Petition for Writ of Certiorari — Weaver v. Hinshaw

Supreme Court, U.S.

(1) FILED

02 944 0C1 9 2002

No.

OFFICE OF THE CLERK

In The

Supreme Court of the Hnited States

Jacqueline Weaver, Substitute Administrator of

The Estate of EvaMae H. Hearn, Deceased,

Petitioner,

Vv.

Michael A. Hinshaw, M.D., General Surgeons, Inc.

and Reid Hospital & Health Care Services,

Respondents.

On Petition For Writ of Certiorari

To The Indiana Supreme Court

PETITION FOR WRIT OF CERTIORARI

Karen Baxter Neiswinger

Attorney At Law

6100 N. Keystone Avenue

Suite #235

Indianapolis, IN 46220

Telephone: (317) 251-2250

Attorney For Petitioner

A. Question Presented For Review

Whether the equal protection and due process rights

of Petitioner, an African-American, and Ellen Mabry,

the only available African-American venire person,

were violated when the trial judge removed Ms. Mabry

from the preassigned numerical queue and replaced

her with a Caucasian juror, because she was late for

jury duty, arriving during the trial court’s general voir

dire examination, but prior to the parties’ voir dire

examination.

Parties To the Proceeding in the Court

Whose Judgment is Sought to be Reviewed:

Jacqueline Weaver, Substitute Administrator of

the Estate of EvaMae Helouise Hearn, Deceased

Michael A. Hinshaw, M.D.

General Surgeons, Inc.

Reid Hospital & Health Care Services, Inc.

Cc. Table of Contents

Page(s)

Citations of the Official and Unofficial

Reports of the Opinions and Orders

Entered in the Case by Courts or

Administrative Agencies............. 1

Statement of the Basis for

Jurisdiction in This Court............ 1-2

Constitutional Provisions, Treaties,

Statutes, Ordinances, and Regulations

Involved in the Case................ 2

Argument

The trial court’s removal of the

only available African American

potential juror, on the grounds

that she missed a portion of the

court’s general voir dire, was

arbitrary and resulted in a denial

of the equal protection and due

process rights of both Petitioner

and the potential juror......... 19

Appendix

Separately bound, with table of contents.

Table of Cited Authorities

Cases

Alexander v. Louisiana, 405 U.S. 625 (1972)...

Ashabraner v. Bowers 753 N.E.2d 662

Re re rrr er ores see

Avery v. Georgia 342 U.S. 559 (1953) ........

Batson v. Kentucky, 476 U.S.79, 106 S.Ct. 1712,

90 L.Ed2d 69 (1986)............ aap fe

Castaneda v. Partida, 430 U.S. 482 (1977) .....

Edmonson v. Leesville Concrete Co., 500 U.S.

a) Be Pee err er

ExParte Virginia, 100 U.S. 339 (1880).........

Hernandez v. Texas, 347 U.S. 475 (1954) .......

Hill v. Texas, 316 U.S. 400 (1942) ............

McCants v. State, 686 N.E.2d 1281 (Ind., 1997) . .

McCray v. New York, 461 U.S. 961 (1983)......

iv

Page(s)

21, 22,

27, 29

17

21, 23

16,17,

19, 20,

21, 22,

23, 27,

21, 28

16-17

Swain v. Alabama, 380 U.S. 202 | ear. 19

Washington v. Davis, 426 U.S. 229 | ee 22

Whitus v. Georgia, 385 U.S. 545 a, Spee 22

D. Citations of the Official and Unofficial

Reports of the Opinions and Orders Entered

In the Case by Courts Or Administrative

Agencies.

Appendix Pages

Order Regarding

Trial by Jury and

Judgment ......... 1-10

Memorandum Decision of

the Indiana Court of Appeals 10-22

Order Denying Petitioner’s

Motion to Correct Errors... 33-35

Order of the Indiana Supreme

Court denying Petitioner’s

Petition To Transfer to the

Indiana Supreme Court, dated

Suet 24, SO Sec ciswets es 65-66

~

E. Concise Statement of the Basis For

Jurisdiction in the United States Supreme

Court.

(I) Date the Judgment or Order Sought To

Be Reviewed Was Entered

July 11, 2002 Order of the Indiana

Supreme Court

Denying Appellant’s

Petition To Transfer

of Jurisdiction.

saad

(ii) Date of Any Order Respecting Rehearing,

or Extension of Time to File the Petition

For A Writ of Certiorari:

Not Applicable.

(iii) | Cross-Petition for a writ of Certiorari:

Not applicable.

(iv) | Statutory Provision Believed to Confer on

this Court Jurisdiction to Review on a

Writ of Certiorari the Judgment or Order

in Question:

28 U.S.C. Sect. 1257.

Supreme Court Rule 10: The Indiana

Court of Appeals has decided an

important question of federal law that

has not been, but should be, settled by

this Court. The Indiana Court of

Appeals has decided an important

question of federal law that conflicts with

relevant decisions of this Court.

(v) Rule 29.4 notifications: Not Applicable.

Constitutional Provisions, Treaties,

Statutes, Ordinances, and Regulations

Involved in the Case:

Sixth Amendment to the Constitution of the ~

United States. Appendix p. 55.

Fourteenth Amendment to the Constitution of

the United States of America Appendix p. 55.

2

G. Concise Statement of the Case Setting Out

the Facts Material to Consideration of the

Questions Presented:

(I) Review of State Court Judgment

This is a medical malpractice wrongful death

case originally brought by Robert Daniel Hearn,

Administrator of the Estate of his wife, EvaMae

Helouise Hearn, Deceased, in the Wayne County,

Indiana, Superior Court 1. Jacqueline Weaver, the

Decedent’s only child, was substituted as

Administratrix upon the death of Robert Daniel Hearn

during the pendency of this appeal in Indiana.

Petitioner and his wife were African-American.

Persons summoned for jury duty were assembled in

the courtroom and asked whether there were any

hardship or other grounds that would prevent service

as ajuror. An African-American woman approached

the bench and indicated that she was responsible for

the care of her invalid mother and that she needed to

be excused. She was excused. This event does not

appear in the record. After excusing jurors due to

hardship, the trial court commenced general voir dire

questioning of the remaining persons who had been

summoned for jury duty, all of whom were Caucasian.

At a point into the trial court’s general voir dire

of potential venire persons, (time involved is disputed

by the parties) Ellen Rochelle Mabry, an African-

American woman who had been summoned for jury

duty, entered the courtroom and sat in the back of the

room. The trial judge observed her arrival, but

ignored her and continued asking general voir dire

questions of the Caucasians who had been

summoned for jury duty for an additional period of

3

‘

time, when the bailiff interrupted and advised him

that Ms. Mabry was present. The following is from the

record of the proceedings commencing at the point

when the bailiff interrupted the court’s voir dire:

COURT BAILIFF:

THE COURT:

COURT BAILIFF:

COURT:

COURT BAILIFF:

THE COURT:

COURT BAILIFF:

COURT BAILIFF:

THE COURT:

COURT BAILIFF:

THE COURT:

JUROR MABREY:

THE COURT:

Judge?

Um?

Ellen Mabrey (sic) is here.

Okay.

She hasn’t been sworn yet.

Is she still outside you say?

No. (inaudible).

Juror 395.

And at what point did Miss

Mabrey come in?

She just came in a few

minutes ago.

I take it, ma’am, you've not

been here for all my

questions then.

(inaudible).

Okay. Let me ask you if

you could just sort of stand

by for us and if you’re

needed, why, we'll get to

you, if not, maybe then you

won’t have to serve.

(Voir dire continues)

MS. NEISWINGER: Judge, may we approach

the bench. (Unintelligible)

Mabrey she was supposed

to - she came ahead of

Criscinda Elsrod. She’s

still not coming in.

THE COURT: That’s the thing we need to

make a bench conference

or a bench comment on

after we get the jury

selected.

MS. NEISWINGER: Well, is she eliminated?

Ms. Mabrey?

THE COURT: She was moved to the last -—

I told her that when she left

the courtroom.

™~™

MS. NEISWINGER: She was what?

THE COURT: I excused - she was moved

to the end of the panel. I’ve

excused everything -

everybody from the first

eight on, which included

MS. NEISWINGER:

THE COURT:

her, so - in other words, I

indicated to you I was not

willing to bring her in and

go through everything we

had to go through with all

the other jurors so that she

would be a part of the

panel.

(Unintelligible).

I know. We will.

(voir dire continues.)

THE COURT:

MS. NEISWINGER:

THE COURT:

Okay. I think, so we don’t

forget it, at 2:15, there was

a bench conference at

which plaintiff's counsel

asked about Miss Mabrey.

I've got to find her number

here.

She’s number 395.

Okay. The question was

why Ms. Elsrod was put

into the jury box to replace,

I think, it was Mr. Steele,

who, at that time was

excused and not Ms.

Mabrey. Ms. Mabrey was

not here when we started

voir dire examination, was

not sworn with the other

jurors and a portion, at

least, of the Court’s voir

dire examination had

already occurred at the

time she entered the

courtroom. Then, .it was

sometime before I was told

who she was. I saw an

individual enter, but I

really didn’t know who that

person was. So when I was

asked do we replace juror

Steele with juror Elsrod

(sic, should read “Mabry”,

my response was no. To do

that we would have had to

stop all proceedings, go

back, deal with juror |

Elsrod (sic) individually to

get her up to the point

where all the other jurors

were in order to accomplish

that. Since we’re dealing

with this many people’s

lives in selecting a jury, I

elected not to do that. So,

not whether you agree with

‘ my decision there or not,

but is that a fair statement

of what occurred during the

bench conference?

MS. NEISWINGER: We agree - we agree that

Ms. Mabrey was over - was

passed over, but she was

not dismissed from these

proceedings. Our objection

is on the grounds that Ms.

Mabrey is an African-

American, my client is an

African-American and the

equal protection and due

process clauses of the

United States Constitution

give him the right to have a

jury that is fairly selected

and to the maximum extent

possible, representative of

the community. She was

present, we didn’t believe

that she missed much of

the Court’s voir dire that

she could be brought up to

speed rather quickly. She

was passed over both in

terms of replacing Mr.

Steele, who was the

employee of one of the

defendants here, and also

was passed up for the

purposes of sitting as an

alternate juror. And it is

our contention that it

would not have taken that

much time to have asked

her the voir dire questions

and she only missed

approximately, we - in my

THE COURT:

MS. NEISWINGER:

estimation ten minutes or

_ so of what the Court’s

questions were.

I totally disagree with that

time estimate, but that’s up

to you, I guess.

Well, but what the result is

is that the jury, both in

terms of the jurors and

alternates, are now all

white and this was an

opportunity, at least, for us

to have an opportunity to

have an African-American

juror on this jury, and for

that reason, we objected at

the time when Ms. Elsrod

replaced Brian Steele. Ms.

Elsrod was juror number

396. She replaced juror

number 384. The next

person in the queue and ‘as

I understand in our

preparation for this trial

was that the jurors were to

be taken in the order in

which their juror

questionnaires are

numbered and she was

excluded from that list and

we don’t believe that the

grounds comply with the

Constitution’s requirements

THE COURT:

MS. WATTS:

MR. WHALEY:

MS. NEISWINGER:

for his equal protection and

due process rights and on

that ground we objected,

and we did object promptly

when Ms. Elsrod was

seated and also at the time

when the alternate jurors

were brought in and we

believe that - that he was

entitled to at least have the

opportunity to have a

representative of his own

race sit on the jury or at

least as an alternate.

I'll ask the defendants, was

my statement a fair

statement of the bench

conference that occurred

here?

Yes, Your Honor.

The only - the only thing

that I noticed, Your Honor,

is that I think you used Ms.

Elsrod’s name once when

you meant Ms. Mabrey’s

name.

No, he said Ms. Elsrod is

the one he put in place of

Mister - Mr. Steele, that’s

what he said.

10

MR. WHALEY: Well, I think he said that at

first and I just thought that

the names got messed up

later, but maybe I’m wrong.

THE COURT: Okay. I - it was Ms.

Mabrey who came.in late.

MR. WHALEY: Right.

THE COURT: Was not sworn and Ms.

Neiswinger’s right, I

indicated that she should

go out with the other jurors

who were outside the

courtroom. If we needed

her services at the end, we

would call upon her,

otherwise we went ahead

and I used Ms. Elsrod to

replace Mr. Steele and

that’s - those are the

names involved.

MR. SHUBAT: Judge, I would just like to

put on the record that my -

I wrote down that you

started questioning the

jurors at 1:20 and based

upon her statement that

she was here for 20

minutes or so, that means

that she would have had to

miss about 35 minutes

rather than the ten at least

1]

—————————————————————ee—V3o__

THE COURT:

MS. NEISWINGER:

THE COURT:

MS. NEISWINGER:

THE COURT:

MS. NEISWINGER:

by my estimation.

Okay.

To be honest, I wasn’t

watching the clock either

time, but it didn’t seem to

be like she missed a

massive amount of what

had gone forward and I -

we believe that she could

have been given thé oath

and brought up to speed

rather quickly considering

that it’s an important

constitutional right and one

that has been recognized

by the United States

Constitution - or the United

States Supreme Court.

And since it is a

fundamental right, we felt

that it was important to at

least the opportunity be

presented.

Anything further?

I don’t think so. Clyde, do

you have anything further?

Yes or no?

No, your Honor. I think

we've already stated our

objections. We did - I don’t

12

think there is a dispute

though, in case it should

come to this later on, that

we did make a timely

objection at the time that

Ms. Elsrod replaced Mr.

Steele. ‘

THE COURT: Your objection was at 2:15.

I noted the clock and that’s "

when we had the bench

conference.

MS. NEISWINGER: Plus we also approached

the bench at the time that

the panel of potential

alternates was brought in

as well.

THE COURT: That’s true.

MS. NEISWINGER: So we objected on both

3 occasions. '

THE COURT: Okay. All right. Can we go

on then?

MS. NEISWINGER: Yes.

(End of hearing as it relates to Juror

Mabrey).Transcript, pp. 29-34.

The all-Caucasian jury returned a verdict in

favor of the Defendants in all respects on December i

18, 2000, which was reduced to Judgment.

13

(Appendix, pp. 1-10). In the “Order Regarding Trial

by Jury and Judgment,” Jd, the trial court judge

stated the following: “The Court estimated that it had

questioned prospective jurors for approximately 35

minutes at the time Ms. Mabry entered the

courtroom” (Appendix, p.2, emphasis added).

However, based upon the transcript, Petitioner

contends that while Ms. Mabry may have missed 35

minutes of the court’s general voir dire, she was not 35

minutes late in appearing for jury duty:

MR. SHUBAT: Judge, I would just like to

put on the record that my -

I wrote down that you

started questioning the

jurors at 1:20 and based

upon her statement that

she was here for 20

minutes or so, that means

that she would have had to

miss about 35 minutes

rather than the ten at least

* by my estimation.

THE COURT: Okay.

Transcript p. 33, lines 20-26.

The foregoing exchange from the transcript

indicates that Ms. Mabry may have been

approximately 15 minutes late in arriving, and sat in

the back of the courtroom for about 20 minutes more

until the Bailiff interrupted the proceedings

While the parties dispute exactly how late Ms.

i4

Mabry was, there is no dispute that the voir dire

which she missed was a portion of the trial court’s

general voir dire. There is no dispute that the parties

had not yet commenced their voir dire questioning of

the venire panel when the above exchange occurred.

Petitioner filed a timely motion to correct errors

on December 22, 2000, (Appendix, pp. 22-33) in

which Petitioner argued that the removal of Ms. Mabry

from consideration as a juror violated Petitioner’s

equal protection rights.(Appendix, pp. 30-31). The

trial court denied Petitioner’s motion to correct errors

on January 11, 2001, without specifically addressing

the merits of the issues raised. (Appendix, pp. 33-35).

Petitioner filed notices of Appeal on February 9, and

February 10, 2001.FN 1

Petitioner’s brief and appendix were filed before

the Indiana Court of Appeals on June 11, 2001.

(Relevant excerpt, Appendix pp. 41-49). In

Petitioner’s brief, he argued that the trial court’s

exclusion of Ellen Mabry violated his Sixth and

Fourteenth Amendment rights to equal protection and

due process. (Appendix, pp. 42-49). The Indiana

Court of Appeals issued a memorandum decision, not

for publication, affirming the trial court in all respects

on December 31, 2001. (Appendix, pp. 10-22).

FN 1 (Appendix, pp. 35-41). Note-this case was tried before the

regular Judge of the Henry County, Indiana Circuit Court, sitting

as Special Judge for Wayne County, Indiana Superior Court 1; in

the interests of expediency, and by agreement, papers for this

cause were filed in Henry County, under a Henry County cause

number; however, the case was actually tried in Wayne County,

Indiana; because of this two separate notices of appeal were filed

in Henry and Wayne counties.

15

~ j

|

—<—<'-.-.- Ss

In the memorandum decision, the Indiana

Court of Appeals repeated the trial judge’s statement

in the Order Regarding Trial by Jury and Judgment

(Appendix, p. 2) that Ellen Mabry was 35 minutes late

in appearing for jury duty, and stated that Petitioner’s

claim that she was 15 minutes late in arriving was an

invitation to re-weigh the evidence, which it declined

to do. (Appendix, p. 18, footnote 3; Memorandum

Opinion, pp. 7-8, footnote 3). The Memorandum

Opinion also stated, however, that “a determination of

the exact amount of time that the juror was late is not

essential to our determination of this issue...”

(Appendix, p. 18; Memorandum Opinion, p. 8,

footnote 3).

In support of its ruling, the Indiana Court of

Appeals stated that a trial judge has a duty to

conduct business expeditiously and consistent with

the orderly procedure and administration of justice.

(Appendix, p. 18; Memorandum Opinion, p. 7). The

Indiana Court of Appeals held that the standard of

review for a trial court’s decisions regarding the

orderly conduct of a trial was abuse of discretion.

(Appendix, p. 18; Memorandum Opinion, p. 7). The

court then discussed the Fourteenth Amendment right

to equal protection, and stated that Petitioner had the

burden to prove the existence of purposeful

discrimination, citing Batson v. Kentucky, 476 U.S.

79, 106 S.Ct. 1712 (1986). (Appendix, pp. 19-20;

Memorandum Opinion, pp. 8-9).

The court then proceeded to discuss Indiana

case law which set forth the requirements for a prima

facie case of racial discrimination in the process of

jury selection, citing the Indiana case of McCants v.

16

State, 686 N.E.2d 1281 (Ind., 1997), in which the

following must be established [following Batson]: (1)

the excused juror is a member of a cognizable racial

group; (2) the prosecutor has exercised peremptory

challenges to remove that group’s members from the

jury; and (3) the facts and circumstances of the case

raise an inference that the exclusion was based on

race. (Appendix, p. 20; Memorandum Opinion, p. 9).

The court then stated that once a prima facie

case is established, the burden shifts to the State to

provide a race-neutral explanation for the challenge,

and that “[i]f the explanation, on its face, is based on

something other than race, the explanation will be

deemed race-neutral.” citing McCants, supra;

(Appendix, p. 20, Memorandum Opinion, p. 9).

Applying this analysis, the Indiana Court of

Appeals held that “...the Estate fails to demonstrate

that the facts and circumstances of the case raise an

inference that the placement of Mabry at the end of

the venire panel was based on race. Rather, the trial

court’s placement of Mabry at the end of the venire

panel was based upon her late arrival and the desire

to conduct voir dire in an expeditious and orderly

manner.” (Appendix, pp. 20-21; Memorandum

Opinion, p. 9).

Next, the court noted that under the recent

Indiana Supreme Court case of Ashabraner v. Bowers,

753 N.E.2d 662 (Ind., 2001), a prima facie case of

racial discrimination is established when a party

removes the only African-American member of the

venire. The court then stated it could not determine

whether Ashabraner was applicable, because the

17

record does not state why the first African-American

woman was dismissed prior to voir dire, an issue

raised by Defendant, Reid Hospital, which argued that

Ms Mabry was not the only potential African-American

juror. (Appendix, p. 19, footnote 4; also p. 21;

Memorandum Opinion, p.8, footnote 4, also, p. 10).

Nevertheless, the court stated that even if,

arguendo, a prima facie case of racial discrimination

had been established, the trial court’s race-neutral

explanation for bumping Ms. Mabry was sufficient,

and therefore, the trial court did not abuse its

discretion. (Appendix, pp. 21-22; Memorandum

Opinion, pp. 10-11).

Petitioner filed a petition for rehearing on

January 30, 2001, again raising equal protection and

due process arguments, arguing that the mere quest

for the orderly, expeditious conduct of a trial should

be an insufficient ground to overcome the inference of

racial discrimination, and that it was an abuse of

discretion to deny Petitioner the opportunity to have a

juror of his race serve on the jury just because she

arrived late for jury duty. (Appendix, pp. 57-61). The

Petition For Rehearing was denied by the Indiana

Court of Appeals on February 27, 2002, without

analysis. Petitioner filed his petition for transfer to

the Indiana Supreme Court on April 1, 2002,

(Appendix, pp. 61-65), reiterating his Fourteenth

Amendment arguments (Appendix, pp.63-65), which

was denied by Order dated July 11, 2002 that did not

address the issues raised. (Appendix, pp. 65-66).

18

H. Argument

The trial court’s removal of the only

available African American potential juror,

on the grounds that she missed a portion of

the court’s general voir dire, was arbitrary

and denied the equal protection and due

process rights of both Petitioner and the

potential juror.

In Swain v. Alabama, 380 U.S. 202 (1965), this

Court recognized that a “State’s purposeful or

deliberate denial to Negroes on account of race of

participation as jurors in the administration of justice

violates the Equal Protection Clause.” Swair, supra,

380 U.S. at 203-204.

That principle was reaffirmed by this Court in

Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 17 12, 90

L.Ed2d 69 (1986), when it held that the Equal

Protection Clause guarantees the defendant that the

State will not exclude members of his race from the

jury venire on account of race or on the false

assumption that members of his race as a group are

not qualified to serve as jurors. Batson additionally

established that the State unconstitutionally

discriminates against the excluded person by denying

him or her participation in jury service. Batson

principles were applied to civil actions as a result of

this Court’s holding in Edmonson v. Leesville Concrete

Co, 500 U.S. 614 (1991).

Batson also overruled that portion of Swain v.

Alabama concerning the evidentiary burden placed on

a defendant who claims that he has been denied

equal protection through the State’s discriminatory

19

use of peremptory challenges, and held that a

defendant may make a prima facie showing of

purposeful racial discrimination in selection of the

venire by relying solely on the facts concerning its

selection in his case. Batson, 476 U.S. at 89-96.

In Batson, the prosecutor used peremptory

challenges to strike all four of the black persons on

the venire, with the result that the jury was composed

solely of white persons, who voted to convict Batson.

Before the jury was sworn, Batson’s counsel moved to

strike the panel, arguing that Batson’s Sixth

Amendment right to a jury drawn from a cross section

of the community and Fourteenth Amendment right to

equal protection had been violated. Although this

case does not involve a party or a prosecutor using

peremptory challenges to remove black venire

persons, the reasoning and principles of Batson are

applicable, since it was the actions of the trial judge

who removed Ms. Mabry from consideration as a

juror. As the following statement from the transcript

demonstrates, the trial judge knew that removing Ms.

Mabry from the pre-assigned queue would have the

effect of eliminating her as a juror:

I excused - she was moved to the end of the

panel. I’ve excused everything - everybody

from the first eight on, which included her, so -

in other words, I indicated to you I was not

willing to bring her in and go through

everything we had to go through with all the

other jurors so that she would be a part of the

panel.

Transcript, p. 30, lines 8-13

20

In Batson, this Court acknowledged that the

Constitution requires the Court to “look beyond the

face of the statute defining juror qualifications and

also consider challenged selection practices to afford

‘protection against action of the State through its

administrative officers in effecting the prohibited

discrimination.’ Norris v. Alabama, supra, at 589;

[*19) see Hernandez v. Texas, 347 U.S. 475, 478-479

(1954); Ex parte Virginia, supra, at 346-347:

Thus, the Court has found a denial of equal

protection where the procedures implementing

a neutral statute operated to exclude persons

from the venire on racial grounds, n 10 and

has made clear that the Constitution prohibits

all forms of purposeful racial discrimination in

selection of jurors. N 11 While decisions of this

Court have been concerned ' largely with

discrimination during selection of the venire,

the principles announced there also forbid

discrimination on account of race in selection

of the petit jury. Since the Fourteenth

Amendment protects an accused throughout

the proceedings bringing him to justice Hill v.

Texas, 316 U.S. 400, 406 (1942), the State may

not draw up its jury lists pursuant to neutral

procedures but then resort to discrimination at

‘other stages in the selection process,’ Avery v.

Georgia, 345 U.S. 559, 562 (1953); see McCray

v. New York, supra, at 965, 968 (MARSHALL,

J., dissenting from denial of certiorari); see also

Alexander v. Louisiana, 405 U.S. 625, 632

(1972).

Accordingly, the component of the jury

21

selection process at issue here, the State’s

privilege to strike individual jurors through

peremptory challenges, is subject to the

commands of the Equal Protection Clause.

Batson, supra, 476 U.S., at 88-89

In Washington v. Davis, 426 U.S., at 242, this

Court noted that “total or seriously disproportionate

exclusion of Negroes from jury venires, may for all

practical purposes demonstrate unconstitutionality

because in various circumstances the discrimination

is very difficult to explain on non-racial grounds.”

In Batson, this Court observed that prima facie

discrimination was found on proof that members of

the defendant's race were substantially

underrepresented on the venire from which his jury

was drawn, and that the venire was selected under a

practice providing “the opportunity for

discrimination.” Batson, supra, 476 U.S., at 95, citing

Whitus v. Georgia, 385 U.S. at 552, Castaneda v.

Partida,430 U.S. at 494, Washington v. Davis, 426

U.S. at 241 , Alexander v. Louisiana, 405 U.S. at 629-

631.

To establish a prima facie case of purposeful

discrimination in selection of the petit jury, the

defendant first must show that he is a member of a

cognizable racial group. Castaneda v. Partida, 430

U.S. at 494, “..and that the prosecutor has exercised

peremptory challenges to remove from the venire

members of the defendant’s race. Second, the

defendant is entitled to rely on the fact, as to which

there can be no dispute, that peremptory challenges

constitute a jury selection practice that permits ‘those

22

to discriminate who are of a mind to discriminate.’

Avery v. Georgia, 345 U.S. at 562. Finally, the

defendant must show that these facts and any other

relevant circumstances raise an inference that the

prosecutor used that practice to exclude the

veniremen from the petit jury on account of their race.

This combination of factors in the empaneling of the

petit jury, as in the selection of the venire, raises the

necessary inference of purposeful discrimination.”

Batson, supra, 476 U.S., at 96.

Applying these principles to the facts of this

case, it is clear that the first prong of the Batson |

analysis is met, since Petitioner and Ellen Mabry were

both African-American. As to the second and third

prongs, Petitioner submits that the trial court’s

arbitrary removal of the only available black

venireperson, “constitute[s] a jury selection practice

that permits ‘those to discriminate who are of a mind

to discriminate”, and “raises the necessary inference

of purposeful discrimination”, Avery, 345 U.S. at 562;

Batson, 476 U.S. at 96, for the reasons explained

infra.

The trial judge ignored Ellen Mabry when she

entered the courtroom, and would in all likelihood

have continued ignoring her if the bailiff had not

interrupted the proceedings. At the point when she

was brought to the judge’s attention, it was clear that

he had no intention of allowing her to serve:

COURT BAILIFF: Judge?

THE COURT: Um?

COURT BAILIFF:

COURT:

COURT BAILIFF:

THE COURT:

COURT BAILIFF:

COURT BAILIFF:

THE COURT:

COURT BAILIFF:

THE COURT:

JUROR MABREY:

THE COURT:

Ellen Mabrey (sic) is here.

Okay.

She hasn’t been sworn yet.

Is she still outside you say?

No. (inaudible).

Juror 395.

And at what point did Miss

Mabrey come in?

She just came in a few

minutes ago.

I take it, ma’am, you've not

been here for all my

questions then.

(inaudible).

Okay. Let me ask you if

you could just sort of stand

by for us and if you’re

needed, why, we'll get to

you, if not, maybe then you

won't have to serve.

(Voir dire continues)

24

MS. NEISWINGER:

THE COURT:

MS. NEISWINGER:

THE COURT:

MS. NEISWINGER:

THE COURT:

Judge, may we approach

the bench. (Unintelligible)

Mabrey she was supposed

to - she came ahead of

Criscinda Elsrod. She’s

still not coming in.

That’s the thing we need to

make a bench conference

or a bench comment on

after we get the jury

selected.

Well, is she eliminated?

Ms. Mabrey?

She was moved to the last -

I told her that when she left

the courtroom.

She was what?

I excused - she was moved

to the end of the panel. I’ve

excused everything -

everybody from the first

eight on, which included

her, so - in other words, I

indicated to you I was not

willing to bring her in and

go through everything we

had to go through with all

the other jurors so that she

would be a part of the

panel.

25

Transcript, p. 29, lines 5-26; p. 30,lines 1-13

In addition to immediately removing her from

her preassigned position, the transcript establishes

that the trial judge made no effort to ascertain why

Ms. Mabry was late, or whether circumstances beyond

her control prevented her from arriving sooner.

Therefore, Petitioner was summarily denied any

opportunity to have a juror of his own race, and Ms.

Mabry was denied her right to participate in the

judicial process on the arbitrary basis that she was

not physically present in the courtroom at the

appointed time, no explanations or exceptions

allowed. Further on this point, it bears mentioning

that although Ms. Mabry arrived after the start of

general voir dire, one of the reasons she missed a

portion at least of the trial court’s general voir dire is

that the trial judge ignored her, and the bailiff failed

to interrupt the proceedings until after she had sat in

the back of the courtroom for an additional period of

time after arriving. Therefore, at least part of the

cause for any delay that would have been incurred by

repeating part of the court’s general voir dire was the

fault of the trial judge and bailiff. The transcript

establishes that the trial judge gave no consideration

to this fact, and that his major concern was that the

white jurors should not be inconvenienced by waiting

while he individually questioned Ms. Mabry:

Ms. Mabrey was not here when we started voir

dire examination, was not sworn with the other

jurors and a portion, at least, of the Court’s

voir dire examination had already occurred at

the time she entered the courtroom. Then, it

was sometime before I was told who she was. I

26

saw an individual enter, but I really didn’t

know who that person was. So when I was

asked do we replace juror Steele with juror

Elsrod (sic-should read “Mabry”), my response

was no. To do that we would have had to stop

all proceedings, go back, deal with juror Elsrod

(sic-should read “Mabry”) individually to get

her up to the point where all the other jurors

were in order to accomplish that. Since we’re

dealing with this many people’s lives in

selecting a jury, I elected not to do that.

Transcript, pp. 30-31.

Petitioner submits that if you insert an

adjective listing the race of Ellen Mabry and “all the

other jurors” into the foregoing scenario,:plus the

argument supra, the totality of the facts surrounding

the elimination of Ellen Mabry as a juror are sufficient

to constitute an inference of racial discrimination

pursuant to Batson principles.

When the inference of discrimination has been

established, “the burden shifts to the State to come

forward with a neutral explanation for challenging

black jurors.” Batson, supra, 476 U.S., at 97. The

prosecutor may not rely upon a claim of his

“assumption - or his intuitive judgment” that a black

venireperson would be partial to a black defendant on

account of race. Id. Likewise inadequate is the mere

denial by the prosecutor of a discriminatory motive, or

the affirmation of his good faith in making individual

selections. Id; Alexander v. Louisiana, 405 U.S., at

632. “If these general assertions were accepted as

rebutting a defendant’s prima facie case, the Equal

27

Protection Clause ‘would be but a vain and illusory

requirement.’ Norris v. Alabama, supra, at 598.”

Batson, supra, at 476 U.S., p. 98.

The result here “bespeaks discrimination’, (See

Hernandez v. Texas, 347 U.S. at 482), since the tral

judge arbitrarily eliminated any chance for Petitioner

to have a member of his race serve on the jury on the

grounds that it would be inconvenient to make the

white venire persons wait while he repeated some of

his preliminary voir dire questions for one black venire

person. Petitioner submits that requiring the

remaining venire to wait, sometimes in another room,

while one potential juror is questioned is not an

unusual occurrence. This can happen, for example,

when there are sensitive issues regarding the potential

juror, such as being the victim of a sex crime, prior

knowledge of one of the parties, attorneys or a key

witness, and for a variety of other reasons. Asa

generality, persons called for jury duty are frequently

required to wait, sometimes for hours, for many

different reasons, some of which are under the court’s

control, and some of which are not. For example,

venire persons must check in when they appear for

jury duty and wait until they are instructed to go to a

particular courtroom. Prospective jurors frequently

must wait while a list of those appearing for jury duty

is compiled and compared with the list of those

summoned to appear, so that the order of the actual

venire can be ascertained. Waiting also frequently

happens while juror questionnaires are filled out,

assembled, copied, collated, distributed to and

reviewed by attorneys, and when jurors excused from

one court are held to see if they are needed in

another. Waiting also can occur when an insufficient

28

number of prospective jurors appear for jury duty and

other persons must be immediately summoned to

appear. It is also not unusual for prospective jurors

to wait while preliminary motions are argued to the

court, while parties to the proceeding suddenly get

serious about settlement, and for numerous other

reasons.

Petitioner submits that the argument that

keeping the other jurors waiting while some of the

preliminary questions were repeated to Ms. Mabry is

an insufficient reason to deny her and Petitioner at

least the opportunity for her to be selected as a juror

in this case. This is especially true considering that

part of the reason she missed at least pt of the court’s

general voir dire was the fault of the trial judge and

bailiff. !

The Indiana Court of Appeals therefore erred

when it held that Petitioner failed to meet his burden

of demonstrating purposeful discrimination required

to violate the Fourteenth Amendment because the trial

judge had a “race neutral explanation for placing

Mabry at the end of the venire panel”. (Memorandum

Opinion, p. 10; Appendix, p. 21). This Court has

repeatedly found that mere denials of a discriminatory

intent and allegations of good faith are insufficient to

overcome a prima facie inference of racial

discrimination. Alexander, supra; Norris, supra;

Batson, supra.

Likewise erroneous was the reasoning of the

Indiana Court of Appeals that “...a trial judge has

control over the proceedings in his court, and his duty

is to conduct business expeditiously and consistent

29

with the orderly procedure and administration of

justice. Id at 847. We will review the trial court’s

decisions regarding the orderly conduct of a trial for

an abuse of discretion.” (Memorandum Opinion at p.

7; Appendix, p. 18). A trial judge simply does not have

the discretion to deny an African American litigant or

venire pérson their rights to equal protection and due

process under the rubric of “[m]atters which relate to

the orderly conduct of trial [that] are generally within

the trial court’s discretion.” (Memorandum opinion, p.

7; Appendix, pp. 17-18). If such were the law, then

the Equal Protection and Due Process rights

guaranteed by the Constitution would be

meaningless. Virtually any discriminatory or

unlawful denial of a black person’s rights could

arguably be justified under the rationale that the trial

judge was merely exercising his discretion to cor.duct

court business “expeditiously” and in an “orderly”

fashion.

Petitioner respectfully requests this Court to

grant her petition for a writ of certiorari.

Respe¢tfully Submitt

Karen B. Neiswinger 4

Counsel for Jacqueline Weaver,

Substitute Administrator of the

Estate of EvaMae H. Hearn.

30