Georgia v. McCollum Brief Amicus Curiae

    No. 91-372

In The

Supreme Court of tf)e United g>tate£
October Term , 1991

State of Georgia,

v.
Thomas McCollum et al.

Petitioner,

Respondent.

On Writ of Certiorari to the 
Supreme Court of Georgia

BRIEF OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.,

AS AMICUS CURIAE SUGGESTING REVERSAL

J ulius L. Chambers 
Charles Stephen Ralston 

(Counsel o f Record)
E ric Schnapper 

99 Hudson Street 
16th Floor
New York, N.Y. 10013 
(212) 219-1900

Attorneys for Amicus 
Curiae

NAACP Legal Defense and 
Educational Fund, Inc.

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



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TABLE OF CONTENTS

Interest of Amicus Curiae..............................................  1

Summary o f  Argument ............................................... 3

Argument ........................................................................  5

Introduction .......................................................  5

I. The Principles U nderlying
Batso n  v. Ke n i v c k y .................................  6

II. T h e  A p p l i c a t i o n  o f  
Batson /Edmonson to Criminal 
Defendants Depends on Weighing
Competing Factors................................  7

1. The Right of Jurors......................  8

2. The Right of a Defendant to
an Unbiased Jury..........................  8

3. The Right to a Representative
Jury................................................  9

5. The Role of Juries in 
Preventing Prosecutorial 
Abuse.............................................  11

III. T h e  A p p l i c a t i o n  o f
Batson /Edmonson in Practice..........  13

Conclusion 17



TABLE OF AUTHORITIES

Cases: Pages:

Aldridge v. United States,
283 U.S. 308 (1931)........................................ 8

Alexander v. Louisiana,
405 U.S. 625 (1972).................................  2, 14, 15

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

Edmonson v. Leesville Concrete Co.,
500 U.S. _ ,  114 L.Ed.2d 660 (1991) . 5, 7, 8, 12, 13

Ham v. South Carolina,
409 U.S. 524 (1973)................................................8

Hernandez v. Texas,
347 U.S. 475 (1954)...........................................  15

Holland v. Illinois,
493 U.S. 107 L.Ed.2d 905 (1990).................. 10

McClesky v. Kemp,
481 U.S. 279 (1987)...........................................  11

Patton v. Mississippi,
332 U.S. 463 (1947)...........................................  15

Ristaino v. Ross,
424 U.S. 589 (1976)................................................9

Strauder v. West Virginia,
100 U.S. 303 (1880)...................................  6, 7, 10

ii



Ill

Pages:

Swain v. Alabama,
380 U.S. 202 (1965) ........................................  2, 10

Taylor v. Louisiana,
419 U.S. 522 (1975).............................................. 9

Turner v. Fouche,
396 U.S. 346 (1970).............................................. 2

Village of Arlington Heights v. Metropolitan
Housing Development Corp., 429 U.S. 252 (1977)14

Williams v. Florida,
399 U.S. 78 (1970)...................................................9

Statutes: Pages:

18 U.S.C. § 243 .............................................................. 12

42 U.S.C. § 1981 5



No. 91-372

In The

Suprem e Court of tfte Untteb fetates^
October Term , 1991

State of Georgia ,
Petitioner,

v.

Thomas McCollum , et al.

On Writ of Certiorari to the 
Supreme Court of Georgia

BRIEF OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.,

AS AMICUS CURIAE SUGGESTING REVERSAL

Interest of Amicus Curiae*

The NAACP Legal Defense and Educational Fund, 

Inc., is a non-profit corporation organized under the laws of 

the State of New York as a legal aid society. It was formed

'Letters of consent from the parties to the filing of this brief have 
been lodged with the Clerk of Court.



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to assist African Americans to secure their constitutional 

and civil rights through the courts. For many years, its 

attorneys have represented parties and appeared as amicus 

curiae in this Court and in the lower federal courts on a 

broad range of issues including both the substantive and 

procedural law relevant to cases of racial discrimination.

Of particular concern to the Legal Defense Fund has 

been racial discrimination against African Americans in the 

selection of juries. The Fund has represented criminal 

defendants raising jury' discrimination on direct appeal, e.g., 

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

represented potential African American jurors who have 

been excluded from jury service, e.g., Turner v. Fouche, 396 

U.S. 346 (1970). LDF attorneys handled Swain v. Alabama, 

380 U.S. 202 (1965) and participated as amicus curiae in 

Batson v. Kentucky, 476 U.S. 79 (1986). In light of LDF’s 

historic concern with and involvement in jury issues, we 

believe our views will be of assistance to the Court.



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Summary of Argument

I.

The question of whether the use of peremptory 

challenges by a criminal defendant to exclude potential 

jurors because of their race must be decided in light of the 

central purpose of the Fourteenth Amendment.

II.

In deciding the question, there are a number of 

competing interests embodied in the Fourteenth 

Amendment that must be carefully weighed. These include 

the right of jurors not to be excluded because of race, the 

right of a defendant to a fair and impartial jury free of 

racially prejudiced jurors, the right to a fair possibility of 

obtaining a representative jury, and the central role of the 

jury in preventing prosecutorial abuse. When these 

factors are given proper weight, it is clear that the same rule 

that bars prosecutors from excluding jurors because of their 

race should not automatically be applied to all defendants. 

It is further clear that whether white defendants can use



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peremptory challenges to purge minority jurors presents 

quite different issues from whether a minority defendant can 

strike majority group jurors,

III.

Whether a prima facie case of racial discrimination 

in the exercise of peremptory challenges has been 

established may vary significantly depending on the race of 

the jurors excluded. The use of all of a defendants’ 

peremptories to strike majority-group jurors, where it is 

impossible to produce a jury on which there will be no such 

jurors sitting, presents a far different issue than the use of 

peremptories to strike all minority jurors, thus producing a 

monochromatic juiy.



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Argument

Introduction

The Legal Defense Fund suggests that if the decision 

below is reversed, that holding should be based on the 

particular facts of this case, viz., the defendants are accused 

of a crime that involves racial animus and allegedly will use 

peremptory challenges to strike from the jury members of 

the very minority group they have been charged with 

victimizing.2 The purpose of this brief is to bring to the 

Court’s attention a number of concerns involved in deciding 

a much broader issue, viz., whether and in what way the rule 

announced in Batson v. Kentucky, 476 U.S. 79 (1986) and 

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

_, 114 L.Ed.2d 660 (1991), applies to all criminal

2A core concern of the Fourteenth Amendment’s Equal 
Protection Clause is that the outcome of a criminal case not depend 
on the race of the victim or the perpetrator. This means both that a 
defendant not be subject to different penalties because olhis race (42 
U.S.C. § 1981), and that the victim of a crime does not lack redress 
because of the race of the accused. If a white defendant uses 
peremptories to create an all-white jury that sanctions a crime against 
African Americans, that result violates key Fourteenth Amendment 
values.



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defendants when they exercise peremptory challenges.

I. The P rinciples Underlying Batson v. Kentucky

In Batson this Court turned to those "first principles"

that resulted in the holding that the exclusion of African

Americans from jury service violated the Fourteenth

Amendment. Citing Strauder v. West Virginia, 100 U.S. 303

(1880), the Court held:

Discrimination within the judicial system is 
most pernicious because it is "a stimulant to 
that race prejudice which is an impediment to 
securing to [black citizens] that equal justice 
which the law aims to secure to all others."

476 U.S. at 87-88. As Strauder itself further explained, the

exclusion of African American citizens because of their race

"is practically a brand upon them, affixed by the law; an

assertion of their inferiority." 100 U.S. at 308. Such a

practice violates the rights of African Americans "for whose

protection the [Fourteenth] Amendment was primarily

designed." Id., at 307.



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We do not mean to suggest that a similarly invidious 

discrimination against potential white jurors might not also 

violate the Constitution, and Strauder so recognizes. Id., at 

308.3 However, the question of whether the exclusion of 

members of a particular group by a defendant exercising 

peremptory challenges does run afoul of the Fourteenth 

Amendment must be determined in light of the central 

purpose of the Amendment and of the several distinct and 

potentially conflicting constitutional interests involved.

II. The Application of Batson/Edmonson to 
Criminal Defendants Depends on Weighing  
Com peting  Factors.

Amicus urges that the resolution of this case does not 

simply involve the application of the state action analysis of 

Edmonson, a civil case, to a criminal prosecution. Rather, 

there are several different equal protection/due process

3"If in those States where the colored people constitute a majority 
of the entire population a law should be enacted excluding all white 
men from jury service, thus denying to them the privilege of 
participating equally with the blacks in the administration of justice, 
we apprehend no one would be heard to claim that it would not be 
a denial to white men of the equal protection of the laws." Id.



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concerns to be considered and reconciled.

1. The Right o f Jurors.

Each juror has the right to be free from invidious 

racial discrimination when the decision whether he or she 

shall sit is made and enforced by the trial court. See Batson, 

476 U.S. at 87; Edmonson, 114 L.Ed.2d at 676-679.

2. The Right of a Defendant to an Unbiased Jury.

A criminal defendant has the right not to be tried by 

a racially biased jury. Aldridge v. United States, 283 U.S. 308 

(1931); Ham v. South Carolina, 409 U.S. 524 (1973). Often, 

voir dire and challenges for cause are not enough to protect 

a defendant, and a minority defendant faced with the 

possibility of biased white jurors must have recourse to 

peremptory challenges.

In theory there is a distinction between a race-based 

peremptory challenge used to discriminate invidiously in 

violation of Batson, and a peremptory challenge used to 

prevent discrimination by removing a juror whom the 

defendant believes harbors racial prejudice. In practice,



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however, it may often be difficult for the trial court to 

distinguish between the two cases, just as often the voir dire, 

if the circumstances of the case do not permit a searching 

inquiry into racial prejudice,4 may not be able to elicit 

sufficient proof of bias to permit a challenge for cause. 

Whatever the injury to a prospective juror of being excluded 

from a particular jury, the injury to a defendant by being 

tried by a jury infected with racial prejudice is far greater.

3. The Right to a Representative Jury.

The Sixth and Fourteenth Amendments guarantee to 

each criminal defendant "a fair possibility for obtaining a 

representative cross-section of the community" on the jury 

that tries him. Williams v. Florida, 399 U.S. 78, 100 (1970); 

Taylor v. Louisiana, 419 U.S. 522, 528 (1975). The ability to 

use peremptoiy challenges to exclude majority race jurors 

may be crucial to empaneling a fair jury. In many cases an 

African American, or other minority defendant, may be 

faced with a jury array in which his racial group is

4See Ristaino v. Ross, 424 U.S. 589 (1976).



10

underrepresented to some degree, but not sufficiently to 

permit a challenge under the Fourteenth Amendment.5 The 

only possible chance the defendant may have of having any 

minority jurors on the jury that actually tries him will be if 

he uses his peremptories to strike members of the majority 

race.

This use of peremptory challenges, we submit, is not 

invidious discrimination in violation of the Fourteenth 

Amendment. Its purpose is not, as in Strauder and Batson 

to exclude persons because of their race or to rid a jury of all 

members of a particular racial group because of animosity 

towards them (an impossible goal when it is members of the 

majority that are being struck), but rather to include persons 

who would otherwise not sit. While we recognize that a 

defendant has no absolute right to have members of his race 

on the actual jury that tries him in the sense that there is a 

violation of the Constitution if there are not,6 we do submit

5See, e.g., Swain v. Alabama, 380 U.S. 202, 206-09 (1965).

"Holland v. Illinois, 493 U.S. _ ,  107 L.Ed.2d 905 (1990).



11

that the use of peremptories to produce a representative jury 

is fully consistent with both the Fourteenth and the Sixth 

Amendments.

5. The Role of Juries in Preventing Prosecutorial Abuse.

A jury is provided in a criminal prosecution under 

the Sixth and Fourteenth Amendment as a right of 

defendants, in part to serve as a check on prosecutorial 

abuse. Thus, a jury may be the only effective protection 

against racial discrimination by prosecutors in deciding, for 

example, what crime to charge or what penalty to seek. Cf. 

McClesky v. Kemp, 481 U.S. 279. 309-11 (1987). The 

likelihood that a jury will in fact perform this role may 

depend in part on its racial composition, i. e. ,  to the extent 

it fairly represents the community as a whole by including 

members of the group from which the defendant comes. 

Where a minority group is a small proportion of the 

community, in a particular case the only chance of reaching 

minority members of the panel may be through the use of 

peremptory challenges to strike some members of the



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majority group.

6. Summation.

Many of the factors discussed above do not apply 

when a prosecutor is exercising the state’s peremptory 

challenges. Thus, the state does not have a constitutional 

right to a jury trial, and it has the same interest as does the 

victim of a crime in ensuring that the criminal justice system 

operates in a race-neutral fashion. Further, 18 U.S.C. § 243 

makes it a federal crime for a state officer "charged with any 

duty in the selection . . .  of jurors" to exclude any citizen "on 

account of race." By its literal terms, the statute applies to 

the use of peremptory challenges by a prosecutor to exclude 

African Americans because of their race.

In addition, when these various factors are weighed, 

it is apparent that whether and to what extent the 

BatsonlEdmonson rule applies to criminal defendants will 

depend greatly on the circumstances of the particular case. 

For a white defendant to practice invidious discrimination by 

striking all African Americans from the jury that will try him



13

for a racially motivated crime against an African American, 

presents different issues from the case of an African 

American defendant who uses peremptories in an attempt to 

have some members of his race on the jury that will try him. 

As we will now demonstrate, these different circumstances 

also will result in differences in the way Batson is applied in 

practice.

III. The Application of Batson/Edmonson in
P ractice.

Assuming that Batson does apply in some way to the 

use of peremptories by a criminal defendant, there are three 

key considerations affecting whether the use of peremptories 

creates a prima facie case, as well as the weight of that case 

and what considerations are sufficient to overcome it. In 

some cases, a finding of even a prima facie case would be 

clear error, while in others the prima facie case would be so 

compelling that it could only be overcome with extraordinary



14

evidence.7

First, if a venire is ninety per cent white, or other 

majority group, one would expect that peremptories 

exercised without regard to race would be mostly against 

whites. For example, if a litigant used ten peremptories 

against ten whites, that could happen by chance in a 

significant number of instances. Therefore, no inference of 

discrimination could be drawn from that fact alone. If, on 

the other hand, a litigant used ten peremptories against ten 

African Americans where the venire is ninety per cent white 

and ten per cent African American, a strong inference of 

discrimination could be drawn.8

7See Alexander v. Louisiana, 405 U.S. 625 (1972) for one of many 
examples of an irrefutable case of jury discrimination made by a clear 
pattern of exclusion coupled with the opportunity to discriminate 
based on race. See also Village of Arlington Heights v. Metropolitan 
Housing Development Corp., 429 U.S. 252, 266 (1977)("Sometimes a 
clear pattern, unexplainable on grounds other than race, emerges 
from the effect of the state action even when the governing legislation 
appears neutral on its face"), and id. at n. 13.

8If peremptories were exercised randomly, one would expect that 
nine would be used against whites and one against African 
Americans. The use of one more peremptory against whites for a 
total of ten is not a substantial deviation from what one would expect; 
the use of all ten against African Americans is, however.



15

Second, a related factor is whether the litigant was in 

a position to and did he actually produce a one-race (or 

virtually one-race) jury. If a litigant uses peremptories to 

sweep all minorities from the venire, the "monochromatic 

result" can establish a prima facie case. Alexander v. 

Louisiana, 405 U.S. at 632. Conversely, if a litigant is sure 

to get a jury that is heavily white no matter how 

peremptories are used, the litigant is likely to have been 

using strikes for some other reason other than race.

Third, whether the excluded jurors were members of 

an historically discriminated against group, and particularly 

a group historically underrepresented on jury rolls, is highly 

significant. Thus, a purge of all African Americans from a 

jury sitting in Mississippi9 or all Hispanic Americans from 

a jury sitting in Texas10 is far more probative of invidious 

discrimination on the part of the litigant (or his or her

9 Patton v. Mississippi, 332 U.S. 463 (1947)(no African Americans 
called for jury service within the last thirty years).

10Hemandez v. Texas, 347 U.S. 475 (1954)(no Hispanic Americans 
called for jury service for last twenty-five years).



16

attorney) than the striking of some whites in Minnesota.

Not only is establishing a prima facie case where the 

defendant’s group is a minority in the community and on the 

jury rolls far more difficult and problematic, but the rebuttal 

of a prima facie case even when made is a lesser burden 

than when a prosecutor or a private litigant strikes minority 

jurors. With regard to a prosecutor, Batson makes it clear 

that the use of peremptories to exclude minority jurors 

because of preconceptions about how they would decide a 

case can never be justified. A minority defendant, however, 

is powerless to purge the jury of whites; the only possible 

uses of the peremptory' against potential white jurors are 

either to strike those for whom some basis for suspecting 

bias exists, or to attempt to reach African Americans on the 

venire so that they may sit on the jury. Neither purpose is 

either invidious nor unconstitutional, but is related to the 

compelling state interest of providing the defendant with a 

jury that represents the community and is truly fair and 

impartial.



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Conclusion

The considerations set out in this brief militate 

against a decision that treats all defendants, whether white, 

African American, or other minority, as if their 

circumstances are necessarily the same. A holding that 

Batson v. Kentucky prohibits the respondents here from 

striking African Americans from the jury that will try them 

does not compel a broader ruling.

For the foregoing reasons, amicus suggests that the 

decision of the court below should be reversed, but the basis 

of that reversal be limited to the facts of this case.

Respectfully submitted,

Julius L. Chambers 
Charles Stephen Ralston 

(Counsel o f  Record)
Eric Schnapper 

99 Hudson Street 
16th Floor
New York, N.Y. 10013 
(212) 219-1900

Attorneys for Am icus 
Curiae

NAACP Legal Defense and 
Educational Fund, Inc.