Opposition Brief — Purkett v. Elem

No. 94-802

In the

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM i994

James Purkett, Superintendent

Farmington Correctional Center

vs.

Jimmy Elem

kus tate tn teh lea abla ak ae Wh Ge te Petitioner

eee ST Ce ST CTT ER CL TRC CRETE Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR RESPONDENT

IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

David E. Woods

Attorney at Law

Missouri Bar Enrollment Number 23773

Counsel of Record

300 Fort Zumwalt Sq.. Ste 11C

O'Fallon, MO 63366

(314) 978-4187

Attorney for Respondent

a TABLE OF AUTHORITIES

Ns ee oe ee cL awake he pone h We ches eawwkees i Cases

ye ier eee hehe ie bUeh eb eeabariewetn | Batson v. Kentucky, 476 U.S. 79, 90 L.Ed. 2d 69, 106 S.Ct.

: ees Ag ne cake a ee pee be Ce ERE REECE CCAS COCR ECO. ....-passim

lati aay Hernandez v. New York, 111 S.Ct. 1859 (1991)..........Dassim

Whether a venireperson's individual characteristic : . ei >

of appearance constitutes a legally sufficient non- Doss v. Frontenac, 14 F.3d 1313 (8th Cir. 1994).........-.. -

racial reason and a non-pretextual reason for a State vy. Antwine, 743 S.W. 24 51 (Mo. 1987) (en banc)......5

prosecutor's use of a peremptory challenge under

Hernandez v. New York, 111 S.Ct. 1859 (1991)......... l e h. 2 F.3d 1368

Pe en Te, wera eer eae pare eee Pe ae ed hee ee 17 (Sth Cir. 1993)... --- eee cece cece cece nee c reer rees cat sh dies

United States v. Banks, 10 F.3d 1044 (4th

Cir. Ce a ae eae dBW by a be 8 8 Oh OL 0 oe ww oo .6,7

State v. Blackmon, 477 S.W.2d 482 (Mo.App. 1988 RE eo

United States v. Brooks, 2 F.3d 838 (8th

Cir. 1993), rehearing denied, cert. denied. 114 Scr. 11il?

cn ae ee ee eek aa en eee 6 ebb e bebe ee ae + SS Pet

Pemberthy v. Beyer. 19 F.3d 857 (3rd Cir. 1994

rehearing and suggestion for rehearing en Dance

ERIE ER ENR errr ya oS ae ee oe

Splunge v. Clark, 960 F.2d 705 (7th Cir. 1992),

Th PM od veh caer eta ne obeseeeseancns rata ..14,16

State v. Hudson, 822 S.W.2d 477 (Mo.App. I1991)............15

U.S. v. Bishop, 959 F.2d 820 (9th Cir. 1992)...... - one

Statutes

a or, oO <. een en 6 46 46 BAO we O66 AW HK NSS CREE 6-0

it

from other Circuits. The Court of Appeais appliec the

barnett correct legal standard in this review of the prosecuto

WHETHER A VENIREPERSON'S INDIVIDUAL CHARACTERISTIC OF ; nail

APPEARANCE CONSTITUTES A LEGALLY SUFFICIENT NON-RACIAL REASON of peremptory chai lenges.

AND A NON-PRETEXTUAL REASON FOR A PROSECUTOR'S USE OF A . ii ie ame Pata Drer

PEREMPTORY CHALLENGE UNDER HERNANDEZ V. NEW YORK, 111 5.cCt. Hernandez v..New York. 111 S.Ct. 165% ,F9. Se

1859 (1991).

; the three steps involved in a Batsoy “halienge as °

The Court of Appeals for the Eighth Circuit in deciding

; First. the defendant mus* make @ prime facie

ca

ae |

we

j 5 C . Secutor fas exercis

this case hes not overlooked or misconstrued a significant showing that the prosecutor fa dant opel i

peremptory chalienges o: the basis Of race Te.

= \ - “me. 179 39e@1792 3 Sa-nnea < Aor

issue. that issue being whether the state prosecutor 96-97. 106 S.Ct. at iiccwild Secona., if ch

requisite showing has beer made. the burden sn.tt

presentec a reciaily neutral reason which was not a pretex: to the prosecutor tc BEtSCULaTe & race*neu-rs!

explanation for striking *he jurors ir quest

H - e ad 4 —_-* » eed De, Se ee e — e

for striking African-American jurors from the jury pane! Id. at 97-96. 106 S.Ct. at ifssni 24. Finarry |

trial court must determine whetner ‘ne Gdelenaa

> “ , : Se - mnurnosetfu

where the defendant was an African-American. has carried his burden of proving purposeru

discrimination. JI¢. =* 36 é€ €.ct. at ‘

Tne Court's Opinion does not conflict directiy with . cs aS.

The Petitioner admits the Panel correctiy app..2#c Hs:

Beatson v. Kentucky. 476 U.S. 79. 90 L.Ed. 2d 69.- 106 S.Ct. 7 *

concerning the issue of whetner the Respondent mace =

712 1986). or its progeny. Her 2 Vv. : York. 113. &. Ct.

facie case.

1659 (199)

The Petitioner has stated the Cour’ f£ Apreas

The Court's opinion is based upon a correct P z .

incorrectly biurred the seconc anc th.re steps 2 Be

interpretation of the facts of the record below and a correct

Thal .enge

appiicetion of the law of the United States of America. ,

The Petitioner finds Tauit wit Dw mée

Tne Petitioner states that the Court of Appeals ; ; .

Appeais has applied the first s°ep of ¢ Bats decis

intorrectliy analyzed the second and third steps involved in ;

The Petitioner has conceded tne Responds as sd] a

meking @ Batson challenge and incorrectiy finding the state

prima facie showing the prosecutor ercise a peren

nad made an improper use of the peremptory challenge ir 4 , —

Challenge on the basis of the race of the cete

manner violating the equal protection clause of the

Petitioner is an African-Ameticanm ma! Petitione:

Fourteenth Amendment of the United States Constitution. .

Appendix A-2). The prosecutor at trila sec peremptc:

et LV. 47€ U.S. 79, 90 L.Bd. 2c 69. 106 §.Ct.

*

J

challenges to strike two (2) African-American jJuro

(Petitioner's Appendix A-->

The Petitioner nase alleged "hat the Court of Appeals’

«

L

s-

Doss Vv. Frontenac 14 F.38@ 13213 8th

method of review in the case at bar conflicts with Courts

Ve

once the objecting party makes a prima facie showing. the

burden shifts to the challenging party to offer 4 race-

neutrai reason for cha.lengine the minority juror that is

“clear and reasonably specific” and related to the case tc be

tried, quoting from Batson. 476 U.S. at 98. 10€ §.ct. at

1724

Batson is significant in the jury selection proccess

because of the obligations it creetes for the government.

Aithough a prosecutor ordinarily is entitied tc

exercise permitted peremptory challenges for any

reason @t all. “as ionc as that reason is related

to his view concerning the outcome of the case tc

be trial.” the Equa. Frotection Clause forbicse the

prosecutor tc chalienge potential jurors solely on

account of their race or the assumption that black

Jurors as & group will be unable impartially to

consider the State s case against 4 biack

defendant. Ig. 476 U.S. at €3. 90 L.Ed. 2d a: 83

(12. l4a

As the Court of Appeals correctiyv notes tne ability to

perform the duties of the juror is the basis of whether or

not @ person should serve cr not serve upon @ iury. The

niteed States Supreme Court in Batso 476 U.S. at 87

Gec.arec

The narm from discriminatory tury selection extends

beyone thet infiicted on tne defendant on the

excluded juror to touch tne entire community.

Selection procedures thet purposely exclude black

persons from turies undermine public confidence in

the fairness of our system of justice.

Tne Petitioner states tne Court of Appeals failed to

correctly apply Hernandez in the case at bar. Batson

reguires for its second step, the prosecutor must articulate

é race-neutral expianetion for striking the jurors in

guestion. The Court of Appea.s correctly states the second

u

requirement of Batson:

Once the Defendant makes a prima facie showing ‘the

burden shifts to the prosecution tc come forwarc

with a neutral explanation for the peremptory

strikes. (Petitioner's Appendix A-7

The main thrust of the Petitioners argument is founc

Page 15 of the Petitioner's Petition for Writ of Certi

in which the Petitioner writes. “Since no discrimina:

intent was inherent in tne prosecutors expianation.

proffered reason should be deemed race-neutra..”

The Court of Appeals correctly found

In the present case. the prosecutor 3 C

don't like the way (he) lookis’. with *

hair is kept...And the mustache and the beard look

suspicious to me

ws

do not constitute a legitimate race-neutral reasons for

striking furor 22. (Petitioner's Appendix A-.1

The Court of Appeeis correctiy applied the second ster

of Batson. which requires the burden shif: to the prose-

to articulate a race-neutral explanation for str.king ¢

juror’s in question, when it neld

in such a case as this. where the prosecutior

strikes at &@ prospective juror who 1s 4 member of

defendant's racia! group. sclely on the basis ©

factors which are faciaily irrelevant to the

question of whether that person is qualified tc

serve as a juror in @ particular case. tne

prosecution must at least articulate some plausib.e

race-neutral reason for deleting those factors wiil

somehow affect the person's ability to perform his

or hers duties as a juror. (Petitioner's Append. x

A-11)

The prosecutor in the case at bar explained. “I Gon’

like the way they looked.” (Petitioner's Appendix A-41

and

because their mustaches and beards iooked suspicious to him.

{Petitioner's Appendix A-41). Tne prosecutor's statement

that he did not like the way the two African-American ‘urors

looked was a pretext for discrimination. However. once this

reason was given. the Court was correct in its observation

that @ judge could decide that the reason civen was a

pretext. This leads to the third step of the analysis. when

the judge must decide whether tc believe the proffered

reason. or to find that purposefu! discrimination has

The Court of Appeals says the reason given mus: be

related to the particular case and to the outcome of the

case. following Batson. ‘Petitioner's Appendix A-12). “The

Prosecutor therefore must articulate a neutrai expianation

releted to the particular case tc be tried.” 476 U.S. at 98.

99 L.Ed. 2d at 8&8. The Court of Appeals stated that it did

no’ believe the reason given was réece-neutra! in actuality.

but pretertual. (Peritioner's Appendix A-i.) The Court of

hyppeals wae correct in its observation that:

Where the prosecution strikes a prospective juror

who is 6 member of the Defendant's racial group.

solely on the basis of factors which are facialiy

irrelevant to the question of whether that person

is qualified te serve as é juror in the particular

case, the prosecution must at least articulate some

plausible race-neutrail reason for believing those

factors will somehow affect the person's ability to

perform his or her duties as 4 juror.

(Petitioner's Appendix A-11)

The Court of Appeals was applying the decisions of

Batson and the Missouri Supreme Court's decision of

Sr vy. 743 S.W. 2d 51 (Mo. 1987) (en banc) which

an

held that the

proffered neutral explanation must cive a clear anc

reasonable significant explanation of tne State's

legitimate reason for exercising the challenges.

The Court of Appeals nas found that the prosecution mus*

offer some reason which is not related to race other than

whether or not the prosecutor likes or disiikes the “KE

of the prospective jury pane! member.

The Petitioner argues this

York. 111 S.Ct. 1859. 1866/4 1991) renderegé a defin.ticn of

@ race-neutral explanation that was not satisfied oy tne

Court of Appeals in the case at bar. The Cour”

the case at bar correctiy in the second step of tne Batson

three-part inquiry stetes that “the issue is "he facia

validity of the prosecutor's explanation.”

The facial validity of the prosecutor's explanatior $

found in the words usec by the prosecuting attorney

nT

s

consideration of the facts and circumstances of tn

whom he .s seeving to strike.

The prosecuting attorney in the case at bar saic he

wanted to strike the particular jurors because he did no*

like the way they looked. The men looked like African-

American men.

The Court of Appeals could and did find that the reason

given of disliking a prospective juror'’s “looks” was

insignificant and unreasonable enough te find that the

explanation given was a pretext for a racialiy mo‘ivated

strike. . y-Sm 2 7.36 1366. i375

(10. 11) (5th Cir. 1993). held intuition is “more vulnerabie

tc the inference that the reason proffered is a proxy for

race "

United States v. Banks. i9 F.3d 1044. 1649 (1.2) (‘4th

Cir. 1993). held that

the reasons...offerec by the prosecu‘or - an

unempiocyed status, suspected aicoholic. family

member resident in neighborhood in which some

Gefendants now or formerly resided, snabby dress

suggesting irresponsible attitude towarce jury

service, criminal history - were not intrinsically

suspect. were adequately supported by observable

fact and were therefore properly determined by the

court to be race-neutral.

The case at bar is distinguishabie from Banks because in

Banks the prosecutor and the record specifically indicated

the “snabby dress” of the juror, which had ar articulatable

race-neutral reason which did not rest just upon the

prosecutor's statement of. “I didn't like their looks.”

In the case at bar. the reason given had nothing

directiy to deo with the case on trial, such as the jurors'

specific backgrounds which might affect their hearing of the

case. es cited in Uni té Vv. ey- or @ reason

related to their ability to serve as é juror, such as eye

contact or inattentiveness, which would suggest the juror

would not pay the attention needed to understand and decide

correctly the case. The reason of facial hair given for

Striking @ juror is not nearly as clear or logical or

believable @ reason as those cited in United States v.

Bentilev-Smith. Striking @ juror because of his facial hair

could be at best @ pretext for a clever, more specific

reason. such as racism.

The prosecutor's statement he did not like the way the

two African-American jurors locked is @ cover for

discrimination. In §°

3) (Mo.App. 1968), the Missouri Court of Appea:s founc ‘ha’

the Batson app.ication af the equal protection clause forc:c

the use of a peremptory challenge to @ potentieél Jurer s2:4.7

on account of his race “or or the assumption that biack

jurors as 4 group will be unabie impartie:ly tc consider the

state's case against a black defendant.” quoting from Satson

476 U.S. at 89.

The Missouri trial court found in State v. Blacktme:

-

gupre at p. 486 that the assistant prosecutor struck “he

black venireman for the foliowing reasons: “I did not strike

Armour because he was black. I= struck him because fhe was 4

member of the biack community.” At an evidentiary hearing

the assistant prosecutor was asked his reason fcr striking

Mr. Armour. The prosecuting attorney test fied he was raised

in southeast Missouri and he had personal knowledge ‘hat

towns in southeast Missouri: had black communities He said

"TJ was again concerned that he [Mr. Armour) woula not

know Mr. Blackmon or his family. but again be partia. *oware

Mr. Blackmon based upon M:. Blackmon'’s good family reputation

in the black community.” The Court of Appeals upheid the

trial court's findina the state did not have a raciaily

neutral reason for striking the venireman.

In the case at bar. the prosecutor said he Btruck the

co

two African-American jurors because of their “looks.”

Striking a person because of his looks is a cover for

striking him because of his race. The prosecutor's only

reason for striking juror #22, ar African-American man, was

because of the way he looked to the prosecutor. For a

prosecutor to say he does net like the way they look is the

same aS & prosecutor saying he does not like where thet come

from. If the person comes from a black community ard is

strucr as & peremptory chellenge by the prosecutor. the

prosecutor 1s acting upon the assumption that biack jurors as

@ group will be vwnable impartially to consider 4 state's case

egainst @ black defendant. See Batson. 476 U.S. at 89.

The Petitioner attacks the Court of Appeals for merely

following this line of iogic that a reason given which is not

clearly reiated to a juror's ability to hear fairly and

decide the case is less believable. (Petitioner's

Petition, p. 16

The Panel Opinion did not pronounce a new standard when

it statec that:

the prosecution must at least articulate some

plausible rece-neutrai reason for believing those

factors will somenow affect the person's ability to

perform his or her duties as a juror.

(Petitioner's Appendix, A-11)

United States v. Brooks, 2 F.3d 638 at p. 840(1-3) (8th

Cir. 1993), xehearing denied, cert. denied, 114 S.ct. 1117,

127 L.Ed. 24 427, held, citing Hernandez v. New York, 111

S.Ct. 1859, 114 L.Ed. 24 395 (1991) 4@ prosecutor's

explanation for a strike is considered race-neutra! if the

explanation is facially based on something other than the

juror's race, i.e., if discriminatory intent is not inherent

in the stated reason.

The Petitioner states the Court of Appeals has added a

“new legal requirement" by saying the Court of Appeals

requires the striking litigant to "articulate some plausibie

race-neutral reason for believing those factors will somehow

affect the person's abilities to perform his or her duties as

a juror.” (Petitioner's Petition p. 17) The Court of

Appeals in the case at bar has not created 4 new llega!

requirement but has merely repeated what is the second step

of the Batson analysis. The Court of Appeals’ decision of

following the Batson requirements that the prosecution

articulate a race-neutral explanation for striking the jurors

in question is the same definition which Hernandez gives of

what is a “neutral explanation.” Hernandez at p. 1866:4

This Court in Hernandez stated a “neutral explanation” is “an

rh

’

a

I

explanation based on something other than the race o

juror.” in the case at bar. the prosecuting attorney stated

his reason for striking the jurors was "I don't like the way

they look.”

The Court of Appeals expresses what Hernandez held when

it says a “neutral explanation” has the issue of “the facia.

validity of the prosecutor's explanation.” The Court ef

Appeals states the prosecutor's explanation must state some

factors that will affect that person's ability to perform his

or her duties as a juror and is based on something other than

10

the race of the juror, in order to be believable. The Court

of Appeais has followed the application of the Batson

standard as expressed in Hernandez.

United States v. Brooks, 2 F.3d 838 (8th Cir. 1983),

rehearing denied, cert. denied, 114 S.Ct. 1117. 127 L.Ed.2d

427 held if the defendant makes a prima facie showing that

the prosecutor exercised peremptory challenges on the basis

of race. then the burden shifts to the prosecutor to give a

race-neutral explanation for striking the prospective jurors.

In Brooks, supra. at p. 841(6) the United States Court

of Appeais for the 8th Circuit. applied the same second step

of the Batson test in evaluating the reasons the prosecutor

used @ peremptory challenge in the case at bar. In Brooks,

Supra at p. 841(5), the prospective juror told of his

experience as a victim of police brutaiity. The Court of

Appeais said this reason articuiated by the prosecuting

attorney qualified as a race-neutral reason for the

peremptory challenge.

In Hernandez. at p. 1867. col. 1. this Court accepted as

race-neutral the prosecutor's explanation for his peremptory

challenges against those whose conduct during voir dire

persuaded him they might have difficulty in accepting the

‘translator's rendition of Spanish-language testimony. This

Court found at Hernandez, at p. 1871 (12) no clear error in

the state trial court's determination that the prosecutor did

not discriminate on the basis of the ethnicity of the Latino

jurors. This Court said:

ll

Language permits an individual to express both 4

personal identity and membership in a community.

and those who share a common language may interact

in ways more intimate than those without this bona.

Bilinguals, in @ sense, inhabit two communities.

and serve to bring them closer.

The prosecutor's concern in ndez as to whether or

not the jurors would defer to an official transiation

directly impacts upon that juror'’s ability to render the type

of jury service which would be correct and appropria’+

terms of their duty as a juror. Their ability to be

bilingual was not a challenge based on the assumption that

the race of the prospective Latino jurors would make them “as

a group” that would “be unable impartially to consider the

State's case against a” Latino “defendant.” quoting the

language of Batson. 476 U.S.. at 89(2.?).

Hernandez is authority for the Court of Appeals ruling

that the trial court should liook at factors which somehow

affect the person's ability to perform his or her duties as a

juror in deciding if a race-neutral reason has been

articulated by the state.

In Pemberthy v. Beyer. 19 F.3d 857. 872 (10. 11 ird

Cir. 1994)

denied, the Court of Appeais said the trial court should

consider any extrinsic (emphasis added) evidence of

motivation such as whether the prosecutor's strikes correlate

better with a language ability or with race. The prosecutor

made peremptory challenges of Spanish-speaking Jurors on the

ground of his concern that they would not accept the court-

*

\

approved translation of taped conversations in Spanish.

Pemberthy at p. &72 said the court should consider if the

translation issue was central to the case. Pemberthy stands

for the proposition the juror's ability to perform his or her

duty as a@ juror is a race-neutral reason for a peremptory

challenge.

Concerning the standard of review of federal court

district decisions on the issue of the thirce step of a Batson

challenge. the standard advocated by the Petitioner of

whether the State Court's factual] determination is “fairly

supported by record ” has not been met. There is not fair

support from the record to uphold the State Court's finding

of no intentional discrimination. The Missouri court's

decision and the District Court decision is “not fairly

supported by the record," as required by 28 U.S.C. Section

2254(d)(8). Subsection (d)(8) means the factual

determination of no purposeful discrimination by the

prosecutor is not supported by the record.

Batson. in footnote 21. says, “a review court ordinarily

should give” the trial court “findings great deference.” 476

U.S. at 98, 90 L.Ed. 2d at 89. The Petitioner complains on

page 24 of his Petition that “the record beiow can support

the United States District Court and the Missouri Court of

Appeais. The Court of Appeais states:

The prosecution's explanation for striking juror 22

in the present case was pretextual. The

prosecution's explanation was facially

neutral...without more, which is precisely what

Antwine cautions against. 743 S.W. 2d at 65.

(Petitioner's Appendix A-12)

13

The Court of Appeais, when it found the prosecutor's reasor.

was insufficient. has found that the prosecutor's brief

explanation of the “looks” of the jurors was mereiy 4

”

pretext. The words. “without more.” refer to an explicit

requirement of the state to articuiate exactly why it seeks

to strike the specific juror with a reason that bears ne

relationship to the race of the juror.

In Spolunge v. Ciark. 966 F.2d 7O&. 7096) (7th Cir.

1992). rehearing denied,

A race-neutra! explanation is required precise

because race-neutrai intent in striking poten

jurors is required. Where the prosecutor's neutral!

explanation is an obvious mask for a race-based

challenge. the prosecutor has mot met his burden

under Batson.

In Splunge, the prosecution sought to strike a venireman

st

ia.

named Connie Brodie. A question tne prosecutor asked Ms.

Brodie was. “The fact that Mr. Spiunge is a black man. as you

are a black woman. is that going to enter into your mind in

determining whether he is guilty or innocent?" Ms. Brodie

answered, "No.” Splunge. at p. 707(1). The only other

question asked of Ms. Brodie was. “If the state proves its

case to you beyond a reasonable doubt. will you find the

defendant guilty?” Ms. Brodie answered. “Yes.” Splunge,. at

p. 708(5).

The Court of Appeals found the prosecutor's explanation

was “an obvious mask for a race-based challenge.” Splunge

at p. 709(6).

The Petitioner desires to require the defense attorney

14

at the trial court level to inform the trial court that he

believes the race-neutral reason for striking the jurors in

question was "a pretext.” (Petitioner's Petition, p. 25)

The Petitioner is attempting to add a requirement for the

defense bar by a misapplication of cases such as

State v. Hudson, 622 S.W.2d 477 (Mo.App. 1991) by requiring

the defense attorney to say the specific words that the race-

neutral explanation was a “pretext.” Batson does not require

this. State v. Hudson, at p. 4481/3) merely states. “once the

State came forward with neutral explanations. the Defendant

hac the obligation to demonstrate that the State's proffered

explanations were pretextual.” State v. Hudson does not stand

for the proposition that the defense counsel! must make his

objection using a specific word "pretextual!" in referring to

the prosecutor's peremptory chailenge. The Court in Batson

said, “We decline, however, to formulate particular

procedures to be followed upon a defendant's timely objection

to a prosecutor's challenges.” Id. 476 U.S. at 99, 90 L.Ed.

2d at 89. Respondent is seeking to add a requirement to a

Batson challenge to make the defense attorney at trial say

the particular word, “pretextual.” when such is not required.

The Petitioner states what he believes are the facts in

the record supporting 4a determination of no intentional

discrimination. First, the Petitioner states such a fact

is the prosecutor voluntarily defending his use of peremptory

challenges without a request by the judge. (Petitioner's

Petition. p 28). This is without merit. The prosecuting

attorney at the trial court level was probably familiar with

the Batson decision and understood that he had to come

forward with a race-neutrai reason for his peremptory

challenge of the jurors. The prosecutor probably decided

there was no need for him to wait for the triai court te asK

an expected question. Once a prosecutor has offered race-

neutral explanation for peremptory changes and the trie.

court has ruled on the question of intentional

discrimination, the first issue of whether the defencdant med-

a prima facie showing is moot. See U.S. vy. Bishop. °%5° F.2d

620 (9th Cir. 1992).

The Petitioner claims the prosecutor's failure tc strike

all African-American venirepersons is an indicator the

prosecutor did not intend to discriminate. (Petitioner's

Petition. p. 27). ev. Clark, supra. held under the

Fourteenth Amendment a prosecutor may not exercise even a

single peremptory challenge if through that challenge he

intentionally discriminates on the basis of race.

The Petitioner claims that the prosecution was unaware

of which venirepersons were African-American (‘Petitioner's

Petition, p. 28). The defense attorney asked the trial court

if it would cal! “those two individuals to ask them if they

were Black or would the court judicial notice that they were

Black individuals.” The defense attorney was met with the

trial court saying “no.” ‘Petitioner's Appendix A-42). The

trial court's ruling indicates it was obvious to the trial!

court the two prospective jurors were African-Americat

In summary. the Court of Appeals correctly applied the

analysis and reasoning behind Batson and Hernandez.

recognizing that anyone can give a facially race-neutral

reason for discrimination. but that the Court does not have

to believe that reason. Further, the Court was correct in

Geciding that the trial court's decision of no intentionai

discrimination was not fairly supported by the record.

CONCLUSION

For the reasons stated herein, the Respondent prays this

Court shell not issue a Writ of Certiorari to the United

States Court of Appeals for the Eighth Circuit, but shali

sustain the judgment of that Court. and any other relief the

Court deems just and proper to grant.

Respectfully submitted.

! —— : ly

' ; ; j

_ , ae / ; ; / ~~ *

Nee 4A j — A a Be

David E. Woods

Missouri Bar Enrollment Number 28779

300 Fort Zumwalt Square. Suite 110

O'Fallon. Missouri 63366

(314) 978-4187

Counsel of Record

Attorney for Respondent

17