Amicus Curiae Brief — Georgia v. McCollum

Bupremo Court, U.&,

=

FILED

DEC 12

No. 91-372 Vo ot

BS ete Sey ht

IN THE

Supreme Court of the United States

OcTOBER TERM, 1991

STATE OF GEORGIA,

Petitioner,

Vs,

THOMAS McCoLLuM, WILLIAM JOSEPH MCCOLLUM, and

ELLA HAMPTON MCCOLLUM,

Respondents.

On Writ of Certiorari to the Georgia Supreme Court

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

KENT S. SCHEIDEGGER

CHARLES L.. HOBSON*

Criminal Justice Legal Fdn.

2131 L Street (95816)

Post Office Box 1199

Sacramento, California 95812

Telephone: (916) 446-0345

Alttorneys for Amicus Curiae

Criminal Justice Legal Foundation

*Attorney of Record

QUESTION PRESENTED

Are criminal defendants to be the only litigants granted

immunity from the prohibition against racially discriminatory

peremptory challenges enunciated in Batson v. Kentucky, 476

U.S. 79 (1986)?

(i)

208 age

TABLE OF CONTENTS

EE See i

EES SOT eee iv

eee |

SO gw te te et te ee 2

ew tt th et et ee 2

I Sec ct tt tt tt et et ee 3

I

Batson applies to criminal defendants 2... 2 2 3

Sas 5 oe tt et tt tt ew 4

B. Rights other than defendants’... 2. 6

ETS 66 4 ce 6 tee ee 6

Se bik 5 56s eo ee ee 10

IETS Sb gs cc ee cc tt te ee 14

EE eee 23

EE Ee 25

II]

Defendant's interest in peremptory challenges do not justify

immunizing them from Batson ... 2... 2.020000... 26

EE Ee 29

(111)

TABLE OF AUTHORITIES

Cases

Avery v. Georgia, 345 U.S. 559, 97 L.Ed. 1244,

SP SE 4k Kae bh oe sp aden es eeinwees 4

Ballard v. United States, 329 U. S. 187, 91 L. Ed. 181,

Sea EE v4 sa eS Oe Bee eb ees 12

Batson v. Kentucky, 476 U. S. 79, 90 L. Ed. 2d 69,

OO6S. Ce. P7IZ (ISEB) ow ee ees 2, 4, 5, 6, 9, 12, 26, 27

Burdeau v. McDowell, 256 U. S. 465, 65 L. Ed. 1049,

ee eee ee eer ee ee oe ee 14

Carter v. Jury Commission of Greene County, 396 U. S. 320,

24 L. Ed. 2d 549, 90S. Ct. 518 (1970) ........... 7,11

Commonwealth v. Soares, 387 N. E. 2d 499 (Mass. 1979) . . .28

Duncan v. Louisiana, 391 U.S. 145, 20 L. Ed. 2d 491,

2 ee ee ee eae ee ee 4,11

Edmonson v. Leesville Concrete Co., 114 L. Ed. 2d 660,

ob eee | every ererT Te Te ee 5, 8, 17-26

Ex parte Virginia, 100 U. S. 339, 25 L. Ed. 676 (1880) ..... 4

Ferri v. Ackerman, 444 U. S. 193, 62 L. Ed. 2d 355,

rr es ree ee ee 22

General Building Contractors v. Pennsylvania, 458 U. S. 375,

73 L. Ed. 2d 835, 102 S. Ct. 3141 (1982) ........... 22

Gideon v. Wainwright, 372 U. S. 335, 9 L. Ed. 2d 799,

aire eo ee ee 22

Green v. United States, 356 U. S. 165, 2 L. Ed. 2d 672,

er er a ree 11

Hayes v. Missouri, 120 U. S. 68, 30 L. Ed. 578,

ee eee ee ee re ee ee ee 5,6

Hill v. Texas, 316 U.S. 400, 85 L. Ed. 1559,

oe er ee ee ee 4

Holland v. Illinois, 107 L. Ed. 2d 905,

SS sc enn CW ca d Sk ee eke OS 5, 27

Hurtado v. California, 110 U. S. 516, 28 L. Ed. 232,

I sg keg 'o- SG a 6 -3'%-'% oa 6 ae 3 wes 27

Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527,

ee ee eee a re 26

Lugar v. Edmondson Oil Co., 457 U. S. 922, 73 L. Ed. 2d 482,

Die we 6 ee eee eee a ae es es 19

Massiah v. United States, 377 U.S. 201, 12 L. Ed. 2d 246,

kk a's ck ee a Re eee 22

Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694,

oo ke ee ee ae ere 26

People v. Kern, 545 N. Y.S. 2d 4(1989) ............. 12

People v. Kern, 554 N. E. 2d 1235 (N.Y. 1990) .. 2... 13, 28

People v. Pagel, 232 Cal. Rptr. 104 (Cal. App. Supp. 1986) . .29

People v. Snow, 746 P. 2d 452 (Cal. 1987)... 2.2... 2. 29

People v. Wheeler, 583 P. 2d 748 (Cal. 1978) .. 2.2... . 28, 29

Poters v. His. 96S. Ce. ZIG (1S7Z) 0 ww wt ee 10, 24

Polk County v. Dodson, 454 U. S. 312, 70 L. Ed. 2d 509,

ee | 20, 21

Powers v. Ohio, 113 L. Ed. 2d 411,

Se Ee ele ae aK Ge wae Rack eo es Passim

Rose v. Mitchell, 443 U. S. 545, 61 L. Ed. 2d 739,

SPU. Soh d ade acasadedces 9, 12, 26

Runyon v. McCrary, 427 U. S. 160, 49 L. Ed. 2d 415,

CUMMEEEEES o C ccs ecesceceewsisceeeedean 24

Shelley v. Kraemer, 334 U.S. 1, 92 L. Ed. 1161,

GED ce cee sneceebeccucee 9,14, 15

Singleton v. Wulff, 428 U. S. 106, 49 L. Ed. 2d 826,

ED 6c ta chee ee ava eus «eee a 25

Smith v. Allwright, 321 U. S. 649, 88 L. Ed. 987 (1944) ... .17

Snyder v. Massachusetts, 291 U. S. 97, 78 L. Ed. 674,

ne ee a eee ere 6, 28

State v. Neil, 457 So. 2d 481 (Fla. 1984) ............. 28

Stilson v. United States, 250 U. S. 583, 63 L. Ed. 1154,

Ee ee 17, 20, 27

Strauder v. West Virginia, 100 U. S. 303,

SPU UE od Se cece eens es cen s eee

Swain v. Alabama, 380 U. S. 202, 13 L. Ed. 2d 759,

ee 5, 12, 26

Terry v. Adams, 345 U. S. 461, 97 L. Ed. 684,

73 S. Ct. 809 (1953) . 0.2... ee eee eee 15, 16, 17

Thiel v. Southern Pacific, 328 U.S. 217, 90 L. Ed. 1181,

I le eg irae bw eo oe ee 8 ae Oe 4

United States v. Classic, 313 U.S. 299, 85 L. Ed. 1368,

eee ree eer ee 14, 21

West v. Akins, 487 U. S. 42, 101 L. Ed. 2d 40,

Do 'o ge 6 % 6%: 0 68 0 we we we 22

Vii

United States Statutes

SS era ae re ee ee eae 6, 10, 23

ER aN oe oe eae bao k C4 ERS 20

State Statute

co ee eee eee Le eee 18

Treatises

W. Blackstone, Commentaries on the Laws of England

ar ae are ee ee 4, 10, 11, 20, 27

A. De Tocqueville, Democracy in America

RE ee ee 8

W. LaFave, Criminal Procedure (1984) 2.2... 2. 2 ee eee 5

Miscellaneous

ABA Model Rules of Professional Conduct (1983) ...... 23

ABA Model Code of Professional Responsibility (1980). . .23

P. Di Perna, Juries on Trial: Face of American Justice

a ree ee gd 12, 13

Kuhn, Jury Discrimination: The Next Phase,

of ee ee ee eee 13

J. Madison, The Federalist No. 47 (Rossiter ed. 1961)... . . 18

Note, Rethinking Limitations on the Peremptory Challenge,

8 8 12

Note, Discrimination by the Defense: Peremptory Challenges

After Batson v. Kentucky, 88 Colum. L. Rev. 355 (1988). .12

Vili

J. Van Dyke, Jury Selection Procedures (1977)

C. Wolfram, Modern Legal Ethics (1986)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

STATE OF GEORGIA,

Petitioner,

Vs,

THOMAS McCoLiuM, WILLIAM JosEPH MCCOLLUM, and

Er tA HAMPTON MCCOLLUM,

Respondents.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation. CJLF secks to further the inter-

ests of victims of crime in the criminal justice system. Specifi-

cally, CJLF secks a recognition that victims as well as defend-

ants are entitled to fundamental fairness and equal protection

of the law.

The present case involves the issue as to whether criminal

defendants are the only litigants immune from the prohibition

1. CJLF has received written consent of the parties to file this brief.

against racially discriminatory peremptory challenges an-

nounced in Batson v. Kentucky, 476 U. S. 79 (1986). CJLF

contends defendants are subject to Batson.

Giving criminal defendants the freedom to racially discrim-

inate against jurors would undermine the integrity of verdicts

and respect for the justice system. Because this may have a

substantial adverse impact on the victims whose interests

CJLF was formed to represent, CJLF has a substantial interest

in the case.

SUMMARY OF FACTS AND CASE

Defendants, who are white, were indicted for various as-

sault-based crimes against the victims, who are black. The

prosecution filed a pretrial motion to prohibit defendants from

exercising racially discriminatory peremptory challenges. Pet.

Cert. 2-3. The trial court denied the motion, and the Georgia

Supreme Court affirmed, holding that Batson did not apply to

defense. Jd., at 3; see State v. McCollum, 405 S. E. 2d 688, 689

(Ga. 1991).

SUMMARY OF ARGUMENT

Making defense peremptory challenges subject to Batson v.

Kentucky, 476 U. S. 79 (1986) is the logical continuation of this

Court's jury discrimination jurisprudence. This Court has

consistently opposed jury discrimination in any form. Prohibit-

ing jury discrimination by the criminal defense will close the

last unregulated bastion of jury discrimination.

Making defendants immune from Batson would be unfair

to the prosecution. Subjecting the prosecution but not de-

fendant to Batson would give the accused an unwarranted and

ultimately unfair advantage in shaping the jury. A proper jury

trial is not biased against either side. As justice is also due to

the accuser, defendants should be as constrained by Batson as

the People.

Defense jury discrimination harms two substantial constitu-

tional interests. The excluded juror has an equal protection

right not to be excluded from the jury for reasons of race.

Discriminatory defense peremptories deprive the excluded

juror of this important civil right.

The public is also harmed by defendants’ discrimination.

Jury discrimination, regardless of which side causes it, destroys

the public’s faith in the jury, creates disrespect for verdicts,

and thus undermines the legal system. Such a loss of faith can

have disastrous consequences.

Peremptory challenges involve a critical transfer of power

from the government to the litigants; without the transfer, a

criminal defendant cannot exclude a juror for reasons of race.

Defendants’ dependence upon the state for this power thus

transforms his exercise of the peremptory challenge into state

action for the purpose of the Fourteenth Amendment. As the

e:.cluded jurors are unlikely to raise their right not to be ex-

cluded, and, as the prosecution has a strong interest in pre-

venting jury discrimination, the prosecution has third party

standing to raise the juror’s claim.

Criminal defendants are not entitled to a special exemption

from the Batson rule. There is no right to a peremptory chal-

lenge under the Sixth Amendment. Immunizing the defense

from Batson would be a perversion of due process principles.

Finally, subjecting defense peremptories to Batson will not

climinate them.

ARGUMENT

I. Batson applies to criminal defendants.

With Strauder v. West Virginia, 100 U. S. 303 (1880) this

Court started a struggle against one of the bulwarks of racial

oppression—jury discrimination. The struggle continues

unabated today. See Powers v. Ohio, 113 L. Ed. 2d 411, 419,

111 S. Ct. 1364, 1366 (1991). Because the jury is such an

important part of our civic structure, racial discrimination is

particularly destructive when it infects the jury. Therefore,

this Court’s vigilance against jury discrimination is particularly

important in making good the Fourteenth Amendment’s

promise of full civil and political rights for all, regardless of

race. See Strauder, supra, 100 U. S., at 306-307.

~The jury is one of the oldest and greatest entitlements of

Anglo-American law. See Duncan v. Louisiana, 391 U.S. 145,

151 (1968); 4 W. Blackstone, Commentaries on the Laws of

England 407 (1st ed. 1769). It is both a check on the state’s

power, sce 4 Blackstone, supra, at 343-344, and a badge of citi-

zenship, see Powers, supra, 113 L. Ed. 2d, at 424, 111 S. Ct., at

1369. Excluding a person from a jury for racial reasons is an

“assertion of... their inferiority” against the excluded juror.

Strauder, supra, 100 U. S., at 308.

Since Strauder, this Court has displayed unequivocal hostili-

ty to racial exclusion from jury service. It has forbidden legis-

lative and judicial discrimination, see id., at 305; Ex parte Vir-

ginia, 100 U.S. 339, 346-347 (1880); discrimination in the se-

lection of both grand and petit juries, Hill v. Texas, 316 U. S.

400, 404 (1942); Avery v. Georgia, 345 U.S. 559, 561 (1953);

discrimination in civil and criminal juries, see Strauder, supra;

Thiel v. Southern Pacific, 328 U.S. 217, 220 (1946); and dis-

criminatory peremptory challenges, Batson v. Kentucky, 476

U.S. 79, 96 (1986).

This case presents the last bastion of jury discrimination.

This Court has not directly addressed defendants’ use of dis-

criminatory peremptories. See id., at 89, n. 12. This case can

drive the last nail into jury discrimination’s coffin.

A. Fairness

Since this Court addressed the issue of discriminatory

peremptory challenges in Batson, it has examined almost every

significant factual setting in this field. It has forbidden discrim-

inatory peremptory challenges by the prosecution, whether the

defendant and the juror are of the same race, Batson, supra, or

of different races, Powers v. Ohio, 113 L. Ed. 2d 411, 419, 111

S. Ct. 1364, 1366 (1991). It has forbidden discriminatory chal-

lenges by civil litigants. Edmonson v. Leesville Concrete Co.,

114 L. Ed. 2d 660, 680, 111 S. Ct. 2077, 2089 (1991). Only

criminal defense peremptorics have not been analyzed. See

Batson, supra, 476 U. S., at 89, n. 12. The Georgia Supreme

Court held that criminal defendants were not subject to Bat-

son. Pet. Cert. App. 3. Fairness dictates otherwise. If every

other litigant in every other factual setting is subject to Batson,

there is no reason to immunize criminal defendants.

The greatest harm that may befall our jury system is bias,

whether actual or apparent. It destroys the public’s faith in

the justice of verdicts, ruining the credibility of the system.

See Batson, supra, 476 U. S., at 87. Given the great resources

of the state and the inclination of most people to favor the

prosecution, this Court justly focuses its energy on preventing

the prosecution from improperly influencing the jury in its

favor. See, e.g., id., at 89, n. 12; Swain v. Alabama, 380 U. S.

202 (1965). Yet for the jury to be unbiased it can favor neither

the prosecution nor the defense.

“But to prescribe whatever will tend to secure the

impartiality of jurors in criminal cases is not only within

the competency of the legislature, but is among its

highest duties. It is to be remembered that such impar-

tiality 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.” Hayes v. Missouri, 120 U.S. 68, 70

(1887) (emphasis added).

The peremptory challenge is intended to remove bias

against cither side, thus insuring an impartial jury. Sec Hol-

land v. Illinois, 107 L. Ed. 2d 905, 916, 110 S. Ct. 803, 807

(1990). Granting defendants’ request to be free from Batson

would create an imbalance between the prosecution and

defendants in their ability to influence jury selection. This ts

contrary to the reasoning behind the peremptory challenge.

Allowing defendants to have an advantage in shaping the jury

runs contrary to the design of most jurisdictions to grant the

prosecution and defense equal power over the jury’s composi-

tion. See 2 W. LaFave, Criminal Procedure § 21.3, at 736

(1984).

“A person’s race simply ‘is unrelated to his fitness as a ju-

ror.’ ” Batson, supra, 476 U. S., at 87 (quoting Thiel, supra,

328 U.S., at 227 (Frankfurter, J., dissenting)). Just as the

prosecution's use of race-based peremptories destroys defend-

ants’ interest in a fair trial, Batson, supra, at 86-87, a defend-

ant’s use of the same tactic is unfair to the prosecution. Bat-

son was part of this “Court’s unceasing efforts to eradicate

racial discrimination” from the jury. /d., at 85. It is not a li-

cense for defendants to bias the jury in their favor. “But jus-

tice, though due to the accused, is due to the accuser also.

The concept of fairness must not be strained till it is narrowed

to a filament. We are to keep the balance true.” Snyder v.

Massachusetts, 291 U.S. 97, 122 (1934). Exempting criminal

defendants from the Batson rule would be contrary to the

purpose of the peremptory challenge.

B. Rights Other Than Defendants’.

1. The juror’s right.

The people of Georgia are not the only ones unfairly treat-

ed by the state court’s decision. The wrongly excluded juror is

a victim whose rights are recognized by both the Equal Protec-

tion Clause, see Powers v. Ohio, 113 L. Ed. 2d 411, 424, 111

S. Ct. 1364, 1370 (1991), and an act of Congress, see 18

U.S. C. § 243. The sting of racism, whether from the prosecu-

tion or the defense, is the same to the excluded juror. The

fairness due to the prosecution, see Hayes v. Missouri, 120

U. S. 68, 70 (1887), is just as due to the juror. Allowing one

particular set of litigants to exclude jurors for racially motivat-

ed reasons contradicts the spirit of this Court’s entire line of

jury discrimination decisions.

Although the prohibition against jury discrimination started

as a means to protect the criminal defendant's equal protec-

tion interest in a fair trial, see Strauder v. West Virginia, 100

U. S. 303, 309 (1880), this Court has always recognized the ex-

cluded juror as a party directly harmed by the discrimination.

Strauder itself noted that singling out one race as being pre-

sumptively unfit for jury service was a brand of inferiority upon

them and a stimulant to racial prejudice. /d., at 308. Singling a

juror out due to race is no less harmful when done by defend-

ant. Just as if the prosecution did the deed, defendant says to

the challenged juror “because of your race you cannot be

trusted, you are unfit to make one of the most important deci-

sions in civil society.” It is contrary to the postulates behind

the Equal Protection Clause to assume that there is no stigma

attached to being excluded from a jury duc to skin color. See

Powers v. Ohio, 113 L. Ed. 2d 411, 424, 111 S. Ct. 1364, 1370

(1991).

Powers demonstrated the strength of the juror’s equal pro-

tection right in the area of peremptory challenges.” In Batson,

there was no need to test the strength of the juror’s right,

because defendant and the excluded juror were of the same

race. As the defendant was not of the same race as the ex-

cluded juror in Powers, the juror’s claim had to stand alone.

This Court confirmed the juror’s right to be free from jury

discrimination. It recognized the importance of jury service to

the juror:

“*The institution of the jury raises the people itself, or

at least a class of citizens, to the bench of judicial

authority [and] invests the people, or that class of citi-

zens, with direction of society.

+ * +

“* .. The jury... invests cach citizen with a kind of

magistracy; it makes them all feel the duties which they

are bound to discharge towards socicty; and the part

which they take in the Government. By obliging men

to turn their attention to affairs which are not exclu-

sively their own, it rubs off that individual egotism

t

In a case decided before Batson, the juror’s right to protection from

other forms of jury discrimination was recognized in Carter v. Jury

Commussion of Greene County, 396 U.S. 320, 338 (1976).

which is the rust of society.

* * *

“*I do not know whether the jury is useful to those

who are in litigation; but I am certain it is highly bene-

ficial to those who decide the litigation; and I look

upon it as one of the most efficacious means for the

education of the people which society can employ.’ ”

113 L. Ed. 2d, at 422, 111 S. Ct., at 1368 (quoting 1 A.

De Tocqueville, Democracy in America 334-337

(Shocken Ist ed. 1961)).

As the discriminatory peremptory challenge deprived the

excluded juror of “a significant opportunity to participate in

civic life,” jurors have a right not to be excluded from the jury

for racial reasons. 113 L. Ed. 2d, at 424, 111 S. Ct., at 1370.

This Court’s most recent application of Batson reaffirmed

the strength of the juror’s right not to be excluded. In Edmon-

son v. Leesville Concrete Co., 114 L. Ed. 2d 660, 111 S. Ct.

2077 (1991), this right formed the foundation for extending

Batson to the civil trial. The illegality of discriminatory civil

peremptories was not based upon any right of the litigants.

Instead, the Edmonson Court again relied upon the juror’s

right not to be excluded and allowed the opposing litigant to

raise this right against a discriminatory peremptory challenge.

114 L. Ed. 2d, at 679, 111 S. Ct., at 2087. As in Powers, the

interests of the litigants were subordinate, what mattered most

were the victims of the discrimination: the excluded jurors.

Powers and Edmonson demonstrate the importance of the

juror’s right to not be discriminated against. While in many

instances the criminal defendant will be harmed by jury dis-

crimination, see e.g., Strauder, supra, 100 U. S., at 309, any

analysis of jury discrimination must also focus upon the ex-

cluded juror.

In recognizing this principle, the Powers and Edmonson

Courts equate good law with good sense. The excluded juror

receives the most direct taint of bias in a jury discrimination

a

9

case. He is accused of being racially tainted. Only the juror is

deprived of a civic privilege because of his race. Excluding

jurors due to race:

“is practically a brand upon them, affixed by the law;

an assertion of their inferiority, and a stimulant to that

race prejudice which is an impediment to securing to

individuals of the race that equal justice which the law

aims to secure to all others.” Strauder, supra, 100

U. S., at 308.

Focusing on the juror places the law of jury discrimination

within the mainstream of equal protection law. Equal protec-

tion’s “primary concern [is] the establishment of equality in the

enjoyment of basic civil and political rights and the preserva-

tion of those rights from discriminatory action on the part of

the States” due to race. Shelley v. Kraemer, 334 U. S. 1, 23

(1948). The notion that the Fourteenth Amendment was

designed to secure full civil and political rights for the racially

oppressed goes back to the beginnings of the Amendment, see

Strauder, supra, 100 U. S., at 306-307, and is as important to-

day, see Rose v. Mitchell, 443 U.S. 545, 554-555 (1979).

This is not meant to ignore the harm jury discrimination

does to the litigant. Jury discrimination denies equal protec-

tion to the litigant by denying him the protection against arbi-

trary justice guaranteed by a jury of one’s peers. Cf. Batson,

supra, 476 U.S., at 86. The juror’s rights, however, must still

be protected under equal protection and thus remain key to

the Batson line of cases, as demonstrated by Powers and

Edmonson.

Congress has also recognized the importance of the juror’s

rights. Federal jury discrimination law does not look to the

aggrieved litigant, but instead seeks to protect the excluded

juror.

“No citizen possessing all other qualifications which

are or may be prescribed by law shall be disqualified

for service as grand or petit juror in any court of the

United States, or of any State on account of race, col-

10

or, Or previous condition of servitude; and whoever,

being an officer or other person charged with any duty

in the selection or summoning of jurors, excludes or

fails to summon any citizen for such cause shall be

fined not more than $5,000.” 18 U.S. C. § 243.

The statute does not speak in terms of the litigant’s rights.

It prevents the “citizen” from being disqualified for racial

reasons. This underscores the juror’s right not to be excluded.

See Peters v. Kiff, 407 U. S. 493, 507 (1972) (White, J., concur-

ring). Thus, both the will of Congress and decisions of this

Court demonstrate that when deciding whether to remove the

criminal defendant from Batson, this Court should look to the

excluded juror before addressing defendants’ claims.

2. Public interest.

It is not only proper to apply Batson to defense perempto-

ries, it is also necessary to do so. Important constitutional

interests are at stake, and immunizing defendant from Batson

would sacrifice these interests for no sufficient reason.

For most people, the most direct sustained exposure they

have to the judicial system is through jury service. “Indeed,

with the exception of voting, for most citizens the honor and

privilege of jury duty is their most significant opportunity to

participate in the democratic process.” Powers v. Ohio, 113

L. Ed. 2d 411, 423, 111 S. Ct. 1364, 1369 (1991). While serving

as a member of a jury, a citizen will be able to observe first-

hand how a trial works, make key, usually unreviewable factual

determinations, and apply the law to the facts that decide the

fate of the litigants. “Jury service is an exercise of responsible

citizenship by all members of the community, including those

who otherwise might not have the opportunity to contribute to

our civic life.” 113 L. Ed. 2d, at 419, 111 S. Ct., at 1366.

The jury thus has its place as one of our most important

civic institutions. Its roots are ancient, running back to the

earliest Saxon colonies in Britain. See 3 W. Blackstone,

Commentaries on the Laws of England 349 (ist ed. 1768). The

accused was not the only one protected by the jury, however.

1]

Society had a strong stake in having facts determined by an

impartial jury drawn from the citizenry. If judges were allowed

to determine the facts, our ancestors felt that they would

“have frequently an involuntary bias towards those of their

own rank and dignity: it is not to be expected from human

nature, that the few should always be attentive to the interests

and good of the many.” Id., supra, at 379 (emphasis in origi-

nal). A jury drawn from the public would protect society from

the powerful. The jury “preserves in the hands of the people

that share which they ought to have in the administration of

public justice, and prevents the encroachment of powerful and

wealthy citizens.” /d., at 380.

This Court continues the common law’s respect for the

unbiased jury. Of course, the jury exists as a bulwark to pro-

tect criminal defendants from arbitrary prosecution and capri-

cious judges. See Duncan v. Louisiana, 391 U.S. 145, 146

(1968). But the community has an added interest in the jury.

It is a democratic institution that all citizens should be allowed

to participate in, regardless of group affiliation. It “preserves

the democratic clement of the law, as it guards the rights of

the parties and insures continued acceptance of the laws by all

of the people.” Powers, supra, 113 L. Ed. 2d, at 423, 111 S. Ct.,

at 1369.

“This [democratic] element is vital to the effective

administration of criminal justice not only in safeguard-

ing the rights of the accused, but in encouraging popu-

lar acceptance of the laws and the necessary general

acquiescence in their application. It can hardly be

denied that trial by jury removes a great burden from

the shoulders of the judiciary. Martyrdom does not

come easily to a man who has been found guilty as

charged by twelve of his neighbors and fellow citizens.”

Green v. United States, 356 U.S. 165, 215-216 (1958)

(Black, J., dissenting).

Discriminatory exclusion “contravenes the very idea of a

jury—‘a body truly representative of the community,’ .... ”

Carter v. Jury Commission of Greene County, 396 U. S. 320,

330 (1970) (quoting Strauder v. West Virginia, 100 U. S. 303,

12

308 (1880)). The harm caused by jury discrimination “is not

limited to the defendant, there is injury to the jury system, to

the law as an institution, to the community at large—and to

the democratic ideal reflected in the processes of our courts.”

Ballard v. United States, 329 U.S. 187, 195 (1946). The harm

to the system occurs because jury discrimination “destroys the

appearance of justice and thereby casts doubt on the integrity

of the judicial process.” Rose v. Mitchell, 443 U.S. 545, 555-

556 (1979). It thus “impairs the confidence of the public in

the administration of justice.” Jd., at 556. This harm was

recognized by the Batson Court and integrated into its holding.

See Batson v. Kentucky, 476 U.S. 79, 87 (1986).

These condemnations of jury discrimination were made in

the context of discrimination by the state. Although chal-

lenges made by the prosecution have dominated the attention

of the courts and commentators, see, e.g., Batson v. Kentucky,

476 U.S. 79, 89, n. 12 (1986); Swain v. Alabama, 380 U. S. 202

(1965); Note, Rethinking Limitations on the Peremptory Chal-

lenge, 85 Colum. L. Rev. 1357 (1985), given the proper circum-

stances, the defense can also be motivated to make racially

motivated peremptory challenges. See, Note, Discrimination

by the Defense: Peremptory Challenges After Batson v. Ken-

tucky, 88 Colum. L. Rev. 355, 364-365 (1988); P. Di Perna,

Juries on Trial: Face of American Justice 152 (1984).

This problem was recognized by Justice Marshall in his

concurrence in Batson. “The potential for racial prejudice,

further, inheres in the defendant's challenge as well.” Batson,

476 U. S., at 108 (Marshall, J., concurring). If defendant is

accused of committing a racially motivated crime, counsel

might consider it important to peremptorily challenge every

venire member who is of the same race as the victim. One

example is the racially charged “Howard Beach” case. In this

case, four white teen-agers were charged with the killing of a

black man in the Queens, New York, neighborhood of How-

ard Beach. The trial court, in response to the prosecutor’s

contention that the defense had used peremptory challenges

to exclude three prospective jurors because they were black,

required the defense to justify further challenges, citing Bat-

son. The intermediate appellate court affirmed. People v.

13

Kern, 545 N. Y. S. 2d 4, 34 (1989). The Court of Appeals af-

firmed based on the state constitution. People v. Kern, 554

N. E. 2d 1235, 1236 (N.Y. 1990).

A chilling example of the defense use of peremptory chal-

lenges is the case of Arthur McDuffie. McDuffie was a 33-

year-old black insurance salesman, with no prior criminal re-

cord, who died from head injuries received from the police

while being arrested for running a red light. P. Di Perna, Juries

on Trial: Face of American Justice 179 (1984). The defense

used its peremptory challenges to guarantee an all white jury.

After hearing six weeks of testimony, the jury took only two

and a half hours to return a not guilty verdict. /bid. In the

ensuing riot:

“Blacks ran through the streets chanting ‘McDuffie!

McDuffie!’ and ‘Where is justice for the black man in

America?’ Cars were overturned at the state building.

More whites were beaten. The verdict had hit the

tense community like gasoline on a flame, because it

was perceived as an all-white cover-up. In the end, the

riots left sixteen dead, several hundred injured, and

approximately $100 million in damages.” Jd., at 179-

80.

The McDuffie case illustrates that society has a compelling

interest in assuring that all parts of the community can be

represented on juries. This means that neither the defense

nor the prosecution should be permitted to use peremptory

challenges to racially bias the jury.

“Selection which is or even appears to be discriminato-

ry obviously destroys confidence and support among

those against whom the discrimination seems aimed.

And, seeing justice manipulated in their favor, the

dominant group itself may suffer a breakdown in mor-

ality and an increase in lawlessness. This is illustrated

in the extreme by the impunity with which racial and

civil rights crimes have been committed in the South.”

Kuhn, Jury Discrimination: The Next Phase, 41 S. Cal.

L. Rev. 235, 246 (1968) (footnote omitted).

~ 14

Peremptory challenges make a jury less representative and

more homogeneous, as each side eliminates those who are

thought to be hostile to its interests. J. Van Dyke, Jury Selec-

tion Procedures 168 (1977). Thus both the prosecution and

the defense must be prevented from having their assumptions

regarding group bias reflected in the final composition of the

petit jury if the goals of Batson are to be achieved.

C. State Action.

State action is rarely an issue in constitutional criminal

procedure. The prosecutor, police officer, judge, or legislature

scrutinized in the typical criminal case is clearly a state actor.

With the exception of searches by private individuals, see, eé.g.,

Burdeau v. McDowell, 256 U. S. 465 (1921), there is little

authority on state action in criminal cases. While the state

actor in criminal cases is almost always one of the traditional

agents of the state, this does not limit state action to these

sources. In the proper context, even the traditional foe of the

state, counsel for the criminal defendant, can be a state actor.

The peremptory challenge provides the context to find state

action. What is necessary to keep in mind is that the act can

be as important as the actor in determining state action. The

peremptory challenge is such an act, transforming the tradi-

tional opponent of the state into a state actor.

“Misuse of power, possessed by virtue of state law and

made possible only because the wrongdoer is clothed with the

authority of state law, is action taken ‘under color’ of state

law.” United States v. Classic, 313 U.S. 299, 326 (1941). Ulti-

mately, state action is a question of power: did the State lend

power to the wrongdoer that allowed him to perpetuate his

evil? The State does not have to discriminate itself; it only

needs to use its power to allow the discrimination to happen.

Thus, in Shelley v. Kraemer, 334 U.S. 1, 11 (1948), the fact that

the only overt discrimination was committed by private parties

was irrelevant. What mattered was that “but for the active

intervention of the state courts” the discrimination would not

have happened. /d., at 19. This “active intervention” was the

state court’s enforcement of a racially restrictive covenant

15

made by private parties. As the covenant had no power to dis-

criminate without the enforcement of the state court, the pri-

vate source of the discrimination is irrelevant. “The difference

between judicial enforcement and non-enforcement” of the

private acts was the difference between whether the victims

were or were not discriminated against. Jd.

The present case is an even stronger example of state ac-

tion. The discrimination in Shelley involved typically private

conduct, the creation of a restrictive covenant. The discrimi-

natory peremptory challenge comes up in the context of a tra-

ditional gewernment function. As in Shelley, the challenge is

meaningless without government sanction. As the discrimina-

tion is impossible without state help, the discriminatory chal-

lenge constitutes state action.

The “Jaybird Party” case is another demonstration of how a

putatively private act becomes state action when the state

provides the authority necessary to achieve the discriminatory

goal. In Terry v. Adams, 345 U. S. 461 (1953), this Court,

under the Fifteenth Amendment,’ invalidated the discrimina-

tory practices of the Jaybird Party. The Jaybird Party was a

private club in Texas made up of all white registered voters in

the state. They would hold elections several months before

the Democratic primary. The winner of the Jaybird election

would then run unopposed in the Democratic primary, which

was tantamount to winning the general election. /d., at 464

(lead opn. of Black, J.). The purpose of this scheme was to

deprive blacks of any meaningful voice in Texas elections. /d.,

at 463-464.

3. Although the present case does not involve the Fifteenth Amendment,

the Fifteenth Amendment also requires state action. Section one states:

“The right of citizens of the United States to vote shall not be denied or

abridged by the United States or by any state on account of race, color

Of previous condition of servitude.” Therefore, the state action analysis

in Terry applies with equal force to the Fourteenth Amendment state

action requirement in the present case.

16

Although the state of Texas had no official involvement in

the act of discrimination, limiting party membership to whites,

this Court still found state action. The lead opinion, written by

Justice Black, first looked to the overwhelming sentiment of

Congress and the Constitution to eliminate racial discrimina-

tion from the right to vote. Id., at 465-469. Even though the

Jaybird Party was private, the effect of its election was to bring

“into being exactly the kind of election that the Fifteenth

Amendment seeks to prevent.” This parallels the present

case. Batson and Powers prevent the removal of jurors for

racial reasons. Defendants, by opposing Georgia’s Batson

motion, seek the freedom to achieve the result made unconsti-

tutionai in Batson and Powers—the peremptory removal of

jurors because of their race.* “When it [private action] pro-

duces the equivalent of the prohibited election, the damage

has been done.” Id., at 469 (emphasis added).

Because the effect of the Jaybird election was to achieve

discriminatory elections, the fact that Texas did not control the

party did not matter. /d., at 469. The Jaybird Party became

“indeed the only effective part, of the elective process... .”

Ibid. Their discriminatory exclusion of blacks from a tradition-

al civic right became state action.

Justice Frankfurter, in his concurrence, looked to the trans-

fer of power from Texas to the Jaybird Party. “The state, in

these situations, must mean not private citizens but those

clothed with the authority and the influence official position

affords.” Jd., at 473 (Frankfurter, J., concurring). This did

not, however, require a complete transfer of the machinery of

government. “The vital requirement is state responsibility—

that somewhere, somehow, to some extent there be an infu-

sion of conduct by officials, panoplied with State power, into

any scheme by which” people are deprived of their rights

because of their race. /bid.

4. The present case involves a pretrial mouon. Therefore, defendants have

not made any discriminatory peremptory challenges. Immunizing them

from Batson will give them a green light to discriminate later in the case.

a

17

The present case is the result of such a transfer of power.

The peremptory challenge cannot be exercised by a criminal

defendant without a grant of power from the state. See Stilson

v. United States, 250 U. S. 583, 586 (1919), accord, Edmonson

v. Leesville Concrete Co., 114 L. Ed. 2d 660, 673, 111 S. Ct.

2077, 2083 (1991). While defendant and counsel actually

oppose the machinery of government, see Terry, supra, 345

U. S., at 474 (Frankfurter, J., concurring), they use the needed

grant of government power to achieve a result forbidden by

Batson.

In Terry, the Jaybird Party’s participation with the govern-

ment in the scheme to deprive blacks of their rights was

enough to cloak them in with state action. See id., at 476-477.

While defense peremptories may not have the same taint of

conspiracy, there still is a transfer of power that brings about a

result which is unconstitutional when attributed to the state.

Whether it comes about as a result of a conspiracy, as in Terry,

or from racially-neutral enabling statutes, as in the present

case, does not change the transfer of power or the discrimina-

tion arising from the transfer.

In Smith v. Allwright, 321 U. S. 649 (1944), an earlier “white

primary” case, this Court held that the Democratic Party of

Texas was a state actor when it allowed only whites to vote in

its primary. The State Democratic Party was heavily regulated

by and involved with the government with respect to primary

and general elections. /d., at 662-663. This turned the party

into a state actor when it determined who voted in primaries.

“The party takes its character as a state agency from the duties

imposed upon it by state statutes; the duties do not become

matters of private law because they are performed by a politi-

cal party.” /d., at 663. As Texas set up the machinery for the

primary system, and limited the choice in the general election

to the winners of the primaries, it adopted the party’s discrimi-

nation. /d., at 664.

This also fits the present case. While the Democratic Party

was much more an agent of the government than a criminal

defendant, both needed the government to supply the power

18

to allow each to discriminate. The system of regulation mak-

ing the primary so important to the general election, see id., at

664, provided the party with the power that it otherwise would

not have to make its exclusion effective.

Terry and Smith both demonstrate that when ostensibly

private actors deprive people of a key democratic right, their

action will be attributed to the state and thus subject to the

restrictions of the Constitution. In each instance, some grant

of government power was necessary to achieve the private

party's discriminatory ends. Whether the grant took the form

of favorable state regulation or cooperation from government

officials does not change the private party's dependence upon

the state.

Discriminatory peremptory challenges by defense counsel

play a closely analogous role. Defendants need state power to

make the challenges. The Legislature gives them the power.

Defendants then deprive citizens of a key democratic privi-

lege, jury membership, due to race. Cf. Powers, supra, 113

L. Ed. 2d, at, 424, 111 S. Ct., at 1369. There is no fundamental

difference between the white primaries and the present case.°

Edmonson v. Leesville Concrete Co., 114 L. Ed. 2d 660, 11

S. Ct. 2077 (1991) following the reasoning of Shelley, Smith,

and Terry, eliminates any doubt that a peremptory challenge

must constitute state action no matter which party exercises it.

Edmonson dealt with a challenge made in a proceeding that

supported the lowest level of government interest, an ordinary

civil dispute between two private parties. 114 L. Ed. 2d, at

5. The fact that Texas encouraged the discrimination in Terry and Smith

while the prosecution Opposes any discrimination in the present case

does not change the analysis. The prosecution is part of a tripartite

system of government, the members of which are not supposed to act as

one body. Cf. J. Madison, The Federalist No, 47, 301-307 (Rossiter ed.

1961). Here, the Georgia Legislature has provided defendants with the

means to discriminate. Ga. Code § 15-12-165. While the Legislature did

not intend for defendants to discriminate, this does not change

defendants’ reliance on the Legislature's grant of power.

19

670, 111 S. Ct., at 2080. The only connection the government

had to this case was providing the forum and the procedure for

resolving the litigants’ dispute. In spite of the seemingly tan-

gential relationship between the state and the litigants, the

Edmonson Court held that a peremptory challenge made on

behalf of a private civil litigant was state action.

The Court began its analysis with the most recent and

comprehensive Batson case, Powers v. Ohio, 113 L. Ed. 2d 411,

111 S. Ct. 1364 (1991). Powers, along with Batson, was part of

“over a century of jurisprudence dedicated to the elimination

of race prejudice within the jury selection process.” Edmon-

son, supra, 114 L. Ed. 2d, at 672, 111 S. Ct., 2081-2082. These

cases, while concentrating upon criminal matters, did not sanc-

tion discrimination in civil proceedings. 114 L. Ed. 2d, at 672,

111 S. Ct., at 2082. Discrimination in civil proceedings was just

as harmful as that in criminal cases. In each “race is the sole

reason for denying the excluded venire-person the honor and

privilege of participating in our system of justice.” 114

L. Ed. 2d, at 672, 111 S. Ct., at 2081-2082.

As the harm was the same regardless of the type of pro-

ceeding involved, the analysis of state action was virtually the

same. The Edmonson Court began with a framework taken

from Lugar v. Edmondson Oil Cu., 457 U.S. 922, 939-942

(1982). First, the Court looked to “whether the claimed con-

stitutional deprivation resulted from the exercise of a right or

privilege having its source in state authority.” Edmonson,

supra, 114 L. Ed. 2d, at 673, 111 S. Ct., at 2083. If the answer

was yes, it would then ask “whether the private party charged

with the deprivation could be described in all fairness as a state

actor.” 114 L. Ed. 2d, at 673, 111 S. Ct., at 2083.

The first part was clearly satisfied. Litigants are not enti-

tled to peremptory challenges. They have “no significance

outside a court of law” and exist only at the sufferance of the

government. 114 L. Ed. 2d, at 673, 111 S. Ct., at 2083. The

second part, whether civil peremptories were fairly attributa-

ble to the state, looked to three factors: 1) whether the act is a

traditional function of government, 2) how much assistance

the actor received from the government, and 3) whether the

20

injury is aggravated “by the incidents of government

authority.” 114 L. Ed. 2d, at 674, 111 S. Ct., at 2083. The first

two factors were satisfied by the close relationship between

the government and peremptory challenges. 114 L. Ed. 2d, at

674-676. The third factor, aggravation of harm, was satisfied

because the challenge and the discrimination associated with it

occurred within the courtroom, raising questions about the

integrity of the judicial system and its democratic ideals. 114

L. Ed. 2d, at 678, 111 S. Ct., at 2087.

Edmonson compels a finding of state action in the present

case. The difference between criminal defendants and civil

litigants does not alter the analysis set forth in Edmonson. It

does not change the dependence upon government. Criminal

defendants have no constitutional right to peremptory chal-

lenges; the challenge is a privilege granted by government.

See Stilson v. United States, 250 U. S. 583, 586 (1919). Nor

does it change the aggravation of harm. The juror will still feel

slighted, and the process will still be questioned regardless of

who challenges the juror. Finally, the peremptory challenge is

even more a traditional government function in criminal than

civil cases. At the common law, peremptory challenges were

not allowed in civil trials, they were only used for felony cases.

See 4 W. Blackstone, Commentaries on the Laws of England

343 (1st ed. 1769).

In finding state action, the Edmonson Court encountered

only one minor obstacle. In Polk County v. Dodson, 454 U. S.

312, 314 (1981), a convicted criminal sued his public defender

under 42 U. S. C. § 1983;° alleging that the public defender’s

6. “Every person who, under color of any siatute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress. For the purposes of this section,

any Act of Congress applicable exclusively to the District of Columbia

shall be considered to be a statute of the District of Columbia.”

21

representation of his case on appeal violated his civil rights.

This confronted the Court with the issue of whether a public

defender acts “under color of state law” when representing a

criminal defendant. The Dodson Court concluded that the

fact that a state paid for an attorney's services does not make it

liable for his alleged incompetence. To be under color of state

law, an actor had to be “exercising power ‘possessed by virtue

of state law and made possible only because the wrongdoer is

clothed with the authority of state law.’ ” /d., at 317-318

(quoting United States v. Classic, 313 U. S. 299, 326 (1941)).

The public defender’s obligations to his client in no way de-

rived from the state’s appointment. “Except for the source of

payment, their relationship became identical to that existing

between any other lawyer and client.” /d., at 318.

The Dodson Court dealt with an attack on the representa-

tion provided by the public defender. /d., at 314. As the at-

tack occurred at this highest level of generalization, the Dod-

son Court dealt with the most basic function performed by the

public defender. The Dodson Court could not find that all of

the public defender’s representation constituted state action.

Making everything a public defender does in his role as

counselor is contrary to the nature of his duties as “personal

counselor and advocate.” See id., at 318-319.

This does not, however, prevent more specific acts of de-

fense counsel from being state action. Summarily calling any

action of defense counsel private exalts form over function.

As the Edmonson decision demonstrates, a court must look to

what the alleged wrongdoer is doing, as well as who that per-

son Is.

The key to applying Dodson is to distinguish between a

person's employment relationship with the government and

what the person actually does. The Edmonson Court under-

stood that this was the essence of Dodson. Edmonson noted

the different roles played by civil and criminal defense attor-

neys. While defense counsel's role was to oppose the govern-

ment “an adversarial relationship does not exist between the

government and a private litigant.” Edmonson, 114 L. Ed. 2d,

at 677, 111 S. Ct., at 2086.

22

The crucial factor behind the distinction was what private

counsel did in Edmonson. “The selection of jurors represents

a unique government function delegated to private litigants by

the government and attributable to the government for the

purposes of invoking constitutional protections against dis-

crimination by reason of race.” 114 L. Ed. 2d, at 677, 111

S. Ct., at 2086. This is what the Dodson court meant by look-

ing to what the actor does instead of what he is. It is the ac-

tor’s “function within the state system, not the precise terms of

his employment, that determines whether his actions can be

fairly attributed to the State.” West v. Akins, 487 U. S. 42, 55-

56 (1988).

The same reasoning that found private counsel to be a state

actor in Edmonson, and made the representation by a public

defender private acts in Dodson, mandates a finding of state

action in the present case. The difference between Dodson

and the present case is that different functions of counsel are

examined in each case. The plaintiff in Dodson attempted to

attribute the entirety of his public defender’s representation to

the state. Yet the state cannot interfere with the vast bulk of

this attorney-client relationship. “Indeed, an indispensable

clement of the effective performance of his [defense coun-

scl’s] responsibilities is the ability to act independently of the

Government and oppose it in adversary litigation.” Ferri v.

Ackerman, 444 U. S. 193, 204 (1979). The government is both

constitutionally required to provide the indigent criminal

defendant with counsel, Gideon v. Wainwright, 372 U. S. 335,

344-345 (1963), and prevented from interfering with the attor-

ney-client relationship in criminal cases, see, e.g., Massiah v.

United States, 377 U.S. 201, 205-206 (1964). Finding state

action in Dodson would put government in a Catch-22 situa-

tion. It would have to pay for counsel's mistakes even though

it exercised no control over his actions. This runs contrary to

the principles behind vicarious liability, see General Building

Contractors v. Pennsylvania, 458 U. S. 375, 392 (1982), and

thus was properly rejected in Dodson.

The present case deals with a much narrower activity. Only

counsel's peremptory challenges are subject to scrutiny. Fur-

23

thermore, unlike Dodson, only the person doing the wrong,

the defense, will suffer the consequences, a denied perempto-

ry challenge. The Edmonson Court best summed up the dif-

ference hetween the two circumstances:

“Here, as in most civil cases, the initial decision wheth-

er to sue at all, the selection of counsel, and any

number of ensuing tactical choices in the course of

discovery and trial may be without the requisite gov-

ernmental character to be deemed state action. That

cannot be said of the exercise of peremptory chal-

lenges, however; when private litigants participate in the

selection of jurors, they serve an important function

within the government and act with its substantial as-

sistance.” 114 L. Ed. 2d, at 678, 111 S. Ct., at 2086-

2087 (emphasis added).

Thus defense peremptories may be limited while still pre-

serving Dodson. The relationship between defense counsel

and client and the tactical decisions that the attorney makes

during the representation are still private rather than state

action. Only the peremptory challenge, because of its special

relationship with government, will be subject to constitutional

scrutiny.

D. Section 243.

Federal civil rights law also supports applying Batson to the

defense. 18 U.S. C. § 243 makes it a crime for “whoever,

being an officer or other person charged with any duty in the

selection or summoning of jurors” to exclude or fail to sum-

mon a citizen for jury service because of the citizen’s race.

The statute is sweeping in scope, embracing the entire process

of jury selection and every actor in it. It covers any person

charged with any duty in the process.

Defense counsel are well within the statute. They are

charged with a duty to conduct voir dire and jury selection in

the interests of their clients. See ABA Model Rules of Profes-

sional Conduct Rule 1.3 comment 9 1 (1983) (“zeal in advoca-

cy”); ABA Model Code of Professional Responsibility DR 7-

24

101 (1980); C. Wolfram, Modern Legal Ethics 578-579 (1986).

Section 243, however, limits this function. If an attorney ex-

cludes any citizen on account of race, that attorney has violat-

ed the statute.

This Court has relied on this statute to extend protection

against jury discrimination when defendant and the excluded

juror are of the same race, see Peters v. Kiff, 407 U. S. 493, 507

(1972) (White, J., concurring); Powers v. Ohio, 113 L. Ed. 2d

411, 423-424, 111 S. Ct. 1364, 1369 (1991) and against jury

discrimination in civil cases, see Edmonson, supra, 114

L. Ed. 2d, at 680, 111 S. Ct., at 2088. In Peters, the concur-

rence felt that the statute alone was enough to justify allowing

a white defendant to challenge the exclusion of blacks from

the jury system. Peters, supra, 407 U. S., 506-507 (White, J.,

concurring). This reasoning could just as easily extend the

statutory prohibition against discriminatory peremptories to a

private person. The constitutionality of congressional prohibi-

tion of private discrimination is well established. See, e-g.,

Runyon v. McCrary, 427 U.S. 160, 179 (1976).

The Edmonson decision is similarly illuminating with re-

gards to the importance of § 243.

“Racial discrimination has no place in the courtroom,

whether the proceeding is civil or criminal. See Thiel

v. Southern Pacific Co., 328 U.S., at 220, 90 L. Ed. 2d

1181, 66 S. Ct. 984, 166 A. L. R. 1412. Congress has so

mandated by prohibiting various discriminatory acts in

the context of both civil and criminal trials. See 18

U.S. C. § 243; 28 U.S. C. $§ 1861, 1862. The Consti-

tution demands nothing less. We conclude that courts

must entertain a challenge to a private litigant’s racially

discriminatory use of peremptory challenges in a civil

trial.” 114 L. Ed. 2d, at 680, 111 S. Ct., at 2088.

If defense counsel use peremptorics to exclude jurors for

racial reasons, they are committing a federal crime. The

prosecution should be allowed to stop them before they vio-

late section 243.

25

E. Third Party Standing.

A party usually may raise only his own claims. Singleton v.

Wulff, 428 U. S. 106, 113 (1976). Third party standing is al-

lowed, however, under the proper circumstances. Powers v.

Ohio, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (1991) and Edmonson

v. Leesville Concrete Co.; 114 L. Ed. 2d 660, 111 S. Ct. 2077

(1991) leave no doubt that the prosecution can raise a juror’s

equal protection claim in the present case. In each case, this

Court found that opposing counsel could raise the equal pro-

tection claim on behalf of excluded jurors. In Powers, this

Court noted that third party standing ordinarily was not al-

lowed, but that it will be granted where: 1) the litigant suffers

actual injury giving him a sufficient interest in the outcome of

the dispute, 2) “the litigant [must have] a close relation to the

third party,” and 3) “there must exist some hinderance to the

third party’s ability to protect his or her own interests.” Pow-

ers, supra, 113 L. Ed. 2d, at 425, 111 S. Ct., at 1370-371. This

test was adopted in Edmonson, 114 L. Ed. 2d, at 679, 111

S. Ct., at 2087. In each case, third party standing was granted.

Powers, supra, 113 L. Ed. 2d, at 428, 111 S. Ct., at 1373; Ed-

monson, supra, 114 L. Ed. 2d, at 680, 111 S. Ct., at 2088.

In Powers, this Court engaged in a lengthy examination of

all three factors before finding third party standing. 113

L. Ed. 2d, at 425-428, 111 S. Ct., at 1370-1373. The Edmonson

Court required much less effort to find third party standing. It

found the second and third parts of the test were satisfied in

the same way as in Powers. In each case, the excluded juror

faces substantial barriers to enforcing his rights through civil

action. 114 L. Ed. 2d, at 679, 111 S. Ct., at 2087. The same

argument applied to the relationship between the excluded

juror and the party. The fact that one case was civil and the

other was criminal was irrelevant to the close relationship

between the party and juror. 114 L. Ed. 2d, at 679, 111 S. Ct.,

at 2087.

The present case satisfies the second and third parts as

readily as did Powers and Edmonson. The fact that it was the

criminal defense that excluded a juror is irrelevant to the diffi-

culty an individual juror has in securing vindication. Similarly,

26

the prosecution develops just as close a relationship to the

excluded juror as did the defense in Powers and the civil party

in Edmonson. The fact that the prosecution is bringing the

claim simply does not matter.

The Edmonson Court spent a little more time on the first

part, whether the litigant was injured enough to warrant rais-

ing the third party claim. It decided that a civil litigant’s inter-

est in the justice of the verdict and the integrity of the system

gives the civil litigant sufficient interest to pursue the excluded

juror’s claim. 114 L. Ed. 2d, at 679-680, 111 S. Ct., at 2087-

2088.

The interests of the prosecution in the justice of verdicts

and the integrity of the system are even greater than those of

the civil litigants in Edmonson. Verdicts tainted by jury dis-

crimination call into question the integrity and justice of the

judicial system. Batson, supra, 476 U. S., at 87; Rose v. Mitch-

ell, 443 U.S. 545, 556 (1979). This calls into question “ ‘[t}he

most basic function of any government’: ‘to provide for the

security of the individual and his property.’ ” J/linois v. Gates,

462 U. S. 213, 237 (1983) (quoting Miranda v. Arizona, 384

U. S. 436, 539 (1966) (White, J., dissenting)). The effect of

this loss of respect for the system can be catastrophic, as the

city of Miami learned after the McDuffie case.’. The prosecu-

tion’s interest in preserving the integrity of the system is thus

paramount, satisfying the first part of the Powers test. As the

prosecution therefore has third party standing, and as state

action is present, there is no barrier to preventing the defense

from using discriminatory peremptory challenges.

III. Defendants’ interest in peremptory challenges do

not justify immunizing them from Batson.

Every litigant wants peremptory challenges, and no litigant

wants to be constrained while exercising them. Peremptories

7. See part I, B, 2, ante, at 13.

27

free the definition of bias from the narrow definition of cause

given in most jurisdictions. Furthermore, it allows counsel to

conduct more effective voir dire. If counsel is worried that he

has offended a juror by probing too much on voir dire, he can

cure this by peremptorily challenging the offended juror. See

Swain v. Alabama, 380 U. S. 202, 219 (1965); 4 W. Blackstone,

Commentanies in the Laws of England 346-347 (1st ed. 1769).

For all its utility, there is nothing sacred about the peremp-

tory challenge. It is well-settled that the Constitution does not

guarantee a criminal defendant peremptory challenges; any

entitlement to a peremptory comes through a grant from the

State. Stilson v. United States, 250 U. S. 583, 586 (1919); Bat-

son v. Kentucky, 476 U.S. 79, 91 (1986). Whatever utility

peremptories have, they are subject to the demands of the

Equal Protection Clause. Powers v. Ohio, 113 L. Ed. 2d 411,

424, 111 S. Ct. 1364, 1369 (1991).

There are three ways to attack subjecting defense peremp-

tories to Batson. One method is the Sixth Amendment's im-

partial jury guarantee. Cf. Stilson, supra, 250 U. S., at 586.

But under the Sixth Amendment a “trial by an impartial jury is

all that is secured.” Jd. (emphasis added). This Court has not

found that the Sixth Amendment’s impartiality requirement

compels peremptory challenges. See Holland v. Illinois, 107

L. Ed. 2d 905, 917-918, 110 S. Ct. 803, 808-809 (1990).

The second avenue is due process. Cloaking the perempto-

ry challenge in the Due Process Clause to remove it from

Batson runs contrary to this Court’s due process jurisprudence,

and could upset limits on defense peremptories imposed by

several states.

It is true that peremptory challenges on behalf of defendant

have a long history, stretching back to early common law. See

Swain, supra, 380 U. S., at 212-216. Due process does not,

however, lock us into the common law. While adherence to

common law procedures may be sufficient to satisfy due proc-

ess, it is not always necessary to follow the common law. See

Holland, supra, 107 L. Ed. 2d, at 917-918, n. 1, 110 S. Ct., at

808; Hurtado v. California, 110 U.S. 516, 528-529 (1884).

28

As the peremptory challenge has never before been con-

sidered a constitutional guarantee, and as the Equal Protec-

tion Clause already mandates limiting defense peremptories,®

there is no reason to use due process to shield defendant from

Batson. Since justice is due the accuser as well as the

accused,” it is contrary to all notion of due process to use it to

give defendant an unfair advantage over the prosecution in

molding the jury.!°

Finally, several states have used their own constitutions to

eliminate race-based defense peremptories. See, e.g., Com-

monwealth v. Soares, 387 N. E. 2d 499, 517, n. 35 (Mass. 1979);

State v. Neil, 457 So. 2d 481, 487 (Fla. 1984); People v. Wheeler,

583 P. 2d 748, 765, n. 29 (Cal. 1978); People v. Kern, 554

N. E. 2d 1235 (N.Y. 1990). These decisions would be upset by

any use of due process or the Sixth Amendment to shield

defendants from Batson. Any state constitutional limit on

defendants would be overridden by this Court’s interpretation

of the federal Constitution.

The last argument to be raised against subjecting defend-

ants to Batson will be the nemesis of constitutional law—prac-

ticality. When the Constitution demands this Court to decide

in a certain way, it must do so, regardless of any policy implica-

tions. Here the Equal Protection Clause and 18 U. S. C. § 243

mandate that defendant not exercise racially-biased perempto-

ry challenges—whether this will doom peremptory challenges

or whether peremptory challenges are worth saving is irrele-

vant to this question. Any policy favoring defense perempto-

ries has no constitutional standing.

Even so, California’s experience demonstrates that limiting

defendants’ peremptories will not destroy them. In People v.

8. See part I, ante, at 3-4.

9. See Snyder v. Massachusetts, 291 U.S. 97, 122 (1934).

10. See part I, A, ante, at 4-6.

Wheeler, supra, the California Supreme Court recognized that

defense peremptory challenges pose a threat similar to those

of the prosecution and therefore indicated that the defense

would be held to the same standard as the prosecution in

making peremptory challenges. 583 P. 2d, at 765, n. 29; see

also People v. Snow, 746 P. 2d 452, 459 (Cal. 1987) (Eagleson,

J., concurring). This holding did not doom defense perempto-

ries.

In the thirteen years since Wheeler, objections by the prose-

cution have not been a substantial source of litigation. People

v. Pagel, 232 Cal. Rptr. 104 (Cal. App. Supp. 1986), cert. de-

nied, 481 U.S. 1028, appears to be the only reported case.

Where the objection is needed, however, as in Pagel, the

Howard Beach case, or the McDuffie case,"' it is extremely

important that it be available.

CONCLUSION

The judgment of the Georgia Supreme Court should be

reversed.

Dated: December, 1991

Respectfully submitted,

CHARLES L. HOBSON

Alttomey for Amicus Curiae

Criminal Justice Legal Foundation

11. See part I, B, 2 supra, at 13.