Petition for Writ of Certiorari — Leslie v. United States

Supreme Court, U.S, ¥

FILED =

APR 19 1986

JOSEPH F. SPANIOL, JRL

IN THE a CLERK

SUPREME COURT OF THE UNITED STATES

85-1961 :

. ; a

NO.

OCTOBER TERM 1985

EUGENE LESLIE,

Petitioner

VERSUS

UNITED STATES OF AMERICA,

Respondent

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ROBERT GLASS

GLASS & REED

338 Lafayette Street

New Orleans, LA 70130

Tel.: 504/581-9065

Counsel for Petitioner,

Eugene Leslie

LOLIS EDWARD ELIE

215 N. Jefferson Davis Pkwy.

New Orleans, LA 70119

Tel.: 504/482-0330

Co-counsel for Petitioner,

Eugene Leslie

ep NS a eee ena eh li a ea TS iti. ‘ «cheep ntittawe ey heap laa

QUESTION PRESENTED FOR REVIEW

Whether:

- when a federal prosecutor uses

each and every one of his

peremptory challenges to strike

black jurors from a petit jury

sitting in judgment on a black

defendant, and

- thereby eliminates all

blacks from the jury,

a federal district court has the authority

and obligation under the supervisory power to

inquire into the prosecutor's reasons for

exercising his challenges in an apparently

racially motivated way, and if the district

court on inquiry finds impermissible racial

motivation, to take steps to correct the

abuse,

ii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW. ....

TABLE OF CONTENTS. . « «© «© «© © © © @ «

TABLE OF AUTHORITIES . .. =. -« « © e@ «

OPINIONS BELOW. « . +2222 «6 © © »@

RULES AND STATUTES IMPLICATED. ... .

SO ey ys a ae ae ee ae ae ee oer

STATEMENT OF THE CASE. . . « « « « « e

REASONS FOR GRANTING THE WRIT. ... .

A. Racist Utilization of Peremp-

tory Challenges is Unques-

tionably Pernicious and Evil

in Federal Criminal Trials. .

B. The State Experience Since

Swain Demonstrates that

there is a Reasonable and

Practical Way to Minimize

the Evil of Racist Strikes

by a Federal Prosecutor ...

C. The Fifth Circuit Decision

Relies on Distinguishable

Supervisory Power Decisions,

and Improperly Defers to

Inapplicable Rules and Legis-

ais « «sx SS See SF

ED i

CERTIFICATE OF SERVICE ......«« «

iii

TABLE OF AUTHORITIES

Cases: Page

Aldridge v. United States, 282

i oe eee . . 6 ke he ee. ee Sag OO

Ballard v. United States, 329 U.S.

eer. - f . ss 4.6 - 6¢@ 6 6 e ae

Batson v. Kentucky, S.Ct. No.

84-6263 (argued (12/12/85). ... 6, 7

Commonwealth v. Benbow, 16

Mass.App. 970, 452 N.E.2d 1164

(1983). . 2 — * = o > . _ . e e * 19

Commonwealth v. Brown, ll

Mass.App. 228, 416 N.E.2d

a a |

Commonwealth v. DiMatteo, 12

Mass.App. 547, 427 N.E.2d |

De Ses of ke «ee ee we te | CD

Commonwealth v. Kelly, 10

Mass.App. 847, 406 N.E.2d

ee eS eG ew el ltl ee

Commonwealth v. Soares, 377

Mass. 461, 387 N.E.2d 499,

eee Oe, Oe Bt, Bhs 6 to el eCKD

Cuyler v. Sullivan, 446

en Senn /. 6 6 « + se 6 « « Aa

Jencks v. United States, 353

U.S. 657 (1975) 7 . e 2s a ce 7 > a 10

Marshall v. United States, 360

me See CEeeee « + « we et + lw & dhe UB, 22

iv

McCray v. Abrams, 750 F.2d

113 (2nd Cir. 1984), cert.

pending, S.Ct. No. 84-1426. ... 17, 19

McCray v. New York, 461 U.S.

vee Seen eS 8 a ee ake oo oe

McNabb v. United States, 318

ewe Oe See bb he Sw ei ot Re 10, 14

Mesarosh v. United States, 352

Urea e Seeeee 6.6 4 a ke ee Be

Murphy v. Florida, 421

A. Bic.) re a

Palermo v. United States, 360

Ucita Ome TASSEP si ice 6 we ss ow Oe

People v. Alexander, 205

COL Mees Ber CAP c & ade %

People v. Allen, 152 Cal.Rptr.

454, 23 Cal.3d 286, 590 P.2d

ag tie ee ko a be ee. oe

People v. Clay, 153 Cal.App.3d

433, 200 Cal.Rptr. 269 (1984) .. 19

People v. Coleman, 174 Cal.Rptr.

oe) eee re a ee

People v. Fuller, 136

Cal.App.3d 403, 186 Cal.Rptr.

ae eek. 6 ke: ae ek See

People v. Hall, 197 Cal.Rptr.

71, 35 Cal.3d 1161, 672 P.2a

Tae, Seen sc ks ke ee ee ee

People v. Harvey, 208 Cal.Rptr.

TSG. SSeS 4 8 wok eR ere ee

People v. Lucero, 160 Cal.Rptr.

At See? & 4 2 oS ks Se ee eee

People v. Walker, 205 Cal.Rptr.

278 (1984). * . . . * . . * . -

People v. Wheeler, 22 Cal.3d

258, 148 Cal.Rptr. 890, 583

P.2@ 746 (1978) « «- «eee e

Ristaino v. Ross, 424

Ues SOD (aera) 6 » 6 6 © 0 ©

Rose v. Mitchell, 443

Gane 545 (1979) a. . >. > a. * — .

State v. Crespin, 94 N.M. 486,

6iZ P.2G 716 (1980) « « « © ©

State v. Gilmore, 489 A.2d 1175

(N.J. Super. Ct. 1985). ... -

State v. Neil, 457 So.2d 481

; Fla. 1984) > . * > . i >.

Swain v. Alabama, 380 U.S. 202

(1965). * > . > > _ . > >. . .

Thiel v. Southern Pacific Co.,

San Gallic BEE LAGE) «6.2 6 © 3

United States v. Hasting, 461

Deus Gee Sapeee te ee ee 8

United States v. Payner, 447

Bsc Fal Capeerans eee bbe

Other Authorities:

21 U.S.C. $846. . 2. 2. © © © «

21 U.S.C. $84l(a)(1). . . . s -

28 U.S.C. §1254(1). . . © « «

19

19

12, 13, 22,

26

15

19

19

19

8, 13, 15,

20, 23, 28

10

1: Meme a pS ne

—

vi

428 U.8.C. $1861, @t SOG. «2 - By 24, 25

Rule y PR.CE.P. . . . . . . . . 2

Rule 24, F.R.Cr.P. . . . . . . . y 3, 24-

26

Beale, Reconsidering Super-

visory Power in Criminal Cases:

Constitutional and Statutory

Limits on the Authority of

the Federal Courts, 84 Colum.

be MOV. BG0s CEPOEP cw wc cee so eo 1

Note, The Judge-Made Super-

visory Power of the Federal

Courts, 53 Geo. L. Rev. 1050

Ot ) RN Se oe a ae a ee ce ee ee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1985

EUGENE LESLIE,

Petitioner

VERSUS

UNITED STATES OF AMERICA,

Respondent

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Eugene Leslie, by his counsel Robert

Glass, and co-counsel, Lolis Edward Elie,

petitions for a writ of certiorari to review

the decision of the United States Court of

Appeals for the Fifth Circuit affirming his

judgment of conviction.

OPINIONS BELOW

The Fifth Circuit panel opinion, Judge

Garwood dissenting, conditionally reversed

petitioner's conviction. It is reported at

759 F.2d 366 (Sth Cir. 1985), and reprinted

as Appendix A. The en banc opinion of the

Fifth Circuit, Judges Williams, Brown Rubin,

Tate and Johnson dissenting, reversed the

panel and affirmed petitioner's conviction.

It is reported at 783 F.2d 541 (5th Cir.

1986), and is reprinted as Appendix B.

RULES AND STATUTES IMPLICATED

The rules and statutes implicated in

petitioner's case, which are reprinted in the

separately presented Appendix, are as

follows:

- Rule 2, F.R.Cr.P. (Appendix C).

- Rule 24, F.R.Cr.P. (Appendix

D).

- 28 sy se §l18s6l, et seq.

(Federal Jury Selection and

Services Act of 1968) (Appendix

E).

ee

—————

JURISDICTION

The en banc decision of the United

States Court of Appeals for the Fifth Circuit

is dated February 20, 1986. This petition is

timely, coming within 60 days of the en banc

decision. Jurisdiction is present under 28

U.S.C. §1254(1).

STATEMENT OF THE CASE

Petitioner Eugene Leslie is a prominent

fight promoter and trainer in the City of New

Orleans; he is black. He was indicted and

convicted in the United States District Court

for the Eastern District of Louisiana for

conspiracy to distribute and possession with

intent to distribute cocaine, in violation of

21 U.S.C. §§846 and 841(a)(1).

During jury selection the Assistant

United States Attorney exercised each and

every one of the six peremptory challenges

permitted to him by Rule 24(b), F.R.Cr.P.,

against black veniremen, These six black

veniremen were the only blacks on the panel

available for selection. Of the three venire-

men from whom the alternate was to be

selected, only one was black; the assistant

exercised his single peremptory against the

one black venireman.

Petitioner immediately moved for a mis-

trial, arguing that the pattern of the

prosecutor's challenges indicated that they

were racially motivated. Petitioner urged

the trial court to invoke its supervisory

power over the conduct of federal trials to

grant his motion for mistrial. The prosecu-

tor maintained that his actions were not

racially motivated and that he was under no

obligation to articulate his reasons for

striking those particular jurors. He never-

theless offered to give the court an in

Camera explanation. The district court, how-

ever, declined to hear the prosecutor's

reasons in camera or otherwise, stating that

a prosecutor need not offer any explanation

for the manner in which he exercises his

peremptory challenges.

On appeal petitioner reasserted his

claim that a federal district court has the

Supervisory power to inquire into a prosecu-

tor's motives for exercising peremptory

challenges when on its face the pattern of

strikes appears to be racially motivated.

The original panel sustained that claim. It

held that the trial court was obliged to exer-

cise its inherent supervisory power to make

inguiry into the prosecutor's motives for

exercising his challenges; on remand, if the

district court were to find that the prosecu-

tor "exercised his peremptory challenges for

impermissible, racially discriminatory

reasons," a new trial would be ordered. On

en banc rehearing, however, the Fifth Circuit

reversed the panel decision and held that,

absent a showing of systematic exclusion of

blacks, it is a misuse of the supervisory

|

6

power to inquire into a prosecutor's reasons

for peremptorily challenging veniremen.

REASONS FOR GRANTING THE WRIT

The question raised on these facts is

whether federal judges have the power and

Obligation to mitigate the extreme result

achieved by the prosecutor in this case in

his efforts to convict a black man. The

imminent decision in Batson v. Kentucky,

S.Ct. No. 84-6263 (argued 12/12/85) will not

resolve the supervisory question because this

is a federal criminal case, not a state

criminal case.1l In federal criminal

cases, this Court's obligation is to assure

not simply that trials are marginally consti-

tutional (the standard for state cases), but

that federal trials are truly fair and just,

and as well appear to be fair and just. The

Court's responsibility for racial fairness

and racial justice in the federal system is

more primary, compelling and organic than its

general superintendence over the 50 states

through the Fourteenth Amendment. If Batson

is decided adversely to the state defendant's

lgpatson v. Kentucky, of course, involves only

constitutional concerns and raises no federal

supervisory power question. Batson therefore

cannot control the outcome here. Because the

Batson decision has not yet issued, however,

petitioner cannot draw on the Court's

analysis in that case insofar as it might

bear on the arguments for or against applica-

tion of the supervisory power. Petitioner is

prepared to supplement his petition when

Batson is decided, should the Court deem that

course helpful or appropriate.

Petitioner notes, nonetheless, that he did

reserve the constitutional claims raised in

Batson. Should Batson be decided favorably

to the state defendant, reversal of petition-

er's conviction on constitutional grounds

would necessarily follow.

constitutional claims, racial fairness in the

federal system is still at risk and should

not be left in unresolved limbo for the for-

seeable future. The stakes are too great.

The en banc opinion of the Fifth

Circuit held that as regards peremptory

strikes the supervisory authority was no

broader and extended no further than the

constitutional principle applicable in both

state and federal courts and expressed 21

years ago in Swain v. Alabama, 380 U.S. 202

(1965). This alleged analytical unity of the

supervisory and constitutional powers derived

from the appellate court's misguided applica-

tion of and syllogistic adherence to two

recently decided supervisory cases, United

States v. Hasting, 461 U.S. 499 (1983) and

United States v. Payner, 447 U.S. 727 (1980).

As a consequence of this reasoning, the Fifth

Circuit held that, absent a showing of

systematic racial exclusion, the district

court had no authority whatsoever to effect

any sort of judicial superintendence over a

prosecutor's prima facie utilization of all

of his peremptory challenges to eliminate all

blacks from a jury, even in a case in which

some cross-sectional input of the minority

race affected both the appearance and the

probable substance of jury fairness. Both

the reasoning and the result were simply

wrong, and the damage done to racial fairness

and perceived justice immeasureable.

The supervisory power of federal courts

to control their own proceedings has a long

and distinguished history. It was first

articulated as a basis for decision in McNabb

v. United States, 318 U.S. 332 (1943).

There, Justice Frankfurter wrote:

Judicial supervision of the adminis-

tration of criminal justice in the

federal courts implies the duty of

establishing and maintaining

civilized standards of procedure and

evidence. Such standards are not

satisfied merely by observance of

those minimal historic safeguards for

securing trial by reason, which are

Summarized as “due process of law"

and below which we reach what is

really trial by force.... Considera-

tions of large policy in making the

necessary accommodations in our

federal system are wholly irrelevant

to the formulation and application of

proper standards for the enforcement

of the federal criminal law in the

federal courts.

Id. at 340-341.

This Court has called upon its super-

visory power in numerous cases. See, @.g.,

Jencks v. United States, 353 U.S. 657 (1975);

Mesarosh v. United States, 352 U.S. 1 (1956);

Ballard v. United States, 329 U.S. 187

(1946); and Thiel v. Southern Pacific Co., |

328 U.S. 212 (1946). The supervisory power |

has in fact been invoked in such a wide range

of circumstances that it has been said that

"the sole common denominator of its usage is

a desire to maintain and develop standards of

fair play in the federal courts more exacting

than the minimum requirements of due process."

Note, The Judge-Made Supervisory Power of the

Federal Courts, 53 Geo. L. Rev. 1050 (1965).

11

Nowhere is the proper compass of the

supervisory power more compellingly illus-

trated than in the contrasting decisions in

Marshall v. United States, 360 U.S. 319

(1959) and Murphy v. Florida, 421 U.S. 794

(1975). In both cases jurors had been

exposed to newspaper stories reporting, that

the defendant, who did not testify, had been

convicted previously of serious offenses; in

both cases the exposed jurors swore to the

satisfaction of the judge that they would not

be influenced by the newspaper articles and

would decide the case only on the evidence.

In Marshall, the Court reversed the federal

defendant's conviction; in Murphy, the Court

affirmed the state defendant's conviction.

The only distinction was the differing roles

played by the federal courts in federal and

state adjudications. This Court reversed

Marshall's conviction "'[iJ]n the exercise of

[its] supervisory power to formulate and

apply proper standards for enforcement of the

12

criminal law in the federal courts,' and not

as a matter of constitutional compulsion....

We cannot agree that Marshall has any applica-

tion beyond the federal courts." Murphy,

supra, 421 U.S. at 797-798.

A similar pair of contrasting jury fair-

ness cases is Aldridge v. United States, 283

U.S. 308 (1931) and Ristaino v. Ross, 424

U.S. $89 (1976). In both cases the black

defendant was accused of killing a white

police officer. In both cases the defendant

requested, but was refused, voir dire examina-

tion directed to racial prejudice. fMThis

Court reversed the conviction of the federal

defendant in Aldridge; it affirmed the convic-

tion of the state defendant in Ristaino. The

distinction again was the difference between

constitutional and supervisory superin-

tendence:

Although we hold that voir dire ques-

tioning directed to racial prejudice

was not constitutionally required,

the wiser course generally is to

propound appropriate questions

<=

13

designed to identify racial prejudice

if requested by the defendant.

Under our supervisory power we

would have required as much of a

federal court faced with the circum-

stances here.

Ristaino, 424 U.S. at 597, n. 9.

That Swain held racist peremptory

ciiallenges constitutional is thus plainly

no answer to the question whether a federal

court should attempt to effect some moder-

ating influence on the practice by resort to

its authority? in “the formulation and

application of proper standards for the

2See Cuyler v. Sullivan, 446 U.S. 335 (1980)

where this Court held, with regard to

possible conflicts of interest by counsel in

the representation of multiple defendants,

that (446 U.S. at 346) --

nothing in our precedents sug-

gests that the Sixth Amendment

requires state courts themselves

to initiate inquiries into the

propriety of multiple representa-

tion in every case;

while noting approvingly (446 U.S. at 335, n.

10) that --

several [federal] Courts of

Appeals already invoke their

supervisory power to require

Similar inquiries.

14

enforcement of the federal criminal law

in the federal courts." McNabb, supra.

The values underlying equal protection and

cross-sectional representation of juries are

at war with racially motivated challenges.

The supervisory power can and should be

applied to inhibit invidious discrimination,

for to do so serves the constitutional

principles of equal protection and cross-

sectional representation, even if the consti-

tutional principles themselves and by their

own force do not require such action.

There are two parts to the question

whether a court should exercise its super-

visory avthority where prosecutors, by racist

utilization of peremptory challenges, under-

mine our fundamental commitment to racial

fairness and cross-sectional values: (a)

whether there is a recognizable evil which is

insulated (and thereby encouraged) by the

tradition of exercising peremptories without

judicial inquiry or review, and therefore

—

so

warrants exposure to daylight; and (b)

whether there is a reasonable and practical

way to moderate that evil without destroying

the salutary and important uses of the

peremptory.

A. Racist Utilization of Peremp-

tory Challenges is Unquestion-

ably Pernicious and Evil in

Federal Criminal Trials.

The evil is there, unmistakable and

palpable. 3 The fact that, in the 20 years

following Swain, the racial use of peremp-

tories continues to raise its ugly head with

frequency in federal courts attests to the

Discrimination on the basis of

race, odious in all aspects, is

especially pernicious in the ad-

ministration of justice. Selec-

tion of members of a... jury

because they are of one race and

not another destroys the appear-

ance of justice and thereby casts

doubt on the judicial process.

The exclusion of Negroes, or any

other gruop otherwise qualified

to serve, impairs the confidence

of the public in the administra-

tion of justice.

Rose v. Mitchell, 443 U.S. 545,

555-556 (1979).

16

persistence of the problem. If a particular

federal prosecutor harbors an unremitting and

racist hostility towards blacks, and in the

service of his racism, systematically exer-

cises his peremptory strikes against blacks

whenever it is practicable to do so, would

this Court hesitate to condemn the practice

-- if only it were revealed? zé.a

federal prosecutor believes that all blacks

are uneducated and stupid, and for that

reason uses each and every one of his

challenges to strike each and every black on

a particular panel, would this court blink

for a hesitant second before saying that the

federal system should not tolerate such

conduct in its prosecutors -- if it knew

about it? If a federal prosecutor were so

narrow and prejudiced as to believe that all

blacks were addicts or drug users, could not

be trusted to follow the law in drug prosecu-

tions, and so should be struck whenever

possible, would not this Court want to act to

17

stop the prosecutor -- if he were found

out? Even if the federal prosecutor who

hated blacks struck them wherever and when-

ever he could for the rational reason

that his hatred coulaG not be masked from

black jurors (thus diminishing his credibil-

ity), would this Court encourage him to

persist in his practice -- if the Court

could discover the truth about him and deter

him?

Prosecutors like those described above,

who choose juries in those ways, are perpetu-

ating an evil that no theoretically

legitimate use of the peremptory challege

could justify. Prosecutors like this exist,

in greater or lesser degree, throughout the

federal districts.4 Yet, under the Fifth

Circuit's ruling, such prosecutors will never

be revealed, and their practices will not be

deterred even minimally by the embarassment

4see cases cited in McCray v. Abrams, 750 F.2d

113, 1120 at n. 2 (2nd Cir. 1984), cert. pend-

ing, S.Ct. No. 84-1426.

18

that the mere demand for explanation would

necessarily cause.

B. The State Experience Since

Swain Demonstrates that there

is a Reasonable and Practical

Way to Minimize the Evil of

Racist Strikes by a Federal

Prosecutor.

There simply exists no reason whatso-

ever to deny the federal courts the

supervisory power to make a minimal inquiry

of prosecutors whose strikes raise the racist

spectre. Even authors who advocate only

limited use of the power accept the propriety

of its application to situations where the

reliability and integrity of the judicial

process is brought into question. See, e.g.,

Beale, Reconsidering Supervisory Power in

Criminal Cases: Constitutional and Statutory

Limits on the Authority of the Federal

Courts, 84 Colum. L. Rev. 1433, 1520 (1984).

It is clear, moreover, that a limited

modification of the peremptory practices of

prosecutors is feasible. The experience in

19

California following People v. Wheeler, 22

Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748

(1978)> and in Massachussetts following

Commonwealth v. Soares, 377 Mass. 461, 387

N.E.2d 499, cert. den., 444 U.S. 881,° and

the decisions by Florida’? and New

Jersey8 to follow suit, demonstrate not

>People v. Hall, 197 Cal.Rptr. 71, 35 Cal.3d

1161, 672 P.2d 854 (1983); People v. Allen,

152 Cal.Rptr. 454, 23 Cal.3d 286, 590 P.2d 30

(1979); People v. Harvey, 208 Cal.Rptr. 910

(1984); People v. Alexander, 205 Cal.Rptr.

387 (1984); People v. Walker, 205 Cal.Rptr.

278 (1984); People v. Clay, 153 Cal.App.3d

433, 200 Cal.Rptr. 269 (1984); People v.

Fuller, 136 Cal.App.3d 403, 186 Cal.Rptr. 283

(1982); People v. Coleman, 174 Cal.Rptr. 756

(1982); People v. Lucero, 160 Cal.Rptr. 27

(1979).

Scommonwealth v. Benbow, 16 Mass.App. 970, 452

N.E.2d 1164 (1983); Commonwealth v. DiMatteo,

12 Mass.App. 547, 427 N.E.2d 754 (1981);

Commonwealth v. Brown, 11 Mass.App. 228, 416

N.E.2d 218 (1981); Commonwealth v. Kelly, 10

Mass.App. 847, 406 N.E.2d 1327 (1980).

7State v. Neil, 457 So.2d 481 (S.Ct. Fla.

1984).

8state v. Gilmore, 489 A.2d 1175 (N.J. Super.

Ct. 1985); see also, the New Mexico decision,

State v. Crespin, 94 N.M. 486, 612 P.2d 716

(1980), and the Second Circuit decision,

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

1984) (petition for certiorari pending).

20

only that it is possible to devise workable

rules for examining the prima facie racial

use of peremptories but that it is possible

to do so without destroying the function and

efficacy of peremptories in the totality of

jury selection. Indeed, since Swain was

decided in 1965, this Court has had the

benefit of "the various States...serv[ing] as

laboratories" for refinement of the principle

of limited intervention in extreme, racially

skewed jury situations. McCray v. New York,

461 U.S. 961 (1983)(concurrence of Justice

Stevens on denial of certiorari). Where in

1965 even a limited inquiry, like that

designed by the Fifth Circuit panel here,

might be said to have "entailf[ed] a radical

change in the operation of the challenge,"

Swain, 380 U.S. at 222-223, this is no longer

so. The peremptoriness of the challenge is

no longer considered absolute throughout the

land, nor is the desirability for absolute

deference any longer clear.

21

C. The Fifth Circuit Decision

Relies on Distinguishable

Supervisory Power Decisions,

and Improperly Defers to In-

applicable Rules and Legisla

tion.

In holding the federal courts impotent

to unveil racist practices and so to create

the factual predicate for even limited

remedial action, the Fifth Circuit relied

heavily on two recent supervisory power

cases, United States v. Hasting, 461 U.S. 499

(1983) and United States v. Payner, 447 U.S.

727 (1980). Payner and Hasting, however,

spoke to a very different application of the

supervisory power than that urged here. In

those cases the appellate courts had taken it

upon themselves to fashion additional super-

visory remedies for constitutional violations

(which they found in those cases to be

particularly egregious and extreme), even

though this Court had already placed limits

upon the remedies to be available for dealing

with violations of those same constitutional

22

provisions. The point here, however, is not

additional remedies for constitutional

violations. The point is that even though

there may be no constitutional violation at

all, the supervisory power may still

provide a remedy for what is unfair but not

unconstitutional. Such is the teaching of

the contrasting Murphy-Marshall and Ristaino-

Aldridge decisions, supra, text at 21-24.

In Payner the district court disre-

garded the exclusionary rule's requirement of

standing to complain and refused to admit

evidence which had been seized in deliberate

violation of a third party's Fourth Amendment

rights. In Hasting the court of appeal found

that the prosecutor's closing argument consti-

tuted an impermissible comment on the

defendant's exercise of his Fifth Amendment

privilege against self-incrimination and

reversed the defendant's conviction without

regard for the harmless error rule. In

reversing both Payner and Hasting, this Court

23

held that the lower appellate courts had

improperly applied their supervisory power by

disregarding limits on remedies which the

Court, with careful consideration of the

competing interests, had already decreed were

adequate over the entire spectrum of Fourth

and Fifth Amendment violations. The particu-

lar forms of remedies for constitutional vio-

lations were not themselves of constitutional

origin or compulsion. Having designed ade-

quate remedies and thus having drawn already

the balance between greater and lesser

possible remedies, the supervisory approach

to the violations, no matter how offensive

the violations were, was deemed neither

necessary nor appropriate.

Not so here. Under the hegemony of

Swain, there is no constitutional remedy

for racist behavior by a prosecutor in

striking black jurors in the particular case.

The prohibitions imposed by Payner and

Hasting on expanding remedies for constitu-

24

tional violations under the supervisory power

simply do not apply to situations were there

are no preexisting constitutional violations.

The Fifth Circuit's decision fails to heed

this distinction and thereby obscures the

import of the Court's holdings in Payner and

Hasting; consequently, that court has applied

a plainly incorrect analytical framework to

deny the availability of the supervisory

power in the racial peremptory context.

Moreover, the Fifth Circuit improperly

found that its hand had been stayed in the

area of peremptory challenges by reason of

Rule 24(b), F.R.Cr.P., and the Federal Jury

Selection and Service Act of 1968, as

amended, 28 U.S.C. §1861, et seq. The rule

and the statute require no deference because

neither of these enactments even remotely

instructs a federal court whether or not it

may inquire into a prosecutor's motives for

striking all of the blacks from a jury panel.

The Fifth Circuit's reliance on Palermo v.

25

United States, 360 U.S. 343 (1959)29 there-

fore, is totally misplaced.

Rule 24(b) speaks only to the number of

peremptory challenges. It does not go

further and define what is meant by “peremp-

tory," whether peremptories might not be sub-

ject to limited review and supervision by the

court, nor whether further there might not be

some point beyond which the exercise of

peremptories passes beyond arbitrary into

intolerable. The fact is that Congress has

never legislatively defined what a peremp-

tory challege in the federal system is.

The conclusion that Rule 24(b) has no

substantive preemptive content is fortified

by reference to subsection (a) of Rule 24.

Rule 24(a) specifies wno may conduct voir

dire, and if the judge chooses to do so, how

supplemental questions by the parties are to

9=~The power of this Court to prescribe rules

of procedure and evidence for the federal

courts exists only in the absence of a

relevant act of Congress." 360 U.S. at 353,

Ms dh.

26

be asked to the jurors. Under the Fifth

Circuit's logic, Congress has "legislated" in

the area of voir dire just as it has "legis-

lated" in the area of peremptory strikes;

accordingly, the supervisory power could not

be invoked in either circumstance, This,

however, is clearly not so because the super-

visory power of this Court has in fact been

applied to require voir dire questions of a

particular sort. Aldridge v. United

States, 282 U.S. 308 (1931)(question on

racial prejudice required under supervisory

authority, though not under the constitu-

tion), 10

The Fifth Circuit's reliance on the

Federal Jury Selection and Service Act of

1968 is similarly misplaced. The primary

function of that enactment was to prevent

discrimination in the panel; thus, the Act

10The Court more recently reaffirmed this

requirement in federal criminal trials in

Ristaino v. Ross, 424 U.S. 589, 597, n. 9

(1976).

27

focuses on the means for compiling jury lists

and on juror qualifications, and provides an

"exclusive" mechanism for challege which

shuts down once “voir dire examination

begins." 28 U.S.C. §1867(a). Peremptory

challenges and challenges for cause are men-

tioned only incidentally, and are reaffirmed

as operating outside of the Act as "provided

by law."11 In other words, the Act says

nothing at all substantive about the law, the

practice or the outer limits of the perenp-

tory challenge.

Insulating prima face racial strikes

from court superintendence promotes both the

appearance of unfairness and its fact. The

government's peremptory strikes are provided

for in Rule 24, F.R.Cr.P., and neither their

llsubsections (3) and (4) of the proviso in 18

US.C. §1866(c) specify "[t]hat any persons

summoned for jury service may be... (3)

excluded upon peremptory challege as

provided by law, or (4) excluded pursuant

to the procedure specified by law upon a

challenge by a party for good cause

shown...."

28

Origin nor their sanctity are constitution-

ally derived. See Swain, 380 U.S. at 211-217.

The government's strikes, therefore, should

be governed by Rule 2 of the same Federal

Rules of Criminal Procedure. Rule 2 provides

in relevant part that the rules "shall be

construed td eebere, ; faltecee in administra-

tion" and "are intended for the just deter-

mination of every criminal proceeding." This

is nothing if not a statement of supervisory

power and authority. Here, then, is an

explicit source for the supervisory power and

authority of the federal courts to moderate

the invidious, perniciously evil use of

peremptory challenges by government counsel

in racially despicable and condemnable ways.

CONCLUSION

For the reasons stated, petitioner

respectfully petitions this Court to grant a

writ of certiorari to review the decision of

29

the United States Court of Appeals for the

Fifth Circuit.

Respectfully submitted,

ROBERT GLASS

GLASS & REED

338 Lafayette Street

New Orleans, LA 70130

Tel.: 504/581-9065

Counsel for Petitioner,

Eugene Leslie

LOLIS EDWARD ELIE

215 N. Jefferson Davis Pkwy.

New Orleans, LA 70119

Tel.: 504/482-0330

Co-counsel for Petitioner,

Eugene Leslie

30

CERTIFICATE OF SERVICE

I, Robert Glass, a member of the bar of

this Court, hereby certify that copies of

this petition for certiorari have been served

on respondent, United States of America, by

mailing three copies thereof, first class

ieteds prepaid, to the Solicitor General,

Department of Justice, Washington, DC 20530,

and three copies to John Volz, Esq., U.S.

Attorney, 500 Camp Street, New Orleans, LA

70130, this day of April, 1986.

ROBERT GLASS