Amicus Curiae Brief — Georgia v. McCollum

: nbs

te Supreme Court, U.S

) } Pi wut. we J.

’ '%

No. 91-372

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

>

STATE OF GEORGIA,

Petitioner,

—against—

THOMAS MCCOLLUM, WILLIAM JOSEPH MCCOLLUM, and

E_ttA HAMPTON MCCOLLUM,

Respondents.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA

AMICUS CURITAE BRIEF FOR CHARLES J. HYNES,

DISTRICT ATTORNEY, KINGS COUNTY, NEW YORK

IN SUPPORT OF PETITIONER

CHARLES J. HYNES

District Attorney

JAY M. COHEN

Assistant District Attorney

Counsel of Record

MATTHEW S. GREENBERG

VICTOR BARALL

CAROL TEAGUE SCHWARTZKOPF

MARGARET ANTINORI

Assistant District Attorneys

Kings County District Attorney’s Office

210 Joralemon Street

Brooklyn, New York 11201

(718) 802-2156

December 19, 1991 Counsel for Amicus Curiae

QUESTION PRESENTED

Whether the United States Constitution prohibits a crimi-

nal defendant from exercising his peremptory strikes in a

racially discriminatory manner.

TABLE OF CONTENTS

QUESTION PRESENTED qo. ociccnsivenceceenmeee

TABLE OF AUTIOORITIOS . oc icescccnsuveseaeenes

AUTHORITY TO FILE BRIEF AMICUS CURIAE..

STATEMENT OF INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT .........cccccccccees

POINT I—EXPERIENCE IN THE COURTS OF

NEW YORK AND OTHER JURISDICTIONS HAS

LED TO THE RECOGNITION THAT A RACE-

BASED PEREMPTORY CHALLENGE, REGARD-

LESS OF WHO EXERCISES IT, HARMS NOT

ONLY THE CHALLENGED JUROR, BUT THE

ENTIRE COMDGIRETY ..ovcsestisvsccvaneeeeeee

POINT II—THE CONSTITUTION PROHIBITS

CRIMINAL DEFENDANTS FROM EXCLUDING

PROSPECTIVE JURORS FROM SERVICE ON

THE BASES OF BAKA. ..cceccscencesaeeeeeeee

A. A Criminal Defendant’s Exercise of Peremp-

tory Challenges Constitutes State Action. ....

B. Prosecutors Have Standing to Assert the Equal

Protection Rights of Excluded Jurors. .......

C. The Rights to a Fair Trial and the Assistance

of Counsel Do Not Include the Right to Dis-

criminate Against Prospective Jurors on the

Basts OF RAGS. .«..c0sccccsensseunennnne

CUNCLUBIOIN 2. cccccccscocccsncensssue heen

1]

20

27

iil

TABLE OF AUTHORITIES

Cases PAGE

Allen v. Feary, 476 U.S. 255 (19GG)... cc ccceeees 27

Barrows v. Jackson, 346 U.S. 249 (1953)............ 17

Batson v. Kentucky, 476 U.S. 79 (1986).......... 2, passim

Berger v. United States, 295 U.S. 78 (1935), overruled

on other grounds, Stirone v. United States, 361 U.S.

PURER EGR ues es bccenccccccccccccces 19

Burton v. Wilmington Parking Auth., 365 U.S. 715

DP PUPECEEUGGGSG6 5666006 cr ccccccccccs 11, 12, 16

Carter v. Jury Comm’n of Greene County, 396 U.S.

EPEC ECCS CRRR Ge eseecccecccccccccces 11, 21

Cassell v. Texas, 339 U.S. 282 (1950) ............... 26

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

499, cert. denied, 444 U.S. 881 (1979) ............ 8

Craig v. Boren, 429 U.S. 190 (1976) .............4.. 18

Cuyler v. Sullivan, 446 U.S. 335 (1980) ............. 13

Duncan v. Louisiana, 391 U.S. 145 (1968)........... 14

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

SE SEESES OO PTTTETETE TET ET 2, passim

Ex parte Virginia, 100 U.S. 339 (1880).............. 1]

Faretta v. California, 422 U.S. 806 (1975)........... 22

Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978).. 17

Frazier v. United States, 335 U.S. 497 (1948)........ 13, 25

iV

PAGE

Gentile v. State Bar of Nevada, 111 S.Ct. 2720

Ga +4 bweeneuneccentceneeeeeesekeunnenadekuaee 21, 22

Gray v. Mississippi, 481 U.S. 648 (1987)............ 13, 24

Hayes v. Missouri, 120 U.S. 68 (1887) ....... 14-15, passim

Hernandez v. New York, 111 S.Ct. 1859 (1991)...... 27

Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803 (1990) 23

In re Grand Jury Subpoena Duces Tecum, 731 F.2d

ee Ge NN. HN 6h 6 bin cdedatenssenenccncennne 24

Irvin v. Dowd, 366 U.S. 717 (1961). .............05- 26

Lockhart v. McCree, 476 U.S. 162 (1986) ........... 25

Lugar v. Edmonson Oil Co., 457 U.S. 922

Ss 6.os6ankesavbutnnedeneuauaeeedeekoes 12, passim

McCleskey v. Kemp, 481 U.S. 279 (1987) ........... 20

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

vacated and remanded for reconsideration in light of

Beteat, GE Us Fee CHO cccccccccccvsccessse 2

McDonough Power Equipment, Inc. v. Greenwood,

Ge Gees ee CD 06 04 860050040050 86a deedeees 25-26

Metro Broadcasting, Inc. v. F.C.C., 110 S.Ct. 2997

UU 566544064 ddAnsa ben eeeendeunnscenusnenees 27

National Collegiate Athletic Ass’n. v. Tarkanian, 488

Re Eee CE bb cds eccoeusdncsedanesesaedeeens 1]

Nix v. Whiteside, 475 U.S. 158 (1986) .............. 22

People v. Davis, 142 Misc.2d 881, 537 N.Y.S.2d 430

Ga. GR. SE Gs Fo eneckscccssesadisounes 6

PAGE

People v. Kern, 149 A.D.2d 187, 545 N.Y.S.2d 4 (2d

Dep’t 1989), aff’d, 75 N.Y.2d 638, £54 N.E.2d 1235,

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

Gs s cua cnnanedeuvaneuensiseessadincentnes 2, passim

People v. Gary M., 138 Misc.2d 1081, 526 N.Y.S.2d

Sew Gee, GA. Te Gs BO ow cccccccncecsvccess 6

People v. Muriale, 138 Misc.2d 1056, 526 N.Y.S.2d

367 (Sup. Ct. Kings Co. 1988), appealed on other

grounds, 159 A.D.2d 651, 553 N.Y.S.2d 39 (2d

Dep’t), /v. denied, 76 N.Y.2d 740, 558 N.Y.S.2d

Tas SOU CD GO GUE casee cde cudsccccvccns 6

People v. Piermont, 143 Misc.2d 839, 542 N.Y.S.2d

BED Copmeeaes GW. GR. F< ccccccdccccecseccs 6

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

Ss ls SP EES gnvcé senkecéncndeeneceubeues 7,8

Peters v. Kiff, 407 U.S. 493 (1972), overruled on other

grounds, Taylor v. Louisiana, 419 U.S. 522

SOUUEs a sv eéucduuseséunebacesataaetaebaeeesesuce 19, 21

Pierce v. Society of Sisters, 268 U.S. 510 (1925)..... 18

Polk County v. Dodson, 454 U.S. 312 (1981)....15, 16, 17

Powers v. Ohio, 111 S.Ct. 1364 (1991).......... 18, passim

Press-Enterprise Co. v. Superior Court, 464 U.S. 501

GPU cc onnnteecdscccceveceeneceeconeessuatends 14, 22

Reitman v. Mulkey, 387 U.S. 369 (1967) ............ 1]

Rose v. Mitchell, 443 U.S. 545 (1979)............... 21

Ross v. Oklahoma, 487 U.S. 81 (1988).............. 25

Sheiley v. Kraemer, 334 U.S. Sn due kvecdueenne 11, 17

vi

PAGE

Singer v. United States, 380 U.S. 24 (1965).......... 14, 22

Singleton v. Wulff, 428 U.S. 106 (1976)............. 18

Smith v. Phillips, 455 U.S. 209 (1982) .............. 26

Se V. TE, SIL UB. BAe CIGD cc cccccscccccess 28

State v. Alvarado, 221 N.J. Super. 324, 534 A.2d 440

RES ES erernet aea e eeee a )

State v. Levinson, 71 Haw. 492, 795 P.2d 845

SIRT Rage os Soper Phe a Cea ga Re a 9, 24

State v. Neil, 457 So.2d 481 (Fla. 1984)............. 8

State v. Watkins, 114 N.J. 259, 553 A.2d 1344 (1989) )

Stilson v. United States, 250 U.S. 583 (1919) ........ 25

Strauder v. West Virginia, 100 U.S. 303 (1880), over-

ruled on other grounds, Taylor v. Louisiana, 419

ee ee a adaow kel dunes edebudeken ests esc 1]

Swain v. Alabama, 380 U.S. 202 (1965)............. 25, 26

Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646

Tt chdh cada iuulienwedeabeeedeeekesedvencnen 22, 23

Taylor v. Louisiana, 419 —~.S. 522 (1975)............ 14, 26

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

on other grounds, Monell v. Dep’t of Soc. Serv., 436

Se Ec cnxncadedeecoanecdecveussaccaceus 16

United States v. Devin, 918 F.2d 280 (1st Cir. 1990) . 26

United States v. Greer, 939 F.2d 1076, reh’g en banc

granted, 1991 US App LEXIS 28441 (Sth Cir. 1991) 7

United States v. Hatchett, 918 F.2d 631 (6th Cir.

1990), cert. denied, 111 S.Ct. 2839 (1991) ......... 26

Vii

PAGE

Upjohn v. United States, 449 U.S. 383 (1981) ....... 24

Wheat v. United States, 108 S.Ct. 1692 (1988)....... 22

Williams v. Florida, 399 U.S. 78 (1970)............. 24

United States Constitution

cick pede cccnuereesescvsensees 4, passim

PED SUMED svc ncncsncccecscesecoseus 3, passim

New York State Statutes

Pe es Gs I, RE Oh PEED e occ ce ccccessccceve 17

Other Authorities

Alschuler, The Supreme Court and the Jury: Voir Dire,

Peremptory Challenges, and the Review of Verdicts,

See 2 rr ree 8

Cheever, Defense Jeers Ruling Denying Peremptories in

Howard Beach, Manhattan Lawyer, October 6-12,

eee Ser er ren rrr 5, 6

Glaberson, Bensonhurst Case Ends, Satisfying Few,

N.Y. Times, March 14, 1991, at Al, col. 2........ 1]

Goldwasser, Limiting a Criminal Defendant’s Use of

Peremptory Challenges: On Symmetry and the Jury

in a Criminal Trial, 102 Harv. L. Rev. 808 (1989) . 27

Hoeffner, Defendant’s Discriminatory Use of the

Peremptory Challenge After Batson v. Kentucky, 11

se I SUE Eo So dcewdeccccccccescnsns 25, 27

Model Code of Professional Responsibility, Canon 7

SE S66 054554104 600 00SbNESAN SE Hs ERR RORERRES8 23

Viii

Model Rules of Professional Conduct, Rule 3.1 (1983)

Sullivan, Last Sentencing in Jogger Attack, N.Y.

Times, March 14, 1991, at B4, col. 1

PAGE

23

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

>

STATE OF GEORGIA,

Petitioner,

—against—

THOMAS MCCOLLUM, WILLIAM JOSEPH MCCOLLUM, and

ELLA HAMPTON MCCOLLUM,

Respondents.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA

_e-

AMICUS CURIAE BRIEF FOR CHARLES J.

HYNES, DISTRICT ATTORNEY, KINGS

COUNTY, NEW YORK IN SUPPORT

OF PETITIONER

AUTHORITY TO FILE BRIEF AMICUS CURIAE

Charles J. Hynes, District Attorney of Kings County, New

York, files this brief amicus curiae with the consent of the

attorneys for the petitioner and the respondent, pursuant to

Rule 36.2. Moreover, he is the authorized law officer of a

political subdivision of a state, and therefore also files this

brief amicus curiae pursuant to Rule 36.4.

2

STATEMENT OF INTEREST OF AMICUS CURIAE

Charles J. Hynes is the District Attorney of Kings County,

New York. On March 29, 1990, the New York Court of

Appeals ruled that criminal defendants in New York would

no longer be able to exercise peremptory challenges on the

basis of race. 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).

Amicus, as the Special State Prosecutor for the Howard

Beach Incident, tried the Kern case in 1988 and was one of

the first prosecutors in the state of New York to obtain a rul-

ing from a trial court that applied this Court’s Batson prohi-

bition to criminal] defendants.

Like many cases in which criminal defendants seek to

strike all members of a particular racial group from the jury,

the Kern case involved a racial assault. In that case, a mob of

eleven young white men attacked three African-American

men whose car had broken down near the Howard Beach sec-

tion of Queens, New York. This attack culminated in the

death of one of the African-American men, who was forced

onto a multi-lane highway and fatally struck by a car in his

attempt to flee from the bat-wielding mob of young white

men.

In addition to amicus’ personal experience, the Office of

the Kings County District Attorney has supported and pro-

moted the prohibition against the racial use of peremptory

challenges for more than a decade and has consistently urgea

that the prohibition be applied to both criminal defense coun-

sel and prosecutors. See, e.g., Brief for Kings County District

Attorney as Amicus Curiae, Batson v. Kentucky, 476 U.S. 79

(1986); Brief for Respondent, McCray v. Abrams, 750 F.2d

1113 (2d Cir. 1984), vacated and remanded for reconsidera-

tion in light of Batson, 478 U.S. 1001 (1986).

Thus, amicus has had years of experience with judicial pro-

hibitions on the use of peremptory challenges by criminal

defense counsel to exclude potential jurors on the basis of

race, both at the trial level as the prosecutor in a racially-

3 .

charged case which received national media attention and,

since January 1990, as a District Attorney responsible for

overseeing several thousand trials each year in a multi-racial,

multi-ethnic county. Based on that experience, amicus has

observed that defense counsel frequently attempt to use the

peremptory challenge to exclude potential jurors on the basis

of race, particularly in the most racially volatile of cases.

Such discrimination is equally widespread, equally threaten-

ing to constitutional values, and equally amenable to judicial

control as was the discrimination by prosecutors banned by

this Court in Batson and the discrimination by civil counsel

banned in Edmonson vy. Leesville Concrete Co., 111 S.Ct.

2077 (1991). For these reasons, amicus urges the Court to

hold that the ban applies not only to prosecutors and civil lit-

igants, but also to criminal defendants.

SUMMARY OF ARGUMENT

The exercise of race-based peremptory challenges by crimi-

nal defendants and their attorneys represents the last vestige

of officially-tolerated racial discrimination in the selection of

jurors in this country. The time has arrived for such discrimi-

nation to be eliminated once and for ali.

Numerous state courts have recognized that public confi-

dence in the fairness of criminal proceedings is compromised

by any discrimination in the courtroom. Acting pursuant to

their state constitutions, these courts have ruled that criminal

defendants have no greater license to violate the Equal Pro-

tection rights of prospective jurors than have prosecutors.

The federal Constitution also forbids criminal defendants

from excluding prospective jurors from service on the basis

of race. First, the exercise of peremptory challenges incontro-

vertibly constitutes state action. Peremptory challenges occur

in a public courtroom, during the course of a public trial,

and in the performance of a quintessentially governmental

function: the provision of petit juries in criminal trials. Addi-

tionally, they are enforced by judges and work a deprivation

4

upon citizens whose appearance for jury service has been

compelled by the State. Second, a prosecutor in a criminal

case, by virtue of his or her duties and relationship with the

challenged jurors, has standing to uphold the rights of these

jurors to be free from invidious discrimination. Finally, a

defendant’s Sixth Amendment rights to a fair trial and the

assistance of counsel do not include any subsidiary right to

discriminate in the selection of a jury.

Accordingly, this Court should now hold that Batson

applies with equal force to the prosecution and the defense.

POINT I

EXPERIENCE IN THE COURTS OF NEW YORK AND

OTHER JURISDICTIONS HAS LED TO THE RECOGNI-

TION THAT A RACE-BASED PEREMPTORY CHAL-

LENGE, REGARDLESS OF WHO EXERCISES IT,

HARMS NOT ONLY THE CHALLENGED JUROR, BUT

THE ENTIRE COMMUNITY

During the early morning hours of December 20, 1986,

three African-American men whose car had broken down

near the Howard Beach section of Queens, New York, were

chased by a mob of bat and stick-wielding white youths,

screaming racial epithets. One of the African-Americans was

pursued until he was forced onto a six-lane highway where he

was struck by a car and killed. A second was severely beaten.

The third managed to escape without injury. Public appre-

hension about the fairness of the investigation and prosecu-

tion led to the appointment of amicus as Special Prosecutor

to replace the Queens County District Attorney. Nine white

~—youths-eventually were convicted for acts they committed

during the Howard Beach incident.

During the first case to go to trial, the defense challenged

for cause or peremptorily every African-American prospective

juror. On the prosecutor’s motion, defense counsel was ulti-

mately required by the court to offer race-neutral reasons for

5

the final three peremptory challenges. One challenge was dis-

allowed and the juror seated.

The three defendants convicted at this trial argued to the

New York Supreme Court, Appellate Division, Second

Department, that ‘‘when a defense lawyer reasonably believes

that blacks-qua blacks (or for that matter whites qua whites

Or greens qua greens) are more likely to convict his client

based upon specific race-related issues in a particular case, he

must exercise whatever lawful means are available to him to

strike such jurors from the panel.’’ Brief for Appellant, Peo-

ple v. Kern, 149 A.D.2d 187, 545 N.Y.S.2d 4 (2d Dep’t

1989). A defense attorney in that case publicly defended race-

based peremptory challenges: ‘‘] want the best for an acquit-

tal. And any lawyer who tells you otherwise is a damn liar.’’

See Cheever, Defense Jeers Ruling Denying Peremptories in

Howard Beach, Manhattan Lawyer, October 6-12, 1987, at 5,

col. 4.

In affirming the convictions of these three defendants, the

Appellate Division rightly rejected these assertions:

[P]eremptory challenges exercised solely on the basis of

race, whether it be by the prosecution or the defense,

necessarily result in injury not only to the excluded juror

but to the community-at-large and to society’s confi-

dence in and respect for our system of justice... .

[T]he courts cannot permit such conduct; justice cannot

remain blindfolded, but rather must proclaim and insist

that the guarantee of equal protection against all forms

of racial discrimination, particularly in our system of

justice, be enforced.

Kern, 149 A.D.2d at 235, 545 N.Y.S.2d at 34.

The New York Court of Appeals subsequently affirmed the

decision of the Appellate Division and, quoting Batson v.

Kentucky, 476 U.S. 79, 87-88 (1986), wrote, in part:

The harm from discriminatory jury selection extends

beyond that inflicted on the defendant and the excluded

juror to touch the entire community. Selection proce-

6

dures that purposefully exclude black persons from

juries undermine public confidence in the fairness of our

system of justice. Discrimination within the judicial sys-

tem is most pernicious because it is ‘a stimulant to that

race prejudice which is an impediment to securing to

{black citizens] that equal justice which the law aims to

secure to all others.’ By their application to restrict

defense peremptory challenges, the People have asserted

the rights both of excluded jurors and the community-

at-large.

People v. Kern, 75 N.Y.2d 638, 654, 554 N.E.2d 1235, 1243-

1244, 555 N.Y.S.2d 647, 655-56, cert. denied, 111 S.Ct. 77

(1990) (citations omitted).'

Unfortunately, the problem of discrimination in jury selec-

tion is not unique to the Howard Beach case. One prominent

defense attorney in New York, identified as a member of the

board of directors of the National Association of Criminal

Defense Lawyers, has asserted that the Constitution gives

defendants—and their attorneys—the right to be racist: ‘‘I’m

not prejudiced, but if I want to be, it’s perfectly legal. Now,

tell me, how can a judge tell a defendant that he can’t be

prejudiced?’’ Cheever, supra, at 38, col. 3. In the instant

case, the defendants told the Georgia Supreme Court that,

since a notice about the crime had been circulated in the

black community, they were entitled to challenge black jurors

1 Even before the New York State appellate courts had definitively

ruled on the issue, every New York criminal trial judge to address the

issue had ruled that Batson applied to defense counsel, basing his or

her decision on state constitutional and common-law grounds, as well

as the Fourteenth Amendment to the federal Constitution. People v.

Muriale, 138 Misc.2d 1056, 1066, 526 N.Y.S.2d 367, 374 (Sup. Ct.

Kings Co. 1988), appealed on other grounds, 189 A.D.2d 651, 553

N.Y.S.2d 39, (2nd Dep’t), /v. denied, 76 N.Y.2d 740, 558 N.Y.S.2d

902, 557 N.E.2d 1198 (1990); People v. Gary M., 138 Misc.2d 1081,

1089-90, 526 N. Y.S.2d 986, 994 (Sup. Ct. Kings Co. 1988); People v.

Davis, 142 Misc.2d 881, 888-891, 537 N.Y.S.2d 430, 434-36 (Sup. Ct.

Bronx Co. 1988); People v. Piermont, 143 Misc.2d 839, 842-44, 542

N.Y.S.2d 115, 117-18 (Westchesier Co. Ct. 1989).

without asking them any voir dire questions about the impact

of the notice on their individual fitness to serve. (J.A. 35-37).

In a recent case from Garland, Texas, the defendants,

members of a group advocating white supremacy and anti-

Semitism, were convicted of conspiracy to violate the civil

rights of African-American, Hispanic, and Jewish citizens.

The defendants unsuccessfully contended that ‘‘they were

denied the right to a fair and impartial jury’’ by the trial

court’s refusal to require the Jewish prospective jurors to so

identify themselves, and thus to facilitate the defendant’s use

of peremptory challenges against all prospective jurors who

were Jewish. The Fifth Circuit Court of Appeals held that

peremptory challenge limitations based on race ‘‘apply logi-

cally to the defendants in this case.’’ United States v. Greer,

939 F.2d 1076, 1086, reh’g en banc granted, 1991 US App

LEXIS 28441 (Sth Cir. 1991).’

Treating the defense and the prosecution identically during

jury selection Goes not cause unbalanced juries; it produces

fair and impartial ones. As six state courts have recognized,

the prohibition of race discrimination in jury selection must

be extended to defense counsel to guarantee that potential

jurors are neither excluded nor stigmatized in violation of

their constitutional rights, and to preserve the impartiality,

representativeness, and appearance of fairness in the criminal

justice system.

Prior to this Court’s decision in Batson, California, Massa-

chusetts, and Florida recognized that the use of racially dis-

criminatory peremptory challenges in criminal cases was

forbidden to the defense, as well as to the prosecution. These

states explicitly held that their State Constitutions forbade

peremptory challenges by defendants for racial reasons.

The California Supreme Court, in People v. Wheeler, 22

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

that: ‘‘[T]he People no less than individual defendants are

2 The court also rejected the defendants’ claim that they were entitled

to challenge for cause every prospective juror who was African-

American, Hispanic, or Jewish.

8

entitled to a trial by an impartial jury drawn from a repre-

sentative cross-section of the community.’’ 22 Cal.3d at 283

n.29, 583 P.2d at 765 n.29, 148 Cal. Rptr. at 907 n.29. The

court stated that a contrary holding would frustrate other

essential public policy functions:

[W]hen a white defendant is charged with a crime

against a black victim, the black community as a whole

has a legitimate interest in participating in the trial pro-

ceedings; that interest will be defeated if the prosecutor

does not have the power to thwart any defense attempt

to strike all blacks from the jury on the ground of group

bias alone.

Id.

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

499, cert. denied, 444 U.S. 881 (1979), the Massachusetts

Supreme Judicial Court reasoned that the Commonwealth

had the right to try its case before ‘‘the tribunal which the

Constitution regards as most likely to produce a fair result’’

and is, therefore, deemed ‘‘equally to be entitled to a repre-

sentative jury, unimpaired by improper exercise of peremp-

tory challenges by the defense.’’ 377 Mass. at 489 n.35, 387

N.E.2d at 517 n.35.

In Florida, the State Supreme Court restricted the racial

use of peremptory challenges by criminal defendants after

two controversial trials involving white police officers accused

of killing African-American citizens. In each case, the

defense use of peremptory challenges against African-

Americans produced an all white jury; the defendants were

acquitted; and the acquittals sparked public outrage, and, in

one case, riots. See Alschuler, The Supreme Court and the

Jury: Voir Dire, Peremptory Challenges and the Review of

Jury Verdicts, 56 U. Chi. L. Mev. 153, 195-96 (1989). The

court then ruled that defense counsel were not permitted to

use peremptory challenges in a discriminatory way. State v

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

tl

9

Since Batson, three more states, including New York, have

held that neither the prosecution nor the defense may exercise

peremptory challenges systematically to exclude members of a

racial or ethnic group from service on a criminal petit jury.

In New Jersey, a superior court ruled that Batson applies

to the defense as well as the prosecution:

If the courts allow jurors to be excluded because of

group bias, be it at the hands of the State or the

defense, they would be willing participants in a scheme

that could only undermine the very foundation of our

system of justice—our citizens’ confidence in it.

State v. Alvarado, 221 N.J. Super. 324, 328, 534 A.2d 440,

442 (Law Div. 1987).’ See also State v. Levinson, 71 Haw.

492, 795 P.2d 845, 849 (1990).

The peremptory challenge has long acted as a basis for pre-

serving the image and reality of fairness in jury selection.

These courts have all properly recognized that a peremptory

challenge which permits racial discrimination, regardless of

which party uses it, harms not only the challenged jurors

themselves, but the entire community.

POINT Il

THE CONSTITUTION PROHIBITS CRIMINAL DEFEN-

DANTS FROM EXCLUDING PROSPECTIVE JURORS

FROM SERVICE ON THE BASIS OF RACE.

Public support for the criminal justice system has always

depended not only on the system’s ability to render justice,

3 Alvarado was approvingly cited by the New Jersey Supreme Court in

State v. Watkins, 114 N.J. 259, 553 A.2d 1344 (1989). In that case, in

dicta, the court stated, ‘‘It may be that discrimination in the court-

room cannot be eradicated without incurring costs. If the cost is some

constraint on counsel’s otherwise unbridled freedom in selecting

jurors, we believe that it is a price worth paying. The alternative, that

counsel could exclude a potential juror merely because the juror is a

member of a cognizable group, is unthinkable. A courthouse has no

room for invidious discrimination.’’ 114 N.J. at 267, $53 A.2d at 1348.

10

but also on its ability to project to the parties and to the pub-

lic an unimpeachable image of fairness. In cases such as

those discussed above, and, regrettably, in scores of other

cases where the victim is of one race and the defendant is of

another, racial tension often exists inside and outside the

courtroom. The Howard Beach incident was but one of the

recent, highly-publicized trials in the New York City area

which raised issues of racial prejudice. Within the past two

years, a group of young African-American men was con-

victed of beating and raping a white woman who was jogging

in Central Park (see Sullivan, Last Sentencing in Jogger

Attack, N.Y. Times, March 14, 1991, at B4, col. 1) and a

young white man was convicted of shooting and killing a

young African-American man in the Bensonhurst section of

Brooklyn. See Glaberson, Bensonhurst Case Ends, Satisfying

Few, N.Y. Times, March 14, 1991, at Al, col. 2.

The most critical and contentious issues affecting society as

a whole increasingly seem to crystallize in the course of crimi-

nal trials, placing a burden on the justice system to be fair

which far transcends the facts of any particular case. Even

trials in which race is not an obvious factor may raise impor-

tant questions about public safety, police-community rela-

tions, and the ability of the legal system to be cclor-blind.

The ability to project the image of fairness in the criminal

justice system rests significantly with the jurors. It is the

jurors who are asked to determine the guilt of a defendant. If

jurors are selected in an unbiased and impartial manner, a

fair trial is more likely and public confidence in the criminal

justice system is maintained. If jurors are not selected in an

unbiased and impartial manner, there can be no fair trial and

public confidence in the criminal justice system is ravaged.

This Court has the responsibility and authority to ensure

that equal justice is secured to all. This Court, therefore,

should now follow those state and federal courts that have

applied the Batson rule to criminal defendants and their

attorneys. The actions of criminal defense attorneys, no less

than the actions of prosecutors and civil counsel, constitute

11

state action, and prosecutors have standing to uphold the

Equal Protection rights of excluded jurors. Finally, a crimi-

nal defendant’s rights to a fair trial and the assistance of

counsel cannot and do not include the subsidiary right to dis-

criminate against prospective jurors on the basis of race or

ethnicity.

A. A Criminal Defendant’s Exercise of Peremptory Chal-

lenges Constitutes State Action.

In an unbroken line of cases, this Court has held that the

Equal Protection Clause of the Fourteenth Amendment to

the United States Constitution forbids any action attributable

to the State which deprives persons of their right to partici-

pate as jurors by reason of their race. See, e.g., Edmonson v.

Leesville Concrete Co., 111 S.Ct. 2077 (1991) (discrimination

by private litigants in civil cases); Batson, 476 U.S. 79 (dis-

crimination through prosecutor’s peremptory challenges);

Carter v. Jury Comm’n of Greene County, 396 U.S. 320

(1970) (discrimination by jury commission in summoning

jurors); Ex parte Virginia, 100 U.S. 339 (1880) (discrimina-

tion by trial judge); Strauder v. West Virginia, 100 U.S. 303

(1880) (discriminatory statute). Each case represents another

step in this Court’s determined effort to remove all vestiges

of racism from the selection of jurors.

Although the constitutional guarantee of equal protection

does not apply to the actions of private entities, National

Collegiate Athletic Assn. v. Tarkanian, 488 U.S. 179, 191

(1988), nevertheless ‘‘governmental authority may dominate

an activity to such an extent that its participants must be

deemed to act with the authority of the government and, as a

result, be subject to constitutional constraints.’’ Edmonson,

111 S.Ct. at 2082; see also Burton v. Wilmington Parking

Auth., 365 U.S. 715 (1961); Reitman v. Mulkey, 387 U.S.

369 (1967); Shelley v. Kraemer, 334 U.S. 1 (1948).

Having held that prosecutors may not, consistent with the

Fourteenth Amendment, exercise peremptory challenges

solely on the basis of race, this Court should now extend its

12

holding to criminal defendants and their attorneys. There is

simply nothing private about the selection of jurors or the

use Of peremptory challenges. These challenges are exercised

not in private matters but during the course of a public trial

in a public building; they are not constitutionally required

but are merely a privilege extended to criminal defendants by

statute or decisional law; they are afforded to criminal defen-

dants not merely for their benefit but also to assist the state

in fulfilling its inherent obligation to criminal defendants and

the public to provide impartial juries; the victims of race-

based peremptory challenges are exposed to this discrimina-

tion only because they have been compelled by the State to

appear for jury service; and, finally, peremptory challenges

are not self-executing but require judicial enforcement.

Accordingly, the exercise of race-based peremptory challenges

by criminal defendants and their attorneys must be consid-

ered state action violative of the Equal Protection Clause of

the Fourteenth Amendment.

Whether private discrimination violates the Fourteenth

Amendment can be resolved only by determining whether

“the conduct allegedly causing the deprivation of a federal

right [is] fairly attributable to the State.’’ Lugar v. Edmon-

son Oil Co., 457 U.S. 922, 937 (1982). In Lugar, this Court

set forth a two-prong test for state action: ‘‘[flirst, the depri-

vation [of a federal right] must be caused by the exercise of

some right or privilege created by the State. . . ; [s]econd,

the party charged with the deprivation must be a person who

may fairly be said to be a state actor. This may be because he

is a state official, because he has acted together with or has

obtained significant aid from state officials, or because his

conduct is otherwise chargeable to the State.’’ Jd. at 937. A

state action question can be resolved ‘‘[o]nly by sifting facts

and weighing circumstances’’ so that the nature and extent of

state involvement in the private conduct can be “‘attributed

its true significance.’’ Jd. at 939, quoting Burton v.

Wilmington Parking Auth., 365 U.S. at 722.

In Edmonson v. Leesville Concrete Co., 111 S.Ct. 2077

(1991), this Court, basing its decision on the two-part Lugar

13

framework, held that when private litigants in a civil lawsuit

exercise peremptory challenges, their conduct is state action

subject to the strictures of the Equal Protection Clause.

First, this Court concluded, peremptory challenges have

their source in state authority. Edmonson, 111 S.Ct. at 2083.

Unlike events which can occur independently of the State,

peremptory challenges are available only because the State

has provided for them. This Court has repeatedly said that

peremptory challenges are not constitutionally required. See,

e.g., Gray v. Mississippi, 481 U.S. 648, 663 (1987); Batson,

476 U.S. at 107 (Marshall, J., concurring); Frazier v. United

States, 335 U.S. 497, 505 n.11 (1948). Indeed, the State could

choose to forego them entirely. Thus, the use of peremptory

challenges could not occur but for the fact that the State has

created them.

Turning to the second prong of the Lugar test, this Court

concluded that ‘‘a private litigant in all fairness must be

deemed a government actor in the use of peremptory chal-

lenges,’’ (Edmonson, 111 S.Ct. at 2083) inasmuch as the liti-

gant relies to a significant extent on governmental assistance

and benefits, performs a traditional governmental function,

and causes an injury to the excluded juror that is aggravated

by the incidents of governmental authority. Jd. at 2083-87.

As this Court recognized, the State not only provides the

means for discrimination in jury selection, but also, public

officials are themselves involved in the discriminatory process

from beginning to end. Potential jurors are exposed to the

possibility of discriminatory challenges because the State,

with its full coercive power, summons them for jury service.

Additionally, race-based challenges are used exclusively on

State property, i.e., in state courtrooms, during the course of

a criminal trial, an official activity which itself constitutes

state action. See Cuyler v. Sullivan, 446 U.S. 335, 343 (1980)

(‘‘a state criminal trial, a proceeding initiated and conducted

by the State itself, is an action of the State within the mean-

ing of the Fourteenth Amendment’’). As stated in Edmon-

son:

14

[A] private party could not exercise its peremptory chal-

lenges absent the overt, significant assistance of the

court. The government summons jurors, constrains their

freedom of movement, and subjects them to public scru-

tiny and examination. The party who exercises a chal-

lenge invokes the formal authority of the court, which

must discharge the prospective juror. . . . By enforcing

a discriminatory peremptory challenge, the court ‘‘has

not only made itself party to the [biased act], but has

elected to place its power, property and prestige behind

the [alleged] discrimination.’’ In so doing, the govern-

ment has ‘‘create[d] the legal framework governing the

[challenged] conduct,’’ and in a significant way has

involved itself with invidious discrimination.

111 S.Ct. at 2084-85 (citations omitted).

Moreover, ‘‘[t]he peremptory challenge is used in selecting

an entity that is a quintessential governmental body, having

no attributes of a private actor.’’ Jd. at 2085. Notwithstand-

ing a criminal defendant’s participation in the process, the

Constitution imposes on the State alone the duty to provide

petit juries for serious crimes. See, e.g., Duncan v. Louisi-

ana, 391 U.S. 145 (1968). Additionally, the Constitution

imposes on the State alone the duty to provide impartial

juries drawn from a fair cross-section of the community. See,

e.g., Taylor v. Louisiana, 419 U.S. 522 (1975).

These constitutional obligations rest with the State not

merely for the benefit of criminal defendants, but also to

safeguard the State’s interest in prosecutions ‘‘tried before

the tribunal which the Constitution regards as most likely to

~ produce a fair result.’’ Singer v. United States, 380 U.S. 24,

36 (1965); see also Press-Enterprise Co. v. Superior Court,

464 U.S. 501, 505 (1984) (‘‘process of juror selection is. . .

a matter of importance, not simply to the adversaries but to

the criminal justice system’’). The State may not abandon its

obligation to criminal defendants and the public alike to pro-

vide impartial juries. States may, of course, fashion different

models for achieving this goal, Hayes v. Missouri, 120 U.S.

15

68, 70 (1887), as, for example, by permitting the participation

of the parties through peremptory challenges, but ultimately,

the government retains the inherent obligation to provide

impartial juries. Jd. Thus, when criminal defendants and

their attorneys participate in the selection of a jury, they are

performing an inherently governmental function and are,

therefore, bound by the same constitutional constraints by

which all state actors must abide.

Finally, as this Court recognized in Edmonson:

[T]he injury caused by the discrimination is made more

severe because the government permits it to occur within

the courtroom itself. Few places are a more real expres-

sion of the constitutional authority of the government

than a courtroom, where the law itself unfolds. . . . To

permit racial exclusion in this official forum compounds

the racial insult inherent in judging a citizen by the color

of his or her skin.

111 S.Ct. at 2087.

For the same reasons as set forth in Edmonson, a criminal

defendant’s exercise of peremptory challenges must be con-

sidered state action. To the same extent as in a civil trial, a

criminal defendant’s peremptory challenges depend upon stat-

utes or decisional law and have no significance outside the

courtroom; require for their effect the processes and formal

authority of the court; result in the creation of a quintessen-

tial governmental body; and, if exercised in a discriminatory

manner, result in an injury exacerbated by its occurrence

within an official forum. No less than in the civil context,

racial bias in the criminal trial, whether the product of prose-

cutorial or defense activity, ‘‘mars the integrity of the judicial

system and prevents the idea of democratic government from

becoming a reality.’’ Jd.

Polk County v. Dodson, 454 U.S. 312 (1981), does not

suggest a contrary result. In that case, a criminal defendant

sought to sue his attorney for damages in connection with her

16

handling of the criminal defendant’s appeal.* This Court

ordered that the complaint against the attorney be dismissed

because she had not acted under color of state law for the

purposes of suit under 42 U.S.C. § 1983.° This Court empha-

sized that in her handling of the appeal, the attorney had not

‘“‘exercis[ed] power ‘possessed by virtue of state law and

made possible only because the wrongdoer is clothed with the

authority of state law.’ ’’ Jd. at 317-18, quoting United States

v. Classic, 313 U.S. 299, 326 (1941). Rather, in prosecuting

the defendant’s appeal, the attorney stood in an adversarial

relationship to the government. /d. at 322 n.13.

Significantly, however, this Court made clear in Dodson

that a public defender may act under color of law for some

purposes, id. at 324-25, and, moreover, has long recognized

that state action determinations must be made only upon a

close analysis of all relevant facts and circumstances. Burton

v. Wilmington Parking Auth., 365 U.S. at 722. Thus, a

determination that a party is not a state actor in one context

is not decisive on whether that party is a state actor in

another context. Although a criminal defendant and his or

her attorney of course stand in an adversarial relationship to

the state in the endeavor to bring to light the circumstances

of the crime and the identity of the criminal, the same is not

the case in the selection of the jury. As stated in Edmonson:

In the jury selection process, the government and private

litigants work for the same end. . . . The selection of

jurors represents a unique governmental function dele-

gated to private litigants by the government and attribut-

able to the government for purposes of invoking

4 After determining that the defendant’s claims on appeal would be

frivolous, the attorney moved for permission to withdraw as counsel

and for dismissal of the appeal, pursuant to a state rule of appellate

procedure.

5 The ‘‘under color of state law’’ requirement for actions under

§ 1983 is identical to the ‘‘state action’’ requirement for other Four-

teenth Amendment claims. See Lugar, 457 U.S. at 929.

17

constitutional protections against discrimination by rea-

son of race.

111 S.Ct. at 2086.

Moreover, unlike the public defender in Dodson, whose

decisions concerning the handling of her client’s appeal

entailed no governmental involvement whatsoever, a defense

attorney making peremptory challenges cannot accomplish his

or her ends without the participation of the trial judge—who

indisputably is a state actor. Peremptory challenges simply

have no effect until courts enforce them and exclude the chal-

lenged jurors.° Thus, the joint activity of the defense attorney

and the trial judge brings the attorney’s conduct within the

strictures of the Fourteenth Amendment. Compare Lugar,

457 U.S. at 941-42, with Flagg Brothers, Inc. v. Brooks, 436

U.S. 149 (1978) (private entity acting pursuant to state statute

is not, without more, a state actor); see also Shelley v.

Kraemer, 334 U.S. 1 (state courts cannot, consistent with the

Fourteenth Amendment, enforce private acts of race discrimi-

nation); Barrows v. Jackson, 346 U.S. 249 (1953) (precluding

state courts from awarding damages against property owners

for violating racially restrictive covenants).

Whether in a civil case involving private litigants only, or

in a criminal case pitting a defendant against the State, jury

selection remains a state function and those to whom it is

delegated engage in state action. Criminal defendants, no less

than civil litigants, require the participation and assistance of

the court to enforce their challenges and can expose potential

jurors to the humiliation of discrimination only as a result of

the jurors’ having been summoned by the State.

Accordingly, this Court’s decision in Edmonson dictates

the conclusion that the exercise of peremptory challenges by

6 For example, N.Y. Crim. Pro. Law § 270.25(1) defines ‘‘peremptory

challenge’ and describes what action is necessary to effectuate the

challenge. It provides: ‘‘A peremptory challenge is an objection to a

prospective juror for which no reason need be assigned. Upon any

peremptory challenge, the court must exclude the person challenged

from service.’’ (emphasis suppiied).

18

criminal defendants and their attorneys represents state

action.

B. Prosecutors Have Standing to Assert the Equa! Protection

Rights of Excluded Jurors.

In a long line of cases, this Court has recognized a liti-

gant’s standing to assert the rights of third parties when three

conditions are satisfied: a) injury-in-fact to the litigant; b) a

close nexus between the litigant and the third parties whose

constitutional rights are at stake; and c) serious obstacles to

the assertion of the right by the third parties themselves. See,

e.g., Craig v. Boren, 429 U.S. 190, 192-97 (1976) (beer sellers

have standing to invoke their young male customers’ equal

protection rights to buy beer at the same age as women);

Singleton v. Wulff, 428 U.S. 106, 111-18 (1976) (physicians

have standing to assert the rights of their patients to abor-

tion); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925)

(private schools have standing to assert the rights of parents

and students to choose private school education).

In Powers v. Ohio, 111 S.Ct. 1364 (1991), this Court held

that a criminal defendant has standing to assert the Equal

Protection rights of jurors excluded from service on account

of their race. The defendant’s injury was said to arise from

the doubts cast on the integrity of the judicial process by

racial discrimination:

The overt wrong, often apparent to the entire jury

panel, casts doubt over the obligation of the parties, the

jury, and indeed the court to adhere to the law through-

out the trial of the cause. . . . If the defendant has no

right to object to the prosecutor’s improper exclusion of

jurors, . . . there arise legitimate doubts that the jury

has been chosen by proper means. The composition of

the trier of fact is called into question, and the irregular-

ity may pervade all the proceedings that follow.

Id. at 1371-72. Moreover, this Court found that the ‘‘congru-

ence of interests’? between the criminal defendant and the

excluded juror made it appropriate for the defendant to raise

19

the rights of the juror, id. at 1372; and that the barriers to a

suit by an excluded juror were sufficiently daunting that ‘‘a

juror dismissed because of race probably will leave the court-

room possessing little incentive to set in motion the arduous

process needed to vindicate his own rights.’ Jd. at 1373.’ The

prosecutor’s standing to assert the Equal Protection rights of

excluded jurors is no less apparent.

First, the prosecutor is injured in the performance of his or

her professional and statutory obligations. The public prose-

cutor has an undeniable interest in conducting orderly, fair,

and lawful criminal trials that command community confi-

dence.* That interest is seriously impaired when juries are

selected on the basis of race. Unconstitutional discrimination

in jury selection may well impair the ability of a jury to

engage in impartial fact finding. Peters v. Kiff, 407 U.S. 493,

503-04 (1972). In addition, it undermines public confidence in

the fairness of the criminal justice system, see Batson, 476

U.S. at 87, and impairs the prosecutor’s ability to investigate

and prosecute crimes and to obtain the cooperation of vic-

tims and witnesses. Indeed, excluded jurors may well believe

the prosecutor is responsible for discrimination in jury selec-

tion, no matter who is in fact responsible, and may hold the

prosecutor responsible for correcting the ‘ituation. Thus, the

prosecutor clearly suffers injury-in-fact.

Moreover, the nexus between the prosecutor and the

excluded juror is sufficiently close to assure vigorous advo-

cacy of the juror’s rights. The public prosecutor has an offi-

cial duty to ensure that jury selection proceeds in a

constitutional manner. That interest is virtually identical to

7 In Edmonson, this Court, relying on Powers, held that private liti-

gants in civil cases likewise have standing to assert the Equal Protec-

tion rights of excluded jurors. 111 S.Ct. at 2087-88.

8 In Berger v. United States, 295 U.S. 78, 88 (1935), this Court

described the prosecutor as ‘‘the representative not of an ordinary

party to a controversy, but of a sovereignty whose obligation to govern

impartially is as compelling as its obligation to govern at all; and

whose interest, therefore, in a criminal prosecution is. . . that justice

shall be done.”’

20

the interest of the excluded juror in avoiding unconstitutional

exclusion from jury service.

Finally, as recognized in Powers, the victims of discrimina-

tion are ill-suited to vindicate their own rights. Potential

jurors are not parties to the jury selection process and have

no opportunity to be heard at the time of their selection or

exclusion. Excluded jurors usually are ill-situated even to

know, much less to allege and prove, which party to the

criminal action was responsible for their exclusion and why.

Their Equal Protection rights, therefore, can best be vindi-

cated only if the prosecutor is permitted to challenge what

appears to be discrimination in the defendant’s exercise of

peremptory challenges while that discrimination is occurring.

Accordingly, this Court should hold that prosecutors, no

less than criminal defendants, have standing to assert the

Equal Protection rights of excluded jurors.

C. The Rights to a Fair Trial and the Assistance of Counsel

Do Not Include the Right to Discriminate Against Pro-

spective Jurors on the Basis of Race.

In addition to urging rejection of these now-settled princi-

ples of state action and third-party standing, some criminal

defendants have asserted a special right or privilege—

apparently rooted in their Sixth Amendment rights to a jury

trial and the assistance of counsel—to exercise peremptory

challenges on the basis of race. No such right exists.

Any claim that the Sixth Amendment grants defendants the

privilege to discriminate must fail. As this Court has repeat-

edly stated, there is simply no place for racism in the court-

room. ‘‘Because of the risk that the factor of race may enter

the criminal justice process, we have engaged in ‘unceasing

efforts’ to eradicate racial prejudice from our criminal justice

system.’’ McCleskey v. Kemp, 481 U.S. 279, 309 (1987) (cita-

tion omitted). This is true especially regarding the selection of

jurors. ‘‘Exclusion of black citizens from service as jurors

constitutes a primary example of the evil the Fourteenth

Amendment was designed to cure.’’ Batson, 476 U.S. at 85.

21

Reliance on racial stereotypes and other purposeful dis-

crimination in the selection of jurors is intolerable not only

because it violates the constitutional rights of defendants;

such discrimination also violates the rights of the prospective

jurors themselves. Powers, 111 S.Ct. at 1370; Edmonson, 111

S.Ct. at 2087; Carter, 396 U.S. at 329. Moreover, this Court

has recognized that our society pays an enormous price when

the legal system tolerates racial bias. ‘‘Discrimination on the

basis of race, odious in all aspects, is especially pernicious in

the administration of justice. Selection of members of a. . .

jury because they are of one race and not another 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). See also Peters v. Kiff, 407 U.S. at 502.

Preventing this harm may be even more important in those

cases like Howard Beach and the Miami police shooting cases

described above, wherein ‘‘race is implicated in the trial’’ and

public confidence in the fairness of the process is critical.

Powers, 111 S.Ct. at 1371. The benefits from eliminating all

racism in the selection of jurors in every case extend well

beyond the courtroom. ‘‘In view of the heterogeneous popu-

lation of our Nation, public respect for our criminal justice

system and the rule of law will be strengthened if we ensure

that no citizen is disqualified from jury service because of his

race.’’ Batson, 476 U.S. at 99.

Thus, defendants face a heavy burden in justifying their

use of race-based peremptory challenges—the sole remaining

instance of officially-sanctioned racism in the selection of

jurors. That burden cannot be met.

First, this Court has repeatedly upheld limits on the Sixth

Amendment rights of defendants, and on the actions of their

attorneys to advance those rights, when other important

interests were implicated. Just last term, a majority of this

Court agreed that ‘‘a State may regulate speech by lawyers

representing clients in pending cases more readily than it may

regulate the press.’’ Gentile v. State Bar of Nevada, 111

S.Ct. 2720, 2748 (1991) (O’Connor, J., concurring). ‘‘Law-

22

yers representing clients in pending cases are key participants

in the criminal justice system, and the State may demand

some adherence to the precepts of the system in regulating

their speech as well as their conduct.’’ Id. at 2744 (emphasis

added). A prime concern in Gentile was the likelihood that a

defense attorney’s extrajudicial statements would implicate

‘‘the state’s interest in fair trials.’’ Jd. at 2745.

The need to maintain the integrity and fairness of the pro-

cess, which is a key reason for the ban on discrimination in

jury selection, has served to limit defendants’ Sixth Amend-

ment rights in other contexts as well. In Wheat v. United

States, 108 S.Ct. 1692, 1697 (1988), the Court affirmed the

trial court’s refusal to accept the defendant’s waiver of the

right to conflict-free counsel, because ‘‘[f]ederal courts have

an independent interest in ensuring that criminal trials are

conducted within the ethical standards of the profession and

that legal proceedings appear fair to all who observe them.”’

See also, Nix v. Whiteside, 475 U.S. 158, 173 (1986) (Sixth

Amendment right to counsel ‘‘includes no right to have a

lawyer who will cooperate with planned perjury.’’); Press-

Enterprise Co., 464 U.S. at 510 (First Amendment right of

access to criminal proceedings limits defendants’ ability to

waive Sixth Amendment guarantee of public trial); Faretta v.

California, 422 U.S. 806 (1975) (Sixth Amendment right to

counsel does not include unfettered right to proceed pro se).

Likewise, the Court in Singer v. United States, 380 U.S. at

36, upheld the prosecution’s objection to a defendant’s

waiver of the Sixth Amendment right to a jury trial, in part

because ‘‘the Government, as a litigant, has a legitimate

interest in seeing that cases in which it believes a conviction is

warranted are tried before the tribunal which the Constitu-

tion regards as most likely to produce a fair result.’’ In Tay-

lor v. Illinois, 484 U.S. 400, 108 S.Ct. 646 (1988), the Court

reiterated that defendants had no absolute Sixth Amendment

right to present evidence. Instead, the justice system could

demand compliance with reasonable procedural and discovery

rules designed to serve the ‘‘State’s interest in the orderly

conduct of a criminal trial.’’ Jd. at 653. ‘‘More is at stake

23

than possible prejudice to the prosecution. We are also con-

cerned with the impact of this kind of conduct on the integ-

rity of the judicial process itself.’’ Jd. at 656.

The paramount public interest in preventing racism in the

criminal justice system is certainly as compelling and, there-

fore, must take precedence over a defendant’s claim to be

entitled to use racially-biased peremptory challenges in select-

ing a jury. The Sixth Amendment gives defendants no excuse

to practice racism in the courtroom.?

Nor does the attorney-client relationship, as delineated in

the Model Code of Professional Responsibility, Canon 7

(1980), confer upon criminal defendants the right to discrimi-

nate.° As stated by the Supreme Court of Hawaii:

Defense counsel, of course, has a duty to represent his

client zealously within the bounds of the law, but that

duty to the client, is the same as to the adversary system

of justice. Thus EC 7-19 states: ‘‘The duty of a lawyer

to his client and his duty to the legal system are the

same: to represent his client zealously within the bounds

of the law.”’

9 Holland v. Illinois, 493 U.S. 474, 110 S. Ct. 803 (1990), which

explained that discriminatory peremptory challenges were prohibited

by the Fourteenth Amendment rather than the Sixth Amendment, fur-

nishes no support for the view that the Sixth Amendment grants defen-

dants a right to discriminate. The majority in Holland reiterated that

“race-based exclusion is no more permissible at the individual petit

jury stage than at the venire stage.’’ 110 S.Ct. at 807; see also 110

S.Ct. at 811 (Kennedy, J., concurring):

I write this separate concurrence to note that our disposition of the

Sixth Amendment claim does not alter what I think to be the estab-

lished rule, which is that the exclusion of a juror on the basis of

race, whether or not by use of a peremptory challenge, is a violation

of the juror’s constitutional rights.

See also 110 S.Ct. at 828 (Stevens, J., dissenting) (any interest in

racially-based peremptory challenges ‘“‘rests on the assumption that a

black juror may be presumed to be partial simply because he is black—

an assumption that is impermissible since Batson.’’).

10 See also Model Rules of Professional Conduct, Rule 3.1 (1983).

24

Unfortunately, there has grown up an impression,

among some defense lawyers, that the mandate to repre-

sent a client zealously overrides the qualification ‘‘within

the bounds of the law.’”’

Here, respondent[’s] counsel was . . . attempting [by

excluding all women] to obtain what he hoped would be

a partial, rather than an impartial jury. This is not zeal-

ous representation within the bounds of the law. It is the

contrary.

State v. Levinson, 795 P.2d at 848-49.

In addition, the attorney-client privilege would not be vio-

lated by requiring criminal defendants or their attorneys to

state the reasons for their challenges, when a prima facie case

of discrimination is established. Batson, 476 U.S. at 96. The

attorney-client privilege shields from disclosure communica-

tions between attorneys and their clients, and nothing else. It

does not bar courts from requiring defendants and their

attorneys to set forth facts or reasons in support of their

requests for relief, even if those facts or reasons have previ-

ously been the subject of attorney-client communications. See

Upjohn v. United States, 449 U.S. 383, 395-96 (1981); In re

Grand Jury Subpoena Duces Tecum, 731 F.2d 1032, 1037 (2d

Cir. 1984). This requirement is hardly confined to jury selec-

tion and has never been thought to constitute an unwarranted

invasion of the attorney-client privilege or to compromise the

defendant’s trial strategy. See, e.g., Williams v. Florida, 399

U.S. 78 (1970) (upholding notice-of-alibi statute). Indeed,

criminal defendants or their attorneys must already set forth

facts or reasons in support of their requests for cause chal-

lenges.

Second, the unequivocal constitutional prohibition against

discrimination in jury selection surely takes precedence over

the only right that is directly implicated by Batson: the statu-

tory right to exercise peremptory challenges. Gray v. Missis-

sippi, 481 U.S. at 663. This Court has repeatedly held that

25

defendants have no constitutional right to peremptory caal-

lenges:

The right [of peremptory challenge] is in the nature of a

Statutory privilege, variable in the number of challenges

allowed, which may be withheld altogether without

impairing the constitutional guarantees of ‘‘an impartial

jury”’ and a fair trial.

Frazier, 335 U.S. at 505 n.11, quoting Stilson v. United

States, 250 U.S. 583, 586 (1919); see also Swain v. Alabama,

380 U.S. 202, 219 (1965)."

While there is a ‘‘long and widely held belief that the

peremptory challenge is a necessary part of trial by jury”’

(Swain, 380 U.S. at 219), the Court has permitted numerous

restrictions on defendants’ exercise of such challenges. See

Swain, 380 U.S. at 243-44 (Goldberg, J., dissenting).

“Indeed, the concept of a peremptory challenge as a totally

free-wheeling right unconstrained by any procedural require-

ments is difficult to imagine.’’ Ross v. Oklahoma, 487 U.S.

81, 108 S.Ct. 2273, 2279 (1988). One such requirement that

can and should restrict the peremptory challenge is the com-

mand of the Equal Protection Clause that there be no racial

discrimination in jury selection.

As this Court has recently explained, peremptory chal-

lenges ‘‘are a means to achieve the end of an impartial jury.”’

Id. at 2278. So long as the jurors who sit are impartial, the

fact that the defendant could not use peremptory challenges

as he or she wished ‘‘does not mean that the Sixth Amend-

ment was violated.’’ Id.; see also Lockhart v. McCree, 476

U.S. 162, 184 (1986); McDonough Power Equipment, Inc. v.

11 In fact, the number of challenges varies widely by jurisdiction. See

Hoeffner, Defendant’s Discriminatory Use of the Peremptory Chal-

lenge after Batson v. Kentucky, 11 Crim. L. Rev. 349, 350 n.3 (1989).

“‘In this country, the power of the legislature of a state to prescribe the

number of peremptory challenges is limited only by the necessity of

having an impartial jury . . . . The accused cannot complain if he is

still tried by an impartial jury. He can demand nothing more.’’ Hayes,

120 U.S. at 71.

26

Greenwood, 464 U.S. 548 (1984); Smith v. Phillips, 455 U.S.

209 (1982); Irvin v. Dowd, 366 U.S. 717, 722 (1961) (‘‘In

essence, the right to jury trial guarantees to the criminally

accused a fair trial by a panel of impartial, ‘indifferent’

jurors’’).

Third, because a ‘‘person’s race simply ‘is unrelated to his

fitness as a juror’ ”’ (Batson, 476 U.S. at 87) (citation omit-

ted), preventing defendants from relying on the irrelevant and

intolerable factor of race does not interfere in the least with

their ability to select fair jurors. Jurors ‘‘should be selected

as individuals, on the basis of individual qualifications, and

not as members of a race.’’ Cassell v. Texas, 339 U.S. 282,

286 (1950).

Thus, ‘‘a defendant in a criminal case is not constitution-

ally entitled to demand a proportionate number of his race

on the jury.’’ Swain, 380 U.S. at 208; see also Taylor v. Lou-

isiana, 419 U.S. at 538; United States v. Hatchett, 918 F.2d

631, 637 (6th Cir. 1990), cert. denied, 111 S.Ct. 2839 (1991).

Nor is a defendant entitled to use racial bias as a means of

obtaining ‘‘a jury believed by defense counsel as likely to

view the evidence in a particular way.’’ United States v.

Devin, 918 F.2d 280, 291 (Ist Cir. 1990). Defendants can no

more accomplish these prohibited ends by excluding qualified

jurors for racial reasons, then by insisting on the inclusion of

unqualified jurors of a particular race. The Constitution

requires impartiality, not favoritism. It is to be remembered

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.’ Hayes, 120 U.S. at 70, cited in Batson, 476

U.S. at 107 (Marshall, J., concurring).

Finally, Batson imposes critical, but hardly extensive or

unwieldy, limits on the exercise of peremptory challenges.

‘“II]f race stereotypes are the price for acceptance of a jury

panel as fair, the price is too high to meet the standard of the

Constitution. Other means exist for litigants to satisfy them-

selves of a jury’s impartiality without using skin color as a

27

test.’” Edmonson, 111 S.Ct. at 2088.'? Defendants will still be

able to use voir dire, cause challenges, and unbiased peremp-

tories in order to obtain an impartial jury. See Allen v.

Hardy, 478 U.S. 255 (1986). ‘‘Absent intentional discrimina-

tion violative of the Equal Protection Clause, parties should

be free to exercise their peremptory strikes for any reason, or

no reason at all.’’ Hernandez v. New York, 111 S.Ct. 1859,

1874 (1991) (O’Connor & Scalia, JJ., concurring). Defen-

dants will only be prevented from relying on the biased

stereotypes and racist assumptions that this Court has rightly

condemned.

_ The experience in New York and other jurisdictions con-

firms this Court’s prediction that these limits on the peremp-

tory challenge will not ‘‘create serious administrative

difficulties.’’ Batson, 476 U.S. at 99. ‘‘Fears of increased

costs and prolonged trials also appear exaggerated, especially

since the minimal increases associated with the limitation’s

implementation are . . . a small price to pay for the elimina-

tion of a too tempting opportunity for discrimination that

has been too long tolerated in our courts of law.’’ Hoeffner,

supra, at 368.

CONCLUSION

In Batson, this Court rejected the claim that the ‘‘unfet-

tered exercise of the [peremptory] challenge is of vital impor-

tance to the criminal justice system.’’ 476 U.S. at 98. The

Court made it clear that the Equa! Protection Clause guaran-

tee against discrimination on the basis of race ‘‘would be

12 Some experts cling to the view, despite its repeated rejection by this

Court, that race alone should matter. See e.g., Goldwasser, Limiting a

Criminal Defendant’s Use of Peremptory Challenges: On Symmetry

and the Jury in a Criminal Trial, 102 Harv. L. Rev. 808, 838 (1989).

However, ‘‘[s]ocial scientists may debate how peoples’ thoughts and

behavior reflect their background, but the Constitution provides that

the Government may not allocate benefits and burdens among individ-

uals based on the assumption that race or ethnicity determines how

they act or think.’’ Metro Broadcasting, Inc. v. F.C.C., 110 S.Ct.

2997, 3029 (1990) (O'Connor, Kennedy & Scalia, JJ., dissenting).

28

meaningless were we to approve the exclusion of jurors on

the basis of such assumptions [about their fitness to serve],

which arise solely from the juror’s race.’’ Jd. at 97-98. Since

then, this Court has held that racially-biased peremptory

challenges are just as offensive, and unconstitutional, when

exercised by the parties in a civil trial (Edmonson) or by the

prosecution in any trial, regardless of the defendant’s race

(Powers). Discriminatory jury challenges are no more neces-

sary or legitimate when used by a criminal-defendant; the

constitutional prohibition against racial discrimination in jury

selection does not confront an invisible barrier around the

defense table in a public courtroom, leaving the defendant

free to invoke the assistance of the law and the judge to

strike jurors on the basis of race. Prohibiting defense counsel

from excluding prospective jurors on the basis of race will

eradicate the last vestige of racial discrimination in the selec-

tion of jurors.

More than fifty years ago, Justice Black wrote that ‘‘[iJt is

part of the established tradition in the use of juries as instru-

ments of public justice that the jury be a body truly repre-

sentative of the community. For racial discrimination to

result in the exclusion from jury service of otherwise quali-

fied groups not only violates our Constitution and the laws

enacted under it, but is at war with our basic concepts of a

democratic society and a representative government.’’ Smith

v. Texas, 311 U.S. 128, 130 (1940). No one seeking to prac-

tice racial discrimination should be permitted to enlist the

justice system in that war.

29

Respectfully submitted,

CHARLES J. HYNES

District Attorney

JAY M. COHEN

Assistant District Attorney

Counsel of Record

MATTHEW S. GREENBERG

VICTOR BARALL ;

CAROL TEAGUE SCHWARTZKOPF

MARGARET ANTINORI

Assistant District Attorneys

Kings County District Attorney’s Office

210 Joralemon Street

Brooklyn, New York 11201

(718) 802-2156

December 19, 1991 Counsel for Amicus Curiae