526-530), and the by

the institution of trial by jury: “to guard against the

exercise of arbitrary power-——-to make available the com-

monsense judgment of the community as a hedge against

the overzealous or mistaken prosecutor and in preference

to the professional or perhaps over conditioned or biased

response of a judge” (id. at 530). And the Court con-

cluded that “|t)his prophylatic vehic!e 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” (ibid.).

At the same time, the Court in Taylor made clear the

limits of its holding, deliberately preserving the outlines

of preexisting doctrines allowing substantial latitude in

jury selection procedures. The Court emphasized that

the “fair-cross-section principle must have much leeway

in application” (419 U.S. at 538), and explicitly re

affirmed ( ibid.) :

[W]e impose no requirement that petit juries ac-

tually chosen must mirror the community and reflect

the various distinctive groups in a De-

fendants are not entitled to a jury of any particular

composition, Fay v. New York, 322 U.S. 261, 284

(1947); Apodaca v. Oregon, 406 U.S. [404,] 413

{(1972)} (plurality opinion); but the jury wheels,

pools of names, panels or venires from which juries

are drawn must not systematically exclude distinc-

tive groups in the community and thereby fail to be

reasonably representative thereof.

In Taylor, the Court held that a state law excluding

any woman from consideration for jury service unless

she had filed a written statement volunteering for such

service that had resulted in gross underrepresentation

of women in the jury service wheel was inconsistent with

the Sixth Amendrient. Subsequently, in Duren v. Mis-

souri, 439 U.S. 357 (1979), the Court held that a state

law that provided an automatic exemption to wom»

seeking to be excused from jury service, which had pro-

duced similar underrepresentation in jury venires, was

similarly invalid. In Duren, the Court summarized the

elements of a criminal defendant’s prima facie showing

of a violation of the fair cross-section requirement. A

defendant must show (439 U.S. at 364):

(1) that the group alleged to be excluded is a “dis-

tinctive” in the community; (2) that the rep-

resentation this in venires from which

juries are selected is not fair and reasonable in rela-

tion to the number of such persons in the commu-

nity; and (3) that this underrepresentation is due

to systematic exclusion of the group in the jury

selection process.

Even when a defendant makes out the required showing

of “systematic disproportion” (439 U.S. at 368 n.26),

the State remains free to adduce “adequate justification

for this infringement” (ibid.) by demonstrating that “a

significant state interest” is served by “those aspects of

the jury-selection process * * * that result in the dispro-

portionate exclusion of a distinctive group” (id. at 367-

368 (footnote omitted) ) .

2. The courts of appeals have generally concluded that

Taylor and the fair cross-section requirement do not

impair the authority of Swain, and that, even under a

Sixth Amendment theory, a defendant complaining of

prosecutorial use of peremptory challenges must estab-

lish that strikes in his particular case are part of a pat-

tern of systematic exclusion. At least five circuits have

explicitly rejected Sixth Amendment claims." State

courts generally have taken a similar view of the bearing

* See Grigsby V. Mabry, 758 F.2d 226, 230 (8th Cir. 1985) (en

banc); United States ex rel. Palmer v. DeRobertis, 738 F.2d 168,

172 (7th Cir. 1984) ; United States v. Clark, 737 F.2d 679, 681-682

(7th Cir. 1964); United States v. Thompson, 730 F.2d 82, 85 (8th

Cir. 1984), cert. denied, No, 83-6809 (Nov. 13, 1984) ; Willis v. Zant,

720 F.2d 1212, 1219 n.14 (11th Cir. 1983), cert. denied, No. 83-1558

(June 18, 1984); United States v. Whitfeld, 715 F.2d 145, 146-147

(4th Cir. 1983); United States v. Childress, 715 F.2d 1313, 1321

Sth Cir. 1983) (en banc), cert. denied, No. 83-5659 (Jan. 9,

); Weathersby V. Morris, 708 F.2d 1498, 1497 (9th Cir, 1983),

cert. denied, 464 U.S. 1046 (1984). In at least two other circuits,

;

of the Sixth Amendment fair cross-section principle on

claims of discriminatory use of peremptory challenges.’

However, beginning with People v. Wheeler, 22 Cal.

3d 258, 583 P.2d 748, 148 Cal. Rptr. 890 (1978), a case

to a jury drawn from a representative cross section of

the community. See also State v. Crespin, 94 N.M. 486,

489, 612 P.2d 716, 718 (Ct. App. 1980); State v. Neil,

457 So. 2d 481 (Fla. 1984); State v. Gilmore, 199 N.J.

Super. 389, 489 A.2d 1175 (1985).

More recently, in McCray v. Abrams, 750 F.2d 1113

(1984), petition for cert. pending, No. 84-1426, a divided

panel of the Second Circuit held that the Sixth Amend-

members of a given cognizable group in the community |

have been made on the basis of the individual venire per-

sons’ group affiliation” (750 F.2d at 1131-1132). And in

United States v. Leslie, 759 F.2d 366, 374 (1985), a

divided panel of the Fifth Circuit held that, in federal

criminal prosecutions, “|i)f the defendant timely objects,

the district court must exercise its supervisory authority

* See, ¢g., People v. Williams, 97 Ill. 2d 252, 454 N.E.2d 220

(1983), cert. denied, No. 83-5785 (May 14, 1984); People v. Me-

Cray, 57 N.Y.2d 542, 448 N.E.2d 915 (1982), cert. denied, 461

U.S. 960 (1983); Beline v. State, 465 So. 2d 1043 (Miss. 1985) ;

State v. Wiley, 698 P.2d 1244 ( 1985); Nevius v. State, 699

P.2d 1063 (Nev. 1985); Commonwealth v. Henderson, 497 23

(1981), 438 A.2d 951; State v. Grady, 98 Wis. 2d 1, 286 N.W.2d

607 (1979).

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of a defendant’s prima facie case in Duren, the Court

included both the showing that “representation of this

group in the venires from which juries were selected is

not fair and reasonable in relation to the number of such

persons in the community,” and the showing that “this

underrepresentation is due to systematic exclusion of the

group in the jury seiection process” (439 U.S. at 364).

And the application of this test to the facts of Duren

underscores the historical perspective it imports. The

Court ascertained both the existence of underrepresenta-

tion (id. at 364-366) and the systematic nature of ex-

clusion (id. at 366-367) by examining composition over

an extended period of time, remarking (id. at 366 (em-

phasis added) ) that Duren’s “demonstration that a large

discrepancy occurred not just occasionally, but in every

weekly venire for a period of nearly a year manifestly

indicates that the cause of the underrepresentation was

systematic.” Thus the fair cross-section doctrine pro-

vides no basis for relieving a defendant of the burden

of showing consistent and systematic exclusion of black

prospective jurors, if he wishes to establish impermissible

use of prosecution peremptories.

b. Moreover, the argument thet Taylor and Duren

require abandonment of Swain pulls the fair cross-section

doctrine loose from its moorings in the Sixth Amendment

and ignores both the evolution of the cross-section doc-

trine and the rationale of Swain itself. The Sixth Amend-

ment does not, on its face, establish any fair cross-section

requirement. What it guarantees, instead, is an “impar-

tial jury of the State and district wherein the crime shall

have been committed” (emphasis added). To be sure,

in Taylor the Court confirmed language in prior cases

indicating that “‘(t]jrial by jury presupposes a jury

drawn from a pool broadly representative of the com-

munity’” (419 U.S. at 530, quoting Thiel v. South-

ern Pacific Co., 328 U.S. 217, 227 (1946) (Frankfurter,

J., dissenting) ). But, as we have shown, Taylor care-

fully distinguishes the inclusionary process of forming

the jury pool from what is by nature an exclusionary

process of eliminating particular persons from service on

a particular jury through the challenge system. 419 U.S.

at 538.

Indeed, the importance of this distinction is confirmed

by this Court’s decisions in Williams v. Florida, 399 U.S.

78 (1970), and Apodaca v. Oregon, 406 U.S. 404 (1972),

upholding, respectively, the authority of states to employ

six-person juries and to accept nonunanimous verdicts.

Each of these cases articulates the fair cross-section prin-

ciple as a component of the Sixth Amendment right to

jury trial. Apodaca, 406 U.S. at 410 (opinion cf White,

J.); Williams, 399 U.S. at 100. Yet, each case records

the Court’s understanding that it is the traditionally un-

fettered exercise of the peremptory challenge that prop-

erly limits the scope of the fair cross-section doctrine,

rather than the reverse. Thus, in Williams, Justice White

explained for the Court (399 U.S. at 102 (emphasis

added ) ) :

Even the 12-man jury cannot insure representation

of every distinct voice in the community, particu-

larly given the use of the peremptory challenge. As

long as arbitrary exclusions of a particular class

from the jury rolls are forbidden, see, e.g., Carter Vv.

Jury Commission, 396 U.S. 320, 329-330 (1970),

the concern that the cross-section will be significantly

diminished if the jury is decreased in size from 12

to six seems an unrealistic one.

Similarly, in rejecting the fair cross-section objection to

nonunanimous verdicts in state cases, Justice White reit-

erated that “[a]ll that the Constitution forbids * * * is

systematic exclusion * * *” (Apodaca, 406 U.S. at 413

(plurality opinion) (emphasis added) ).

ce. The fair cross-section doctrine is thus but an in-

terpolation of the Sixth Amendment right to trial by

jury. It helps to clarify important aspects of that right,

but does not define every facet thereof. Indeed, this con-

clusion is underscored by Duren itself, which cautions

that, even with respect to the constitution of jury venires

(the precise subject of the fair cross-section doctrine),

the elements of the defendant’s prima facie case do not

exhaust the required inquiry. Rather, demonstration of

a “significant state interest” that is “manifestly and pri-

marily advanced” by selection criteria or procedures re-

sponsible for “disproportionate exclusion”’ is sufficient to

sustain such arrangements. Duren, 439 U.S. at 367-368.

Accordingly, the fair cross-section standard is far from

absolute or exclusive even within its proper domain. In

this context, the historical and functional justifications

for the relatively unfettered exercise of peremptory chal-

lenges that were found sufficient in Swain to “provide| |

justification for striking any group of otherwise qual-

ified jurors in any given case, whether they be Negroes,

Catholics, accountants or those with blue eyes” (380

U.S. at 212), are equally sufficient to surmount challenge

under the Sixth Amendment. Indeed, in light of the

“very old credentials” possessed by the peremptory chal-

lenge (ibid.), the Sixth Amendment, which necessarily

incorporates in substantial respects historical jury prac-

tices, is a far weaker basis upon which to challenge

alleged abuse of the peremptory challenge system, than

the Fourteenth Amendment doctrine of equal protection,

the primary focus of consideration in Swain, which obvi-

ously was intended to overturn some aspects of prevail-

ing state law."'

11 In reconciling the traditional peremptory challenge system with

the requirements of the Sixth Amendment it is instructive to con-

sider the accommodation made by Congress in the Jury Selection

and Service Act of 1968, 28 U.S.C. 1861 et seq. The statute

explicitly states the policy of the United States that every

litigant entitled to trial by jury is entitled to a petit jury “se-

lected at random from a fair cross section of the community in the

district or division wherein the court convenes.” 28 U.S.C. 1861.

At the same time, the House Report makes clear that there was no

intention to disturb Swain v. Alabama as it bears upon federal

jury selection (H.R. Rep. 1076, 90th Cong., 2d Sess. 5-6 (1968).

It should be noted, however, that the bill does not change the

method of challenging jurors at voir dire. In particular, the

bill leaves undisturbed the right of a litigant to exercise his

peremptory challenges to eliminate jurors for purely subjective

reasons.

While the legislative decision obviously is not controlling with

respect to the proper interpretation of the Sixth Amendment, it

We note, as well, that Swain, while formally addressed

to a claim of denial of equal protection (380 U.S. at 221),

will not bear a cramped interpretation that renders it

inapplicable to renewal of the same claim under the

Sixth Amendment. Little if anything in the Court's

analysis of a claim of discrimination founded only upon

the exercise of peremptory challerges in a particular

case depends on the contours of equa! protection analysis

or proof. Rather, as we have rehearsed (pages 9-11,

supra), the Court’s analysis rests primarily on the his-

torical status and important contemporary functions of

the peremptory challenge system. 380 U.S. at 212-222.

And the practical objections to judicial scrutiny of per-

emptory challenges that the Court found telling (id. at

221-222) are equally applicable to a Sixth Amendment

claim. The “radical change in the nature and operation

of the challenge” (ibid.) that the Court foreclosed in

Swain is no more warranted here.

Indeed, there is no reason to think that Swain was

decided by a Court oblivious to the fair cross-section

aspects of the jury trial right. In Taylor the Court

emphasized that its decision was almost completely fore-

shadowed by precedent. See 419 U.S. at 526, 535. In

particular citing Smith v. Texas, 311 U.S. 128 (1940),

the Court observed (419 U.S. at 528 (citation omitted) )

that

[t}he unmistakable import of this Court’s opinions,

at least since 1940 * * * is that the selection of a

petit jury from a representative cross section of the

community is an essential component of the Sixth

Amendment right to a jury trial.

And one of the key passages from Smith (311 U.S. at

130) upon which the Court relied in Taylor also formed

provides substantial support for the conclusion that the relatively

unfettered peremptory challengs system allowed to stand in Swain

is consistent with the concept of a jury trial under the “American

system of justice” (Taylor, 419 U.S. at 530). Indeed, Taylor itself

invokes the language and legislative history of the Act in support

of recognition of the fair cross-section doctrine under the Sixth

Amendment. See page 12, supra.

———e

—_—__

part of the Court’s analytical basis in Swain. Compare

419 U.S. at 527 with 380 U.S. at 204.

d. The point of the historical and functional review

in Swain is that there is a substantial argument from

experience that “peremptory challenge is a necessary

part of trial by jury” (380 U.S. at 219). And the nub

of the Court’s functional analysis is that the free and

unsupervised availability of peremptory challenges is an

excellent method of “eliminat{ing| extremes of partiality

on both sides” and “assur|ing| the parties that the jur-

ors before whom the: try the case will decide on the

basis of the evidence placed before them and not other-

wise” (ibid.). These are objectives that are fundamental

to the fulfillment of Sixth Amendment right to trial by

“an impartial jury.” See, e.g., Patton v. Yount, No.

83-95 (June 26, 1984), slip op. 11 n.12. Because the

impartiality of the jury is explicitly required by the

Sixth Amendment, it can scarcely be argued that an

historically effective means for attaining that objective

should be abandoned in deference to the fair cross-section

doctrine that has been developed under the Sixth Amend-

ment as a companion means of contributing to the same

objective. There is no reason, based on currently avail-

able data, to conclude that case-specific consideration of

prospective jurors’ group identity characteristics in the

exercise of peremptory challenges by both the prosecu-

tion and the defense will tend to bias the jury toward

either acquittal or conviction. See Note, Peremptory

Challenges and the Meaning of Jury Representation,

_- Yale LJ. 1177, 1193-1196 (1980). What ultimately

matters under the Sixth Amendment is whether the jury

that remains after the exercise of all challenges is im-

partial, not whether some or ail of the persons who were

eliminated by peremptory challenge would have served

impartially. Thus, under a balanced and faithful read-

ing of the Sixth Amendment, the fair cross-section doc-

trine should not be permitted to override the values

served by unconstrained exercise of peremptory chal-

lenges, absent demonstration of a pattern of systematic |

exclusion of the kind condemned in Swain’s dictum.

e. It has been suggested, however, that “(t]he right

to a jury drawn from a fair cross section of the com-

munity is rendered meaningless if the State is permitted

to use several peremptory challenges to exclude all Ne-

groes from the jury.” McCray v. New York, 461 US.

961, 967 (1983) (Marshall, J., dissenting from the de-

nial of certiorari). We disagree.

As Judge Garwood observed in United States v. Leslie,

759 F.2d at 393 (dissenting) :

Assuming the prosecution uses its peremptories for

the purpose of prevailing in the particular case * * *

the jury drawn from a venire representative of all

cognizable groups, but from which one group has

been eliminated by prosecution group-based peremp-

tory challenges, generally is more likely to be ac-

quittal prone than a jury drawn from an otherwise

similar venire that excludes any members of the

same group. In the latter instance, unlike the for-

mer, the prosecution could eliminate the most ac-

quittal prone [veniremen] by using peremptory chal-

lenges it otherwise would have used to eliminate the

group in question.

To put the matter another way, if one assumes the

competence of the prosecutor and his desire to secure a

peremptory challenges available to the prosecution is

not unreasonably large. As Judge Meskill explained in

McCray Vv. Abrams, 750 F.2d at 1138 (dissenting) :

case, the prosecutor may prefer to challenge a white

social worker than a black veteran.

We add that the competent prosecutor will also have to

husband the available peremptory challenges to strike

those prospective jurors who, by reason of their answers

or demeanor during voir dire, suggest unreceptiveness

to the prosecution’s case or any idiosyncracy of person-

ality that might “hang” a jury. Conversély, any prose-

eutor not blinded by racial prejudice will be cognizant

that black persons are disproportionately the victims of

some types of crimes (see Bureau of the Census, U.S.

Dep't of Commerce, Statistical Abstract of the United

States 1985, at 169-170) and accordingly that many black

jurors, especially women and older persons, may be par-

ticularly sensitive to the importance of law enforcement.”

The upshot is that if a prosecutor is engaged in a truly

acially motivated course of striking black veniremen be-

cause they are black ‘and not because of any reason—

however subjective—to believe that, as individuals, they

are more likely to vote to acquit in a particular case), he

disserves the prosecution, as weil as the interests of pro-

spective jurors—but probably not the interest of the de

fendant. Accordingly, there is no reason to think that

judicial oversight is needed to deter such unprofessional

behavior. In any event, if such behavior is nevertheless

part of the regular policy of any prosecuting office, the

Swain dictum strongly suggests that a remedy will be

available.

These observations illustrate that race is only one of numerous

group characteristics (such as age, sex, family status, occupation,

ete.) which in combination may influence a litigant’s decision

whether to challenge a particular prospective juror, in the context

of the characteristics of the other persons under consideration.

It is particularly instructive that diversity in non-racial group

characteristics has increased substantially among black persons in

the United States since Swain was decided. For example, the per-

centage of black adults (25 years or older) with 4 years of high

school (or more) education was 31.4 in 1970 and 56.8 in 1983.

Statistical Abstract of the United States 1985, supra, at 136.

See also id. at 446 (income statistics).

C. Other Criticisms Of Swain Are Unpersuasive

1. Two arguments not resting on the fair cross-section

doctrine have also been adduced in favor of abandon-

ing Swain v. Alabama. First, it is argued that Swain

unjustifiably requires “several [to] suffer discrimina-

tion because of the prosecutor’s use of peremptory chal-

lenges before any defendant can object” (McCray v. New

York, 461 U.S. at 965 (Marshall, J., dissenting from

the denial of certiorari) (footnote omitted) ). Second, it

is said tnat “the standard of proof for discrimination in

Swain imposes a nearly insurmountable burden on de-

fendants” (ibid. (footnote omitted)). We do not find

these contentions persuasive.

a. Swain’s requirement that a defendant demonstrate

a pattern of systematic exclusion or discrimination be-

fore casting upon the prosecution the burden of justify-

ing its peremptory challenges is not an anomaly in the

law. As we have indicated above (pages 18-19), it is

consistent with the normal method of proving a prima

facie violation of the fair cross-section doctrine. It is

equally consistent with the method of proof employed

when an equal protection violation is alleged. The ele-

ments of a prima facie case of discriminatory purpose

are summarized in Castaneda v. Partida, 430 U.S. 482,

494 (1977) (emphasis added), where the allegation of dis-

crimination concerned selection of grand jurors:

[I}n order to show that an equal protection vio-

lation has occurred * * *, the defendant must show

that the procedure employed resulted in substantial

underrepresentation of his race or of the identifiable

group to which he belongs. The first step is to es-

tablish that the group is one that is a recognizable,

distinct class, singled out for different treatment

under the laws, as written or as applied. Hernandez

Vv. Texas, 347 U.S., at 478-479. Next, the degree of

underrepresentation must be proved by comparing

the proportion of the group in the total population

to the proportion called to serve * * *, over a signifi-

cant period of time. Id., at 480. * * *. Finally,

* * * a selection procedure that is susceptible of

abuse or is not racially neutral supports the pre-

sumption of discrimination raised by the statistical

showing.

Castaneda also explains why it is that this kind of

proof, establishing exclusion over a period of time, is

required. 430 U.S. at 493. In order to establish a denia! of

equal protection proof of discriminatory purpose, rather

than simply racially disproportionate impact, is required.

Washington v. Davis, 426 U.S. 229 (1976). Absent proof

of consistent exclusion or underrepresent ation, statistics

cannot provide the necessary “clear pattern. unexplainable

on grounds other than race, emerg[ing] from the effect of

the state action” otherwise “neutral on its face’ that is

necessary to make out a prima facie case of discrimina-

tory purpose. Village of Arlington Heights v. Metropoli-

tan Housing Development Corp., 429 U.S. 252, 266

(1977). Thus, absent direct proof that the prosecution is

acting on grounds of racial prejudice rather than exer-

cising his peremptory challenges in a professional manner

to strike jurors deemed least likely to be receptive to the

government’s case, it is entirely proper to require that a

defendant challenging prosecution peremptories demon-

strate, as part of his prima facie case, a consistent pattern

of systematic exclusion.

b. We also find unpersuasive the argument that Swain

makes it unduly difficult to demonstrate impermissible

use of peremptory challenges even when such abusive

practices are actually going on. There are cases in which

such statistics have been collected and produced, albeit

proof of impermissible exclusion generally has not been

established. And in appropriate circumstances prosecu-

torial officials may be called as witnesses on this subject,

as the Court indicated in Swain. 380 U.S. at 227-228.

Moreover, public defender’s offices and defense counsel’s

18 See, e.g., United States v. Newman, 549 F.2d 240 (2d Cir.

1977) ; United States v. Carter, 528 F.2d 844 (8th Cir. 1975), cert.

denied, 425 U.S. 961 (1976); People v. Williams, 97 Ill. 2d at

271-273, 454 N.E.2d at 229; People v. Payne, 99 Ill. 2d 135, 457

N.E.2d 1202, 1210-1211, cert. denied, No. 84-5330 (Nov. 13, 1984)

(Simon, J., dissenting) .

organizations are well situated to collect the requisite

statistics. Furthermore, means can readily be devised by

which court clerks could assist in preserving the neces-

sary record as to the manner in which peremptory chal-

lenges have been exercised. Cf. 28 U.S.C. 1868. Accord-

ingly, there is no sufficient reason to revise the elements

of a prima facie case of unlawful purpose discrimination

suggested in Swain.

2. Swain has also been criticized on the ground that

its rationale accepts the pernicious notions that “all per-

sons who share an attribute, such as the same skin color,

will ipso facto view matters in the same way, and that

minority groups are less able than whites to decide the

ease solely on the basis of the evidence” (McCray Vv.

Abrams, 750 F.2d at 1131; see also id. at 1121). If

Swain actually depended on such notions we assuredly

would not advocate its continuing vitality. But we can-

not agree that Swain acceptseither of these offensive

notions.

First, Swain does not asume that individual juror’s

verdicts are determined by their race or other facet of

their group identity. Instead, the Court simply recog-

nized that peremptory challenges are necescarily exer-

cised upon very limited information and that, given the

available data, it is not necessarily irrational nor reflec-

tive of racial prejudice to consider the possibility that

a juror from a given distinctive group in the population

may be at least marginally more likely to be disposed

toward—or against—favorable consideration of a given

defendant. Recognition of this possibility is not incon-

sistent with this Court’; decisions, and indeed may be

required to protect a defendant’s rights. See Ham v.

South Carolina, 409 U.S. 524 (1973); Aldridge v. United

States, 283 U.S. 308 (1931); see also Rosales-Lopez V.

United States, 451 U.S. 182, 192 (1981) (opinion of

White, J.).

Moreover, when persons of all societal groups are seen

to be included in the jury pool, the elimination of par-

ticular black prospective jurors in a particular case

through the exercise of peremptory challenges lacks the

stigmatizing effects, implying that group’s unfitness to

serve or inferior status, that are one of the evils of de

jure or even de facto exclusion of minority jurors from

service. See Strauder v. West Virginia, 100 U.S. 303, 308 \

(1879). Stigmatizing effects are avoided in this con-

text both because members of every distinctive group are

both in theory and in practice subject to peremptory ex-

clusion because of perceived affinity with a defendant and

because the prosecutorial challenge takes place in an ad-

versary context where it is balanced by the defendant’s

challenges to other prospective jurors. Thus, realistically

speaking, the prosecutor’s challenges in a particular case

do not stand even as an implied official pronouncement

respecting the relative capabilities or rights of various

groups in society."* In addition, where, as in Kentucky and

tl ll al

14 See United States v. Leslie, 759 F.2d at 392 (Garwood, J.,

dissenting) (emphasis in original) :

Thus, excluding a particular cognizable group from all venire +E fh

pools is stigmatizing and discriminatory in several #related

ways that the peremptory challenge is not. The former singles

out the excluded group, while individuals of all groups are

equally subject to peremptory challenge on any basis, including

their group affiliation. Further, venire-pool exclusion bespeaks

a priori across-the-board total unfitness, while peremptory-

strike exclusion merely suggests potential partiality in a par-

ticular isolated case. Exclusion from venires focuses on the

inherent attributes of the excluded group and infers its in-

feriority, but the peremptory does not. To suggest that a

particular race is unfit to judge in any case necessarily is

racially insulting. To suggest that each race may have its

special concerns, or even may tend to favor its own, is not.

For instance, it says nothing adverse, or even truly racial,

about blacks to infer that they may be more likely to have

greater antipathy to the Ku Klux Klan than whites. Finally,

the role played by the decision maker is significant. If the

neutral stracturer of the system excludes a cognizable group,

the exclusion necessarily represents the official judgment of

society that the group is generally inferior. Under the ad-

versary framework of a trial, however, society is neutral;

neither side is favored, neither speaks for society, each speaks }

only for itself. To be peremptorily challenged by one side or

the other hence bespeaks a judgment which is neither societal

nor even normative, but merely reflects the tactical determina-

in some federal courts, peremptory challenges are exer-

cised simultaneously in a nonverbal fashion, the jury

chosen cannot even be certain as to which party struck

which veniremen."

3. It is appropriate, finally, to consider the practical

difficulties that would attend modification of the rule of

Swain.

First, there would be the serious question whether de-

fense peremptories should be comparably restricted. As

the Court emphasized in Swain itself (380 U.S. at 219),

the peremptory challenge is “ ‘one of the most important

rights secured to the accused’ ” (quoting Pointer v. United

States, 151 U.S. at 408). Indeed, one of the important

uses of defense peremptory challenges in many cases

where the defendant is black is to eliminate white jurors

who are believed to harbor subtle, unacknowledged, or even

unconscious bias against blacks. It is widely believed by

defense counsel that challenges for cause are an insuffi-

cient protection for this purpose. J. Van Dyke, Jury Se-

lection Procedures 168 (1977). Yet, a rule grossly differ-

entiating between prosecutorial and defense use of per-

emptories would distort the present role of the peremptory

challenge system in effectuating the constitutional re-

quirement of jury impartiality.

The additional judicial supervision of peremptory chal-

lenges sought by petitioner would also impose unwar-

ranted burdens on the courts. As Judge Meskill observed,

dissenting in McCray, 750 F.2d at 1139, the logic of the

Sixth Amendment analysis could be carried very far in-

deed: “[{MJen, women, old people, young people, laborers,

professionals, Democrats, Republicans, ete.” may all be

put forward as distinctive groups presumptively im-

tion of one contesting litigant’s counsel that the challenged

person is, under “he discrete facts of that particular case, more

likely to favor the other side, which in the ultimate judgment

of society may or may not prove to be the side of virtue and

right.

1° In the present case, the judge’s exemplary courtesy in excusing

the remaining members of the pool after the jury was sworn (see

note 2, supra) further minimized any possibility of stigma.

munized from routine peremptory challenge. We need not

forecast a reductio ad absurdum to emphasize the dra-

matic change such a regime would effect in the tradi-

tional peremptory challenge system.

There would also predictably be undesirable second or-

der consequences as well. Pressure would increase for

more elaborate voir dire to enable counsel to flesh out

their hunches that presently underlie unexplained per-

emptory challenges. See page 17 note 10, supra. And

the trial courts would be faced with the “extremely diffi-

cult task of assessing the internal motives of attorneys”

(King v. Nassau County, 581 F. Supp. 493, 501-502

(E.D.N.Y. 1984))}. We do not rely on the unfortunate

reality that counsel would face incentives to be less than

candid with the inquiring court—although that possibility

must be recognized. Rather, even if counsel are scrupulous

and make every effort to be candid in responding to this

unfamiliar form of inquiry, it may often be difficult for

counsel accurately to explain the precise motivation be

hind challenges to particular persons. See Swain, 380

U.S. at 220. Given the weakness of the affirmative argu-

ment for abandoning or revising the Swain rule, there is

simply ne sufficient reason for this Court to require state

and federal courts and litigants before them to undertake

the radical change proposed by petitioner.

CONCLUSION

The judgment of the Supreme Court of Kentucky

should be affirmed.

Respectfully submitted.

CHARLES FRIED

Acting Solicitor General

STEPHEN S. TRoTT

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

SIDNEY M. GLAZER

AUGUST 1985 Attorney

W wv. S&S. GOVERNMENT PRINTING OFrice; 1965 461531 1o276

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