Amicus Curiae Brief — Georgia v. McCollum

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No. 91-372

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

STATE OF GEORGIA, PETITIONER

Vv.

THOMAS MCCOLLUM, ET AL.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF GEORGIA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

MICHAEL R. DREEBEN

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

202) 514-2217

QUESTION PRESENTED

Whether the Constitution prohibits a criminal de-

fendant from engaging in purposeful discrimination

on grounds of race in the exercise of peremptory

challenges.

(1)

TABLE OF CONTENTS

Interest of the United States 000000000 ee.

nr A a

Summary of argument 00.0. STE eye

Argument:

The Constitution prohibits a criminal defendant

from exercising a peremptory challenge based on

Nee enctaravecsreveewers

A. Race-based peremptory challenges violate equal

es ccucenensnsescesveeorees

B. A criminal defendant’s exercise of a peremptory

challenge constitutes state action 0...

1. A peremptory challenge exercised by a

criminal defendant is an action that is fairly

attributable to the state... Pe... oe

2. The adversarial relationship between the de

fendant and the prosecution does not affect

the governmental character of the peremp-

i sicctibecenccosorcoree

3. Application of constitutional constraints to

the defendant’s peremptory challenges does

not infringe the defendant’s rights ............

C. The prosecutor has standing to object to the

discriminatory exercise of defense peremptory

challenges ............. ete iadcinis ah = a

Conclusion

TABLE OF AUTHORITIES

Cases:

Allen Vv. Hardy, 478 U.S. 255 (1986)

Batson Vv. Kentucky, 476 U.S. 79 (1986) 1,3, 8, 17, 19.

20, 21, 22, 23, 24

Bolling Vv. Sharpe, 347 U.S. 497 (1954) 10

Boon V. State, 1 Ga. 618 (1846) 14

Branti v. Finkel, 445 U.S. 507 (1980) 19

(111)

IV Vv

Cases—Continued : Page Cases—Continued : Page

Connecticut v. Doehr, 111 S. Ct. 2105 (1991) ........ 10 Stilson v. United States, 250 U.S. 583 (1919) .......... 19-20

Duncan V. Louisiana, 391 U.S. 145 (1968) ........... 15 Strauder v. West Virginia, 100 U.S. 303 (1880) _. 9

Edmonson Vv. Leesville Concrete Co., 111 S. Ct. Swain V. Alabama, 380 U.S. 202 (1965) 7, 8, 17, 20

iy I Serer eed passim Terry V. Adams, 345 U.S. 461 (1953) 0. rea 15

Ford v. Georgia, 111 S. Ct. 850 (1991) 20. g Thiel v. Southern Pac. Co., 328 U.S. 217 (1946) 24-25

Fuentes v. Shevin, 407 U.S. 67 (1972) ...............-.-- 10 United States v. DeGross, 913 F.2d 1417 (9th Cir.

Griffith v. Kentucky, 479 U.S. 314 (1987) ........... 8 1990), reh’g ordered, 930 F.2d 695 (1991) _. 2

Ham V. South Carolina, 409 U.S. 524 (1978) ......... 24 United States Vv. Greer, 939 F.2d 1076 (5th Cir.

Hayes V. Missouri, 120 U.S. 68 (1887) .......... 22, 23 1991), reh’g ordered (Dec. 3, 1991) 2.000... 2

Hernandez v. New York, 111 S. Ct. 1859 (1991). 20 United States v. Tindle, 860 F.2d 125 (4th Cir.

Holland vy. Illinois, 493 U.S. 474 (1990) ...... 7, 8, 14, 20, 22 1988), cert. denied, 490 U.S. 1114 (1989) 21

Jones v. State, 1 Ga. 213 (1846) 14 United States v. Zolin, 491 U.S. 554 (1989) 21

Lugar Vv. Edmondson Oil Co., 457 U.S. 922 (1982) . 10, 12 . woe :

McCoy V. Court of Appeals of Wisconsin, 486 U.S. Constitution, statutes and rule:

I is ee 21 U.S. Const. :

Mu’ Min V. Virginia, 111 S. Ct. 1899 (1991) 0... 24 Bs I ID cic s cesccdacncesonians err 15

Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974) .... 10 Amend. V ............ Fe ES Eo RE ERNE Ie ED _ 9-10

Niaz v. Whiteside, 475 U.S. 157 (1986) —.................. 21 Due Process Clause Re SAMS 9

People V. Kern, 75 N.Y.2d 638, 554 N.E.2d 1235, Amend. Vi cosmos SSeS LS ee aS 15, 20, 21, 292

oo 647, cert. denied, 111 S. Ct. 77 in pence ey Preis 4.8 10, 15,26

Peters V. Kiff, 407 U.S. 493 (1972) pan 25 Equal Protection Clause. 4,8

Polk County V. Dodson, 454 U.S. 312 (1981) ....-..... 18, 19 Ga. Const. Art. I, § 1, para. XI ............ seseeseennneecsneneece 15

Powers V. Ohio, 111 S. Ct. 1364 (1991)... 4, 8, 25 18 U.S.C. 248 onan eeeeeeeeee econ tetteceeecctin seseecnneceanen 25

Ristaino V. Ross, 424 U.S. 589 (1976) 24 42 U.S.C. 1983 ................ 18

Rosales-Lopez Vv. United States, 451 U.S. 182 Criminal Justice Act, 1988, ch, 33, pt. VII, § m1

RTS AS NEO 24 (Great Britain) } 7

Ross V. Oklahoma, 487 U.S. 81 (1988) . mi 20 Ga. Code Ann. (Michie 1990) :

San Francisco Arts & Athletics, Ine. Vv. United EC seveeceseenes ; 13

States Olympic Comm., 483 U.S. 522 (1987)... 10 § 15-12-40 + eeeceeees , 13

Sealy v. State, 1 Ga. 213 (1846) .......................-...-...-- 14 § 15-12-42 ioone = 13

Shelley v. Kraemer, 334 U.S. 1 (1948) __. 16 § 15-12-120 ilenasisadatasanihacioaisiti 13

Singer V. United States, 380 U.S. 24 (1965) ... 26 (, Sent cmnaaminaae 13

Sniadach v. Family Finance Corp., 395 U.S. 337 § 15-12-1389 . 13

(1969) ALA O BAM ELC ON BB 10 § 15-12-160 seonancanineaiein : 3, 13

State v. Anaya, 96 Ariz. Adv. Rep. 133 (Ct. App. § 15-12-1638 7 snevieterneiessenssasconeiicns .. 8,38

1991) . Sao res A 25 §$ 15-12-164 13

State v. Levinson, 71 Haw. 492, 795 P.2d 845 § 15-12-165 3, 12, 13

(1990) “rte iS aden iis Nac te eT Pee renee es 25 Laws 1833, Cobb’s Digest (1851) ee 14

Fed. R. Crim. P. 24(b) ESR Ase 7 1

Miscellaneous : Page

Alschuler, The Supreme Court and the Jury: Voir

Dire, Peremptory Challenges, and the Review

of Jury Verdicts, 56 U. Chi. L. Rev. 153

| ES EERE Sree OP II Fs AT SEAS Oe EIEN >i

4 W. Blackstone, Commentaries (Tucker ed.

AR SS a ee eae EE eT een 7,14

Gobert, The Peremptory Challenge—an Obituary,

SE AOE, i I, i cseeieniomenecin 7

Goldwasser, Limiting a Criminal Defendant’s Use

of Peremptory Challenges: On Symmetry and

the Jury in a Criminal Trial, 102 Harv. L. Rev.

STI EE 2 = SPEAR RS ae gr A 20

Swift, Defendants, Racism and the Peremptory

Challenge: A Reply to Professor Goldwasser,

22 Colum. Hum. Rts. L. Rev. 177 (1991) —.......... 21

Iu the Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-372

STATE OF GEORGIA, PETITIONER

Vv.

THOMAS McCOoLLUM, ET AL.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF GEORGIA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The case presents the question whether the exer-

cise of a peremptory challenge by a criminal de-

fendant is governed by the standards of race neutral-

ity that are applicable to the prosecution’s peremptory

challenges under Batson v. Kentucky, 476 U.S. 79

(1986). Pursuant to the Federal Rules of Criminal

Procedure, the defendant in a federal criminal case

is entitled to exercise 20 peremptory challenges in a

capital case; ten in a felony case; and three in a

misdemeanor case. Fed. R. Crim. P. 24(b). The issue

whether the Constitution places restrictions on a de-

fendant’s use of peremptory challenges has arisen in

(1)

a number of federal criminal cases. Two courts of

appeals now have the issue under en banc review.

See United States v. DeGross, 913 F.2d 1417, 1423-

1424 (9th Cir. 1990), reh’g en banc ordered, 930 F.2d

695 (1991); United States v. Greer, 939 F.2d 1076,

1083-1086 (5th Cir. 1991), reh’g en banc ordered

(Dec. 3, 1991). The United States therefore has

a significant interest in the resolution of this case.

STATEMENT

1. On August 10, 1990, a grand jury sitting in

Dougherty County, Georgia, returned a six-count in-

dictment charging respondents with aggravated as-

sault and simple battery. J.A. 2-5. The indictment

alleged that, on January 5, 1990, respondents as-

saulted and beat Myra Collins. /bid. Respondents are

white; the alleged victim is black. J.A. 6. Shortly

after the events giving rise to the indictment, a

leaflet was widely distributed in the local black com-

munity reporting the assault and urging community

members_not to patronize respondents’ business. J.A.

40."

' The leaflet, distributed by Rep. John White, Chairman of

the Unity Community of Albany, Georgia, stated, in pertinent

part (J.A. 40-41) :

“BE INFORMED ... The McCollum Family, owners of

McCollum’s Dry Cleaners located at 1703 E. Broad Ave.

in Albany attacked, kicked and beat a young black

woman and her husband with a baseball bat, several days

ago as they attempted to pick up clothing and dry clean-

ing.”

“This Community must respond to this violent act with

‘non-violence’ & direct action. We urge you to select an-

other Dry Cleaners for your clothing.”

“The McCollums have no respect for your black sister

& brother, your daughter & son, your wife & husband.

Spend your money with people who respect you.”

Under Georgia law, the petit jury in a felony trial

is selected from a panel of 42 persons. Ga. Code. Ann.

§ 15-12-160 (Michie 1990). Both the defendant and

the State may challenge jurors for cause. § 15-12-163.

In addition. both the defendant and the State have

the right to exercise peremptory challenges. When

the defendant is indicted for a capital offense or an

offense carrying a penalty of four or more years of

imprisonment, the defendant ‘may peremptorily

challenge 20 of the jurors impaneled to try him.”

§ 15-12-165. For offenses carrying a lesser penalty,

the defendant “may peremptorily challenge 12 of the

jurors impaneled to try him.” J/bid. In all cases,

“(t]he state shall be allowed one-half the number

of peremptory challenges allowed to the accused.”

Ibid.

Before jury selection began, the State filed a mo-

tion to prohibit respondents from exercising their

peremptory challenges in a racially discriminatory

manner. J.A. 6-8. After noting the race of the de-

fendants and the victim, the State indicated that it

expected to show that the victim’s race was a factor

in the alleged assault. J.A. 6-7. Observing that 43

percent of the Dougherty County population is black,

the State also indicated that, if a statistically repre-

sentative panel is assembled for jury selection, 18 of

the 42 potential jurors would be black persons. With

20 peremptory challenges, respondents would there-

fore be able to remove all of the black potential jurors.

J.A. 7. Relying on Batson vy. Kentucky, 476 U.S. 79

(1986), the Sixth Amendment, and the Georgia Con-

stitution, the State sought an order requiring that, if

a prima facie case of racial discrimination by the

defense is made out, respondents would be required

to articulate a racially neutral explanation for their

peremptory challenges. J.A. 7-8.

The trial judge denied the State’s motion. The

judge found that “[n]Jeither Georgia nor federal law

prohibits criminal defendants from exercising per-

emptory strikes in a racially discriminatory manner.”

J.A. 14. Recognizing that the issue was “one of

first impression for the Georgia courts,” the court cer-

tified the issue for immediate appellate review. J.A.

15, 18.

2. The Supreme Court of Georgia granted the

application for interlocutory review and directed the

parties to address, in particular, the question whether

the Georgia Constitution prohibits race-based per-

emptory challenges by the defendant in a criminal

case. J.A. 16-17. The State’s opening brief con-

tended that the state constitution does prohibit such

strikes by the defense. J.A. 18-23. After this Court

decided Powers v. Ohio, 111 S. Ct. 1364 (1991), and

Edmonson vy. Leesville Concrete Co., 111 S. Ct. 2077

(1991), the State filed supplementary briefs urging

the supreme court to hold that not only Georgia law,

but also the Equal Protection Clause of the Fourteenth

Amendment prohibits a defendant from exercising

racially discriminatory peremptory challenges. J.A.

42-45,

The reviewing court affirmed the trial court’s

ruling. J.A. 46-57. The court acknowledged that in

Edmonson vy. Leesville Concrete Co., supra, this

Court had found that racial discrimination in the

exercise of a peremptory challenge “constitute[s] an

impermissible injury” to the excluded juror. J.A.

46. The court noted, however, that Edmonson in-

volved private civil litigants, not criminal defend-

ants. /bid. “Bearing in mind the long history of jury

trials as an essential element of the protection of

human rights,” the court “decline[d] to diminish the

free exercise of peremptory strikes by a criminal de-

fendant.” bid.’

SUMMARY OF ARGUMENT

A. Both the defendant and the prosecutioa have

long been granted peremptory challenges in this coun-

try. This Court has held, however, that the prosecu-

tor’s use of a peremptory challenge to exclude a juror

on grounds of race violates the equal protection rights

of the excluded juror. The Court has further held

that a defendant may raise a claim of such discrim-

ination whether or not the defendant’s own equal pro-

tection rights are violated.

Because it is the government itself that creates and

enforces peremptory challenges, this Court determined

that it violates the Constitution for a private civil

litigant to exercise a peremptory challenge based on

the juror’s race. The premise of that holding is that

a litigant’s exercise of the delegated right to exclude

a person from jury service constitutes state action.

The exercise of the challenge therefore triggers ap-

plication of the Constitution’s equal protection re-

quirements.

B. A criminal defendant’s exercise of a peremp-

tory challenge is also properly viewed as state action

that is subject to the constitutional constraint against

action based on race. The features of the peremptory

challenge system that make it appropriate to charac-

terize a civil litigant’s challenge as state action are

equally present here. First, in criminal cases, as in

- Three justices dissented, arguing that Edmonson and

other decisions of this Court establish that racially based

peremptory challenges by a criminal defendant violate the

Constitution. J.A. 47-49 (Hunt, J.): id. at 50-55 (Benham,

J.), id. at 56-59 (Fletcher, J.).

civil cases, the peremptory challenge has its source

in an express provision of state law. Second, a crim-

inal defendant exercising « peremptory challenge in-

vokes the authority of the State in the same fashion

as a private civil litigant. A peremptory challenge is

part of the framework of jury selection procedures

established and administered by the State, and the

defendant's peremptory challenge is ultimately en-

forced by the action of the trial judge in excusing the

juror. From the perspective of the excluded juror, the

impact of a discriminatory challenge is the same,

whether the challenge is made by the State, by a crim-

inal defendant, or by a private civil party.

Prohibiting race-based challenges by the defense

neither violates the defendant's constitutional rights

nor impairs his ability to secure a fair trial. Indeed,

to leave the defense free to discriminate on racial

grounds, in a manner that is prohibited for the

prosecution, would give rise to a potential for imbal-

ance in the composition of juries. Respondents have

no constitutionally recognized interest in excluding

minority jurors on grounds of race, and to accept

such a claim would undermine public confidence in the

integrity of the jury system.

C. The State has standing to assert the equal pro-

tection rights of a juror who is excluded on racial

grounds at the instance of the defense. That conclu-

sion follows not only from decisions of this Court al-

lowing third-party standing for criminal defendants

and civil litigants to object to discriminatory peremp-

tory challenges by their adversaries, but also from the

government’s responsibility to protect the civil rights

of its citizens. In light of that responsibility and the

State’s interest in securing a jury that is chosen by

fair and legitimate procedures, the State is a proper

party to object to racially discriminatory challenges

by criminal defendants.

ARGUMENT

THE CONSTITUTION PROHIBITS A CRIMINAL DE-

FENDANT FROM EXERCISING A) PEREMPTORY

CHALLENGE BASED ON THE JURORS RACE

A. Race-Based Peremptory Challenges Violate Equal Pro-

tection Principles

Georgia’s provision of peremptory challenges to

both the government and the accused in a criminal!

case accords with the longstanding and universal!

practice in slate and federal! courts in this country.

see Swain vy. Alabama, 380 U.S. 202, 212-219

(1965); Holland vy. Illinois, 493 U.S. 474, 481 (1990).

The practice has deep roots in English common law.

See 4 W. Blackstone, Commentaries 353-2354 (Tucker

ed. 1803).° As traditionally conceived, the “essentia!

nature” of a peremptory challenge is 2 power that a

litigant may use to exclude a particular juror even

when the reasons for exclusion do not rise to a le

that would justify removal of the juror for cause.

Swain, 380 U.S. at 220. Because the peremptory chal-

lenge permits the parties to remove jurors whose bias

is suspected but cannot be proved, the device is

thought to enable the elimination of “extremes of

* English practice, however, has changed. In the past cen-

tury, the rivht to exercise peremptory challenges was rarel:

used in England. Swain, 580 U.S. at 213 n.12. Peremptory

challenges were ultimately abolished in England bv the Crim-

inal Justice Act 1988, ch. 33, pt. VIII, $111. See Goberr,

The Peremptory Challenge—An Obituary, [1989) Crim. L

Rev. 528

partiality on both sides.” Holland, 493 U.S. at 484,

quoting Swain, 380 U.S. at 219. Peremptory chal-

lenges therefore further “the purpose of the jury

system * * * to impress upon the criminal defendant

and the community as a whole that a verdict of con-

viction or acquittal is given in accordance with the

law by persons who are fair.” Powers vy. Ohio, 111

S. Ct. 1364, 1372 (1991).

Although historically well established, the peremp-

tory challenge may not be exercised in violation of

constitutional provisions such as the Equal Protection

Clause of the Fourteenth Amendment. In Patson vy.

Kentucky, 476 U.S. 79 (1986), the Court held that

a prosecutor’s exercise of a peremptory challenge to

exclude a potential juror on grounds of race violates

the Equal Protection Clause. The Court explained

that the purposeful exclusion of a juror because of

race not only infringes the right of a defendant of

the same race to equal protection of the laws, but also

amounts to ‘“unconstitutional[] discriminat[ion]

against the excluded juror” and inflicts harm on the

community as a whole by “undermin[ing] public con-

fidence in the fairness of our system of justice.” 476

U.S. at 86-87. Batson overruled the holding of Swain

v. Alabama, supra, that a defendant could not chal-

lenge the racially discriminatory use of peremptory

challenges based solely on the prosecutor’s actions in

a particular case. Batson, 476 U.S. at 82, 91-93,

overruling Swain, 380 U.S. at 221-222. See also Ford

v. Georgia, 111 S. Ct. 850, 855 (1991); Griffith v.

Kentucky, 479 U.S. 314, 326 (1987); Allen v. Hardy,

478 U.S. 255, 258-259 (1986) (per curiam).

Recognizing that one of the interests underlying

Batson’s holding is that of the excluded juror, this

Court ruled in Powers vy. Ohio, supra, that a defend-

ant may challenge a prosecutor’s race-based peremp-

tory strike ‘whether or not the defendant and the ex-

cluded juror share the same race.”” 111 8. Ct. at 1366.

The Court explained that a juror who is peremptorily

struck on grounds of race suffers a violation of his

own equal protection rights; the defendant in such

au case is appropriately accorded third-party standing

to vindicate the excluded juror’s claim. /d. at 1370-

1375. Powers reaffirmed the principle, embraced by

this Court for more than a century, that “racial dis-

crimination in the qualification or selection of jurors

offends the dignity of persons and integrity of the

courts.” /d. at 1366, citing, inter alia, Strauder vy.

West Virginia, 100 U.S. 303 (1880).

Until Kdmonson vy. Leesville Concrete Co., 111 S. Ct.

2077 (1991), all of the cases to reach this Court pre-

senting the problem of racially discriminatory per-

emptory challenges involved claims of discrimina-

tion by prosecutors. Because those claims were di-

rected at the conduct of government officials, respon-

sibility for the discriminatory acts could readily be

assigned to the government. In those cases, the “state

action” that is required to trigger the Constitution’s

protections of individual rights was established by the

actions of the prosecutor, a quintessential state actor.

In LKdmonson, by contrast, the contested peremp-

tory challenges were exercised by a private defend-

ant in a civil action; the plaintiff claimed that the

defendant’s challenges violated the equal protection

component of the Due Process Clause of the Fifth

Amendment.' This Court therefore confronted as a

‘The Fifth Amendment applied because the case was tried

in federal court. See Edmonson, 111 S. Ct. at 2080, citing

threshold question whether state action was present

at all in that setting. To answer that question, the

Court employed the analytical framework summar-

ized in this Court’s decision in Lugar v. Edmonson

Oil Co., 457 U.S. 922 (1982).° As the Court ob-

served in Edmonson, two inquiries are necessary to

determine whether the actions of a private party are

sufficiently attributable to the government to impli-

cate constitutional protections: first, “whether the

claimed constitutional deprivation result[s] from the

exercise of a right or privilege having its source in

state authority”; and second, “whether the private

party charged with the deprivation could be described

in all fairness as a state actor.” 111 S. Ct. at 2082-

2083, citing Lugar, 457 U.S. at 939-942. After a

detailed analysis of the peremptory challenge system,

the Court concluded that a private civil litigant is

properly characterized as a state actor when exercis-

ing a peremptory challenge. Accordingly, the Court

held that it violates the Constitution for such a per-

Bolling v. Sharpe, 347 U.S. 497 (1954). The standard for

deciding whether a private person is a state actor is the same

under the Fifth and the Fourteenth Amendments. San Fran-

cisco Arts & Athletics, Inc. v. United States Olympic Comm.,

483 U.S. 522, 542 & n. 21 (1987); see Edmonson, 111 S. Ct.

at 2082-2083 (citing, interchangeably, Fifth and Fourteenth

Amendment state action cases). =

5 The Court in Lugar held that a private litigant is appro-

priately characterized as a state actor when he “joint[ly]

participat|es]” with state officials in securing the seizure of

property in which the private party claims to have rights.

457 U.S. at 932-933, 941-942; see Sniadach v. Family Finance

Corp., 395 U.S. 337 (1969); Fuentes v. Shevin, 407 U.S. 67

(1972): Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974):

see also Connecticut v. Doehr, 111 S. Ct. 2105, 2111-2112

(1991).

son to use a peremptory challenge to exclude a_ po-

tential juror on grounds of race. 111 8. Ct. at 2081-

2087.

B. A Criminal Defendant’s Exercise Of A Peremptory

Challenge Constitutes State Action

The analysis in this case parallels the analysis

employed by the Court in Kdmonson: a criminal de-

fendant, like a civil litigant, is appropriately charac-

terized as a state actor when he exercises a peremp-

tory challenge. The adversary relationship between

the prosecutor and the defendant does not change the

fact that, in exercising a peremptory challenge, the

defendant is drawing upon a source of government

power to affect the selection of the jury, a function

that is intrinsically governmental. And the applica-

tion of the procedures of Batson to a criminal de-

fendant does not violate the defendant’s rights.

1. A Peremptory Challenge Exercised by a Criminal

Defendant Is an Action That Is Fairly Attributable

to the State

Under Edmonson, the first inquiry in analyzing

whether a private litigant acts on behalf of the State

is whether the right being exercised derives from

state law. The peremptory challenges considered in

Edmonson satisfied that test, because they ‘are per-

mitted only when the government, by statute or de-

cisional law, deems it appropriate to allow parties to

exclude a given number of persons who would other-

wise satisfy the requirements for service on the petit

jury.” 111 S. Ct. at 2083. As in Edmonson, a Geor-

gia defendant’s peremptory challenge is made possi-

ble by a right having its source in state law. The

defendant’s right to exercise peremptory challenges

and the scope of that right are established by a spe-

cific provision of state law. Ga. Code. Ann. § 15-12-

165 (Michie 1990).

The second inquiry is whether “the [private] party

charged with the deprivation * * * may fairly be said

to be a state actor.” Lugar, 457 U.S. at 937; Ed-

monson, 111 S. Ct. at 2083. In resolving that issue,

Edmonson found it useful to apply three principles

distilled from prior decsions: (1) “the extent to

which the actor relies on governmental assistance and

benefits’: (2) ‘‘whether the actor is performing a

‘vaditional governmental function”: and (3) “whether

the injury caused is aggravated in a unique way by

the incidents of governmental authority.” 111 S. Ct.

at 2083. As to the first principle, the Ldmonson

Court found that the peremptory challenge system,

as well as the jury trial system as a whole, “simply

could not exist” without direct and substantial gov-

ernment participation, and that private parties neces-

sarily rely on governmental authority in exercising

each challenge. /d. at 2084.

Describing the federal system, the Court explained

that the government composes jury lists, establishes

juror qualifications, summons the jurors to court, and

pays them a per diem allowance for their appearance.

Courts then assist in gathering information to de-

termine whether the jurors should be challenged; typ-

ically, the court itself conducts the voir dire. Finally,

the judge oversees the jury selection process and,

“lw]hen a lawyer exercises a peremptory challenge,”

it is “the judge [who] advises the juror he or she has

heen excused.” 111 S. Ct. at 2084. Based on those

factors, and especially on “the direct and indispensa-

ble participation of the judge,” the Court concluded

that the exercise of peremptory challenges involves

the government with the challenged discriminatory

conduct in a “significant way.” /d. at 2085.

Georgia law similarly provides the defendant with

the right to exercise peremptory challenges as one

component of the State’s overall procedure for select-

ing the jury. Georgia provides for the compilation of

jury lists by the board of jury commissioners in each

county and establishes the general criteria for service

and the sources of citizens to produce a pool of qual-

ified jurors representing a fair cross section of the

community. Ga. Code. Ann. § 15-12-40 (Michie

1990). State law further provides that jurors are to

be selected by a specified process, § 15-12-42; they

are to be summoned to court under the authority of

the State, § 15-12-120; and they are to be paid an

expense allowance by the State whether or not they

serve on a jury, § 15-12-9. At court, potential jurors

are placed in panels in order to facilitate examination

by counsel, § 15-12-131; they are administered an

oath, § 15-12-139; they are questioned on voir dire

to determine whether they are impartial, § 15-12-164;

and they are subject to challenge for cause, § 15-12-

163.

In felony cases, 42-jurors are empaneled, “from

which the defense and the prosecution may strike

jurors.” § 15-12-160. The number of peremptory

challenges is specified by statute, with the State being

allowed one-half of the number allowed to the defense.

§$ 15-12-165.° When a peremptory challenge is exer-

“Under Ga. Code. Ann. § 15-12-165 (Michie 1990), 20

challenges are allowed to the defendant when facing charges

carrying a penalty of life or more than four years’ imprison-

ment, and 12 are allowed for lesser offenses. These provi-

sions, and the authorization for the State to exercise one-half

the number of challenges given to the defendant, have long

cised, it is the trial judge who excuses the juror from

service. In light of those procedures, the defendant

in a Georgia criminal case relies on “governmental

assistance and benefits” that are equivalent to those

found in the civil context examined in Kdmonson, 111

S. Ct. at 2085. “By enforcing a discriminatory per-

emptory challenge, the Court ‘has not only made itself

a party to the [biased act], but has elected to place

iis power, property and prestige behind the [alleged ]

discrimination. Edmonson, 111 S. Ct. at 2085

(citation omitted).

This Court found in Edmonson that the selection

of a civil jury is a “traditional function of the gov-

ernment,” 111 S. Ct. at 2085. The same conclusion

applies with even greater force in the criminal con-

text. The selection of a jury in a criminal case ful-

’ 99

been part of Georgia law. See Laws 1833, Cobb’s Digest 835

(1851); Jones v. State, 1 Ga. 610, 616-617 (1846). Before

the 1833 statute, Georgia had followed the English rule, which

gave the defendant 20 peremptory challenges in cases of

murder and other felonies, while purportedly giving the

prosecutor no challenges without cause, but leaving him the

right to require jurors to “stand aside” without being “bound

to show cause, till all the panel was called over, and not then,

unless, from challenges or otherwise, the jury is incomplete.”

Sealy v. State, 1 Ga. 213, 216 (1846); W. Blackstone, Com-

mentaries 353 (Tucker e¢ 1803); see Holland, 493 U.S. at

481 n.1. In practice, this procedure was recognized as giving

the prosecutor a far greater number of peremptory challenges

than the defendant. Boon vy. State, 1 Ga. 618,.619-620 (1846).

After the legislature fixed the number of peremptory chal-

lenges, the Georgia Supreme Court held that the prosecutor's

common law right to have jurors stand aside did not survive,

see Sealy, 1 Ga. at 217, and that granting peremptory chal-

lenges to the prosecutor did not impair the defendant’s com-

mon law or state constitutional rights. Jones, 1 Ga. at 616-

617.

fills a unique, and constitutionally compelled, govern-

mental function. The Sixth Amendment, made appli-

cable to the States through the Fourteenth Amend-

ment, Duncan vy. Louisiana, 391 U.S. 145 (1968), re-

quires that “[i]n all criminal prosecutions, the ac-

cused shall enjoy the right to a speedy and_ public

trial, by an impartial jury of the State and district

wherein the crime shall have been committed.” * U.S.

Const. Amend. VI. In determining the guilt or inno-

cence of a defendant in a criminal case, the jury is

unquestionably performing an official act of the gov-

ernment. The defendant’s participation in the se-

lection of that body “represents a unique govern-

mental function delegated to private litigants by the

government and attributable to the government for

purposes of invoking constitutional protections

against discrimination by reason of race.” Hdmon-

son, 111 S. Ct. at 2086; see Terry v. Adams, 345 U.S.

461 (1953) (finding state action in the activities of

7 The Sixth Amendment echoes Article III of the Constitu-

tion, which provides: “The trial of all Crimes, except in Cases

of Impeachment, shall be by Jury; and such Trial shall be

held in the State where the said Crimes shall have been com-

mitted.”” U.S. Const. Art. III, § 2, Cl. 3. Similarly, the Geor-

gia Constitution guarantees that “In criminal cases, the de-

fendant shal! have a public and speedy trial by an impartial

jury.” Ga. Const. Art. k § 1, para. XI.

*“!T |he jury trial provisions in the Federal and State Con-

stitutions reflect a fundamental decision about the exercise of

official power—a reluctance to entrust plenary powers over the

life and liberty of the citizen to one judge or to a group of

judges. Fear of unchecked power, so typical of our State and

Federal Governments in other respects, found expression in

the criminal] law in this insistence upon community participa-

tion in the determination of guilt or innocence.” Duncan, 291

U.S. at 156.

a private organization that conducted whites-only

primaries, because the organization formed an in-

tegral part of the State’s mechanism for selecting its

officials ).

Finally, Edmonson indicated that the courtroom

setting in which the peremptory challenge is exercised

intensifies the harmful effects of the private litigant’s

discriminatory act and contributes to its characteriza-

tion as state action. 111 S. Ct. at 2083, 2087; cf.

Shelley v. Kraemer, 334 U.S. 1, 20 (1948) (judicial

enforcement of discrimination implicates the “clear

and unmistakable imprimatur of the State’). The in-

jury to equal protection values caused by the race-

based exclusion of a juror is not diminished simply

because the exclusion is at the behest of a criminal

defendant.

At the conclusion of the jury selection process,

the judge typically announces in open court that

particular jurors have been excused and will not

participate in the trial. If the judge advises each of

the black prospective jurors that they “will not be

needed” for jury service, it is not likely to matter

much that the defense, rather than the prosecutor or

the court, precipitated their removal. The perception

—and the reality—will be that the court has excused

all the black jurors from participating in the trial be-

cause of their race, an outcome that will be attributed

to the State and will discredit the State’s mechanism

for resolving criminal cases. As in Edmonson, “[i]f

peremptory challenges based on race were permitted,

persons could be required by summons to be put at

risk of open and public discrimination as a condi-

tion of their participation in the justice system.” 111

S. Ct. at 2087. When that occurs, the harm to the

excluded juror, and to the legal system, is the product

of “governmental delegation and participation” in

the peremptory challenge process. /bid.°

2. Ti:e Adversarial Relationship Between the Defend-

ant and the Prosecution Does Not Affect the Gov-

ernmental Character of the Peremptory Challenge

That a criminal defendant is the adversary of the

prosecution with respect to the charges against him

does not vhange the state action analysis in this case.

The particular function at issue here is the selection

of the jury through peremptory challenges. In that

specific role, the defendant uses a government-

delegated right to choose the decisionmaker and

thereby becomes a state actor for the purpose of

applying constitutional prohibitions against racial

discrimination.

The exercise of a peremptory challenge differs sig-

nificantly from other actions taken in support of the

defendant’s defense. In a criminal trial, the defend-

ant and his counsel make any number of tactical

decisions, such as determining what defe.ses to raise,

what questions to ask on cross-examination, what ob-

jections to make to the prosecutor’s evidence, whether

the defendant should testify, and what witnesses to

call, if any. Those decisions by the defense are fun-

damentally private ones. Indeed, the defendant’s

® This Court stated in Swain v. Alabama, 380 U.S. 202, 227

(1965), that “[t]he ordinary exercise of challenges by de-

fense counsel does not, of course, imply purposeful discrimi-

nation by state officials.” Swain’s approach to peremptory

challenges was overruled in Batson, and its reasoning on this

issue is not authoritative in light of Edmonson. Indeed, in

Batson itself the Court remarked that it was expressing no

view on whether the Constitution applies to defense peremp-

tory strikes, thus treating the issue as an open one. Butson,

476 U.S. at 89 n.12.

right to make those decisions is constitutionally pro-

tected against arbitrary interference by the State.

The peremptory challenge, however, is different: it is

the State that gives the defendant the right to par-

ticipate in the selection of the body that will evaluate

both parties’ evidence. The governmental nature of

that function distinguishes the peremptory challenge

from other functions of defense counsel that go to the

defendant’s effort to persuade the finder of fact to

acquit him.

For that reason, a finding of state action in this

case is consistent with Polk County v. Dodson, 454

U.S. 312 (1981). There, a defendant brought an

action under 42 U.S.C. 1983 against the public de-

fender who represented him on appeal from his con-

viction; the defendant claimed that the public de-

fender had violated his constitutional rights in failing

to provide adequate representation. This Court de-

termined that a public defender does not qualify as

a state actor when engaged in his general representa-

tion of a crimina! defendant, a function that is “in

no way dependent on state authority.” 454 U.S.

at 318.

The defendant’s exercise of a peremptory chal-

lenge, however, is a function that is critically “‘de-

pendent on state authority.” The power to call—and

excuse—jurors is exclusively a function of govern-

ment. The right to exercise a peremptory challenge

flows from the act of the legislature; its mechanism

of enforcement is an action of the judge; and its

effect is ‘to determine representation on a govern-

mental body.” Edmonson, 111 S. Ct. at 2086.

The determination of whether a private person is

a state actor for a particular purpose depends on the

nature and context of the function being performed.

For example, in Branti vy. Finkel, 445 U.S. 507

(1980), this Court held that a public defender, in

making personnel decisions on behalf of the State, is

a state actor who must comply with constitutional

requirements. And Dodson itself noted, without de-

ciding, that “‘[i]t may be * * * that a public defender

also would act under color of state law while perform-

ing certain administrative and possibly investigative

functions.” 454 U.S. at 325. In this case, it is the

particular role that the peremptory challenge plays in

determining the composition of a governmental body

that leads to the conclusion that the defendant’s exer-

cise of a peremptory challenge should be treated as

state action.

That the defendant exercises a peremptory chal-

lenge to further his interest in an acquittal does not

conflict with a finding of state action. Whenever a

private actor’s conduct is deemed “fairly attributa-

ble” to the government, it is likely that private mo-

tives will have animated the actor’s decision. Indeed,

in Edmonson, the Court recognized that the private

party’s peremptory challenges constituted state ac-

tion, even though “the motive of a peremptory chal-

lenge may be to protect a private interest.” 111 S.

Ct. at 2086. Applying that principle here, the de-

fendant’s peremptory challenges are appropriately

characterized as state action.

3. Application of Constitutional Constraints to the

Defendant's Peremptory Challenges Does Not In-

fringe the Defendant’s Rights

The Constitution does not require peremptory chal-

lenges; they are solely ‘“‘a creature of statute.” Ross

v. Oklahoma, 487 U.S. 81, 89 (1988) ; Edmonson, 111

S. Ct. at 2083; Holland, 493 U.S. at 481-482; Batson,

476 U.S. at 91; Swain, 380 U.S. at 219; Stilson v.

United States, 250 U.S. 583, 586 (1919) (‘There

is nothing in the Constitution of the United States

which requires the Congress to grant peremptory

challenges to defendants in criminal cases; trial by

an impartial jury is all that is secured.”). Accord-

ingly, the conclusion that equal protection principles

are violated by the defendant’s invidious use of pe-

remptory challenges does not require a balancing of

competing rights; the excluded juror’s constitutional

right to be free from racial discrimination is para-

mount to the defendant’s statutory right to exercise

a particular challenge.

Nor would application of the Batson procedures to

defense peremptories threaten the Sixth Amendment

right to the effective assistance of counsel.'’? One com-

mentator has argued that compliance with Batson

would require defense counsel to explain the reasons

for a particular challenge, which might occasionally

require the disclosure of communications protected

by the attorney-client privilege; counsel would then

be forced either to give up the challenge or to reveal

client communications and possibly trial strategy.

Goldwasser, Limiting a Criminal Defendant’s Use of

Peremptory Challenges: On Symmetry and the Jury

in a Criminal Trial, 102 Harv. L. Rev. 808, 831-833

(1989). Those concerns provide no justification for

refusing to protect the juror’s constitutional rights.

'’ Under Batson, if the defendant establishes a prima facie

case of discrimination in the use of peremptory strikes, the

burden shifts to the prosecutor to articulate a race-neutral ex-

planation for the particular strikes in question. The trial

court must then determine whether the defendant has demon-

strated purposeful discrimination on grounds of race. Bat-

son, 476 U.S. at 96-98; Hernandez v. New York, 111 S. Ct.

1859, 1865-1866 (1991) (plurality opinion) (describing the

“three-step” inquiry under Batson).

Most peremptory challenges are based on general im-

pressions gleaned during the parties’ opportunity to

observe and examine the jurors in court. Counsel can

ordinarily explain the reasons for their peremptory

challenges without revealing anything about their

trial strategy or any confidential client communi-

cations.

In the rare case in which the explanation for a

challenge entails confidential communications or

would reveal trial strategy, in camera procedures can

be devised to protect against unnecessary disclosure.

See United States v. Zolin, 491 U.S. 554 (1989); ef.

Batson, 476 U.S. at 97 (expressing confidence that

trial courts can develop procedures to implement the

Court’s holding). Sixth Amendment values, even if

implicated, would not be infringed by those proce-

dures. See Swift, Defendants, Racism and the Pe-

remptory Challenge: A Reply to Professor Gold-

wasser, 22 Colum. Hum. Rts. L. Rev. 177, 207-208

(1991). In any event, neither the Sixth Amendment

nor the attorney-client privilege gives a criminal de-

fendant the right to carry out through counsel an

unlawful course of conduct. See Nix vy. Whiteside,

475 U.S. 157 (1986) (defense counsel does not render

ineffective assistance when he informs his client that

he would disclose the client’s perjury to the court and

move to withdraw from representation); Zolin, 491

U.S. at 562-563; McCoy v. Court of Appeals of Wis-

consin, 486 U.S. 429, 443 (1988)."

'' Any incidental revelation of trial strategy caused by a

Batson-type inquiry is, of course, equally applicable to the

prosecution, so applying Batson to defendants would not im-

pose any special burden on the defense. Cf. United States v.

Tindle, 860 F.2d 125, 131-132 (4th Cir. 1988) (approving in

camera Batson submissions by the prosecutor because of spe-

Far from compromising the defendant’s rights, the

extension of Batson to the defense prevents the de-

fendant from skewing the jury unduly in his favor.

“Although the [Sixth Amendment] guarantee [of an

impartial jury] runs only to the individual and not

to the State, the goal it expresses is jury impar-

tialitv with respect to both contestants: neither the

defendant nor the State should be favored.” Holland,

493 U.S. at 483. The peremptory challenge, while

offering some protection for the accused, is also a

means for assuring jury impartiality for the govern-

ment. In Haves vy. Missouri, 120 U.S. 68 (1887), this

Court recognized that purpose in upholding, against

an equal protection challenge, a statute that gave the

State more peremptory challenges in capital cases

tried in larger cities than in other locations. Approv-

ing Missouri’s goal to secure an impartial jury, the

Court stated that “such impartiality requires not only

freedom from any bias against the accused, but also

from any prejudice against his prosecution. Between

him and the state the scales are to be evenly held.”

Id. at 70.

If a criminal defendant were permitted to engage

in race-based strikes, it would provide an opportunity

for significantly distorting the composition of the

jury. In this case, for example, if a representative

jury panel is called, respondents’ 20 peremptory chal-

cial need to protect sensitive information), cert. denied, 190

U.S. 1114 (1989). Moreover, private parties enjoy the protec-

tion of the attorney-client privilege against the disclosure of

confidential attorney-client comunications, yet this Court in

Edmonson held that that interest does not prevail over the

rights of jurors not to be disqualified on racial grounds. The

same analysis applies to the asserted interest in protection of

attorney-client communications in the criminal context.

lenges would enable them to exclude all black poten-

tial jurors from the jury. J.A. 7. In jurisdictions

that have permitted race-based strikes by the de-

fense, peremptory challenges have been used by de-

fendants to achieve all-white juries. See Alschuler,

The Supreme Court and the Jury: Voir Dire, Per-

emptory Challenges, and the Review of Jury Ver-

dicts, 56 U. Chi. L. Rev. 153, 195-196 (1989) (de-

scribing two trials in Miami, Florida, in which all

black jurors were peremptorily challenged by white

police officers accused of a racial beating). That use

of the challenge undermines the traditional character

of the jury as a body that represents all citizens, and

is a mirror image of the problem that led to this

Court’s decision in Batson itself. See Batson, 476

U.S. at 101 (White, J., concurring) (noting “wide-

spread” and persistent practice by prosecutors “of

peremptorily eliminating blacks from petit juries in

cases with black defendants’). Although an_ indi-

vidual jury cannot and need not reflect the racial

mix of the community, “[d]Jiscrimination by defense

attorneys can undermine the democratic values of the

jury system and subvert public confidence in the ad-

ministration of justice as powerfully as racial dis-

crimination by prosecutors.” Alschuler, supra, 56

U. Chi. L. Rev. at 196.

This case illustrates that point. Respondents ar-

gued in the court below that, because a notice was

circulated in the black community calling for a boy-

cott of respondent’s business in response to the alter-

cation in this case, it is “essential for the defendants

to have the right to utilize peremptory strikes to

exclude blacks from the trial jury.” J.A. 35."* Indeed,

2 That contention is clearly without merit. The single, non-

inflamatory notice distributed in the black community months

respondents went so far as to imply that, because the

charges involve an assault on a black victim, a white

defendant should automatically be entitled to exclude

all black persons peremptorily."" The claim that all

blacks are incapable of serving as impartial jurors in

respondents’ trial is antithetical to basic assumptions

underlying our jury system. The law provides the

means to test bias in cases where race is an issue.

See Ham v. South Carolina, 409 U.S. 524 (1973);

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

There can be no rule of presumptive prejudice that

applies to all jurors of a particular race. “In our

heterogeneous society policy as well as constitutional

considerations militate against the divisive assump-

tion—as a per se rule—that justice in a court of law

may turn upon the pigmentation of skin, the accident

of birth, or the choice of a religion.” Ristaino v. Ross,

424 U.S. 589, 596 n.8 (1976). For the defense as

well as the prosecution, our law reflects the principle

that ‘“‘[a] person’s race simply is unrelated to his fit-

ness as a juror.” Batson, 476 at 87, quoting Thiel v.

before the trial (J.A. 38) could not possibly rise to the level

of prejudicing all black jurors in the entire community. Cf.

Mu'Min V. Virginia, 111 S. Ct. 1899 (1991) (pretrial publicity

regarding the crimes with which the defendant was charged,

though pervasive and intense and reaching most of the jurors,

did not rise to the level requiring inquiry on voir dire about

the individual jurors’ knowledge of the contents of the pub-

licity).

13 Respondents argued: “Should a person of Iraqi descent

charged with committing an assault on a Jewish person be

able to excuse by peremptory challenge Jewish jurors on the

belief that such jurors could conceivably be inclined to be more

partial to a Jewish prosecutor. To ask the question is to an-

swer it. * * * The provisions of Batson v. Kentucky, supra are

absolutely unworkable if applied to a criminal defendant.”

J.A. 35-36.

Southern Pac. Co., 328 U.S. 217, 227 (1946) (Frank-

furter, J., dissenting). As this Court stated in

Powers, ““[w]e may not accept as a defense to racial

discrimination the very stereotype the law con-

demns.”’ 111 S. Ct. at 1370."

C. The Prosecutor Has Standing To Object To The Dis-

criminatory Exercise Of Defense Peremptory Chal-

lenges

In Powers, this Court concluded that a criminal

defendant has standing to raise the equal protection

rights of a black juror who was peremptorily chal-

lenged by the prosecutor on grounds of race. 111

S. Ct. at 1370-1373. In Edmonson, the Court held

that the opposing litigant in a civil case has stand-

ing to assert the rights of an excluded juror who

may have been victimized by a race-based challenge.

111 S. Ct. at 2087-2088. The holdings of those cases

are equally applicable to the State’s claim that it has

standing to object to discriminatory peremptory

challenges by a criminal defendant.

No extended analysis of the prosecutor’s standing

is required in this case, because, as the representative

of all its citizens, the State is a logical and proper

The majority of state courts that have considered the

question have concluded that discriminatory defense peremp-

tories are unlawful, either under state or federal constitu-

tional provisions. See, e.g., People v. Kern, 75 N.Y.2d 638, 554

N.E. 2d 1235 555 N.Y.S.2d 647, cert. denied, 111 S.Ct. 77

(1990) ; State v. Levinson, 71 Haw. 492, 795 P.2d 845 (1990) ;

State v. Anaya, 96 Ariz. Adv. Rep. 133 (Ct. App. 1991). In

the federal system, even if a rule against racially discrimina-

tory defense peremptory challenges were not constitutionally

compelled, supervisory powers would justify the imposition

such a bar in light of the strong federal policy against racial

discrimination in jury selection. See 18 U.S.C. 243; Peters v.

Kiff, 407 U.S. 493 (1972).

party to assert the invasion of the constitutional!

rights of the excluded jurors in a criminal trial. The

Fourteenth Amendment imposes on the State the

obligation to provide to persons within the State’s

jurisdiction the equal protection of the laws. More-

over, the prosecutor “has a legitimate interest in

seeing that cases in which he believes a conviction is

warranted are tried before the tribunal which the

Constitution regards as the most likely to produce a

fair result.” See Singer v. United States, 380 U.S.

24, 36 (1965) (upholding constitutionality of a rule

requiring prosecutor’s consent to the defendant’s

waiver of a jury trial). Accordingly, the State has

standing to object to race-based peremptory chal-

lenges exercised by criminal defendants.

CONCLUSION

The judgment of the Supreme Court of Georgia

should be reversed.

Respectfully submitted.