Opposition Brief — Tinner v. United Insurance Co. of America

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FEB 24 9003

No. 02-1049

In the [__ SRR eee ez a

Supreme Court of the Hnited States ~

WILL TINNER,

Petitioner,

UNITED INSURANCE COMPANY OF AMERICA,

Respondent.

ON PETITION FOR Wait OF CERTIORARI TO THE

Unitep STATES CourT OF APPEALS FOR THE SEVENTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

Brian P. Williams, Esq.

Counsel of Record -

Kristi L. Prutow, Esq.

KAHN, DEES, DONOVAN &

KAHN, LLP

Fifth-Main Financial Plaza

Suite 305

501 Main Street

P.O. Box 3646

Evansville, Indiana 47735-3646

Telephone: (812) 423-3183

Facsimile: (812) 423-6066

Attorneys for United

Insurance Company of

America

Curry & TavYLor @ (202) 393-4141 © HTT®://USSCINFO.cCOM

TABLE OF CONTENTS

REASONS FOR DENYING THE PETITION FOR WRIT OF

CERTIORARI

II.

THE FACTS AND ISSUES PRESENTED IN MILLER-

EL ARE NOT ANALOGOUS TO THE CASE AT BAR

There is No Evidence of Intent to

Discriminate Such as that Alleged in

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The Undisputed Facts Show the Jury

Selection in This Case is Not

Comparable to that In Miller-El..................

The Standard of Review Here Differs

from that Applicable in Miller-El................

CHANGE IN THE BATSON STANDARD OF

REVIEW IS INAPPROPRIATE AND USE OF THIS

COURT'S SUPERVISORY AUTHORITY IS

UNNECESSARY

“Clearly Erroneous” is the Proper

Standard of Review for a Batson

A Change in the Trial Burden to “Clear

and Convincing Evidence” is

RII cs sinsuicecnsssisicinnnscauhisekeinitedsiendancncaabonentes

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C. Importing Title VII Standards for Proving

“Pretext” at Stage Three of the Batson

Inquiry Would Not Change the Analysis

eR CTE ne 11

Il]. THE STANDARD FOR APPLICATION OF EQUAL

PROTECTION REQUIREMENTS TO PEREMPTORY

CHALLENGES IS WELL-SETTLED AND UNIFORMLY

APPLIED THROUGHOUT THE CIRCUITS ..........cccceeeeeeeees 13

A. There Is No Need to Address Alleged

Misperceptions Arising From Purkett............ 13

B. The Lower Courts Have Uniformly and

Properly Applied Batson’s “All Relevant

Circumstances” Requirement at Step

ROS OE GRD AI wisccevssienisinnsnsiescenierecncovesssee 14

IV. THE COURTS BELOW PROPERLY APPLIED _

BATSON JURISPRUDENCE IN DETERMINING THE

PEREMPTORY CHALLENGE DID NOT VIOLATE

EQUAL PROTECTION REQUIREMENTS. ...........cceecsseeeeees 18

A. The Question at Issue is Not a Surrogate

PE TE ss acienessekehonsciecteainnaeamaaeiabiiaaiababalsiieckens 18

B. Disparate Impact of a Criteria is Not

Conclusive Evidence of Intent to

i RRNA ee OR, Gs SI 19

C. The Facts Underlying Tinner’s Title VII

Claim Provide No Justification for this

Court's Exercise of Its Certiorari

Oc METRO Ee STENTS Ne Trek TERR Om 21

EY RRR ELSI AMEr Ota ors 7. arn ON enna 24

ili

TABLE OF AUTHORITIES

CASES

ANDERSON V. BESSEMER CITY, 470 U.S. 564, 574

SN a ied sich at lit aed anticanielinionisionbibs 7

BATSON V. KENTUCKY, 476 U.S. 79 (1986) ............0005 sacs

COULTER V. GILMORE, 155 F.3D 912, 921 (7TH CIR.

TE SERRE SESS a) Roan sev TE RC SEO 10, 14, 15

DAVEY V. LOCKHEED MARTIN CorpP., 301 F.3D 1204,

ccna ss yeniaasonssonesbonienninwantauleaencouns 16

DEVOIL-EL V. GROOSE, 160 F.3D 1184 (8TH CIR.

I hci icici cli aie ippninevalgnesbbdieneniriloessbdncesnsdhsioe 17

EDMONSON V. LEESVILLE CONCRETE Co., INC., 500

a ia ssseschluanvinknnmsornsiernte 13, 18

HENDERSON V. WALLS, 296 F.3D 541, 550-51 (7TH

ia otha aiel satinadanbntesihinensbuchslatonbincaiti 15

HERNANDEZ V. NEW YORK, 500 U.S. 352 (1991)......... passim

HOLLAND V. ILLINOIS, 493 U.S. 474, 484 (1990).............. 6, 19

J.E.B. v. ALABAMA, 51) U.S. 127, 148 (1994)............... 18, 20

KULUMANI V. BLUE CROSS BLUE SHIELD, 224 F.3D

PE, SE ivcessenessvnvoseasinsseesarevnsosesiinvsyses 12

McDonnell Douglas Corp. v. Green, 411 U.S. 792

I l icssat ction csactnisskosinnissaisatsioimaberioninisanvanvees 12

MILLER-EL V. JOHNSON, 261 F.3D 445 (5TH Cir.

ase a cachet ascs a sietulinesesivendneinicsnianaiates 1,5

MILLER-EL V. JOHNSON, 261 F.3D 445 (5TH CIR.

TEE sco dhossavaniichichdicechabeshconiinasaibagodvcipaieatcaiceadaauiunaaaadaiaatlie 1

MORSE V. HANKS, 172 F.3D 983, 985 (7TH CiR. 1999)........... 7

PATTON V. YOUNT, 467 U.S. 1025, 1037 (1984)...............0... 10

PURKETT V. ELEM, 514 U.S. 765, 768-69 (1995) 13, 14, 16, 18

RILEY V. TAYLOR, 277 F.3D 261, 286-87 (3RD Cir.

ee OLB snsicnsisedisesislssneahievhneng csicialehicbachalaladaicdiaalstSUbsids 16

SLACK V. MCDANIEL, 529 U.S. 473, 483 (2000).................00 7

SPLUNGE V. CLARK, 960 F.2D 705, 708-09 (7TH CIR.

PI sivihesvicehashemvecinnet tial iaiseaibiesbatmecustmeaaa aaa aaetan 10, 14, 15

TINNER V. UNITED INS. CO. OF AMERICA, 308 F.3D

BaP Ee Gh BIR iacivcscmscntvisscivainaninsssbalesiiiaaeiaaael 5

UNITED STATES V. BARTHOLOMEW, 310 F.3D 912

Ce: SE Wi cciinibsaesiinslosiathitistesiie ie caieieimincuaanaiee 17

UNITED STATES V. BISHOP, 959 F.2D 820 (9TH CIR.

PED vsivsnesnsidansieseskataesnassbdesaiieiede dadeslandiaehinteadiadlec aoc acai 16

UNITED STATES V. BROWN, 299 F.3D 1252 (11TH CIR

SOU <i scnssissconiivccipatialosssiiaioanariedidiadtlten ddasihieadiaianaadia talent teak eck 17

UNITED STATES V. WYNN, 20 F.SupP.2D 7 (D. D.C.

NT aD viscivicepibiicaieentaaticeninipaeeticstiilaibaiduaaiiaaame lade haar einai ae 16

WASHINGTON V. DAVIS, 426 U.S. 229, 242 (1976) ...........00. 19

OTHER AUTHORITIES

GE EAMES Kad. BOD, 196 CID TB) oo covcccevscnecsversinevsnsiosnrsinnsanin 11

]

REASONS FOR DENYING THE PETITION FOR

WRIT OF CERTIORARI

Tinner’s Petition for a Writ of Certiorari

(hereinafter “Petition”) should be denied because the

proper standard for a peremptory challenge of a

minority juror is well-settled, uniformly applied in the

lower courts and there is no need for a change in the

standard of review. Both the trial court and the Seventh

Circuit properly applied this Court’s Batson

jurisprudence in finding the peremptory challenge did

not violate the Equal Protection Clause. There is neither

an egregious error this Court must address to redress a

wrong nor a compelling reason to grant a writ of

certiorari.

THE FACTS AND ISSUES PRESENTED IN

MILLER-EL ARE NOT ANALOGOUS TO THE

CASE AT BAR

Tinner asserts that his Petition presents

essentially the same question as that before this Court in

Miller-El v. Cockrell, U.S. Supreme Court Docket No. 01-

7662, a death penalty case arising out of Dallas County,

Texas, in which the defendant, Miller-El], seeks habeas

relief from a capital murder conviction. (Petition p. 2,

3.) But the facts of this case and the procedure followed

by the lower courts are not comparable to the facts or

procedure in Miller-El, except that in both cases the

petitioner alleges error occurred during jury selection.

See Miller-El v. Johnson, 261 F.3d 445 (5th Cir. 2001).

A. There is No Evidence of Intent to

Discriminate Such as that Alleged in

Miller-El. ‘

In the present case, there is no_historvical

background of discrimination such as that alleged by

Miller-E] to have occurred in Dallas County, Texas.

Unlike Miller-El, there is no statistical evidence in this

case supporting an inference of discrimination, no

prosecutor's manual with instructions to consider

ethnicity in jury selection, and no allegation of pattern

and practice discrimination. There is no other

circumstantial evidence of discrimination such as the

notations regarding race and gender on jury cards or

questionnaires, the disparate questioning of minority

jurors or the “jury shuffle” which occurred in Miller-El.

Indeed, Tinner himself admits that no_ such

circumstantial or statistical evidence of discrimination

exists in this case. (Petition p. 3.)

Miller-El was tried to a jury approximately one

month before this Court’s decision in Batson v.

Kentucky, 476 U.S. 79 (1986). After the case was

remanded, the trial judge conducted a Batson hearing

over two years after voir dire was conducted and the

prosecutor gave his contemporaneous reasons for

striking the jurors. (Transcript of Oral Argument p. 6.)'

During the more than two years after the voir dire in

Miller-El, the same trial judge presided over jury

selection in more than two dozen cases, likely with

numerous Batson challenges and explanations. Thus

the ability of that judge to accurately recall and evaluate

juror testimony, voice inflection, gestures, emotions,

body language and other traits in concert with trial

' Transcript of Oral Argument, October 16, 2002, Docket No. 01-

7662.

counsel's demeanor and conduct presented a unique

situation not even remotely similar to the facts in this

case.

B. The Undisputed Facts Show the Jury

Selection in This Case is Not

Comparable to that In Miller-El. m

During voir dire in the present case two

prospective jurors responded to the same question:

Do any of you know anyone who’s filed a

suit alleging discrimination of any kind? If

you do, do you know - anybody know of

or heard of anybody who's filed a suit

alleging discrimination?

(Trial Trans. p. 56, ll. 14-17.) Prospective Juror Kuester,

a white male, and Prospective Juror Clardy, a black

female, answered affirmatively to this question. (Trial

Trans. p. 56, ll. 14-24.) Mr. Kuester had stated earlier in

response to questions by Tinner’s trial counsel:

I think I could be fair. You should

probably know that my corporation has -

have not personally been involved in any

lawsuits, but we have been accused of

racial discrimination, and it was never - it

was never — one case, there was a

complaint filed with the EEOC, and they

came back with a ruling that there was no

indication of discrimination.

(Trial Trans. p. 41, 1. 22—p. 42, 1. 3.) When asked if the

fact his company had been accused of race

discrimination would make it difficult for him to listen

to Tinner’s case and hear it fairly, Mr. Kuester

responded, “I don’t think so.” (Trial Trans. p. 42, ll. 4-7.)

Mr. Kuester went on to state with regard to race

discrimination:

I know it goes on. There are — I think there

are cases where discrimination is claimed

where there possibly was none, but there’s

certainly racial discrimination that’s

ongoing in our country. It’s not right.

(Trial Trans. p. 42, ll. 18-24.)

In response to the same question, Prospective

Juror Clardy stated that her sister had filed a

discrimination claim. (Trial Trans. p. 56, 1. 23—p. 57, 1.

1.) When counsel for United Insurance followed up on

the response and inquired whether the fact that her

sister had filed a lawsuit alleging discrimination would

affect her determination in this case, Ms. Clardy

responded:

It’s hard to say because I didn’t go through

the courts with her. Basically, I know

what happened or what she told me was

her ordeal, but as far as the company she

was working with, you know, I don’t know.

(Trial Trans. p. 57, ll. 3-9.)

Counsel for Tinner exercised one of his

peremptory challenges to strike Mr. Kuester. (Trial

Trans. p. 68, ll. 17-19.) Counsel for United Insurance

exercised one of his peremptory challenges to strike Ms.

Clardy. (Trial Trans. p. 68, 1. 24.) Tinner’s trial counsel

immediately challenged the strike of Ms. Clardy and the

trial court conducted a contemporaneous Batson

hearing. The trial court evaluated United Insurance’s

articulated reason for the peremptory challenge—Ms.

Clardy’s sister had filed a similar discrimination claim

against her employer and that she characterized the

Situation as an “ordeal”, the demeanor of the

prospective juror and trial counsel during the

questioning, and the demeanor of trial counsel during

the Batson hearing. (Trial Trans. p. 70, Il. 1-6.) The

court ruled that United Insurance's explanation was not

a pretext for discrimination, reasoning that the fact Ms.

Clardy “had a family member involved in the same type

of litigation” may “make it difficult for her to remain

objective” in the present case. (Trial Trans. p. 73, 1. 21—

p. 74, 1. 3.) As Ms. Clardy stated herself, “[ijt’s hard to

say” if her sister’s lawsuit would effect her opinions in

the present case. (Trial Trans. p. 57, ll. 6-9.) The court

of appeals upheld the trial court’s ruling in a carefully

reasoned published decision. Tinner v. United Ins. Co.

of America, 308 F.3d 697 (7th Cir. 2002).

In oral argument before this Court, counsel for

Miller-El pointed to the hypothetical case described in

Hernandez v. New York, 500 U.S. 352 (1991) in which

the evidence of racial discrimination during voir dire

was so strong that, “a finding of no discrimination is

simply too incredible to be accepted.” (Transcript of

Oral Argument p. 3.) Miller-El’s counsel went on to

state of Miller-El v. Cockrell, “This is truly that

exceptional case, and therefore the Court should use it

as a model, a model of the weight of evidence sufficient

to render objectively unreasonable a trial judge’s

rejection of a Batson challenge.” (Transcript of Oral

Argument p. 3, ll. 11-19.)

In contrast, this is not that truly exceptional case

and there is absolutely no basis upon which to

determine the trial court’s rejection of Tinner’s Batson

challenge was erroneous. Unlike Miller-El, the facts

here are simple and undisputed. The only issue before

the Court is United Insurance’s peremptory challenge of

one African-American juror and the trial court’s ruling

following a Batson hearing held at the time of the

peremptory challenge.

Tinner has not pointed to any evidence of

discriminatory intent in the statements, conduct, or

demeanor of United Insurance’s trial counsel during

voir dire, other than United Insurance’s strike of

Potential Juror Francis. Contrary to Tinner’s assertion,

the peremptory challenge of Potential Juror Francis, a

Caucasian female, is not evidence of diseriminatory

intent. This Court has stated that the purpose of the

peremptory challenge is to “assure the selection of a

qualified and unbiased jury” by enabling each party to

exclude jurors believed to be more partial to the other

side and preventing individuals biased in either direction

from being impaneled. Holland v. Illinois, 493 U.S. 474,

484 (1990)(quoting Batson, 476 U.S. at 91)(emphasis by

Holland court). Counsel for United Insurance properly

struck Ms. Francis because her answers provided

evidence of the potential for bias towards the plaintiff;

just as Mr. Kuester was presumably stricken by Tinner,

because of the potential for bias towards the defense.

C. The Standard of Review Here Differs

from that Applicable in Miller-El.

This is a direct appeal from an adverse jury

verdict in a race discrimination claim brought under

Title VII of the Civil Rights Act of 1964, rather than an

appeal from a denial of a petition for habeas relief. Thus

a different standard of review applies here. The issue in

Miller-El is whether the Fifth Circuit erred in refusing to

issue a certificate of appeal based on the lower court’s

denial of Miller-E]’s petition for a writ of habeas corpus.

i 7

A certificate of appeal should be issued if “the applicant

has made a substantial showing of a denial of a

constitutional right.” Slack v. McDaniel, 529 U.S. 473,

483 (2000)(quoting 28 U.S.C. § 2253(c)). An applicant

has made a “substantial showing” where the petitioner

demonstrates his petition for habeas relief involves

issues which are debatable among jurists of reason, that

another court could resolve differently, or that the

issues are adequate to deserve encouragement to

precede further. Jd. at 484.

Here, the standard of review is simply whether

the trial court’s determination that United Insurance's

peremptory challenge of Prospective Juror Clardy was

not discriminatory is “clearly erroneous.” Hernandez,

500 U.S. at 365. “[W]here there are two permissible

views of the evidence, the factfinder’s choice between

them cannot be clearly erroneous.” Jd. at 369 (quoting

Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)).

As the Seventh Circuit has stated in applying the “clearly

erroneous” standard: “When in response to a Batson

challenge the [striking party] gives a race-neutral reason

that persuades the judge, there is no basis for reversal

On appeal unless the reason given is completely

outlandish or there is other evidence’ which

demonstrates falsity.” Morse v. Hanks, 172 F.3d 983,

985 (7th Cir. 1999)(quoting United States v,. Stafford,

136 F.3d 1109, 1114 (7th Cir. 1998)).

II.

A CHANGE IN THE BATSON STANDARD OF

REVIEW IS INAPPROPRIATE AND USE OF THIS

COURT’S SUPERVISORY AUTHORITY IS

UNNECESSARY.

In oral argument before this Court, counsel for

Miller-El conceded that minority jurors’ could

legitimately be stricken for cause as well as through

peremptory challenges:

Mr. Waxman: The prosecution said we had

two different ways of questioning about

these two subjects, and we used them

deliberately at—with different jurors and

we did it in order to remove jurors that we

thought were weak on the death penalty.

That is the reason that they give and that’s

the reason against which their justification

must be judged...

Question: You would concede that would

be legitimate?

Mr. Waxman: Sure...

(Transcript of Oral Argument p. 16.) Miller-El’s counsel

was not arguing for a new or different standard to be

established for evaluating a strike of a minority juror.

Instead, he argued that Miller-El was an exceptional

case and that the trial court did, in fact, err in its

application of Batson and its progeny. In contrast,

Tinner does not argue that his case is exceptional, but

that this Court should exercise its supervisory authority

over the lower courts to create a new standard under

which the criteria used to strike Ms. Clardy would be

considered violative of the Equal Protection Clause.

(Petition pp. 9-11.) Such an exercise of this Court’s

supervisory authority is unnecessary and would be

inappropriate.

A. “Clearly Erroneous” is the Proper

Standard of Review for a Batson

Challenge.

A trial court’s determination regarding a Batson

challenge is a purely factual determination. Batson, 476

U.S at 98 n. 21. Consequently, a federal appellate court

must .eview a trial court’s ruling under Federal Rule of

Civil Firocedure 52(a) which permits factual findings to

be set aside only if clearly erroneous. It is unnecessary

for this Court to accept certiorari to change the standard

of review on appeal from “clearly erroneous” to “de

novo” because such an exception to this rule for review

of Batson challenges would be inappropriate. (Petition

pp. 23-24.)

A de novo standard of review is appropriate for a

trial court’s ruling on a motion for summary judgment

because summary judgment seeks a judgment as a

matter of law. Unlike a Batson challenge, all of the facts

and evidence available to the trial court are also in the

record and available to the appellate court on summary

judgment. The trial court’s determination on summary

judgment does not turn on credibility of witnesses, but

rather on the “pleadings, depositions, answeis to

interrogatories, and admissions on file, together with the

affidavits, if any” which show that “there is no genuine

issue as to any material fact and that the moving party is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(e). A grant of summary judgment is a final judgment

that irrevocably denies a party's right and opportunity to

present his or her case to a jury. As such, de novo

review of all of the evidence that was before the trial

court is appropriate and necessary.

In contrast, a more deferential standard of review

is particularly appropriate for a trial judge’s factual

finding at stage three of the Batson analysis because

only the trial judge is able to observe the demeanor and

credibility of both the prospective jurors and trial

counsel during voir dire. The credibility of the counsel

exercising the challenge is central to the Batson inquiry.

Batson, 476 U.S. at 98, n. 21. “The manner of the juror

while testifying is oftentimes more indicative of the real

character of his opinion than his words. That is seen

below, but cannot always be spread upon the record.”

Patton v. Yount, 467 U.S. 1025, 1037 (1984)(internal

citations omitted). Thus, a trial judge’s ability to witness

venire members “[d]emeanor, inflection, [and] the flow

of the questions and answers” places him in the best

position to gauge whether counsel’s reason for striking a

particular venire member is credible or pretextual. Jd.

at 1038, n. 14.

A new standard of review is unnecessary to

permit appellate courts to review and correct any errors

made by the trial court. Even such considerable-

deference does not prevent appellate courts from

stepping in to correct the trial court’s determination

where discriminatory intent is clear on the face of the

record itself, Splunge v. Clark, 960 F.2d 705, 708-09 (7th

Cir. 1992), or where the trial court has applied an

improper standard in its determination. Coulter v.

Gilmore, 155 F.3d 912, 921 (7th Cir. 1998).

iscieeleabiiaiaaihdiiiccaaiiaaial

B. A Change in the Trial Burden to

“Clear and Convincing Evidence” is

Unnecessary.

A change in the trial burden of proof on the party

exercising the peremptory challenge to “clear and

convincing evidence” is Similarly inappropriate and

unnecessary. (Petition pp. 23-26.) Historically, a clear

and convincing evidence standard has been applied

“where the claimant either sought extraordinary relief or

based his claim on disfavored grounds, or where he

sought relief which would have serious social

consequences or harsh effects on an individual beyond

the mere award of money damages.” Comment, 24

EMORY L.J. 105, 114 (1975). Use of a peremptory

challenge is not “extraordinary relief’ nor is it

disfavored. On the contrary, the peremptory challenge

at issue here exemplifies the very purpose of the

peremptory challenge—to protect each party's right to

trial by a neutral and unbiased jury.

C. Importing Title VII Standards for

Proving “Pretext” at Stage Three of

the Batson Inquiry Would Not Change

the Analysis or the Outcome Here.

Tinner also suggests importing Title VII standards

for the trial court’s determination at step three of the

Batson inquiry. (Petition pp. 17-19.) Petitioner’s brief is

not entirely clear in how imputing Title VII standards

would change step three of the Batson analysis.

Under Title VII, once a prima facie claim of

discrimination has been established and the employee-

defendant has articulated a race-neutral reason for the

employment decision complained of, the burden of

proof shifts back to the plaintiff-employee to

demonstrate that the reason articulated is a pretext for

discrimination. Kulumani v. Blue Cross Blue Shield,

224 F.3d 681, 684 (7th Cir. 2000). In other words, the

employee must demonstrate that the articulated reason

is a lie—a fabrication designed to conceal the true

unlawful motivation for the decision. Jd.

While never so clearly defined in the Batson

context, this is essentially the standard currently being

applied in determining whether the proffered reason for

a peremptory challenge was made with intent to

discriminate at stage three of the Batson analysis. As

discussed above, considering the totality of the

circumstances, the trial court must make a

determination as to the credibility of counsel making the

strike and whether the proffered explanation is a

pretext for unlawful discriminatory intent. |

The only distinction between the McDonnell

Douglas burden shifting mechanism applied in

employment discrimination cases and the Batson

inquiry is that under McDonnell Douglas, at the third

step the burden of proof shifts back to the plaintiff-

employee to demonstrate the proffered reason is

pretextual, rather than simply leaving this determination

to the finder of fact as in the Batson context. This is a

difference without distinction that, if anything, may

place a heavier burden on the party attempting to prove

purposeful discrimination. In either event, there still

must be a showing of intent to discriminate.

Il.

THE STANDARD FOR APPLICATION OF EQUAL

PROTECTION REQUIREMENTS TO

PEREMPTORY CHALLENGES IS WELL-SETTLED

AND UNIFORMLY APPLIED THROUGHOUT THE

CIRCUITS.

This case involves the application of well-settled

constitutional principles to relatively simple facts. Thus

the Petition presents no important questions of law to

justify this Court’s exercise of its certiorari jurisdiction.

A. There Is No Need to Address Alleged

Misperceptions Arising From Purkett.

The standard for trial courts to apply in

determining whether a peremptory challenge is

discriminatory was clearly articulated by this Court in

Batson v. Kentucky, 476 U.S. at 96-98, and has been

further clarified by this Court’s decisions in Edmonson

v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991),

Hernandez v. New York, 500 U.S. at 359-66, and Purkett

v. Elem, 514 U.S. 765, 768-69 (1995).

In Purkett, this Court clarified the standard to be

applied at step two of the Batson analysis, the stage at

which the party exercising the peremptory challenge

must articulate a race neutral reason for the strike. At

step two of the Batson inquiry, “the issue is the facial

validity of the [striking party’s] explanation. Unless a

discriminatory intent is inherent in the [striking party’s]

_ explanation, the reason offered will be deemed race

neutral.” Purkett, 514 U.S. at 768. At this Stage, all that

is required of the proponent is a “clear and reasonably

specific’ explanation of his ‘legitimate reason’ for

exercising the challenge.” Jd. (quoting Batson, 476 U.S.

at 98.) Any characteristic that is not “peculiar to any

race”"-even a “silly or superstitious” explanation—is

satisfactory at stage two. /d.

Tinner argues that lower courts’ “misperception”

of this holding has effectively extinguished the right of a

litigant making a Batson challenge to a non-pretextual

reason for the challenge. (Petition p. 3-4, 17, 19-20.)

However, Purkett is clear in holding that while “silly or

superstitious” reasons must be accepted at stage two as

long as discrimination is not inherent in the reason,

“implausible or fantastic justifications may (and

probably will) be found to be pretexts for purposeful

discrimination” by the trial court at stage three. Jd. At

stage three of the inquiry, the trial court must consider

“all relevant circumstances” including a pattern of

strikes against black jurors, Batson, 476 U.S. at 97,

whether the rationale for the strike was applied

consistently to all similarly situated members of the

venire, Coulter, 155 F.3d at 921, the truth of the

proffered explanation, Splunge, 960 F.2d at 708,

disparate questioning of jurors, and the demeanor and

credibility of both the prospective juror and the attorney

exercising the challenge. Hernandez, 500 U.S. at 365.

B. The Lower Courts Have Uniformly and

Properly Applied Batson’s “All

Relevant Circumstances” Requirement

at Step Three of the Analysis.

United States district courts and courts of appeal,

with the possible exception of the Fifth Circuit’s

decision in Miller-El, have uniformly applied the

standard articulated in Batson and its progeny to ensure

the equal protection rights of litigants and prospective

jurors are protected. Based on this standard, the

Seventh Circuit recently rejected a state court’s ruling

on a Batson challenge, holding the court’s refusal to

consider statistical evidence of disparities in the state’s

application of the articulated race-neutral reasons for its

use of peremptory challenges was an “unreasonable

application” of Batson’s “all relevant circumstances”

requirement at step three of the analysis. Henderson v.

Walls, 296 F.3d 541, 550-51 (7th Cir. 2002).

In Coulter v. Gilmore, 155 F.3d at 921-22, the

Seventh Circuit re-affirmed this principle in holding a

State trial court violated Batson by utilizing a procedure

which prevented him from considering the “totality of

the circumstances” at step three of the Batson analysis.

In Splunge v. Clark, 960 F.2d at 707-08, the state’s

use of peremptory challenges to exclude a black venire

member violated Batson where, during voir dire, the

prosecutor asked the only two black venire members

whether their race would cause them to be biased

towards the defendant because he is black and asked

one of the black venire members if he knew anyone who.

had been charged with a crime, while he asked the next

three white venire members whether they or their

friends had ever been the victim of a crime. The

prosecutor's articulated reason for the challenge was

the juror did not exhibit a good understanding of the

standard “beyond a reasonable doubt.” Jd. at 708. The

Seventh Circuit properly applied Batson and its progeny

to reject the challenge as unconstitutional because of

the disparate questioning of the prospective jurors, the

lack of any evidence in the record that the juror did not

understand the standard of proof to be applied in a

criminal trial, and the fact that a white juror with an

identical answer to questions regarding the standard of

proof was not stricken. /d. at 708-09.

The Third Circuit applied this principle to

overturn the denial of a habeas corpus relief because the

record did not show that the state court had considered

all of the relevant evidence at stage three of the Batson

analysis. Riley v. Taylor, 277 F.3d 261, 286-87 (3rd Cir.

2001)(en banc). The court stated that in light of the

“perfunctory quality” of the second step of the Batson

inquiry following Purkett, “it is even more important

today than ever that the Batson inquiry not omit

consideration of the totality of the circumstances, both

for itself and as it relates to the evaluation of similarly

situated potential jurors....” Jd. at 287.

The Tenth Circuit also recently applied Batson to

uphold a trial court’s denial of a defendant-employer’s

peremptory challenge of a female venire member in a

gender discrimination case. Davey v. Lockheed Martin

Corp., 301 F.3d 1204, 1216 (10th Cir. 2002). Defense

counsel challenged three female prospective jurors

because none of them were currently employed and

“would not have that perspective to bring to

deliberations.” Jd. at 1215. The trial court assessed the

credibility of the proffered explanation based upon all of

the relevant circumstances and found the reason

pretextual as to one of the prospective jurors who had

significant past work experience. Jd. Also see United

States v. Bishop, 959 F.2d 820 (9th Cir.

1992)(prosecutor’s reason for peremptory challenge,

that juror lived in predominantly low-income black

neighborhood and was likely to believe that police “pick

on black people,” was not an adequate, race-neutral

explanation as required by Batson because it “reflected

and conveyed deeply ingrained and _ pernicious

stereotypes” rather than a link between a specific juror

and the facts of the case); United States v. Wynn, 20

F.Supp.2d 7 (D. D.C. 1997)(use of facially race-neutral

criteria to exclude venire members is a pretext for

discrimination where the record reveals the criteria

were applied inconsistently to members of different

races).

Lower courts have also properly applied Batson

and its progeny to determine peremptory challenges of

minority jurors do not violate equal protection

requirements. See United States v. Bartholomew, 310

F.3d 912 (6th Cir. 2002)(trial court did not err in holding

prosecution’s strike of three black females was not

discriminatory where two had relatives in the criminal

justice system, the third impressed the prosecutor as a

highly opinionated person, and the removal of the jurors

still left a majority-female jury that included two African

Americans); Devoil-El v. Groose, 160 F.3d 1184 (8th Cir.

1998)(trial court did not err in finding a venire member's

unemployment, having a relative in jail, dissatisfaction

with the police, having been charged with a crime, and

having been a crime victim were not racially-motivated

reasons for use of a peremptory challenge); United

States v. Brown, 299 F.3d 1252 (11th Cir. 2002)(trial

court did not commit clear error in finding the race-

neutral reasons offered by the government were

credible where all of the relevant circumstances were

considered including the government’s motion in limine

to exclude evidence that the defendant had been

targeted by government officials because of her race

and the defendant introduced no evidence to discredit

the proffered explanations and establish pretext).

Because this Court's well-settled and clearly

articulated standard for use of a peremptory challenge

to strike minority jurors has been uniformly and

properly applied in the lower courts, no further

clarification is necessary.

IV.

THE COURTS BELOW PROPERLY APPLIED

BATSON JURISPRUDENCE IN DETERMINING

THE PEREMPTORY CHALLENGE DID NOT

VIOLATE EQUAL PROTECTION REQUIREMENTS.

Unlike the trial judge in Miller-El, the trial court

in the present case had the benefit of the guidance

provided by this Court’s decisions in Hernandez,

Edmonson, J.E.B. and Purkett, when it conducted the

Batson hearing in this case and made its determination

regarding the challenged jury strike. The trial court

correctly applied the standards articulated by the Court

in these decisions in determining the strike of Ms.

Clardy was not made with intent to discriminate, and

that determination is entitled to great deference.

A. The Question at Issue is Not a

Surrogate for Race. —

In his Petition Tinner argues, “[u]nsurprisingly in

view of her race, Ms. Clardy answered in the affirmative

that she knew someone who had been involved in a

prior discrimination suit.” (Petition p. 6.) He went on to

state, “It is beyond argument that a voir dire question

directed to a potential juror asking whether she ‘knows’

or is ‘related to’ anyone who has filed a discrimination

claim is more likely to elicit a positive response from a

black venire member than others.” (Petition p. 15.)

Finally, he asserts that if knowledge of a prior

discrimination case and the characterization of it as an

‘ordeal’ is a race-neutral reason for striking an African-

American juror, “no civil rights defendant . . .will ever

be [tried before] a broad cross-section of the

community, because it will never include an African-

American among its number.” (Petition p. 22.)

No such claim was raised at the time of the

Batson hearing during the trial in this matter and Tinner

has not presented any statistical evidence to support

these assertions since that time. It is absurd to suggest

there will never be an African-American venire member

who does not know or is not related to someone who

has filed a claim of discrimination. Such an argument

relies upon the very kind of stereotypical notions Tinner

rightly abhors.

When the central issue in a case is discrimination,

trial counsel would be remiss in his duty to his client if

he did not inquire into prospective jurors experiences or

attitudes about that issue in order to obtain unbiased

jurors. The very purpose of voir dire is to allow each

party to question prospective jurors to determine

potential biases and thus assure both the reality and

appearance of a qualified and unbiased jury. Holland,

493 U.S. at 484.

B. Disparate Impact of a Criteria is Not

Conclusive Evidence of Intent to

Discriminate.

Assuming, arguendo, an African-American venire

member is more likely to answer affirmatively to the

question at issue than a non-minority member of a

panel, such a correlation does not equate with a

surrogate for race.’ In applying Batson, this Court has

followed the Jong-established equal protection principle

that disparate impact alone is insufficient to prove

discriminatory intent. Washington v. Davis, 426 U.S.

229, 242 (1976)(holding a test which was neutral on its

* United Insurance notes that Tinner has provided no statistical

evidence of any such correlation. In this case, one white male and

one black female responded affirmatively to the same question.

face did not violate equal protection solely because it

had a racially disproportionate impact.) This principle

was affirmed in the Batson context in Hernandez, 500 -

U.S. at 360, and J.E.B. v. Alabama, 511 U.S. 127, 143

(1994). In Hernandez, the Court stated “official action

will not be held unconstitutional solely because it

results in a racially disproportionate impact... Proof of

racially discriminatory intent or purpose is required to

show a violation of the Equal Protection Clause.” 500

U.S. at 360. Further, “strikes based on characteristics

that are disproportionately associated with [any

minority] could be appropriate, absent a showing of

pretext.” J.E.B., 511 U.S. at 143. For this Court to hold,

as Tinner seeks, that an affirmative response to the voir

dire question “Do you know anyone who has filed a

discrimination claim?” cannot be a race-neutral reason

for a strike because the question may disproportionately

affect minority jurors would fly in the face of the well-

established constitutional principle that an equal

protection violation requires proof of discriminatory

intent.

The courts below correctly found that Tinner did

not establish United Insurance’ acted with

discriminatory intent in exercising a peremptory

challenge to strike Prospective Juror Clardy. The trial

court heard the entire voir dire, conducted a Batson

hearing immediately after the peremptory challenge was

made, evaluated the statements, demeanor and body

language of both the prospective juror and trial counsel,

and determined there was no intent to discriminate

based on race.

C. The Facts Underlying Tinner’s Title

VII Claim Provide No Justification for

this Court’s Exercise of Its Certiorari

Jurisdiction.

Even if this Court believes further clarification of

the standard to be applied in evaluating Batson

challenges may assist lower courts, this case is not the

appropriate vehicle for such clarification.

Constitutional principles were properly applied in the

selection of the jury before whom Tinner’s Title VII

claim was tried and the verdict reached by that jury was

supported by both fact and law.

Tinner was employed as a Sales Representative in

United Insurance’s Evansville, Indiana office from

March 19, 1990, through June 10, 1996. (ROA, Doc. 32,

Ex. A, para. 5.) He was terminated on June 10, 1996,

because he failed to appear for work or present a

doctor’s excuse for his absence. (ROA, Doc. 32, Ex. A,

para. 43.) Contrary to Tinner’s assertion, there is no

evidence in the record that his colleagues “judged him

uniformly to be professional, hard-working, and

business-like.” (Petition p. 3.) Nor is there evidence in

the record to support Tinner’s assertion that his

employer had knowledge he was absent from work due

to a “medically-verified back condition.” (Petition p. 4.)

On or around May 10, 1996, Tinner requested one

week of vacation from June 10, 1996, to June 14, 1996.

(ROA, Doc. 32, Ex. A, para. 27.) His supervisor denied

the request because Tinner had taken a week of

vacation less than one month earlier and because he

was not meeting the expected sales increase for his

debit route. (ROA, Doc. 32, Ex. A, paras. 30-33.) On

Monday, June 3, 1996, Tinner called in sick. (ROA, Doc.

32, Ex. A, para. 34.) He did not present a doctor's

excuse or contact his staff manager or district manager

as required by Company policy. (ROA, Doc. 32, Ex. A,

paras. 35-36.) Tinner was absent the entire week of

June 3, 1996. (ROA, Doc. 32, Ex. A, para. 37.)

On June 6, his staff manager informed him he

must report to work on Monday, June 10, 1996, or have a

doctor’s note excusing him from work, or it would be

assumed he wished to terminate his employment with

United Insurance. (ROA, Doc. 32, Ex. A, para. 39-40.)

On June 10, Tinner went to the United Insurance office

_and gave the office administrator a note stating his last

day of work would be June 21, 1996, and a “Certificate

to Return to Work” signed by his doctor stating Tinner

was able to return to work on June 10, 1996. (ROA, Doc.

32, Ex. A, paras. 41-42.) Despite being released to return

to work on June 10, Tinner did not return to work.

(ROA, Doc. 32, Ex. A, para. 42.) In a letter dated June

11, 1996, his staff manager informed him his

employment with United Insurance ended as of June 10,

1996, due to his failure to appear for work. (ROA, Doc.

32, Ex. A, para. 43.)

Tinner filed suit against United Insurance alleging

race discrimination. (ROA, Doc. 1.) At trial he argued

that his former employer discriminated against him on

the basis of his race in wrongfully terminating his

employment ten days prior to the date he intended to

quit.

Tinner implies that United Insurance’s strike of

Ms. Clardy prevented him from obtaining a fair trial in

part because “conflicting testimony [of witnesses] broke

down along racial lines.” (Petition pp. 7-9.) Yet ample

evidence was produced at trial for the jury to find the

testimony of certain witnesses called by Tinner less

credible than certain defense witnesses. For example,

Clarence James, William Taylor, and Scott Wright were

Seated at the same table in a restaurant when two of

these individuals claimed they overheard a conversation

at another table. William Taylor, called as a witness by

Tinner, testified he was seated at the table right next to

Tinner’s staff manager, such that he could not back up

his chair to get out of his seat without bumping

someone at her table, when he allegedly overheard her

make a racially derogatory remark towards Tinner.

(Trial Trans. p. 162, ll. 7-16.) Clarence James, also called

by Tinner, testified that there was one table between

where they and Tinner’s staff manager were seated.

(Trial Trans. p. 133, ll. 1-2.) These statements, among

others, could not be reconciled and cast doubt on the

credibility of Tinner’s witnesses.

Evidence was also presented at trial that Tinner

was seeking employment elsewhere during the period

he was off work claiming to be sick. (Trial Trans. pp.

486-88.) On May 30, 1996, Tinner filled out an

application for employment at American General

Financial Group. (Trial Trans. p. 487-88.) On June 1,

1996, he signed a “notification of appointment” and

contract for employment with American General

Finance Group. (Trial Trans. p. 488.)

The jury who judged Tinner’s case was selected

properly and without discrimination violative of the

Equai Protection Clause or this Court’s Batson

jurisprudence. The jury’s determination that United

Insurance did not discriminate against Tinner in

terminating his employment ten days prior to the date

he intended to quit was supported by the facts and law.

No egregious error occurred which deserves this Court’s

attention to correct.

CONCLUSION

The questions presented in Tinner’s Petition are

not worthy of a Writ of Certiorari because the proper

standard for use of a peremptory challenge to strike a

minority juror is well-settled, uniformly applied

throughout the circuits, and a change in the standard of

review would be inappropriate. The courts below

properly applied this Court’s Batson jurisprudence in

finding the challenge did not violate the Equal

Protection Clause and there is no egregious wrong this

Court must address through exercise of its certiorari

jurisdiction. For all of the foregoing reasons, United

Insurance Company of America, by counsel, respectfully

requests that Tinner’s Petition for a Writ of Certiorari be

denied.

Respectfully submitted,

Brian P. Williams. Esq.

Counsel of Record