Opposition Brief — J. E. B. v. Alabama ex rel. T. B. (No. 92-1239)

To wy Court, Cae

i Le in |

APR 1% OR

No. 92-1239

IN THE _—

Supreme Court of the United States

OCTOBER TERM, 1992

J. E. B.,

Petitioner,

v.

a 8

Respondent.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF ALABAMA

RESPONDENT'S BRIEF IN OPPOSITION

LOIS N. BRASFIELD*

WILLIAM F. PRENDERGAST

Assistant Attorneys General

STATE OF ALABAMA

DEPARTMENT OF HUMAN RESOURCES

S. Gordon Persons Building

50 Ripley Street

Montgomery, AL 36130

205/242-9330

Attorneys for Respondent

*Counsel of Record

QUESTIONS PRESENTED FOR REVIEW

1. HAS PETITIONER PRESENTED ANY

REASON UNDER RULE 10 TO JUSTIFY

THIS COURT'S GRANTING CERTIORARI?

2, HAS PETITIONER SHOWN THAT

MALES ARE A “COGNIZABLE GROUP” TO

WHOM THE PRINCIPLES OF BATSON V.

KENTUCKY SHOULD APPLY?

PARTIES TO THE PROCEEDING TABLE OF CONTENTS

Petitioner: James EF. Bowman, Sr.

Respondent: State of Alabama roe

ex rel. Teresia Bible QUESTIONS PRESENTED FOR REVIEW. — i

PARTIES TO THE PROCEEDING.................. il

TABLE OF CONTENTG..........ccccccccssrcsssseceeseees ili

TABLE OF AUTHORITIES ...................:0.:0000 V

CITATIONS OF OPINIONS AND

JUDGMENTS BELOW ....0.0..........cccccccssecereeeeees l

EEE |

CONSTITUTIONAL PROVISION ...........0....... 2

STATEMENT OF THE CASE.....................0004 2

i. COURSE OF PROCEEDINGS AND

DISPOSITIONS IN THE COURT

iTS iiieiiadisieneeninansioummerscenseverscesecceceoote 2

ii. STATEMENT OF THE FACTS............... 4

SUMMARY OF ARGUMENT ..............cceeees 6

ee 7

!. PETITIONER HAS NOT PRE-

SENTED ANY REASON UNDER

SUPREME COURT RULE 10 TO

JUSTIFY THE GRANTING OF A

WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE

OP ADA TBA TBR cccsscccesesssscssscssvscsecsesssnscsnesess 7

Il PETITIONER HAS NOT SHOWN

THAT MALES ARE A “COGNIZABLE

GROUP” TO WHOM THE PRIN-

CIPLES OF BATSON V. KENTUCKY

CIGD BATE O86 ccccccccssecscevenssnsensssssescanseses 12

CIE A cccensccascessccnsseesnsrenssasemenmemasmnanpens 16

PROOF OF MAILING AFFIDAVIT................ 17

DPF eee seccesstssecensrnsneenmennsnneemnmnmannaes 19

APPENDIX A—

ORDER OF TRIAL COURT ............:cccccceeseees la

APPENDIX B—

FINAL ORDER OF TRIAL COURT............ da

APPENDIX C—

OPINION OF COURT OF CIVIL

FE REED ccsenscnsccscsncnnatennamemsmmasesisiniinentainn 6a

iV

TABLE OF AUTHORITIES

Case

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

BP ee

Daniels v. State, 581 So.2d 536 (Ala.Cr.App.

1990), cert. denied, 581 So.2d 541 (Ala. 1991).

Dysart v. State, 581 So. 2d 541 (Ala.Cr.App.

1990), cert. denied, 581 So.2d 545 (Ala. 1991).

Edmonson v. Leesville Concrete Company,

500 U.S. __ ,114 L.Ed.2d 660, 111 S.Ct.

SIU 6 QUOD ccncsnncssnssccmnmnscentsnmmatessncsaenemmeneenesnnes

Fisher v. Alabama, __ U.S. __ 117 L.Ed.2d

Of ae SO) ee

Fisher v. State, 587 So.2d 1027 (Ala.Cr.App.

1991), cert. denied, 587 So.2d 1039 (Ala.

SEC Eee ee area An anes eae

Murphy v. Alabama, 506 U.S.__, 121 L.Ed.

Be 4D, 11D B.C. BE CIGBB Da nncccececcccccccccccccccscccsesss

Murphy v. State, 596 So.2d 42 (Ala.Cr.App.

1991), cert. denied, Ex parte Murphy, 596

| re ee

Pate v. State ex rel. Corkren, 526 So.2d 30

SR, Te cirenennccnmnncccnsemannetnionemnnn

Powers v. Ohio, 499 U.S. __, 113 L.Ed.2d

411, 111 S.Ct. 1864 (1991).................................

14

10

9, 10

10

9, 10

11

Stariks v. State, 572 So.2d 1301 (Ala.Cr.App.

BED cnscunsensnncenssennnsnsennemmnnsnemmmbenaceneiamanmennencneienenin 9

U. S. v. De Gross, 913 F.2d 1417 (9th Cir.

BED cceccssessnsesenssnstassensensenmmeanannennieememenansnumnan 8

U.S. v. Dennis, 804 F.2d 1208 (llth Cir. 1986),

cert. denied, Dennis v. U.S., 481 U.S. 1037,

95 L.Ed.2d 814, 107 S.Ct. 1973 (1987)............. 12,13

U.S. v. Hamilton, 850 F.2d 1038 (4th Cir.

1988), cert. denied, Hamilton v. U.S., 493

U.S. 1069, 107 L.Ed.2d 1017, 110 S.Ct. 1109

SIT i eotesicteeeettneaenatnademinadldeeneaadeheaeeaneamabiatiedia asian 12

U.S. v. Nichols, 937 F.2d 1257 (7th Cir.

1991), cert. denied, Nichols v. U.S., __ US.

__, 117 L.Ed.2d 151, 112 §.Ct. 989 (1992)... 12

Constitution and Statutes

Be ele I ertnrininetnctensenenscnsmnnenansnesmees 2

Code of Alabama 1975, § 26-17-1 et seq ........... 11

Code of Alabama 1975, § 26-17-6 ................00005 11

Other Authorities

Rule 10.1 of the Rules of the Supreme Court. 7,8

Rule 39, Alabama Rules of Appellate

alae ia ale eee )

vi

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

J. E. B.,

Petitioner,

V.

T. B.,

Respondent.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF ALABAMA

CITATIONS OF OPINIONS

AND JUDGMENTS BELOW

The opinion of the Court of Civil Appeals and

the denial of certiorari by the Alabama Supreme

Court are cited as J. E. B. v. State of Alabama ex

rel. T: B., 606 So.2d 156 (Ala.Civ.App. 1992 ).

JURISDICTION

The Petitioner has invoked the jurisdiction of

this Court pursuant to 28 U.S.C. § 1257(3). The

Respondent notes that 28 U.S.C. § 1257 was

amended in 1988, and no longer contains a

paragraph (3). This Court has jurisdiction pursuant

to 28 U.S.C. § 1257(a). The opinion of the Court of

Civil Appeals was issued on June 5, 1992.

Rehearing was denied on July 17, 1992, and the

Alabama Supreme Court denied the Writ of

Certiorari on October 23, 1992. Petitioner filed his

Petition for a Writ of Certiorari on January 21,

1993, seeking a writ of certiorari to the Alabama

Supreme Court, apparently to require that court to

grant certiorari to the Alabama Court of Civil

Appeals.

CONSTITUTIONAL PROVISION

Petitioner claims that his right to equal

protection of the laws provided by the Fourteenth

Amendment to the United States Constitution have

been violated.

STATEMENT OF THE CASE

i. Course of Proceedings and Dispositions in

the Court Below

This action originated on October 20, 1989,

when the State of Alabama ex rel. Teresia Bible

filed a paternity action in the District Court of

Jackson County, Alabama. The Complaint for

Paternity and Child Support alleged that James

Edward Bowman, Sr. is the father of Phillip Rhett

Bowman Bible, born May 16, 1989. The result of a

blood test requested by the Defendant showed a

cumulative probability of paternity of 99.92% and a

cumulative paternity index of 1,324 to 1. Following

a hearing the district court issued an order on

October 22, 1990, establishing paternity and setting

an amount of child support.

Following post-judgment proceedings the

Defendant filed a notice of appeal to the circuit

court for a trial de novo and a jury trial. The

Defendant also filed a motion to add one Ricky

Stone as a third party defendant to the cause.

After a blood test, the result of which indicated

that it was genetically impossible for Ricky Stone

to be the father of the child, the trial court denied

the defendant’s motion to add him as a party.

Following the trial, which was held on October

21 and 22, 1991, a jury verdict was returned in

favor of the Plaintiff. Based on that verdict the trial

court entered an adjudication of paternity on

October 23, 1991. A copy of that order is attached

as Appendix A. Following a separate hearing

before the court, a final order fixing an amount of

child support was entered on November 8, 1991.

A copy of that order is attached as Appendix B.

On appeal to the Alabama Court of Civil

Appeals, that court issued an opinion on June 5,

1992, affirming the judgment of the trial court. A

copy of the Opinion of the Court of Civil Appeals is

attached as Appendix C.

The Petitioner’s Application for Rehearing was

overruled by the Court of Civil Appeals on July 17,

1992. The Petitioner’s Petition for Writ of

Certiorari to the Court of Civil Appeals was denied

by the Alabama Supreme Court on October 23,

1992.

ii. Statement of the Facts

The venire from which the jury was selected in

this case consisted of thirty-six people, of whom

twenty-four were female and twelve were male.

Two men and one woman were excused for cause

by the court, leaving twenty-three women and ten

men from whom to choose a jury. The parties

struck by turns, and the State used its fourth strike

to remove a woman from the jury, but used its

other nine strikes to eliminate men. The Petitioner

used his first ten strikes to eliminate women from

the jury, and used his eleventh strike to eliminate

the one remaining male. The jury form, showing

the strikes, was entered into evidence by the

Petitioner.

Following the striking of the jury, the

Petitioner challenged the State’s strikes based on

Batson v. Kentucky, which he stated that he

understood was applicable to gender-based strikes

as well as to strikes based upon race. (R. 35-36.)

He a!so stated that the venire was made up of

approximately 75% women. (R. 36.) The trial court

stated that there had originally been sixty-two

persons in the venire and that the court had

instructed the clerk to take every other name until

the venire was down to thirty-six. The court then

overruled the Defendant’s challenge of the State’s

jury strikes. (R. 37.)

It was uncontested at trial that the Petitioner

and Ms. Bible began an intimate relationship in

February 1988. (R. 44-45, 153-154.) Ms. Bible

stated that this relationship was continuous

through August 14, 1988. (R. 47.) Mr. Bowman

maintained that he was not intimate with Ms. Bible

during June and July of 1988, although he had

lunch with her and talked to her on the telephone

during those months. (R. 157.) However, he

acknowledged that he stayed in a motel with her

continuously from August 9 through August 14,

1988 and had intimate relations with her during

that time. (R. 159-162.) He also acknowledged

taking Ms. Bible to the doctor after she informed

him that she thought she was pregnant. (R. 163.)

The laboratory supervisor of the University of

Alabama at Birmingham Immunogenetics/DNA

Diagnostic Laboratory, Dr. Leigh Ann Harman,

testified extensively with regard to the blood tissue

testing which her laboratory conducted on Ms.

Bible, Mr. Bowman, and the child. (R. 85-145.)

During that testimony Dr. Harman stated that the

cumulative probability of paternity in the present

case is 99.92% that Mr. Bowman is the father of the

subject child, based upon a fifty-fifty chance that

the parties actually had intercourse. If the

likelihood of sexual intercourse were increased, it

could raise the probability of paternity as much as

one percentage point higher. However, it could not

go higher than around 99.99%. She also stated that

the cumulative paternity index in this case was

1,324 to 1. (R. 125-126.)

Following the trial the jury returned the

following verdict:

We, the jury, find the issue in favor of the State.

We find that Defendant James E. Bowman, Sr.

is the father of the child, Phillip Rhett Bowman

Bible.

/s/Teresa L. Forrest

Foreperson

After the entry of judgment, the Petitioner filed

a post-judgment motion in which he claimed,

among other things, that the State’s elimination of

men from the jury violated his “right to equal

protection of the law as guaranteed by the Fifth

Amendment of the United States Constitution.” The

trial court, relying upon the Opinion of the

Alabama Court of Criminal Appeals in Murphy v.

State, 596 So.2d 42 (Ala.Cr.App. 1991), as to that

issue, denied the post-judgment motion. The

Alabama Court of Civil Appeals, citing the

Alabama Supreme Court’s denial of certiorari in

Ex parte Murphy, 596 So.2d 45 (Ala. 1992),

affirmed the trial court’s judgment. The Alabama

Supreme Court denied certiorari in the present

case on October 23, 1992.

SUMMARY OF ARGUMENT

Petitioner has not presented any reasons under

Rule 10 to justify the granting of the writ.

Petitioner has not shown that males are a

“cognizable group” entitled to protection under

Batson v. Kentucky.

ARGUMENT

I. PETITIONER HAS NOT PRESENTED

ANY REASON UNDER SUPREME

COURT RULE 10 TO JUSTIFY THE

GRANTING OF A WRIT OF CER-

TIORARI TO THE SUPREME COURT

OF THE STATE OF ALABAMA.

Supreme Court Rule 10.1 provides as follows:

A review on writ of certiorari is not

a matter of right, but of judicial

discretion. A petition for a writ of

certiorari will be granted only when

there are special and important

reasons therefor. The following, while

neither controlling nor fully measur-

ing the Court’s discretion, indicate the

character of reasons that will be

considered:

(a) When a United States

court of appeals has rendered a

decision in conflict with the

decision of another United

States court of appeals on the

same matter; or has decided a

federal question in a way in

conflict with a state court of

last resort; or has so far

departed from the accepted

and usual course of judicial

proceedings, or sanctioned such

a departure by a lower court, as

to call for an exercise of this

Court’s power of supervision.

(b) When a state court of

last resort has decided a federal

question in a way that conflicts

with the decision of another

state court of last resort or of a

United States court of appeals.

(c) When a state court or a

United States court of appeals

has decided an important

question of federal law which

has not been, but should be,

settled by this Court, or has

decided a federal question in a

way that conflicts with

applicable decisions of this

Court.

The Petitioner claims as his only ground under

the rule that the holding in this case, which was

reached by the Alabama Court of Civil Appeals,

conflicts with the 9th Circuit Court of Appeals

decision in U.S. v. De Gross, 913 F.2d 1417 (9th Cir.

1990).' However, he does not show any special or

important reason why this Court should grant

certiorari in the present case to resolve that alleged

‘The Supreme Court of Alabama, Alabama’s court of last

resort, has not addressed the federal question raised here, but

has simply declined to address it, denying certiorari in each

case.

conflict, or to require the Alabama Supreme Court

to do so. The granting or denial of certiorari to the

Alabama Court of Civil Appeals is discretionary

with the Alabama Supreme Court. See Rule 39,

Alabama Rules of Appellate Procedure. The

petitioner is not entitled, under this Court’s Rule

10.1, to seek certiorari to require the Alabama

Supreme Court to reverse its decision denying

certiorari.

Petitioner cites a series of cases in which the

Alabama Court of Criminal Appeals has declined

to extend Batson principles to gender-based strikes.

See Murphy v. State, 596 So.2d 42 (Ala.Cr.App.

1991), cert. denied, Hx parte Murphy, 596 So.2d 45

(Ala. 1992); Fisher v. State, 587 So.2d 1027

(Ala.Cr.App. 1991), cert. denied, 587 So.2d 1039

(Ala. 1991); Daniels v. State, 581 So.2d 536

(Ala.Cr.App. 1990), cert. denied, 581 So.2d 541 (Ala.

1991); Dysart v. State, 581 So.2d 541 (Ala.Cr.App.

1990), cert. denied, 581 So.2d 545 (Ala. 1991);

Stariks v. State, 572 So.2d 1301 (Ala.Cr.App. 1990).

He also notes the dissent of Justice Maddox in Hr

parte Murphy, supra, in which Justice Maddox

opined that “when the issue is squarely presented to

the United States Supreme Court that Court will

expand the Batson principle to apply to gender-

based strikes in instances where men or women, as

a cognizable group, are excluded from jury service

solely because of their sex.” Ex parte Murphy, 596

So.2d at 47 (Maddox, J., dissenting).

In spite of Justice Maddox’s opinion, when the

issue was squarely presented to this Court by Mr.

Murphy’s attorneys, this Court denied the petition

for writ of certiorari. Murphy v. Alabama, 506 U.S.

__ , 121 L.Ed.2d 49, 113 S.Ct. 86 (1992). In that

case the male defendant was convicted of sodomy in

the first degree and sexual abuse in the second

degree, and received consecutive sentences of ten

years and life in prison on the two charges. The sole

question presented to this Court was whether the

equal protection clause of the 14th Amendment

prohibits a state prosecutor from peremptorily

striking venirepersons strictly on the basis of

gender.

This Court also denied certiorari in the Fisher

case, where the same issue was presented. Fisher v.

Alabama, __ U.S. __ , 117 L.Ed.2d 628, 112 S.Ct.

1486 (1992). Mr. Fisher was convicted of capital

murder and was sentenced to life in prison without

parole. In that case the District Attorney had

acknowledged before the trial court that he had

struck certain women from the jury because he did

not believe that women are good jurors in a capital

case.

Petitioner attempts to suggest that a paternity

action is more sensitive to discrimination in the use

of peremptory strikes than other actions, implying

that although criminal trials and civil litigation

are race-neutral and civil litigation is primarily

gender-neutral, a paternity action automatically

establishes the male as the defendant. This is not

true under Alabama’s gender-neutral civil

10

paternity statute. Code of Alabama 1975, § 26-17-1

et seq. A man presumed to be the father of a child

or a man alleging himself to be the father of a child

who has no presumed father may bring such an

action, making the child’s mother the defendant if

she wishes to contest the claim. Code of Alabama

1975, § 26-17-6; Pate v. State ex rel. Corkren, 526

So.2d 30 (Ala.Civ.App. 1988). While such a

situation is unusual, just as sexual harassment

cases against female defendants are unusual, the

Pate case is by no means unique in Alabama

practice.

The evidence before the jury in this case was

overwhelming in support of the jury’s verdict.

Petitioner was clearly not prejudiced by the

makeup of that jury, when the evidence would not

have supported any other verdict than the one

which the jury returned.

While a paternity case is a very serious matter,

placing serious obligations upon the defendant for

at least the period of the child’s minority, these

obligations are the same ones that the parents of

children born in wedlock assume, many of them

with joy, as an important part of a full, rich life.

Clearly the consequences of this jury case do not

rise to the seriousness of a guilty verdict in

criminal cases such as Murphy and Fisher.

Petitioner has delayed long enough his acceptance

of his responsibility for young Phillip’s support. He

has shown no reason why certiorari should be

granted in this case.

11

Il. PETITIONER HAS NOT SHOWN

THAT MALES ARE A “COGNIZ-

ABLE GROUP” TO WHOM THE

PRINCIPLES OF BATSON V.

KENTUCKY SHOULD APPLY.

The issue which the petitioner attempts to raise

is of very recent development. At this point the 9th

Circuit Court of Appeals apparently stands alone

among the federal circuits in applying Batson

principles to gender-based strikes. The 4th Circuit

Court of Appeals has come down squarely against

such application. U.S. v. Hamilton, 850 F.2d 1038

(4th Cir. 1988), cert. denied, Hamilton v. U.S., 493

U.S. 1069, 107 L.Ed.2d 1017, 110 S.Ct. 1109 (1990).

The 11th Circuit Court of Appeals has ruled that

black males, as opposed to blacks generally, are not

a cognizable group to which Batson principles

should be applied. U.S. v. Dennis, 804 F.2d 1208

(Iith Cir. 1986), cert. denied, Dennis v. U.S., 481

U.S. 1037, 95 L.Ed.2d 814, 107 S.Ct. 1973 (1987).

The 7th Circuit Court of Appeals has declined to

apply Batson principles with regard to black

women, noting that Batson only “require[s] trial

courts to be sensitive to the racially discriminatory

use of peremptory challenges.” U.S. v. Nichols, 937

F.2d 1257, 1262 (7th Cir. 1991), cert. denied, Nichols

v. ULS., — U.S. __ , 117 L.Ed.2d 151, 112 S.Ct.

989 (1992).

This Court in Batson held that for the defendant

to establish a prima facie case of purposeful

discrimination in the prosecutor’s exercise of

peremptory challenges, the defendant must first

12

show that he is a member of a cognizable racial

group and that the prosecutor has exercised

peremptory challenges to remove from the venire

members of the Defendant’ s race. Batson v.

Kentucky, 476 U.S. 79, 96, 90 L.Ed.2d 69, 89, 106

S.Ct. 1712 (1986). The 9th Circuit Court of Appeals,

in applying Batson principles to gender-based

strikes, did not address the above-cited

requirement of Batson, but merely declared that

males are a constitutionally cognizable group. U.S.

v. De Gross, 913 F.2d at 1425.

In holding that black males were not a

cognizable racial group for Batson purposes, the

lith Circuit panel in U.S. v. Dennis, 804 F.2d at

1210, set out the following test:

The test we apply to determine

whether appellants are members of a

cognizable racial group under Batson

is the test applied in Castaneda v.

Partida, 430 U.S. 482, 97 S.Ct. 1272,

51 L.Ed.2d 498, cited in Batson, ___

U.S. at __, 106 S.Ct. at 1723. Such a

group is “one that is a recognizable,

distinct class, singled out for different

treatment under the laws, as written

or as applied.” Castaneda, 430 U.S. at

494, 97 S.Ct. at 1274. The group of

blacks generally clearly qualifies

under this definition; appellants have

failed to show, however, that black

males constitute a distinct, recog-

nizable subclass of individuals who

13

have been singled out for different

treatment under the laws not simply as

blacks, but as black males. It would

therefore be inappropriate for us to

narrow the “cognizable racial group,”

for present purposes, to include only

black males and exclude black

females.

Clearly Petitioner in the present case cannot

show under the Dennis test that males have been

singled out for discrimination under the laws of

Alabama as written or as applied. Both Alabama's

paternity law and its law governing who may be

considered for jury service are gender-neutral.

Since Batson, this Court has held that a

defendant may challenge a prosecutor’s race-based

peremptory strike whether or not he is a member of

the race being excluded (Powers v. Ohio, 499 U.S.

__ , 118 L.Ed.2d 411, 111 S.Ct. 1364 (1991) ), and

that Batson principles apply in civil litigation, as

well as criminal prosecution. Edmonson v. Leesville

Concrete Company, 500 U.S. ___, 114 L.Ed.2d 660,

111 S.Ct. 2077 (1991). However, this Court has not

altered or extended Batson to apply where a

defendant claims discrimination based on factors

other than race.

If peremptory strikes are to remain a part of the

jury system in the United States, parties must have

the right to exercise those strikes against

somebody. There are only two genders available for

jury selection. If peremptory challenges may not be

14

used against persons of one gender, then they must

be used against persons of the other gender. U.S. v.

De Gross, itself, illustrates this problem. In that

case the appellate court held that the government

could prevent a defendant’s peremptory challenge

of a male venireperson when he was the last

remaining male in the venire, but held that the

government could not subsequently strike a woman

for the sole purpose of getting a “more

representative community of men and women on

the jury.” U.S. v. De Gross, 913 F.2d at 1419. In

other words, if the government could not come up

with a gender-neutral reason for striking any of

the six women remaining on the venire, it appears

it must strike the sole remaining male which the

defendant was forbidden to strike.

In the present case, there is no assertion by the

Petitioner that the venire was not selected on a

gender-neutral basis. The Petitioner used ten of his

eleven peremptory strikes to eliminate women

from the jury, and struck a man with his eleventh

strike only when it appeared that unless he did so

he could not argue that he had an all female jury.

If the venire had been comprised of twenty-three

men and ten women, rather than twenty-three

women and ten men, it is clear that the case would

have gone to trial with an all male jury.

If the parties, not having any gender-neutral

reasons for striking any of the venire, may not

exercise their peremptory strikes against persons

of one gender or the other, then peremptory strikes

have no meaning. This is clearly not the intent of

15

the Batson decision, which, while requiring racially

neutral reasons for challenging prospective jurors of a

particular race, generally reaffirms the use of

peremptory challenges in jury selection. Males are not a

cognizable group to which Batson principles should

apply.

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be denied.

RESPECTFULLY SUBMITTED,

LOIS N. BRASFIELD*

WILLIAM F. PRENDERGAST

Assistant Attorneys General

STATE OF ALABAMA

DEPARTMENT OF HUMAN RESOURCES

S. Gordon Persons Building

50 Ripley Street

Montgomery, AL 36130

(205) 242-9330

COUNSEL FOR RESPONDENTS

*Counsel of Record

16

No. 92-1239

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

J. E. B.,

Petitioner,

Respondent.

PROOF OF MAILING AFFIDAVIT

I, Lois N. Brasfield, Attorney of Record for the

State of Alabama ex rel. Teresia Bible, Respondent

herein, and a Member of the Bar of the Supreme

Court of the United States, hereby certify that, on

the day of April, 1993, I deposited in a

United States mailbox located at the corner of

Jackson Street and Monroe Street, Montgomery,

Alabama, with first-class postage prepaid, and

properly addressed to the Clerk of the Supreme

Court of the United States, within the time allowed

for filing, the foregoing RESPONDENT’S BRIEF

IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI.

17

Lois N. Brasfield

SWORN TO AND ile iy ong "aml me at

Montgomery, Alabama, this the_/4 day of

April, 1993.

NOTARY PUBLIC

MY COMMISSION EXPIRES:

4/18/94

18

No. 92-1239

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

J. E. B.,

Petitioner,

\.

T. B.,

Respondent.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF ALABAMA

APPENDIX

LOIS N. BRASFIELD*

WILLIAM F. PRENDERGAST

Assistant Attorneys General

STATE OF ALABAMA

DEPARTMENT OF HUMAN RESOURCES

S. Gordon Persons Building

50 Ripley Street

Montgomery, AL 36130

205/242-9330

Attorneys for Respondent

*Counsel of Record

TT ANA te UR, NN Ne a RR RR A AMR

19

APPENDIX A

THIRTY-EIGHTH

JUDICIAL CIRCUIT OF ALABAMA

IN THE CIRCUIT COURT OF

JACKSON COUNTY, ALABAMA

STATE OF ALABAMA, ex rel., )

TERESIA BIBLE,

)

PLAINTIFF

vs. CIVIL ACTION

)NO. CYV.90-314

)

JAMES EDWARD BOWMAN, SR., )

DEFENDANT

ORDER

Trial of this cause was commenced on October

21, 1991, and a evidence was submitted to a jury

duly and lawfully impanelled and consisting of, to

wit: Teresa L. Forrest and eleven other good and

lawful persons.

On October 22, 1991 after duly deliberating on

the evidence, the jury returned the following

verdict:

“WE, THE JURY, FIND THE ISSUE

IN FAVOR OF THE STATE. WE

FIND THAT DEFENDANT JAMES

E. BOWMAN, SR..IS THE FATHER

la

OF THE CHILD, PHILLIP RHETT

BOWMAN BIBLE.

/s/

FOREPERSON”

ACCORDINGLY, IT IS ORDERED AND

ADJUDGED:

1. That the defendant, James E. Bowman, Sr.,

is determined to be the father of Phillip Rhett

Bowman Bible, born May 16, 1989, and judgment is

entered accordingly;

2. That, pursuant to Rule 54 (b), there being no

just cause for delay, final judgment is expressly

entered on the issue of paternity in this cause;

3. That, the issue of the amount of child

-upport obligation of the defendant for the support

and maintenance of the minor child is scheduled for

hearing before this court on the 6th day of

November, 1991 at 1:30 p.m., and the parties are

directed, prior to that date, to supplement child

support affidavits and child support guidelines

previously filed in this cause, in the event any

change in that information have occurred, and the

parties shall include the amount of monthly health

insurance premium the mother is paying currently

for health insurance coverage for the child and

shall also include the actual amount of monthly

child care expenses the mother is incurring for the

child and whether such child care expense is in a

home or day care center.

2a

ORDERED this the 23rd day of October, 1991.

/s/Robert L. Hodges _

Robert L. Hodges,

Circuit Judge

John Porter, III, Attorney

William Tally, Assistant District Attorney

3a

APPENDIX B

THI) /-EIGHTH

JUDICIAL CIRCUIT OF ALABAMA

IN THE CIRCUIT COURT OF

JACKSON COUNTY, ALABAMA

STATE OF ALABAMA, ex rel.,_ )

TERESIA BIBLE, )

)

PLAINTIFF )

VS. CIVIL ACTION

) NO. CV-90-314

)

JAMES E. BOWMAN, SR., )

DEFENDANT )

FINAL ORDER

Income affidavits having been submitted to the

court for each party, the child support obligation of

the defendant James E. Bowman, Sr., for the

support and maintenance of Phillip Rhett Bible, the

child of the parties, is fixed at $415.71 per month,

in accordance with the attached child support

guideline form, and the defendant is to pay that

amount, together with the clerk’s administrative

costs, to the clerk of this court on the 15th of each

month during the minority and dependency of the

child, the first payment to be made no later than

November 15, 1991.

It is further ORDERED that the defendant be

4a

given credit for all child support payments made

since December 6, 1990 pursuant to the amended

order of Judge Ralph H. Grider of the District

Court of this circuit, and that, in the event the

defendant shall not have paid the minimum amount

of the child support obligation fixed by this order

each month since Judge Grider’s order, the

defendant forthwith pay that to the clerk of this

court.

All child support payments are to be disbursed

by the clerk to Teresia Bible, the mother of the

child.

Costs are taxed to the defendant.

ORDERED this the 8th day of November, 1991.

/s/Robert L. Hodges __

Robert L. Hodges,

Circuit Judge

John Porter, III, Attorney

William Tally, Assistant District Attorney

5a

APPENDIX C

J.E.B.

v.

STATE of Alabama ex rel. T.B.

2910210.

Court of Civil Appeals of Alabama.

June 5, 1992.

Rehearing Denied July 17, 1992.

Certiorari Denied Oct. 23, 1992

Alabama Supreme Court 1911717.

L. CHARLES WRIGHT. Retired

Appellate Judge.

The State of Alabama, on behalf of T.B.

(mother), filed a complaint for paternity and child

support against J.E.B. (father) in the District Court

of Jackson County. After a hearing the district

court entered an order adjudicating paternity and

ordered the father to pay child support. The father

filed notice of appeal to the circuit court. A jury

trial was held. The jury returned a verdict in favor

of the mother. The trial court entered an order

accordingly. The father appeals.

Initially the father asserts that the trial court

erred in overruling the father’s objection to the

State’s peremptory jury strikes based on his

6a

allegation that the State’s strikes were based

entirely on gender.

The father insists that the State improperly

used its peremptory strikes to purposefully

eliminate men from the jury. He suggests that such

actions were in violation of his rights to equal

protection and due process. He requests that this

court extend the Batson v. Kentucky, 476 U.S. 79,

106 S.Ct.1712, 90 L.Ed.2d 69 (1986), principle,

which prohibits peremptory strikes based solely

upon race, to include gender-based strikes.

This issue has previously been addressed by the

court of criminal appeals and the supreme court.

Fisher v. State, 587 So.2d 1027 (Ala.Crim.App.),

cert. denied 587 So.2d 1039 (Ala. 1991); Daniels v.

State, 581 So.2d 536 (Ala. Crim. App. 1990), cert.

denied 581 So.2d 541 (Ala. 1991); Dysart v. State,

581 So.2d 541 (Ala.Crim.App. 1990), cert. denied

581 So.2d 545 (Ala. 1991). The supreme court

recently revisited the issue in Ex parte Murphy,

596 So.2d 45 (Ala. 1992), and declined to extend the

Batson principle to gender-based strikes. We must

follow the decisions of the supreme court. § 12-3-16,

Code 1975.

The father next contends that the blood test

results should have been excluded because the

State failed to establish a proper chain of custody.

He specifically asserts that the phlebotomist’s

failure to testify was fatal to the admissibility of the

blood test results.

7a

Dr. Leigh Ann Harman, the supervisor of the

University of Alabama at Birmingham Immuno-

genetics/DNA Diagnostic Laboratory, testified

that along with the blood samples she received an

Immunogenetics/DNA Diagnostic Laboratory

Paternity Chain of Custody Document. The

document was developed in order to allow the

supervisor to confirm the chain of custody without

having to bring numerous laboratory personnel to

court. Dr. Harman thoroughly discussed the

document and its safety devices. She testified in

detail as to her laboratory’s procedures for drawing

blood samples and assuring proper identification of

both the individuals having the test and the blood

samples drawn from those individuals. She testified

that once the blood samples were received by the

laboratory they were checked for any sign of

tampering. She stated that there was no sign of

tampering, that the box was taped, the tape was

intact, and the tape was initialed by the person who

sealed and delivered it.

We find that a proper chain of custody was

sufficiently established by Dr. Harman’s testimony.

Lyle v. Eddy, 481 So.2d 395 (Ala. Civ. App. 1985).

The father asserts that the trial court erred in

allowing into evidence the results of the DNA test

without first establishing that the test “met the

requirements of the recent supreme court holding

in the case of Ex parte Perry, 586 So.2d 242 (Ala.

1991).”

8a

Ex parte Perry pertains to the admissibility of

DNA test results in a forensic setting. That case

clearly distinguishes between forensic testing and

clinical testing (which we have in this case). The

strict admissibility requirements of Ex parte Perry

are not applicable in a paternity action.

The judgment of the trial court is affirmed.

The foregoing opinion was prepared by Retired

Appellate Judge L. CHARLES WRIGHT while

serving on active duty status as a judge of this court

under the provisions of § 12-18-10(e), Code 1975,

and this opinion is hereby adopted as that of the

court.

AFFIRMED.

All the judges concur.

9a