Opposition Brief — Arizona v. Lucas

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No. 01-399

IN THE

SUPREME COURT OF THE UNITED STATES

STATE OF ARIZONA

Petitioner,

{ ra

VS. ‘i

is DeANDRE LAVAR LUCAS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE

ARIZONA SUPREME COURT

: RESPONDENT’S BRIEF IN OPPOSITION oD a Nae Sa

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| GARRETT W. SIMPSON ,

Sears et Rips: 6s oP onartns serge re Deputy Public Defender ¢: ie ee 7, «2

Rice Ss aa 411 N. Central Ave. No. 670

c ' Phoenix, Arizona 85004

gdattomey J for t RESPONDENT... - >

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No. 01-399

IN THE

SUPREME COURT OF THE UNITED STATES

STATE OF ARIZONA

Petitioner,

VS.

DeANDRE LAVAR LUCAS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE

ARIZONA SUPREME COURT

RESPONDENT’S BRIEF IN OPPOSITION

GARRETT W. SIMPSON

Deputy Public Defender

411 N. Central Ave. No. 670

Phoenix, Arizona 85004

Attorney for RESPONDENT

¥whlaaits RRB ne PR

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QUESTION PRESENTED

Shall a patent Batson! violation be forgiven when the

state admits unlawfully discriminating, but offers an

additional, nondiscriminatory reason for the strike?

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

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| TABLE OF CONTENTS

:

Page

i QUESTION PRESENTED ......ccccscccsssssecssssssssessssssnssszeenes

TAME, CW BUTT iii isn cttcssssccenoncvenisntea iii

5

; CONSTITUTIONAL PROVISIONS INVOLVED.......... iv

RESPONSE TO PETITION FOR WRIT OF

T_T He Me LT ee TET 1

REASONS FOR DENYING THE PETITION.................. l

I. The issue presented is moot. Before petitioning

for a writ for certiorari, the Order and Mandate of the

Arizona Court of Appeals had issued.............ccscese0ee l

II. No compelling grounds exist to grant a writ of

certiorari since the Arizona Court of Appeals opinion

is consistent with federal law. ...........c:cccssssseeseeeeeeeeees 3

Ill. If the wnt is granted, the Court should hold that a

discriminatory purpose for a peremptory jury

challenge violates Batson, regardless if the state

poses a second, non-discriminatory

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TABLE OF AUTHORITIES

PAGE

CASES

Batson v. Kentucky, 476 U.S. 79 (1986) ...........- 3, 4, 5, 6, 7,8

Hernandez v. New York, 500 U.S. 352 (1991) ......cc::ccscecceeeees 7

J.E.B. vy. Alamabama, ex rel. T.B.,

BOE EEE, FF Cie vacctsccnnercscncensentcinsensdnntsonnnennteasnesn 3, 5, 6, 7

CONSTITUTIONAL PROVISIONS

ED Coie, ARG, BG nessccccnscnnccnsecesncnccescascanssensncsosssnansssananest 4

OE Pee ee Tae... «, .cccctnnndshsmnsnndtsehinemniiasedenndnhnnmanestiedabiennseee 2

RULES

Rule 10, Supreme Court Rule ............ccccccscesseeseeeseeeeeseeneeeseees 3

Rule 31.23(b)(2), Ariz. Rules of Crim. P. .............ceseeessseeeeees 2

ill

CONSTITUTIONAL PROVISIONS INVOLVED

Article II1., Section 2:

The judicial Power shall extend to all Cases, in Law

and Equity, arising under this Constitution, the Laws of the

United States, and Treaties made, or which shall be made,

under their Authority;--to all Cases affecting Ambassadors,

other public Ministers and Consuls;--to all Cases of admiralty

and maritime Jurisdiction;--to Controversies to which the

United States shall be a Party;--to Controversies between two

or more States;--between a State and Citizens of another

State;--between Citizens of different States;--between Citizens

of the same State claiming Lands under Grants of different

States, and between a State, or the Citizens thereof, and foreign

States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public

Ministers and Consuls, and those in which a State shall be

Party, the supreme Court shall have original Jurisdiction. In

all the other Cases before mentioned, the supreme Court

shall have appellate Jurisdiction, both as to Law and Fact,

with such Exceptions, and under such Regulations as the

Congress shall make.

Amendment 14, Section 1.

... [NJor shall any State deprive any person of life, liberty,

or property without due process of law; nor deny to any

person within its jurisdiction equal protection of the laws.

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RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

DeAndre Lavar Lucas ("Lucas") respectfully requests

the Court deny the petition by the State of Arizona ("State") for

a wnit of certiorari.

JURISDICTION

This Court lacks jurisdiction. Before applyin, .or a

writ of certiorari in August 2001, the Arizona Supreme Court

denied Review and the Arizona Court of Appeals on June 22,

2001 entered its Order and Mandate (Appendix A), returning

the proceedings to Maricopa County (Arizona) Superior Court

for a new trial.

REASONS FOR DENYING THE PETITION

I. The issue presented is moot. Before petitioning for

a writ of certiorari, the Arizona Supreme Court

denied Review and the Arizona Court of Appeals

entered an Order and Mandate returning the

proceedings to Maricopa County Superior Court for

a new trial.

The Arizona Court of Appeals issued its opinion in this

case on February 13, 2001 (See, Petitioner’s Appendix A). The

Arizona Supreme denied review May 23, 2001, returning the

matter to the Arizona Court of Appeals (See Petitioner’s

Appendix B). However, the Petitioner never sought stay of the

Arizona Court of Appeals and on June 22, 2001 it issued its

Order and Mandate (Respondent’s Appendix A).

The prosecution could have sought a stay of the

issuance of the state court mandate pursuant to /7 A.R.S.,

Arizona Rules of Criminal Procedure, 31.23(b)(2), but did not

(Respondent’s Appendix B).

Lucas acknowledges the state filed it’s Petition within

90 days of denial of review by the Arizona Supreme Court. But

he submits that this Court should not entertain jurisdiction in a

case where proceedings are final on appeal. The state has in

effect waived its night to seek certiorari. Likewise, the state has

no authonty to request this Court to provide an advisory

opinion. The state chose not to seek a stay. Once a mandate is

issued, the appellate process is concluded. The issue the state

brings to the Court is no longer a “case” or “controversy” as

required for jurisdiction by Article II] of the Constitution. Any

attempt to renew the case would profoundly prejudice Lucas’s

constitutional nght to due process and equal protection of law

because the state’s issue is final on appeal and moot.

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Il. No compelling grounds exist to grant a writ of

certiorari since the Arizona Court of Appeals

opinion is consistent with Batson. It merely held

that the State may not engage in patent, unlawful

discrimination in the jury selection process, even if

it offers a second, non-discriminatory reason for the

strike.

Apart from mootness, there is no compelling reason to

grant the state’s petition. Supreme Court Rule 10 sets forth the

limited circumstances in which this Court will exercise its

discretionary powers in granting a petition for writ of certiorari.

A careful reading of the opinion (Petitioner’s Appendix A)

shows this case does not fall under Rule 10.

The Arizona Court of Appeals Opinion does not mis-

apply or conflict with Batson v. Kentucky, 476 U.S. 79 (1986),

nor with J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994).

As set out in the Arizona Court of Appeals’s opinion

(Petitioner’s Appendix A), DeAndre Lucas, who was 18 years-

old at the time of the crime, testified he was only trying to take

the victim’s purse when he encountered her. She contended, in

spite of this, that he kidnapped her and tried to sexually assault

her. Lucas was convicted as charged and he was sentenced to

17 flat years in prison (Petitioner’s Appendix A-2). However,

during jury selection, the state struck a potential juror with a

peremptory challenge. Lucas objected, citing Batson, because

Mr. Lucas is black and the potential juror was the only African-

American male on the panel. The state countered it struck the

potential juror mot because he was black, but rather because he

was a lawyer and because, the prosecutor stated, he was a

“southern male,” a male who likely harbored, she said, latent

animosity towards women—such as the prosecutor herself—

who worked while pregnant. (Petitioner’s Appendix A-4).

The trial court overruled Lucas’s Batson objection

because it’s second reason—the juror’s occupation—was

neutral. But the Arizona Court of Appeals dismissed the non-

discriminatory reason for the strike. It found that under Batson,

once the court discerns an inherent or pretextural reason for the

strike rooted in unlawful discrimination, any other non-

discrimnatory reason stated for the strike is tainted.

(Petitioner’s Appendix A-6). In Batson, this Court held that

the equal protection clause of the Fourteenth Amendment

governs the exercise of peremptory challenges.

The Court held that a “defendant does have the nght to

be tried by a jury whose members are selected pursuant to

nondiscriminatory criteria,” 476 U.S., at 85-86. This Court has

long “recognized that whether the trial is criminal or civil,

potential jurors, as well as litigants, have an equal protection

right to jury selection procedures that are free from state-

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sponsored group stereotypes rooted in, and reflective of,

historical prejudice,” id.

Lucas submits the decision below is harmonious with

Batson because the court rebuked the state for employing a

“state-sponsored group stereotype” in its jury selection

procedure that violated Lucas’s right to have the jury selected

by non-discriminatory criteria.

In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994),

this Court extended Batson to prohibit gender bias in the use of

peremptory strikes:

“We hold that gender, like race, is an unconstitutional

proxy for juror competence and impartiality,” 511 U.S.128-

129.

The opinion below is congruent with J.E.B. because, as

with Batson, J.E.B. extends to gender the right to have a jury

selected with non-discriminatory criteria. In Lucas’s case, the

state discriminated against the potential juror explicitly and

nastily, one must say, on the basis of gender, i.e., a state-

sponsored group stereotype.

Since the opinion of the Arizona Court of Appeals does

not conflict with Batson or J.E.B. there is no reason to grant the

writ of certiorari.

Il. If the writ is granted, the Court should hold that a

discriminatory purpose for a peremptory jury

challenge violates Batson, regardless if the state

poses a second, non-discriminatory reason.

The petitioner cffers a dismal vision for jury selection.

It asks this Court to allow the state to engage in egregious,

manifest discrimination, so long as it may reach for the fig leaf

of a secondary motive.

This so-called “dual motivation” theory makes mock of

the heart of Batson. Batson’s very point is to see that members

of the defendant’s race—or gender, J.E.B.—are not victims of

“purposeful discrimination” that excludes them from the jury,

476 U.S. 93. What becomes of that criterion where the

unlawful exclusion on the basis of gender is out-front,

explicit—even exulted—but nevertheless excused because the

juror was also struck because he or she was a vegetarian, or a

Fabian, or a member of the A.A.R.P.?

Batson’s quest can be stated, “[T]he ultimate issue is

whether the state has discriminated in selecting the defendant’s

venire,” 476 U.S. 94. What becomes of that mission if a

prosecutor may brazenly state, “Why, of course I have a

problem with Arab women, such as Mrs. Ali, serving on my

juries, but I also struck her because she never finished high

school.”? Batson says that discrimination “. . . undermines

public confidence in the fairness of our system of justice.”

J.E.B., 511 U.S. at 142, fn. 13. Allowing “dual motivation”

would cripple public confidence in the American system of

justice. It would put courts in the dreadful position of

welcoming overt racism and sexism in the selection of juries,

so long as there was a second, non-discriminatory reason stated

for the strike. Another cardinal flaw behind the dual

motivation cases cited by the state is that they do not consider

| properly Batson’s third step. This end game is where the trial

court weighs the reason or reasons for the strike and determines

whether the opponent has carried the burden of showing

purposeful discrimination, see, e.g., Hernandez v. New York, -

500 U.S. 352, 359-360 (1991). If the state concedes unlawful

discrimination, under Batson—as happened in Lucas’s

case—there is nothing to be weighed. There is no issue that the

state was not purposefully discriminating and the existence of

an ancillary, non-discriminatory motive is completely beside .

the point.

Further, to state that a second, non-discriminatory

purpose could ever trump the strike’s overt racism or

unconcealed gender bias flatly contradicts Batson’s purpose.

Finally, put aside whether the discriminatory intent

behind Reason #1 was overt or pretextural. A rational trier of

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fact should give no weight at all to Reason #2, the “neutral”

non-discriminatory reason, if the state has confessed that its

Reason #1 was product of its own bald-faced, unlawful bias.

Likewise, no weight should be given to reason #2—however

“neutral”—where the court finds that Reason #1 was a pretext

and that in fact the state unlawfully discriminated.

Lucas respectfully asks the Court to reject the Petition

and not issue the writ of certiorari.

CONCLUSION

The petition for wnt of certiorari should be denied

because the issue is moot. Further, the Anzona Court of

Appeals opinion does not violate Batson, nor the opinions of

this Court that followed. Finally, should the Court take this

case, it should reject “dual motivation” as a means of avoiding

the natural and logical consequences of a Batson violation.

Respectfully submitted,

GARRETT W. SIMPSON

Deputy Public Defender

(Counsel of Record)

411 North Central, No. 670

Phoenix, Arizona 85004

(602) 506-0920

Counsel for RESPONDENT

APPENDIX A

la acta

“87 NIN THE

COURT OF APPEALS

STATE OF ARIZONA

‘ DIVISION ONE

STATE OF ARIZONA, No. 1 CA-CR 97-0567

. = DEPARTMENT B

” Maricopa County

Superior Court

DeANDRE LAVAR LUCAS, No. CR-99-90354

Appellant.

ORDER and MANDATE

Janet A. Napolitano, The Attorney General

By: Randall M. Howe, Chief Counsel,

Criminal Appeals Section

Consuelo M. Ohanesian, Assistant Attorney General and

James P. Beene, Assistant Attorney General,

Attorneys for Appellee

Maricopa County Public Defender

By: | Garrett W. Simpson, Deputy Public Defender

Attorneys for Appellant

a

The opinion of this Court in the above matter was filed on February 13, 2001.

A petition for review was filed. The record was forwarded to the Arizona Supreme

Court. By order, dated May 23, 2001, the Arizona Supreme Court denied the petition

for review, Supreme Court No. CR-01-0096-PR.

IT IS ORDERED in conformity with the opinion attached hereto.

IT IS FURTHER ORDERED that a certified copy of the foregoing ORDER and

MANDATE and a copy of the opinion of the court were mailed to the Clerk of the Superior

Court for MARICOPA County, Arizona, on June 22, 2001. A copy of the ORDER and

MANDATE and a copy of the opinion were mailed to the Honorable Barabara M. Jarrett,

Judge, and a copy of the ORDER and MANDATE was mailed on said day to each party

appearing or the attorneys of record; as well as the MARICOPA County Attomey.

ORDER and MANDATE

Page Two

1 CA-CR 99-0567

DEPARTMENT B

MARICOPA County

Superior Court

No. CR 99-90354

IT IS FURTHER ORDERED pursuant to this Court’s

order of the 11th day of March, 1965, that the Clerk of this

Court return to the Clerk of the Superior Court, all records,

exhibits, and other matters received form said Clerk of the

Court in aid of the consideration of this matter.

DATED June 22, 2001.

/s/ Edward C. Voss

VICE CHIEF JUDGE

All of the foregoing directives were

complied with June 22, 2001.

GLEN D. CLARK, Clerk

By

/s/ Barbara J. Hill

Deputy Clerk

APPENDIX B

17 A.R.S., Arizona kules of Criminal Procedure, Rule 31.23(b)

states:

(b) Stay of Mandate Pending Application for Certiorari.

(1) Automatic Stay in Capital Cases Affirming Death

Sentence. The clerk of the Supreme Court shall issue the

mandate in capital cases when the time for filing a petition for

writ of certiorari in the United States Supreme Court from the

decision affirming the defendant conviction and sentence on

direct appeal has expired, or, in a case in which a petition for

writ of certiorari has actually been filed, when the clerk of the

Supreme Court is notified by the United States Supreme Court

that the petition has been denied. The filing of a petition for

rehearing of the denial of a petition for writ of certiorari shall

not delay the issuance of the mandate.

(2) In All Other Cases.

(i) A stay of the issuance of the mandate of either the

Court of Appeals or the Arizona Supreme Court pending

application to the United States Supreme Court for a writ of

certiorari may be granted upon request.

(ii) An application for a stay of the issuance of a

mandate of the Arizona Supreme Court may be filed with the

clerk of the Arizona Supreme Court within 15 days after the

filing of the court's opinion, memorandum decision or order

denying a motion for reconsideration.

(iii) An application for a stay of the issuance of a

mandate of the Court of Appeals may be filed with the clerk of

the Court of Appeals within 15 days after an order of the

Supreme Court denying a petition for review, or in any other

~ situation requiring the Court of Appeals to issue a mandate.

(iv) The stay shall not exceed 90 days unless the period

is extended for cause shown. If, during the period of the stay,

there is filed with the clerk of the appropriate court a notice that

the party who has obtained the stay has filed a petition for a writ

of certiorari, the stay shall continue until the clerk is notified by

the United States Supreme Court that the writ has been denied

or, in a case in which the writ has been granted, that a mandate

has been issued by the United States Supreme Court.

Be

No. 01-399

IN THE

SUPREME COURT OF THE UNITED STATES

STATE OF ARIZONA,

Petitioner,

VS.

DeANDRE LAVAR LUCAS,

Respondent.

PROOF OF SERVICE

I, Garrett W. Simpson, do certify that on this 2 Day

of September 2001, as required by Supreme Court Rule 29, I

served the foregoing Respondent's Brief In Opposition on all

parties required to be served by depositing an envelope

containing these documents in the United States Mail, first-

class postage prepaid, and addressed to counsel for the State of

Arizona, Consuelo M. Ohanesian, Assistant Attorney General,

1275 West Washington Street, Phoenix, Arizona 85007.

I declare under penalty of perjury that the foregoing is

true and correct.

MARICOP NTY PUBLIC DEFENDER

By

GARRETIW/SIMPSON

Deputy Public Defender

(Counsel of Record)

411 N. Central, Suite 670

Phoenix, Anzona 85004

(602) 506-0920

Counsel for RESPONDENT