Amicus Curiae Brief — Teague v. Lane

No. 87-5259

» Court, U.S,

kiLkD

MAY i2 1968

F. SPAMIOL, JR,

CLERK

IN THE

Supreme Court of the United

Octoser Term, 1987

Frank Dean Teacvue,

Petitioner,

V.

Micwaeu Lang, et al.,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SEVENTH CIRCUIT

— —_—

——— —_— —

BRIEF AMICI CURIAE OF THE NAACP LEGAL

DEFENSE AND EDUCATIONAL FUND, INC.,

AND THE AMERICAN CIVIL LIBERTIES

UNION IN SUPPORT OF PETITIONER

— -— —-— — -—-__—

—- —_ a _

Jutius LeVonne CHAMBERS

CuHarLes STEPHEN Ratston*

NAACP Legal Defense and

Educational Fund, Ine.

99 Hudson Street

New York, New York 10013

(212) 219-1900

Joun A. Powe

Steven R. Swaprro

American Civil Liberties Union

132 West 43rd Street

New York, New York 10036

(212) 944-9800

Attorneys for Amici Curiae

*Counsel of Record

Question Presented

Whether a prosecutor’s use of

peremptory challenges to exclude Blacks

from jury service because of their race

violates the Sixth and Fourteenth

Amendments to the Constitution. of the

United States?

Table of Contents

Question Presented ..+s»+-e«eeestees i

Fable of Authorities ..+«e«*«+s+st + s aan

Summary of Argument .....+.. +++. 4

I. THE EXCLUSION OF BLACK JURORS

VIOLATES THE RIGHT TO HAVE A JURY

REPRESENTATIVE OF THE COMMUNITY. . .6

II. SWAIN DOES NOT REQUIRE THE COURT

TO IGNORE A PROSECUTOR’S

VOLUNTARY ADMISSION OF RACIAL

DISCRIMINATION IN THE EXERCISE

OF PEREMPTORY CHALLENGES .... 16

Conclusion . ..«seeesesee 8 & & 25

ii

a Ss

Table of Authorities

Cases:

Abrams v. McCree, 92 L.Ed.2d

705 (1986) .* . > . . *. . . . . . 13

Alexander v. Louisiana, 405

Webbe 625 (1972) . . . >. . . . >. 3, 12

Allen v. Hardy, 478 U.S. P

92 L.Ed.2d 199 (1986) ...... 13

Apodaca v. Oregon, 406 U.S. 404

(1972) . . . . . . . . . >. . . . 10

Ballard v. United States, 329 U.S.

187 (1946) aoe es «© ¢€e¢eeeee 8

Ballew v. Georgia, 435 U.S.

223 (1978) > . > . . >. >. . >. . >. 12

Batson v. Kentucky, 476 U.S.

79 (1986) . * . . . >. . >. 17, 21, 24

Brown v. Allen, 344 U.S. 443 (1953) ..7

Carter v. Jury Commission, 396

U.S. 320 (1970) >. >. >. >. *. . . . . . 3

Duncan v. Louisiana, 391

UE. 5 5 «6 5 6 0 eo te G

Fay v. New York, 332 U.S. 261

(1947) >. . . >. . . . . . . . . . 10

Lockhart v. McCree, 476 U.S.

__, 90 L.Ed.2d 137 (1986) . . 10, 13

McCray v. Abrams, 750 F.2d 1113

(2a Cir. 1984), vacated and

remanded, 106 S.Ct.

3269 (1986) . .+«++-«e« « 4, 10, 23

iii

Michigan v. Booker, 92 L.Ed.

2G 70S (3906) «© © ee ee @ © © 13

Mitchell v. Johnson, 250 F. Supp.

117 (M.D. Ala. 1966) a ae ae a ie oe

Peters v. Kiff, 407 U.S. 493

(1972) . . . . . . 7 >. . .* . * . 14

Plessy v. Ferguson, 163 U.S.

S87 (€i80G) « © eee eeeveee oe

toa)

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

Swain v. Alabama, 380 U.S.

202 (1965) eo © © © « Se Be 27°88, 24

Taylor v. Louisiana, 419 U.S.

522 (1975) > 2 © eo «© s 6 ee oe. ee ae

Thiel v. Southern Pacific Co., 328 U.S.

217 (1946) . . 7 . . . . . . - . . _ . 8

Turner v. Fouche, 396

U.S. 346 (1970) . . . . . . . . >. . 3

United States v. Danzey, 476 F. Supp.

1065 (E.D.N.Y. 1979), aff'd,

620 F.2d 286 (2d Cir.), cert.

denied, 449 U.S. 878 (1980) ... .23

United States v. Greene, 626 F.2d 75

(8th Cir.), cert. denied,

640 G8. G6 CS ce et thee el SS

Wethersby v. Morris, 708 F.2d 1493

(9th Cir. 1983) . . . . . . * . . 22

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

iv

Statutes:

14 Maine Rev. St. §§ 1211

et seq. (1971) “a a oe ee ae

Colo. Rev. St. §§ 13-71-107

SO 23-7i-22ZR (APTA) « « 6 6 eo

Federal Jury Selection and

Service Act of 1968,

Pub. L. 90-274, 82 Stat.

53, 28 U.S.C. §§ 1861 et seq. .

Hawaii Rev. Stat. §§ 612-1

to 612-26 (1973) sss 8 6 8 @ «

Idaho Code §§ 2-201

SS Geen €BG7a) cc ese ew ewe ee 8

Indiana Code §§ 33-4-5.5-1

to 33-4-5.5-22 (1973) . «. « « «

mee A. Gee § GeB-ad . 2c 2c se tee

Minn. Stat. Ann. §§ 593-31

oe eee Seen 6 ss o6 x

Miss. Code 1972, §§ 13-5-2

@S @@G@. (3974) <« © oe se eee

No. Dakota Code §§ 17-09.1-01

to 27-09.1-22 (1971) i a a

Uniform Jury Selection

and Service Act (National

Conference of Commissioners on

Uniform State laws, 1970) .....

Other Authorities:

Sullivan, Deterring the

Di edad U E

Peremptory Challenges,

21 Am. Crim. L. Rev.

679 (3006) «© © « 6 @

vi

No. 87-5259

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

FRANK DEAN TEAGUE,

Petitioner,

Vv.

MICHAEL LANE, et al.,

Respondent.

On Writ of Certiorari tothe

United States Court of Appeals for

the Seventh Circuit

BRIEF AMICI CURIAE OF THE NAACP LEGAL

DEFENSE AND EDUCATIONAL FUND, INC.,

AND THE AMERICAN CIVIL LIBERTIES

UNION IN SUPPORT OF PETITIONER

The NAACP Legal Defense and Educa-

tional Fund, Inc., is a non-profit

*Letters from the parties consenting to

the filing of this Brief have been lodged

with the Clerk of the Court.

corporation, incorporated under the laws

of the State of New York in 1939. It was

formed to assist Blacks to secure their

constitutional rights by the prosecution

of lawsuits. Its charter declares that

its purposes include rendering legal aid

without cost to Blacks suffering injustice

by reason of race who are unable, on

account of poverty, to employ legal

counsel on their own behalf. For many

years its attorneys have represented

parties and have participated as amicus

curiae in this Court and in the lower

federal courts in cases involving many

facets of the law.

The Fund has a long-standing concern

with the issue of the exclusion of Blacks

from service on juries. Thus, it has

raised jury discrimination claims in

3

appeals from criminal convictions,1!

pioneered in the affirmative use of civil

actions to end discriminatory practices, 2

and, indeed, represented the petitioner in

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

case which first raised the issue of the

use of peremptory challenges to exclude

Blacks from jury venires.

The American Civil Liberties Union

(ACLU) is a nationwide, non-partisan

organization with over 250,000 members

dedicated to the principles of liberty and

equality embodied in the Constitution and

civ’ rights laws. As part of its

commitment to legal equality, the ACLU has

long opposed any and all forms of racial

discrimination in the administration of

1 E.g-, Alexander v. Louisiana,

405 U.S. 625 (1972).

2 Carter v. Jury Commission, 396

U.S. 320 (1970); Turner _v. Fouche, 396

U.S. 346 (1970); Mitchell v. Johnson, 250

F. Supp. 117 (M.D. Ala. 1966).

4

justice. Of particular relevance here,

the ACLU represented petitioner in McCray

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

vacated and remanded, 106 S.Ct. 3289

(1986), the first federal case holding

that a prosecutor’s use of peremptory

challenges to screen prospective jurors on

racial grounds violates the Sixth

Amendment.

SUMMARY OF ARGUMENT

I.

The use of peremptory challenges to

affirmatively create an unrepresentative

jury by striking Blacks violates the Sixth

Amendment. This Court has held on a

number of occasions that there is no

constitutional right that the particular

jury that tries a defendant minor the

community from which jurors are drawn.

However, when the fair opportunity to

obtain a representative jury is thwarted

5

by the exclusion of Blacks at the final

selection stage, then the result is

precisely the same as if the jury peol

itself were unrepresentative. Therefore,

the basic right guaranteed by the Sixth

Amendment is violated.

Il.

The action of the prosecutor in this

case violated Swain v. Alabama, 380 U.S.

202 (1965). Nothing in *hat decision

requires the result that an admission by

the prosecutor that a Black venireman was

excluded because of race did not establish

a violation of the Fourteenth Amendment.

To the contrary, such an admission is

direct evidence of intentional

discrimination and is the strongest

evidence on which to base a holding that

the equal protection clause has. been

violated.

I.

THE EXCLUSION OF BLACK JURORS

VIOLATES THE RIGHT TO HAVE A JURY

REPRESENTATIVE OF THE COMMUNITY.

The question presented by this case

may be simply stated: if the use of

peremptory challenges to exclude Blacks

results in juries that are

unrepresentative of the community, does

the practice violate the Sixth Amendment,

which is applicable to the states through

the Fourteenth. 3

Taylor v. Louisiana, 419 U.S. 522

(1975), held that "[tjhe unmistakable

import of this Court’s opinions, at least

Since 1940 . . . is that the selection of

a petit jury from a representative cross

section of the community is an essential

component of the Sixth Amendment right to

a jury trial." 419 U.S. at 528. In Smith

3 uncan v. uisiana, 391 U.S.

145 (1968); Taylor v isi , 419 U.S.

522 (1975).

. ~—e

4

v. Texas, 311 U.S. 128, 130 (1940), the

Court declared that exclusion of racial

groups from jury service was "at war with

our basic concepts of a democratic society

and a representative government." Ballard

v. United States, 329 U.S. 187 (1946),

reversed a conviction by a jury from which

women had been excluded, relying on a

federal statutory "design to make the jury

a ‘cross-section of the community.’" In

Brown v. Allen, 344 U.S. 443, 474 (1953),

the Court asserted that the source of jury

lists must "reasonably reflect .. .a

cross-section of the population suitable

in character and intelligence for that

civic duty."

In Taylor the Court also relied on

its decision in the six-person jury case,

which had stated that a jury should "be

large enough to promote group deliberation

- « « and to provide a fair possibility

°

: —e — *

section of the community." Williams v.

Florida, 399 U.S. 78, 100 (1970).

(Emphasis added.) On the basis of this

precedent, the Court declared:

We accept the fair-cross-

section as fundamental to the jury

trial guaranteed by the Sixth

Amendment and are convinced that the

requirement has solid foundation.

The purpose of a jury is to guard

against the exercise of arbitrary

power -- to make available the common

sense judgment of the community as a

hedge against the over-zealous or

mistaken prosecutor . . . This

prophylactic vehicle is not provided

if the jury pool is made up of only

special segments of the populace or

if large, distinctive groups are

excluded from the pool. Community

participation in the administration

of the criminal law, moreover, is not

only consistent with our democratic

heritage but is also critical to

public confidence in the fairness of

the criminal justice system .. .

[Tjhe broad representative character

of the jury should be maintained,

partly as assurance of a diffused

impartiality and partly because

sharing in the administration of

justice is a phase of civic

responsibility.’ Thiel v. Southern

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

(Frankfurter, J., dissenting).

9

Taylor v. Louisiana, 419 U.S. at 530-31.

The requirement of a fair cross-

section in jury selection has also been

adopted by statute as "the policy of the

United States." 4 Taylor quoted

approvingly from the House Report on the

Federal Jury Selection and Service Act.

4 Federal Jury Selection and

Service Act of 1968, Pub. L. 90-274, 82

Stat. 53, 28 U.S.C. §§ 1861 et seq.

Section 1862 provides that:

No citizen shall be excluded from

service as a grand or petit juror. .

° On account of race, color,

religion, sex, national origin, or

economic status.

See also, Section 2 of the Uniform Jury

Selection and Service Act (National

Conference of Commissioners on Uniform

State laws, 1970), and Md. Ann. Code § 8-

1-13. The Uniform Act has_ been

substantially adopted by eight’ states.

Colo. Rev. St. §§ 13-71-107 to 13-71-121

(1971); Idaho Code §§ 2-201 to 2-221

(1971); Hawaii Rev. Stat. §§ 612-1 to 612-

26 (1973); Indiana Code §§ 33-4-5.5-1 to

33-4-5.5-22 (1973); 14 Maine Rev. St. §§

1211 et seq. (1971); Minn. Stat. Ann. §§

593-31 to 593-50 (1977); Miss. Code 1972,

§§ 13-5-2 et seq. (1974); No. Dakota Code

§§ 17-09.1-01 to 27-09.1-22 (1971).

10

It must be remembered that the

jury is designed not only to

understand the case, but also to

reflect the community’s sense of

justice in deciding it. As long as

there are significant departures from

the cross sectional goal, biased

juries are the result -- biased in

the sense that they reflect a slanted

view of the community they are

supposed to represent.

419 U.S. at 26 n. 37.

The conclusion that the Sixth

Amendment bars the use of peremptory

challenges to exclude Blacks from the jury

that will sit is not inconsistent with

decisions of this Court, relied upon by

the court below, which hold that the

defendant has no right to have his

particular jury represent the community

with precision. > Thus, for example, ina

° Apodaca v. Oregon, 406 U.S. 404,

413 (1972) (plurality opinion); Fay v. New

York, 332 U.S. 261, 284 (1947); Lockhart

v. McCree, 476 U.S. _, 90 L.Ed.2d 137

(1986). For a careful analysis of this

Court’s Sixth Amendment decisions, see

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

1984, vacated and remanded, 106 S.Ct. 3289

(1986).

11

community in which one third of the

persons eligible for jury service are

Black there is no absolute right to have a

jury with four Blacks out of the 12

jurors.

Although this proposition is correct,

it does not negate the conclusion that the

affirmative use of peremptory challenges

to produce an unrepresentative jury

violates the Sixth Amendment. What this

Court has held is that, assuming a system

of jury selection that results in jury

lists that are representative of the

community, the use of a neutral device to

select particular juries does not violate

the Fourteenth Amendment just because in a

particular case the jury may not precisely

mirror that community. © put another way,

although there is an affirmative

6 See, e.g., Taylor v. Louisiana,

419 U.S. at 538.

12

obligation to have a process by which a

representative jury can be chosen, there

is not an affirmative obligation to

achieve the result of juries that are

precisely representative.

But the converse must also be true:

there is a right not to have selection

methods that result in unrepresentative

juries. The protections of the Sixth and

Fourteenth Amendments cannot stop with the

composition of the jury roll, but extend

to the selection of the specific jury

itself. See Ballew v. Georgia, 435 U.S.

223 (1978); n Vv uisi a, 405

U.S. 625 (1972). Thus, a defendant has

the right to a fair opportunity for a jury

on which are represented the various

groups that make up the community in which

he is tried. To allow the unscrutinized

use of peremptory challenges on the basis

of race biases the process as surely as

13

the exclusion of Blacks from the jury

lists. Lockhart v. McCree, 476 U.S. __,

90 L.Ed.2d 137 (1986), hardly requires

this result. Fairly read, the statement

in Lockhart that "extension of the fair

cross-section requirement to petit juries

would be unworkable and unsound," id. at

148, only rejected the notion of

proportional representation on the petit

jury. Id. It did not reject, or even

address the claim presented by petitioner

here. Thus, this Court did not cite

Lockhart when it remanded for "further

consideration in light of" Batson and

en_v rdy, 478 U.S. __, 92 L.Ed.2d

199 (1986), two cases holding that the

discriminatory use of peremptory

challenges violates the Sixth Amendment.

See Abrams v. McCree, 92 L.Ed.2d 705

(1986); Michigan v. Booker, 92 L.Ed.2d 705

(1986).

14

The right to a fair cross-section is

not based on the notion that individuals

vote to convict or acquit because of the

racial group to which they belong; rather,

it derives from the principle that juries

should contain representatives of the

various groups in the community so that

their opinions, voices, points of view,

and perceptions come to bear on the

deliberative process. When a prosecutor

removes Blacks from the jury the result is

a jury which is insulated from one of

those viewpoints and voices. ”

The question of whether the use of

peremptory challenges has violated the

cross-section requirement will, after all,

only arise in a particular case when a

7 Peters v. Kiff, 407 U.S. 493,

503-04 (1972); see Sullivan, Deterring the

Discriminatory Use of Peremptory

Challenges, 21 Am. Crim. L. Rev. 477

(1984), for an example of the impact on a

jury’s deliberations of the experiences of

a black juror.

15

fair system has produced a panel of

potential jurors that includes’ Blacks.

Unless the prosecutor strikes them, a

representative jury will sit. If then the

prosecutor makes the jury unrepresentative

by striking some or all of the Blacks, his

abuse of the peremptory challenge violates

the Sixth Amendment.

To illustrate, one may assume a

county that is 20% black and that has a

jury roll that is also 20% black. In

trial #1, 20 potential jurors are randomly

selected, one of whom is black, a result

well within the range of probability.

That single Black is excused for a valid,

racially-neutral reason, and an all-white

jury sits. That result does not violate

the Sixth Amendment.

In trial #2, twenty potential jurors

are randomly selected, 4 of whom, or 20%,

are black. Through neutral selection

16

criteria 2 of the 12 jurors to sit will be

black, or almost 20%. The prosecutor then

affirmatively creates a non-

representative jury by striking the two

Blacks for racial reasons. That result

does violate the Sixth Amendment. To hold

otherwise would render wholly abstract and

nugatory the right to jury rolls that

represent a cross-section of the

community, since the benefit that flows

from that right -- a fair number of juries

on which Blacks actually sit -- can always

be thwarted.

Il.

SWAIN DOES NOT REQUIRE THE COUR™ TO

IGNORE A PROSECUTOR’S VOLUNTARY

ADMISSION OF RACIAL DISCRIMINATION IN

THE EXERCISE 9F PEREMPTORY CHALLENGES

In addition to the Sixth Amendment

argument discussed above, petitioner also

challenges the prosecutor’s use of

peremptory challenges on equal protection

grounds. The narrow issue now presented

17

for review is whether this Court’s

decision in Swain v. Alabama, 380 U.S. 202

(1965), was meant to foreclose an equal

protection claim even when the prosecutor

candidly acknowledges that his or her use

of peremptory challenges -was prompted by

racially discriminatory motives.

Clearly, any such admission would be

dispositive after Batson v. Kentucky, 476

U.S. 79 (1986). The Seventh Circuit,

however, has classified petitioner as one

of a class of defendants who cannot take

advantage of Batson because their direct

appeals were completed before Batson was

decided. See Allen _v. Hardy, 478 U.S.

___, 92 L.Ed. 2d 199 (1986). Under these

circumstances, the Seventh Circuit ruled

that even an open admission of racial

discrimination in jury selection could not

give rise to an equal protection clain.

820 F.2d at 834 n. 6. Nothing in the

18

ruling or reasoning of Swain compels that

result. Even if the question were closer

than it is, the fact that Swain has now

been overruled surely argues against an

unduly restrictive interpretation of its

discredited holding.

Fairly read, Swain is a case about

evidentiary presumptions. It is not a

case endorsing discrimination in jury

selection. Indeed, the majority opinion

in Swain begins by restating the Court’s

longstanding view 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 203-4. 8

The concern in Swain was how that

8 This principle traces back at

least as far as Strauder v. West Virginia,

100 U.S. 303 (1880), which struck down a

state statute barring blacks from jury

service.

19

principle could best be enforced in the

context of peremptory challenges. In

particular, the Court was anxious to

preserve "[{t]he essential nature of the

peremptory challenge [as] one exercised

without a reason stated ..." Id. at

220. Accordingly, the Court held that the

mere “allegation" that peremptory

challenges were being used in a particular

case to exclude prospective black jurors

was insufficient to establish a prima

facie case of discrimination. Id. at 222.

Rather, under Swain, the presumption that

a prosecutor’s use of peremptory

challenges is constitutionally legitimate

can only be overcome by proof that all

blacks within a given jurisdiction are

being barred from jury service "in case

after case, whatever the circumstances,

whatever the crime and whoever the

Gefendant or the victim may be..." Id.

20

at 223.

The tension in Swain between

enforcing the principle of non-

discrimination and preserving the

peremptory as a challenge for which no

reason need be given does not exist when

the prosecutor voluntarily offers a reason

for the peremptory challenge that, on its

face, is racially discriminatory. At that

point, the presumption of regularity

articulated by Swain necessarily

disappears unless it is irrebuttable. Yet

clearly, Swain did not create an

irrebuttable presumption or it would not

have permitted even systemic proof of

racial discrimination. ?

9 Swain could also be read as

holding that the statistical disparities

arising in a single case are ordinarily

not strong enough to support an inference

of invidious intent without corroboration,

and that the transactional cost of

obtaining corroboration was simply too

high for the Court to accept. A voluntary

admission of discriminatory motive,

21

As Justice White, the author of

Swain, noted in Batson: "Swain itself

indicated that the presumption of

legitimacy with respect to the striking of

black venire persons could be overcome by

evidence that over a period of time the

prosecution had consistently excluded

blacks from petit juries." 106 S.Ct. at

1725. In a critical footnote, Justice

White then added: "Nor would it have been

inconsistent with Swain for the trial

judge to invalidate peremptory challenges

of blacks if the prosecutor, in response

to an objection to his strikes, stated

that he struck blacks because he believed

that they were not qualified to serve as

jurors, especially in the trial of a black

defendant." Id. atn. *.

The view of Swain articulated by

however, solves the evidentiary problems

and eliminates the transactional costs.

22

Justice White is also the prevailing one

in the circuits. For example, in

Wethersby v. Morris, 708 F.2d 1493, 1496

(9th Cir. 1983), the Ninth Circuit

concluded that the necessity of proving a

pattern and practice of racial

discrimination to satisfy Swain only

becomes relevant if the prosecutor’s

motives in a particular case are not

otherwise disclosed. Once the state has

confessed its racial animus, there is no

need to rely on circumstantial

evidence. 19 In the apt words of the

Ninth Circuit: "a court need not blind

itself to the obvious ..." Ibid. 11

10 cf. McClesky v. Kemp, 107 S.Ct.

1756, 1766 (1987) (rejecting equal

protection challenge to capital sentence

because defendant relied "solely" on

statistics and did not offer any evidence

"specific to his own case").

11 Similarly, in United States v.

Greene, 626 F.2d 75, 76 (8th Cir.), cert.

denied, 449 U.S. 876 (1980), the court

implied that Swain would not preclude

23

Indeed, amici are aware of no case in

any context in which this Courc has ever

said that the government’s voluntary

confession of racial discrimination is

constitutionally irrelevant. Even in

cases like Plessy v. Ferguson, 163 U.S.

597 (1896), the fiction of equal treatment

was integral to the state’s defense and

essential to the cCourt’s ruling.

Disregarding this tradition, the Seventh

Circuit has advanced an interpretation of

relief if the record revealed that the

prosecutor’s use of peremptory challenges

was impermissibly based on race in even a

single case. But see United States v.

Danzey, 476 F. Supp. 1065 (E.D.N.Y. 1979),

aft’d, 620 F.2d 286 (2d Cir.), cert.

denied, 449 U.S. 878 (1980).

Interestingly, the judge who decided

Danzey was also the first federal judge to

rule that the fair cross-section

requirement of the Sixth Amendment barred

the state from using its’ peremptory

challenges in a racially discriminatory

fashion. See McCray v. Abrams, 576 F.

Supp. 1244 (E.D.N.Y. 1983), aff’d in part

and rev’d in part, 750 F.2d 1113 (2d Cir.

1984), vacated and remanded, 92 L.Ed.2d

705 (1986).

24

Swain that condemns discrimination if it

is based on statistics but condones

discrimination if it is openly

acknowledged. Especially after Batson,

this Court should not affirm such an

illogical approach, which is difficult to

reconcile with Swain and impossible to

reconcile with the equal protection goals

of the Fourteenth Amendment.

Wn ene ee

25

Conclusion

For the foregoing reasons, the

decision below should be reversed.

Respectfully submitted,

JULIUS LeVONNE CHAMBERS

CHARLES STEPHEN RALSTON*

NAACP Legal Defense and

Educational Fund, Inc.

99 Hudson Street

New York, N.Y. 10013

(212) 219-1900

JOHN A. POWELL

STEVEN R. SHAPIRO

American Civil

Liberties Union

132 West 43rd Street

New York, N.Y. 10036

(212) 944-9800

Attorneys for Amici Curiae

* Counsel of Record