Opposition Brief — Polk v. Dixie Insurance

Supreme Court, U.S.

FILED

| DEC 14 1992

HE CLERK

No. 92-922

In The

Supreme Court of the United States

October Term, 1992

S

JAMES L. POLK and MATTIE B. POLK,

Petitioners,

vV.

DIXIE INSURANCE COMPANY,

Respondent.

e

On Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Fifth Circuit

e

BRIEF IN OPPOSITION

*

SUZANNE N. SAUNDERS

(Counsel of Record)

Resecca L. WIGGINs

SAUNDERS, BELL, FORTENBERRY

AND Corson, P.A.

Post Office Box 16295

Jackson, Mississippi 39236-6295

(601) 362-0596

Attorneys for Respondent

QUESTIONS PRESENTED

1. Whether the Polks’ filing of an improper petition,

without-service upon or any other form of notice to Dixie

Insurance Company within the allowed time, renders the

Poiks’ current petition, which was filed and served out-

side the established ninety-day time period, improper for

consideration.

2. Whether the neutral, non-racial reasons for strik-

ing two potential black jurors in this case meet the test

established in Batson v. Kentucky, 476 U.S. 79 (1986), for

peremptory strikes. 2

ii

LIST OF PARTIES AND RULE 29.1 LIST

The parties to the proceedings below were the peti-

tioners, James L. Polk and Mattie B. Polk, and the respon-

dent, Dixie Insurance Company.

The Senatobia Bank, the lienholder on Mr. Polk’s

automobile, was a defendant in the district court but was

dismissed by stipulation of dismissal with prejudice on

February 17, 1988.

Dixie Insurance Company, now known as Infinity

Insurance Company, is a wholly owned subsidiary of the

Penn Central Corporation. The Penn Central Corporation

is a public stock company, the majority of its stock being

owned by American Financial Enterprises.

lii

TABLE OF CONTENTS

Page

Se I sco ons v's cn os coos vencdvreises i

List of Parties.and Rule 29.1 List.................. ii

EE ree ee Tne eee iii

I I cca op ks wa obin sc eS dceesoeiens iv

I 5 So 8 56 Kh hos 0 sp 50s ose c canes’ 1

IEE LT ee ee ee 1

i as bea p ea eb eauaccenes ec 2

IE yc ac snap eens ssdeccesacn 2

Summary of Argument for Denying the Petition... 5

Argument for Denying the Petition................ 8

I. Petitioners failed to properly file and serve their

petition for writ of certiorari within the pre-

scribed ninety-day time period................ 8

II. The Fifth Circuit’s opinion is consistent with

this Court’s decisions in Batson v. Kentucky, 476

U.S. 79 (1986), and Hernandez v. New York, 111 S.

ead es anna sae sea nss baw 11

Ill. The Fifth Circuit’s opinion does not conflict

with other circuit courts’ holdings which are

ESTEE Tee Tee 16

Ne i kkkein Ceenupene 25

iv

TABLE OF AUTHORITIES

Page

Cases

Barfield v. Orange County, 911 F.2d 644 (11th Cir.

1990), —- denied, 920 F.2d 13 (11th Cir. 1990),

cert. denied sub nom. Barfield v. Lamar, 111 S. Ct.

Gee REPU E Da 6 cot ask sie ecko ninekeeas 7, 18,.19, 20, 22

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

Dunham v. Frank’s Nursery & Crafts, 967 F.2d 1121

+, gx Be. | renee errs te tere Pre Pe ee

Fludd v. Dykes, 863 F.2d 822 (11th Cir. 1989), reh’g

denied, 873 F.2d 300 (11th Cir. 1989), cert. denied

sub nom. Tiller v. Fludd, 493 U.S. 872 (1989) ....... 19

Georgia v. McCollum, 112 S. Ct. 2348 (1992).......... 13

Harrison. v. Ryan, 909 F.2d 84 (3rd Cir. 1990), cert.

denied sub nom. Castille v. Harrison, 111 S. Ct. 568

POPE A 6a kik Uh vie bhadiseade eee 7, 3 12, 18

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

A ee re ye Pern 6, 11, 14, 15

Holland v. Illinois, 493 U.S. 474 (1990), reh’g denied,

SOG ELS. Tie Cee a 0 eN von eva sonawesvheertesias 6, 14

Moore v. Keller Indus., 948 F.2d 199 (5th Cir. 1991),

cert. denied, 112.S. Ct. 1945 (1992). . 5... .ccces0s: rie |

Pittsburgh Towing Co. v. Mississippi Valley Barge

Line Co., 385 U.S. 32 (1966), reh’ g denied, 385 U.S.

995 (1966) yuHOA SORA bp ue LSE eebumaWayeOTsEth e343 006s 10

Polk v. Dixie Ins. Co., 111 S. Ct. 2791 (1991).......... 2

Polk v. Dixie Ins. Co., 972 F.2d 83 (5th Cir. 1992)...1, 15

Polk v. Dixie Ins. Co., 943 F.2d 553 (5th Cir. 1991)..... 2

Vv

TABLE OF AUTHORITIES - Continued

Page

Polk v. Dixie Ins. Co., 897 F.2d 1346 (5th Cir. 1990)

piaphcn rides Sacer as tN S ca Ge aaes ORL vce 2, 9, 17, 23

Reynolds v. Benefield, 931 F.2d 506 (8th Cir. 1991)

) aigkua eames wena wr Rean Wena ges cee deel bac ea eek Pr 3 See

Roman v. Abrams, 822 F.2d 214 (2d Cir. 1987), cert.

denied, 489 U.S. 1052 (1989), reh’g denied, 490

is: See LEONE obec ak Re es Berane paren me ae 8, 24, 25

Taylor v. Louisiana, 419 U.S. 522 (1975) ............ 6, 14

Texas Dept. of Community Affairs v. Burdine, 450

i 225k on AG a oe Pe eh ca eec hae 12

United States v. Casper, 956 F.2d 416 (3rd Cir. 1992) ..7, 20

United States v. Chincilla, 874 F.2d 695 (9th Cir.

ped Ee Ee ee Pee eT eg em ean ane 8, 23

United States v. Cunningham, 713 F. Supp. 165

APRs BOO sores voce andes ees sesebengas 7, 16, 17

United States v. Lance, 853 F.2d 1177 (5th Cir. 1988) .... 20

United States v. Nicholson, 885 F.2d 481 (8th Cir.

ng SO Ee enter ann ae Spear ny aE aR ENT 7, 17, 18

Ran eNia ce Wht cae wink oud ease ahd doe meek R Tks 7, 21

United States v. Swinney, 970 F.2d 494 (8th Cir.

1992), cert. denied, No. 92-6413, 1992 WL 331988

CRF, SUE no WN neh oe aek ba bvSbmccbenes e's 7

United States v. Terrazas-Carrasco, 861 F.2d 93 (5th

NOR I a eg eg eg Pe

United States v. Todd, 963 F.2d 207 (8th Cir. 1992) ..7, 21

vi

TABLE OF AUTHORITIES - Continued

Page

United States v. Williams, 934 F.2d 847 (7th Cir.

EEE AS TE ne gre Pe ee rer ee eer 21

United States v. Wilson, 867 F.2d 486 (8th Cir. 1989),

cert. denied, 493 U.S. 827 (1989)............. 7, 17, 18

Wainwright v. Witt, 469 U.S. 412 (1985).............. 14

Williams v. Chrans, 957 F.2d 487 (7th Cir. 1992)...... 21

OTHER AUTHORITIES:

ess anak seks oh mabe boas ON RS Nba wNA 2

PP Oe URES) oo ii digs kann tscarcsvvas sues a oy Oe

I I EB ss og dws av ceeS ean iacascxckiens 8

I RE SD SOE ons ckavess eke dcesaessunwanss 11

oe 2 ee eee ree 5, 8, 10

he CME BO ceca sever ctabivensehesee kun 11

RE PD cca kee d sev seseseessarsas 11

I TES OIE I. oc oe iviccnasdarcegensetus 11

No. 92-922

4

In The

Supreme Court of the United States

October Term, 1992

s

JAMES L. POLK and MATTIE B. POLK,

Petitioners;

V.

DIXIE INSURANCE COMPANY,

Respondent.

7

On Petition For Writ Of Certiorari To The United States

Court Of Appeals For The Fifth Circuit

*

BRIEF IN OPPOSITION

¢

Respondent Dixie Insurance Company [Dixie]

respectfully requests this Court to deny the Petition for a

Writ of Certiorari to the United States Court of Appeals

for the Fifth Circuit.

OPINION BELOW

The August 4, 1992, opinion of the United States

Court of Appeals for the Fifth Circuit is officially

reported at Polk v. Dixie Ins. Co., 972 F.2d 83 (5th Cir.

1992). It is attached as an Appendix to the Petition.

Other reported decisions in this case, in reverse chro-

nological order, are as follows:

Polk v. Dixie Ins. Co., 943 F.2d 553 (5th Cir. 1991);

Polk v. Dixie Ins. Co., 111 S. Ct. 2791 (1991); and

Polk v. Dixie Ins. Co., 897 F.2d 1346 (5th Cir.

1990).

*

JURISDICTION

Although the Polks state that jurisdiction is proper in

this case pursuant to 28 U.S.C. § 1254, respondent Dixie

Insurance Company contests whether the petition was

timely filed and properly served pursuant to 28 U.S.C.

§ 2101(c) and the Rules of the Supreme Court of the

United States. Dixie’s argument regarding this issue is set

out more fully below in Point I of the Argument for

Denying the Petition.

STATEMENT OF THE CASE

The Statement of the Case found at pages 2-4 of the

Polks’ petition must be supplemented.

At the hearing on remand to determine whether the

black members of the jury panel were stricken for non-

racial reasons, counsel. for Dixie Insurance Company

stated that the main reason for her striking the potential

jurors at issue was lack of “eyeball contact.” (VI R. 8.)

Although admitting that she did not remember the exact

details, since over three years had passed and the law

had not required reasons to be given in civil cases at that

time, on cross-examination by Petitioners’ counsel, coun-

sel for Dixie again stated her reason for-excluding the

potential jurors was lack of eyeball contact.

Q: And up until today, up until you got up

here and gave your statement just now, the

only reasons that have ever been assigned

by you until right in January of 1992 for

excluding these jurors was eyeball contact.

Is that not true?

A: That is true then, it is true now, and eyeball

contact is the one, and when I said eyeball

contact, eyeball contact is not just looking at

me, it is the expression on their face when

they are looking at me, whether there is a

smirk or smile or rolling their eyes, it is the

impact of the eyeball contact, if. any.

Q: And, so that is your reason as of right now

for excluding the jurors, eyeball contact?

A: It has never changed. It was that the day it

happened, it was that the day I signed the

affidavit, and it is true today.

(VI R. 15-16.)

Again, on cross examination, Dixie’s counsel

unequivocally stated her reason for excluding the poten-

tial jurors.

Q: It’s your testimony that you don’t have any

specific recollection of why you excluded

the jurors that you excluded, is that a fair

, statement?

A: It was eyeball contact. I can tell you that for

sure, and in the eyeball contact, they either

weren’t looking at me or they were looking

at me and I| thought they were not listening

to me when I had eyeball contact.

(VI R. 20.) (Emphasis added.) The fact that Dixie’s coun-

sel places great weight on eye contact is evidenced in the

following statement made during voir dire, “Good morn-

ing, I’m going to ask you some questions, and when I do,

I need you to open your eyes up and raise your hand... . ”

(IV R. 21.) (Emphasis added.)

While testifying that eye contact was the primary

reason for striking the potential -jurors, counsel also

offered secondary reasons in support of these peremptory

strikes. Notes of co-counsel from the trial revealed that

one of the jurors struck.was an insurance clerk for a

company that wrote fire insurance policies. As testified to

at the hearing, it is standard practice for Dixie’s counsel

to excuse members of any industry that is affiliated with

the case being tried. Thus, because this case actually

involved questions of coverage on an atttomobile policy

following the destruction of the vehicle by fire, counsel

testified that this juror would have been stricken under

this practice. As stated at the hearing, “I would not want

someone who comes into the room with barrels of exper-

tise that would have an impact on tainting the entire

jury....” (VIR. 17-18.) |

Co-counsel’s notes showed the ‘other black panel

member at issue to be unemployed. Again, counsel for

Dixie testified that striking this juror would have been

consistent with her usual practice of striking any poten-

tial juror who is unemployed. (VI R. 10.) That the white

member of the venire struck was also unemployed reite-

rates the testimony on this issue. |

On page 3 of their Statement of the Case, the Polks

state, “The insurance company bolstered racial aspects of

the case by asking Polk about his illegitimate children.” It

should be noted that it was counsel for the Polks who

initially addressed the issue of race. (IV R. 19.) In fact,

nowhere in the record does counsel for Dixie state or

insinuate that the race of the plaintiffs or jurors was of

any concern. The line of questioning regarding Polk’s

children related directly to Polk’s motive for driving

home on the night of the alleged accident instead of

staying at the home of his girlfriend — such motive having

been placed in issue as a result of Petitioners’ counsel's

direct examination of James Polk.

Finally, perhaps because it does not comport with

their argument that they. were unable to rebut Dixie’s

counsel’s articulated reasons, Petitioners failed to men-

tion in their Statement of the Case that they actually

called a rebuttal witness at the hearing. (VI R. 22-24.)

¢

SUMMARY OF ARGUMENT FOR

DENYING THE PETITION

This petition should be denied because of Petitioners’

failure to file and serve a proper petition within the

ninety days allowed under 28 U.S.C. § 2101(c) and

Supreme Court Rule 13. The improper petition filed

within the ninety-day time period was not served on

Respondent Dixie Insurance Company and was rejected

by the Clerk of the Supreme Court for not meeting the

printing requirements: of the Supreme Court Rules and

for not being accompanied by a motion to proceed in

-

forma pauperis. The failure to timely file the petition

divests the Court of jurisdiction to consider same. Alter-

natively, even if the improper petition filed within the

ninety days meets the jurisdictional requirements, Peti-

tioners’ intentional disregard of this Court’s procedural

guidelines justifies the denial of the petition in this case.

Contrary to Petitioners’ arguments, the Fifth Circuit’s

decision in this case is consistent with this Court’s deci-

sion in Batson v. Kentucky, 476 U.S. 79 (1986). Counsel’s

articulated reasons were related to the particular case to

be tried even though, because over three years had

passed since the voir dire in this case, specific details

could not be recalled. Additionally, Batson’s requirement

that the reasons be “clear and reasonably specific,” Bat-

son, 476 U.S. at 98 n.20, was met. Petitioners’ argument

that the reasons stated did not allow a rebuttal is incon-

sistent with their extensive cross-examination of Dixie’s

counsel and their actually calling a rebuttal witness at the

hearing on remand. Further, Petitioners’ assertion that

peremptory strikes should be abolished to fulfill their

“right to have blacks on a jury” is inconsistent with prior

rulings of this Court. Taylor v. Louisiana, 419 U.S. 522, 538

(1975), quoted in Holland v. Illinois, 493 U.S. 474, 483

(1990), reh’g denied, 494 U.S. 1050 (1990). The Fifth Circuit,

in affirming the findings of the trial court, was merely

following the standards for appellate review established

by this Court in Batson and Hernandez v. New York, 111 S.

Ct. 1859 (1991).

The Fifth Circuit’s opinion is also consistent with

other circuit courts’ decisions involving similar facts. As

to the failure of Dixie’s counsel to recall specific details,

.the Fifth Circuit relied on decisions rendered by the

Eighth Circuit, United States v. Nicholson, 885 F.2d 481 (8th

Cir. 1989), and United States v. Wilson, 867 F.2d 486 (8th

Cir. 1989), cert. denied, 493 U.S. 827 (1989). The facts in

these cases more closely resemble the facts in this case

than the one Third Circuit case cited by Petitioners, Har-

rison v. Ryan, 909 F.2d 84 (3rd Cir. 1990), cert. denied sub

nom. Castille v. Harrison, 111 S. Ct. 568 (1990), or the cited

district court opinion, United States v. Cunningham, 713 F.

Supp. 165 (M.D.N.C. 1988).

The Fifth Circuit’s upholding of the finding of no

discrimination based on the stated reason of eye contact

is not only consistent with the one case cited by Peti-

tioners on this issue, Barfield v. Orange County, 911 F.2d

644 (11th Cir. 1990) reh’g denied, 920 F.2d 13, (11th Cir.

1990), cert. denied sub nom. Barfield v. Lamar, 111 S. Ct. 2263

(1991), but it is also consistent with decisions rendered in

the Third, Seventh, and Eighth Circuits. United States v.

Casper, 956 F.2d 416 (3rd Cir. 1992); Dunham v. Frank’s

Nursery & Crafts, 967 F.2d 1121 (7th Cir. 1992); United

States v. Swinney, 970 F.2d 494 (8th Cir. 1992), cert. denied,

No. 92-6413, 1992 WL 331988 (U.S. Nov. 30, 1992); United

States v. Todd, 963 F.2d 207 (8th Cir. 1992); Reynolds v.

Benefield, 931 F.2d 506 (8th Cir. 1991); United States v.

Sherrills, 929 F.2d 393 (8th Cir. 1991).

Finally, this case is not unique in finding no discrimi-

nation even though all minority members were stricken.

See Dunham, 967 F.2d at 1122; Reynolds, 931 F.2d at 508;

Barfield, 911 F.2d at 646. The two Fifth Circuit cases cited

by Petitioners on this issue, Moore v. Keller Indus., 948 F.2d

199 (5th Cir. 1991), cert. denied, 112 S. Ct. 1945 (1992), and

United States v. Terrazas-Carrasco, 861 F.2d 93 (5th Cir.

1988), do not, of course, show a conflict between circuit

courts on this issue. Petitioners mischaracterize the hold-

ings in the other two cases cited, United States v. Chincilla,

874 F.2d 695 (9th Cir. 1989), and Roman v. Abrams, 822 F.2d

214 (2d Cir. 1987), cert. denied, 489 U.S. 1052 (1989), reh’g

denied, 490 U.S. 1014 (1989). In fact, Roman is not even a

case in which all members of a particular race were

excluded from the jury. Nevertheless, none of these cases

mandate a finding of discrimination merely because all

minority members of the jury panel were stricken.

Because Petitioners failed to timely file and serve a

proper petition and because they cannot show a conflict

between the Fifth Circuit’s decision in this case and either

this Court’s precedents or the decisions of other circuit

courts, the petition for a writ of certiorari in this case

should be denied.

°

ARGUMENT FOR DENYING THE PETITION

I. Petitioners failed to properly file and serve their

petition for writ of certiorari within the prescribed

ninety-day time period.

Judgment was entered by the United States Court of

Appeals for the Fifth Circuit in this case on August 4,

1992. Accordingly, pursuant to 28 U.S.C. § 2101(c) and

Supreme Court Rules 12 and 13, a petition for writ of

certiorari should have been filed with proof of service by

November 2, 1992. This did not take place. Not until

November 13, 1992, did Dixie Insurance Company receive

a copy of the Polks’ petition in this matter. The letter to

the Clerk of the Supreme Court which accompanied the

9

petition was dated November 11, 1992, and stated, “Con-

sistent with my certificate of service, 1 am today forward-

ing a true and correct copy of the Petition to opposing

counsel.” Clearly, Dixie was not served until after the

deadline for the Polks’ petition. Furthermore, proper

copies of the petition were not filed until after the dead-

line.

Apparently, some form of a petition was filed on

October 29, 1992. The petition filed at that time was

rejected by the Clerk of the Supreme Court because no

motion to proceed in forma pauperis in order to be exempt

from the printing requirements of the Supreme Court

Rules accompanied the improper petition. Furthermore,

Dixie was not served with a copy of this petition. Again,

it was not until November 13, 1992, after the prescribed

ninety days had passed, that Dixie first learned of the

Polks’ decision to seek a writ of certiorari in this case.

The Polks proceeded in a similar fashion when seek-

ing a writ previously in this case. An earlier opinion from

the Fifth Circuit, Polk v. Dixie Ins. Co., 897 F.2d 1346 (5th

Cir. 1990), was entered on April 11, 1990. On July 9, 1990,

the Petitioners filed a petition for a writ of certiorari

which did not comply with the printing requirements of

the rules of this Court. By letter dated July 12, 1990, the

Clerk of Court advised the Petitioners’ attorney that the

petition must be corrected and that upon receipt of a

corrected petition, it would be filed as of the date of the

original petition. The corrected petition was not received

by the Clerk until August 6, 1990.

Obviously, the theory of counsel for the Petitioners is

to file something — anything - in this Court, regardless of

10

whether it sufficiently meets the requirements of the

Supreme Court Rules, and then proceed at his leisure in

filing proper copies of the petition: Absolutely no excuse

was given for failing to follow the procedural guidelines

established by this Court. Because counsel for the Polks

has brought this same case before this Court previously

and was at that time directed by the Clerk as to the

proper requirements, he certainly cannot claim ignorance

or inexperience. Rather, the previous incident serves only

to illustrate his desire to take advantage of the Clerk’s

earlier generosity. To allow such flagrant disregard of the

Court’s procedural rules violates the very purpose of the

rules and hinders the efficient administration of justice.

As stated in Pittsburgh Towing Co. v. Mississippi Valley

Barge Line Co., 385 U.S. 32, 32-33 (1966), reh’g denied, 385

U.S. 995 (1966):

This Court has been generous in excusing

errors of counsel, but if there are to be rules,

there must be some limit to our willingness to

overlook their violation. While we are inclined

to be generous in exercising our discretion to

forgive a mistake and waive the consequences of

negligence, fairness to other counsel and to par-

ties with business before the Court as well as

due regard for our own procedures leads us to

believe that this case does not warrant our

indulgence.

Because the Polks failed to properly file and serve

their Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit within the pre-

scribed ninety days as set forth in 28 U.S.C. § 2101(c) and

Supreme Court Rule 13, proper jurisdiction is lacking in

this case. Alternatively, even if the filing of some form of

11

a petition on October 29, 1992, meets the jurisdictional

requirements, the lack of timely service upon the oppo-

sing party and proof of same, as required by Supreme

Court Rules 12.1 and 29, and the failure to timely file

proper copies and a docket fee, as required by Supreme

Court Rules 12.1 and 33, or a motion seeking to proceed

in forma pauperis as provided under Supreme Court Rule

39, justify a denial of the Polks’ petition under the cir-

cumstances of this case.

II. The Fifth Circuit’s opinion is consistent with this

Court’s decisions in Batson v. Kentucky, 476 U.S. 79

(1986), and Hernandez v. New York, 111 S. Ct. 1859

(1991).

Petitioners attempt to persuade this Court to grant

their petition by arguing that the Fifth Circuit’s opinion

conflicts with this Court’s decision in Batson v. Kentucky,

476 U.S. 79 (1986). Their first argument is that Dixie’s

counsel failed to articulate a neutral explanation “related

to the particular case to be tried.” Batson, 476 U.S. at 98.!

1 Petitioners do not argue that the reasons articulated by

Dixie’s counsel were not racially neutral. A plurality of this

Court stated in Hernandez v. -New York, 111 S. Ct. 1859, 1866

(1991):

A neutral explanation in the context of our anal-

ysis here means an explanation based on something

other than the race of the juror. At this step of the

inquiry, the issue is the facial validity of the prosecu-

tor’s explanation. Unless a discriminatory intent is

inherent in the prosecutor’s explanation, the reason

offered will be deemed race neutral.

Clearly, the reasons articulated by Dixie’s counsel — eye contact

and employment status — meet this standard.

12

While it is true that counsel stated she could not

remember the specific details surrounding the striking of

the jurors in this case, especially since over three years

had passed and the controlling law at the time required

no reasons to be given, she stated unequivocally that her

primary reason was eyeball contact. She was certain that

this was the reason for striking these particular jurors

because that is always the basis for her use of peremptory

strikes. In addition, counsel offered secondary reasons for

striking each of the potential jurors. One was unem-

ployed and one worked for an insurance company.

Because counsel for Dixie prefers jurors who are

employed, but not within the same industry as the party

she represents, she stated that these were additional rea-

sons for striking the panel members at issue. Clearly,

counsel’s stated reasons did relate to the particular case

to be tried and were, thus, in conformity with Batson’s

mandates.

Petitioners next argue that the Fifth Circuit failed to

follow “Batson’s incorporation of the standard of” Texas

Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981),

cited in Batson, 476 U.S. at 98 n.20. Petitioners argue that

the race-neutral reasons articulated in this case were not

“clear and reasonably specific,” as required by Batson, 476

U.S. at 98 n.20, since they were not precise enough to

provide a target upon which to focus a rebuttal. While

Burdine, within the Title VII context, does mention “the

necessity of rebutting the inference of discrimination aris-

ing from the prima facie case,” Burdine, 450 U.S. at 258,

this language clearly refers to the role of those accused of

discrimination, not the accusers. As for those claiming

discrimination, Burdine merely states that they are to “be

13

afforded ‘a full and fair opportunity’ to demonstrate pre-

text.” Burdine, 450 U.S. at 258. Such an opportunity was

afforded the Polks at the hearing on this matter. In fact,

Petitioners’ argument that they could not properly rebut

the reasons articulated in this case is particularly puz-.

zling in light of the extensive cross-examination con-

ducted by Petitioners’ counsel as well as their actually

calling a rebuttal witness at the hearing. (VI R. 22-24.)

Perhaps their complaint is not so much that they could

not “make a rebuttal,” but that their rebuttal was unsuc-

cessful.?

Petitioners go so far as to argue that the Fifth Cir-

cuit’s decision in this case renders Batson illusory and

that “only the elimination of peremptory challenges will

suffice 6 afford black citizens the right to have blacks on

_a jury.” Petition at 7. The importance of peremptory

strikes, however, has consistently been recognized by this

Court. See, e.g., Georgia v. McCollum, 112 S. Ct. 2348, 2358

(1992) (noting “the contribution of the peremptory chal-

lenge to the administration of justice”). Furthermore, this

Court has recognized that although potential jurors may

2 In light of Petitioners’ complaint that the articulated rea-

sons in this case were subjective, as discussed more fully in Part

III of the Argument for Denying the Petition, it should also be

noted that the Court in Burdine, which is relied on so heavily by

Petitioners, actually criticized the Fifth Circuit for placing too

heavy a burden on a defendant in a Title VII case. Burdine, 450

U.S. at 256-58. The court stated further, “The Court of Appeals

also erred in requiring the defendant to prove by objective evidence

that the person hired or promoted was more qualified than the

plaintiff.” Burdine, 450 U.S. at 258 (emphasis added).

FA PN PSST phe EN ON . | | 3 |

i4

not be excluded merely because of their race, “[dJefen-

dants are not entitled to a jury of any particular composi-

tion.” Taylor v. Louisiana, 419 U.S. 522, 538 (1975), quoted in

Holland v. Illinois, 493 U.S. 474, 483 (1990), reh’g denied, 494

U.S. 1050 (1990). Thus, Petitioners’ assertions are incon-

sistent with prior rulings of this Court.

In truth, Petitioners’ request for a writ of certiorari in

this case, as with their reasons for an appeal to the Fifth

Circuit, is based not on a legal question which needs to be

resolved, but on their disagreement with the district

court’s finding that Dixie’s counsel’s stated reasons were

credible and were not racially motivated. Such is not the

basis for either a reversal by an appellate court or the

granting of a petition for a writ of certiorari by this Court.

This Court recognized in Batson that “[s]ince the trial

judge’s findings in the context under consideration here

largely will turn on evaluation of credibility, a reviewing

court ordinarily should give those findings great defer-

ence.” Batson, 476 U.S. at-98 n.21. More recently, the Court

stated: |

In the typical peremptory challenge inquiry, the

decisive question will be whether counsel’s

race-neutral explanation for a peremptory chal-

lenge should be believed. There will seldom be

much evidence bearing on that issue, and the

best evidence often will be the demeanor of the

attorney who exercises the challenge. As with

the state of mind of a juror, evaluation of the

prosecutor’s state of mind based on demeanor

and credibility lies “peculiarly within a trial

judge’s province.”

Hernandez v. New York, 111 S. Ct. 1859, 1869 (1991) (quo-

ting Wainwright v. Witt, 469 U.S. 412, 428 (1985)).

15

The district court, at the hearing on remand in this

case, found that the reasons articulated by counsel for

Dixie were credible and were not racially motivated. The

Fifth Circuit, recognizing the standard of review outlined

in Hernandez, found as follows:

Whether the striking party was or was not moti-

vated by its proffered explanation is a fact-

intensive question which must be decided case

by case in light of the totality of circumstances.

We cannot say that eye contact necessarily is a

phony reason when it is proffered as justifica-

tion for removal of all black jurors. On the

record in this case, the trial court’s conclusion

that Dixie’s counsel was not motivated by racial

consideration is a permissible view of the evi-

dence.

Polk v. Dixie Ins. Co., 972 F.2d 83, 86 (1992).3

Because the Fifth Circuit’s decision in this case is

consistent, contrary to Petitioners’ assertions otherwise,

with this Court’s opinions in Batson v. Kentucky and Her-

nandez v. New York, the petition for a writ of certiorari

should be denied.

3 The Polks, in their Reply Brief filed with the Fifth Circuit,

actually argued that the appellate court should grant oral argu-

ment in this case in order to review the demeanor of Dixie’s

counsel for themselves. Reply Brief of the Appellants at 11-12.

Even assuming that the same attorney would present the appel-

late argument if such were required, this requested procedure,

which is in direct contradiction of this Court’s rulings in both

Batson and Hernandez, would quite clearly invade the province

of the trial court as well as place an unnecessary burden on the

federal appellate courts.

16

III. The Fifth Circuit’s opinion does not conflict with

other circuit courts’ holdings which are based on

similar facts.

After arguing that the Fifth Circuit’s opinion in this

case is inconsistent with this Court’s ruling in Batson,

Petitioners next attempt to persuade this Court to grant

their petition by arguing that the Fifth Circuit’s decision

conflicts with decisions reached in other circuits. A closer

reading of the cases cited by Petitioners, however, reveals

the inaccuracy of these arguments.

Petitioners first argue that the Fifth Circuit’s affir-

mance of the district court’s findings is inconsistent with

the holding in Harrison v. Ryan, 909 F.2d 84 (3rd Cir. 1990),

cert. denied sub nom. Castille v. Harrison, 111 S. Ct. 568

(1990). Petitioners also cite to a federal district court

-opinion, United States v. Cunningham, 713 F. Supp. 165

(M.D.N.C. 1988). In both of these cases, the district court

found that the prosecutor was unable to sufficiently set

forth non-racial reasons for exercising his peremptory

strikes. Accordingly, because “[t]he district court’s factual

determinations, including issues of credibility, are enti-

tled to great deference and are not to be overturned

unless clearly erroneous,” Harrison, 909 F.2d at 86, the

appellate court affirmed the district court’s findings in

Harrison.

Furthermore, in both cases cited by Petitioners, the

prosecutors could not recail anything regarding their rea- ©

sons for striking certain panel members. While thinking

the strikes may have been for various reasons, the prose-

cutors could never say with any certainty. As the Fifth

Circuit correctly noted, when distinguishing the factual

17

situation presented in Harrison, “That is not the situation

here. Dixie’s counsel maintains that she must have relied

on eyeball contact because she always does and may have

relied on other race-neutral factors in line with guidelines

she generally follows.” Polk, 972 F.2d at 85.

In reaching its decision, the Fifth Circuit relied on

two opinions from the Eighth Circuit in which the factual

patterns were more like the case at hand than the facts

presented in Harrison. In United States v. Nicholson, 885

F.2d 481 (8th Cir. 1989), the court was presented with the

following situation:

Because the voir dire had taken place two years

earlier and because he could not locate his notes

made at the time, the prosecutor could not recall

at the hearing the specific reasons why he uti-

lized peremptory challenges against the three

black venire members. Accordingly, the pros-

ecutor presented a standard set of guidelines

that he had used over several years to evaluate

potential jurors.

Nicholson, 885 F.2d at 482. The Eighth Circuit Court of

Appeals held, “Because we do not find the district court’s

finding clearly erroneous, we affirm its holding that the

government’s peremptory challenges were exercised in a

constitutionally permissible manner.” Nicholson, 885 F.2d

at 483. Accord United States v. Wilson, 867 F.2d 486 (8th Cir.

1989), cert. denied, 493 U.S. 827 (1989).

Unlike the uncertainty of the prosecutors in both

Harrison and Cunningham, relied upon by Petitioners,

counsel for Dixie was certain of her reasons for striking

the panel members because of her general practice. Coun-

sel stated at the hearing, “I can tell this Court for sure that

18

the element of eyeball contact is the turning factor in

every decision I make in every case that I try.” (VI R. 8.)

(Emphasis added.) Again counsel stated, “It was eyeball

contact. I can tell you that for sure.” (VI R. 20.) (Emphasis

added.)

Based upon the facts presented and because of the

great deference afforded to the trial court’s findings, the

Fifth Circuit, as the Eighth Circuit in Nicholson and

Wilson, affirmed the decision of the district court. This

decision is not in conflict with the Third Circuit’s holding

in Harrison but is simply based upon a different factual

situation. In all the cases, the appellate court upheld the

district court’s initial decision. .

Next, Petitioners argue that the Fifth Circuit’s deci-

sion conflicts with the Eleventh Circuit’s opinion in Bar-

field v. Orange County, 911 F.2d 644 (11th Cir. 1990), reh’g

denied, 920 F.2d 13 (11th Cir. 1990), cert. denied sub nom.

Barfield v. Lamar, 111 S. Ct. 2263 (1991), in upholding

eyeball contact as a legitimate reason. To the contrary, the

Fifth Circuit’s decision in this case is in accord with the

Eleventh Circuit’s opinion. In Barfield, the counsel

explained his striking of a panel member as follows:

I felt that Ms. Sills was looking at me, and

looking at my client, and looking at the Defen-

dant’s table with an expression that conveyed to

me some hostility, and it was my gut feeling,

based on her facial expression that she was

likely to not be fair and impartial to the Sheriff.

For that reason, I feel that we should strike her.

Barfield, 911 F.2d at 646.

19

This is almost identical to the following statement

made by Dixie’s counsel at the hearing on this matter:

A: It was eyeball contact. I can tell you that for

sure, and on the eyeball contact, they either

weren't looking at me or they were looking

at me and I thought they were not listening

to me when I had eyeball contact. You know

as well as I do that some people roll their

eyes, look away, some people have a smirk

on their face. That is the gut feeling that |

have to react on when I am selecting jurors.

(VI R. 20.)

Petitioners assert that in Barfield, the court “differen-

tiated using ‘body language’ as a reason for exclusion,

from using ‘eye contact’ as a reason for exclusion.” Peti-

tion at 6. This is a mischaracterization of the Eleventh

Circuit's holding. The court did not differentiate between

body language and eye contact. To the contrary, the court

stated, “In Fiudd this court noted that ‘eye contact with

members of the venire and their expressions in response’

were matters attorneys ‘often take into account in exercis-

ing their peremptory challenges,’ and matters the trial

court may consider in deciding Batson questions.” Bar-

field, 911 F.2d at 648 (quoting Fludd v. Dykes, 863 F.2d 822,

829 n.6 (11th Cir. 1989), reh’g denied, 873 F.2d 300 (11th

Cir 1989), cert. denied sub nom. Tiller v. Fludd, 493 U.S. 872

(1989)). While noting that sometimes there would be

nothing more than counsel’s statement to support such

reasons, the court continued, “To some extent, however,

that is true of any explanation offered by counsel. The

credibility decision is for the trial judge.” Barfield, 911

F.2d at 648 n.1. The court concluded, “We -hold that the

20

explanation offered for challekging prospective juror Sills

was not legally insufficient as a matter of law. Stated

otherwise, if the explanation is credible - and we assume

on this appeal that it is — it is sufficiently clear and

specific to pass muster under Batson.” Barfield, 911 F.2d at

648. Petitioners’ reliance on Barfield as creating a conflict

among the circuit courts sufficient for this Court to grant

their petition is clearly misplaced.

Not only is the Fifth Circuit’s opinion in this case

consistent with the Eleventh Circuit’s holdings in Barfield

and Fludd, it is also in accordance with opinions rendered

in the Third, Seventh, and Eighth Circuits in which sub-

jective reasons such as eye contact, lack of attentiveness,

or the general demeanor of a prospective juror were cited

as valid non-racial uses of peremptory strikes.

In United States v. Casper, 956 F.2d 416, 418-19 (3rd

Cir. 1992), the court stated that the reason need not “be

‘quantifiable’ to be race neutral,” and cited with approval

the Fifth Circuit’s decision in United States v. Lance, 853

F.2d 1177, 1181 (5th Cir. 1988) (prosecutor’s observation

of eye contact and demeanor was significant and consti-

tuted neutral explanation of peremptory exclusion).

The Seventh Circuit, in Dunham v. Frank’s Nursery &

Crafts, 967 F.2d 1121 (7th Cir. 1992), was faced with an

argument similar to that of Petitioners in this case. Nev-

ertheless, the court held as follows:

Mr. Galvin’s testimony was that his intuitive

judgment was based not on Mrs. Mitchell’s race,

but on her demeanor in the courtroom, on her

appearing to look in Mrs. Dunham’s direction,

rather than at the court or at the defendant or at

21

Mr. Galvin. This Court has stated that “[a]dequ-

ate explanations for exercising a peremptory

strike may include a prosecutor’s ‘intuitive

assumptions that are not fairly quantifiable.’ ”

Williams v. Chrans, 957 F.2d 487, 490 (7th Cir.

1992) (quoting United States v. Williams, 934 F.2d

847, 850 (7th Cir. 1991)).... In the present case,

Mr. Galvin’s intuitive judgment was based on

the juror’s specific behavior and demeanor in

the courtroom; it is “a neutral explanation

related to the particular case to be tried.” Batson,

476 US. 96. .... ,

Dunham, 967 F.2d at 1124-25. This court, too, cited to the

Fifth Circuit opinion of Lance, 853 F.2d at 1181, in which

eye contact was the stated reason.

Eye contact and demeanor have also been upheld as

sufficient non-racial reasons in several cases from the

Eighth Circuit. See United States v. Swinney, 970 F.2d 494,

496 (8th Cir. 1992) (“Government struck the second black

juror because he wore dark sunglasses and ‘a big gold

watch’ into the courtroom, and the prosecuting attorney

was unable to establish eye contact with him”), cert.

denied, No. 92-6413, 1992 WL 331988 (U.S. Nov. 30, 1992);

United States v. Todd, 963 F.2d 207, 211 (8th Cir. 1992)

(“venireperson . . . appeared inattentive, impatient, and

hostile to the prosecutor”); Reynolds v. Benefield, 931 F.2d

506, 513 (8th Cir. 1991) (prospective juror “challenged

because of the definite impression of the defendants that

his facial expressions and body language indicated hostil-

ity”); United States v. Sherrills, 929 F.2d 393, 394 (8th Cir.

1991) (“prosecutor stated that she had challenged three of

the blacks because they were inattentive”).

22

In Reynolds, 931 F.2d at 512, the court made the

following observation:

It is well to note that feelings are not always’.

expressed in words, and, indeed, may be clearly

manifested by gestures and facial expressions. A

grimace or stare may express hostility or dis-

pleasure quite as clearly as words shouted

across a room. Much literature may be found on

interpreting “body language” as a fundamental

and effective practice in the selection of a jury.

See, e.g., 1 S. Schweitzer, Cyclopedia of Trial Prac-

tice § 144 (2d ed. 1970); 5 Am.Jur.Trials § 65

(1966) (valuable information can be obtained by

observing a juror’s demeanor). It has been noted

that the “body language method” of jury selec-

tion “looks to a juror’s appearance, behavior,

and non-verbal responses, since these are

viewed as giving a truer picture than verbal

answers.” T. Mauet, Fundamentals of Trial Tech-

niques 32 (2d ed. 1988). It may also be relevant to

note “the juror’s attitude toward the lawyer.” Id.

Petitioners’ assertion that the Fifth Circuit’s uphold-

ing of the neutral reason of eyeball contact for Dixie’s use

of peremptory strikes creates a conflict among the circuit

courts is clearly without merit.

Finally, Petitioners argue that a writ should be

granted in this case because the case is unique in exclud-

ing all members of a racial minority. However, courts

have affirmed district courts’ findings of no discrimina-

tion even when all minority members were stricken. See,

e.g., Dunham, 967 F.2d at 1122; Reynolds, 931 F.2d at 508;

Barfield, 911 F.2d at 646.

23

Interestingly, two of the cases cited by Petitioners are

actually two earlier opinions from the Fifth Circuit. Moore

v. Keller Indus., 948 F.2d 199 (5th Cir. 1991), cert. denied,

112 S. Ct. 1945 (1992); United States v. Terrazas-Carrasco,

861 F.2d 93 (5th Cir. 1988). Obviously, these two opinions

cannot be used to argue a conflict between the Fifth

Circuit and other United States circuit courts necessitat-

ing a writ of certiorari in this case. Furthermore, although

the Fifth Circuit stated in these cases that the fact that all

minorities were not stricken “substantially support[ed]

the finding of no discrimination,” Moore, 948 F.2d at 202,

Terrazas-Carrasco, 861 F.2d at 95, the court did not state

the reverse — that excluding all members of a minority

group would automatically result in a finding of discrimi-

nation. When presented with that argument in this case,

the Fifth Circuit refused “to establish such a per se rule.”

Polk, 972 F.2d at 86.

As for the other two cases cited by Petitioners on this

issue, Petitioners misrepresent the decision of the court in

each of these cases. Petitioners contend that the Ninth

Circuit in United States v. Chincilla, 874 F.2d 695 (9th Cir.

1989), held that the “[f]act that all minority members

were excluded from jury panel requires the court to disal-

low purely subjectively based challenges.” Petition at 6.

Nowhere in Chincilla is such a requirement mandated.

The court’s discussion of the fact that all minority mem- -

bers were excluded was within the framework of deter-

mining whether a prima facie case had been established —

the first step in the Batson procedure. Chincilla, 874 F.2d at

698. Such is not a contested issue in this case. Further-

more, although the court in Chincilla did reject the rea-

sons articulated by the prosecutor, there is no indication

24

that this rejection was based on the striking of all the

minority members. Rather, the court found certain incon-

sistencies and weaknesses in the prosecutor’s explana-

tions. Chincilla, 874 F.2d at 698-99.

Petitioners’ reliance on the Second Circuit’s decision

in Roman v. Abrams, 822 F.2d 214 (2d Cir. 1987), cert.

denied, 489 U.S. 1052 (1989), reh’g denied, 490 U.S. 1014

(1989), is an even greater enigma. Petitioners conclude

from this case that “[g]eneral responses regarding ‘life-

style’ and ‘background’ are inadequate when utilized to

exclude all minority members.” Petition at 6. The exclu-

sion of all minority members, however, was not even an

issue in this case. The defendant’s argument was based

on the prosecutor’s striking of whites from the jury;

nevertheless, the jury actually empaneled “consisted of

three Whites and nine persons who were Black or His-

panic.” Roman, 822 F.2d at 218. Consequently, this is not a

case in.which the exclusion of all minority panel mem-

bers had any bearing whatsoever on the court’s decision.

The Second Circuit in Roman merely upheld the

lower court’s decision that the various reasons given by

the prosecutor were inadequate to rebut the prima facie

case established by the defendant. The district court had

“found that the reasons adduced by Levin [the prosecu-

tor] for his challenges were circumlocutory, trivial, child-

ish, incredible, and designed to cover up the ADA’s

discriminatory intent.” Roman, 822 F.2d at 228. Because of

the lower court’s findings, the court stated as follows:

The findings of the trial court are to be

upheld on appeal unless they are clearly erro-

neous. Assessments of credibility of witnesses

are peculiarly within the province of a trier of

“ny

25

fact who has had an opportunity to view and

hear the witnesses, and such assessments are

entitled to considerable deference on review.

Plainly the district court’s decision to disbelieve

the testimony of a witness who has appeared

before it must be respected where the evidence

adduced supports that decision.

Roman, 822 F.2d at 228 (citations omitted).

Because the Fifth Circuit’s decision in this case does

not confit with decisions of other circuits, including

those cited by Petitioners, the Polks’ petition for a writ of

certiorari should be denied.

¢

CONCLUSION

Based on the foregoing discussion, Respondent Dixie

Insurance Company respectfully requests this Court to

deny the Polks’ Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit.

Respectfully submitted,

Dixie Insurance Company,

Respondent

BY: Suzanne N. SAUNDERS

(Counsel of Record)

Respecca L. WiccINs

SAUNDERS, BELL, FORTENBERRY

AND Corson, P.A.

Post Office Box 16295

Jackson, Mississippi 39236-6295

(601) 362-0596

Attorneys for Respondent