Edmondson v. Leesville Concrete Company Brief Amicus Curiae

    No. 89-7743

I n  T h e

Supreme Court of tfje Umtetr states?
O c t o b e r  T e r m , 1990

Thaddeus Donald E dmondson,
Petitioner,

v.
Leesville  Concrete Company,

Respondent.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Fifth Circuit

BRIEF AMICUS CURIAE 
IN SUPPORT OF PETITIONER 

OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., LAWYERS’ 

COMMITTEE FOR CIVIL RIGHTS UNDER LAW, AND 
AMERICAN JEWISH COMMITTEE

Deval L. Patrick 
Marc Goodheart 
J osie Foehrenbach Brown 
Michael J. P ineault 
Hill & Barlow 
One International Place 
Boston, Mass. 02110 
(617) 439-3555 
Robert F. Mullen 
David S. Tatel 

Co-Chairmen 
Norman Redlich 

Trustee
Barbara R. Arnwine 
Thomas J. Henderson 
Richard T. Seymour 
Lawyers’ Committee for 

Civil Rights Under Law 
1400 Eye Street, N.W.
Suite 400
Washington, D.C. 20005

Julius LeVonne Chambers 
E ric Schnapper*
99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900 
Samuel Rabinove 
American Jewish Committee 
165 East 56th Street 
New York, NY 10002 
(212) 751-4000 

*  Counsel of Record

Counsel for Amici

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



QUESTIONS PRESENTED

1. Does 28 U.S.C. § 1870 require or authorize a 

federal judge to exclude a black prospective juror in a civil 

case where a party seeks to exclude that juror by means of 

a peremptory challenge because of his or her race?

2. Do 28 U.S.C. § 1862 or 42 U.S.C. § 1981 

forbid a federal judge from excluding a black prospective 

juror in a civil case where a party seeks to exclude that juror 

by means of a peremptory challenge because of his or her 

race?

3. Where a civil jury has been assembled by means 

of race-based peremptory challenges, does a federal court 

have inherent authority to dismiss that jury?

x



TABLE OF CONTENTS

Page

Questions Presented ................. . i

Table of Authorities........ ..........  iv

Interest of Am ici....................   2

S tatutory Provisions Involved ........ 4

Summary of Argument.......................  4

Argument................................  7

I. This Court Need Not Decide 
the Constitutional Questions 
Addressed By The Courts Below . 7

II. 28 U.S.C. § 1870 Does Not
Require or Authorized A 
Federal Judge In A Civil Case 
To Exclude A Black Prospective 
Juror Because of a Race-Based 
Peremptory Challenge ....... . 10

A. Such A Race-Based Exclusion 
Would Be Inconsistent With 
The Purpose of Section 1870 12

i i



B. Such A Race-Based Exclusion 
Would Be Inconsistent With 
Federal Statutes Prohibit­
ing Discrimination in Jury 
Selection......................  25

1. 28 U.S.C. § 1862 ........  26

2. 28 U.S.C. § 1861 ........ 30

3. 28 U.S.C. § 1981 ........ 32

4. 18 U.S.C. § 243 ......... 35

III. The Federal Courts Have In­
herent Authority To Dismiss A 
Civil Jury Assembled By Means 
of Race-Based Peremptory 
Challenges .........   37

Conclusion..................     50

Appendix A .........     la

Appendix B .................................  4a

Appendix C ..........................   8a

Appendix D .................................... 10a

1X1



TABLE OF AUTHORITIES 

Cases: Page

Aldridge v. United States,
283 U.S. 308 (1931) .....................  40

Alexander v. Louisiana,
405 U.S.-625 (1972)...............  8

Allen v.Hardy, 478 U.S. 255 
(1986) .......................................  44

Ballard v. United States,
329 U.S. 187 (1946)............... 6,41,42,50

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

Carter v. Jury Commission of 
Greene County, 396, U.S. 320 
(1970) . . . . . . . . . . . . . . . . . . . . . . . . .  45

City of Little Rock v. Reynolds,
No. 90 -l_ ....................................   2

City of Miami v. Cornett,
463 So.2d 399 (Fla. App. 3
Dist. 1985 .........................  45

Clark v. City of Bridgeport,
642 F. Supp. 890
(D.Conn. 1986)............. . 9,11,22

Commonwealth v. Soares,
387 N.E. 2d 499 (Mass. 1979) ... 18

xv



Cupp v. Naughten, 414 U.S. 141 
(1973)................................. 39

Edmondson v. Leesville Concrete 
Co., 860 F.2d 1308 (5th Cir.
1989)  ........................... 9

Edmondson v. Leesville Concrete 
Co., 895 F.2d 218 (5th Cir.
1990) ................................. 13,14.46,48

Esposito V: Buonome,
642 F. Supp. 760 (D.Conn. 1986). 9,23

Fludd v. Dykes, 863 F.2d 822 
(5th Cir. 1989).............................  23

Georgia v. Rachel, 384 U.S. 780 
(1966) ..........................   32,33

Gomez v. United States,
104 L.Ed.2d 923 (1989) ...................  8

Goodman v. Lukens Steel Co.,
482 U.S. 656 (1987) .......................  35

Griffin v. Breckenridge,
403 U.S. 88 (1971) ................  27,34

Hayes v. Missouri, 120 U.S. 68 
(1887)............................................  17

Page

v



Page

Holland v. Illinois,
107 L.Ed.2d 905 (1990) ....... . 6,15,18,44,49

Holley v. J. & S. Sweeping Co.,
192 Cal. Rptr. 74, 143 Cal.
App. 3d 588, (1st Dist. Ct.
App. 1983) ........................... 9

Hurd v. Hodge, 334 U.S. 24 
(1948) .............   34

Kabatchnick v. Hanover-Elm Bldg.
Corp., 331 Mass. 366, 119 N.E.
2d 69 (1954) .........................  14

King v. County of Nassau,
581 F. Supp. 493 (E.D.N.Y.
1984) ............     22

Lewis v. United States,
146 U.S. 370 (1892)......   16

Lommen v. Minneapolis Gaslight 
Co., 65 Minn. 196, 68 N.W. 53 
(1896)....................    14

Lugar v. Edmondson Oil Co.,
457 U.S. 922 (1982)...............  45

Maloney v. Washington,
690 F. Supp. 687 (N.D. 111.
1988) ........... ................... . 9,22,45-47

v i



Marshall v. United States,
360 U.S. 310 (1959)........ . 40

McCray v. New York,
461 U.S. 961 (1983)...............  28

McNabb v. United States,
318 U.S. 332 (1943)...............  38

Murphy v. Florida,
421 U.S. 794 (1975) .......... 40

Parker v. Downing, 547 So.2d 1180 
(Civ. App, Ala. 1988) .......... 23

Patterson v. McLean Credit Union,
105 L.Ed.2d 132 (1989) ......... 6,33,34

Peters v. Kiff, 407 U.S. 493 
(1972) ...................     20,49

People v. Wheeler,
583 P.2d 755, 148 Cal. Rptr.
890 (1978)...............  48

Plessy v. Ferguson,
163 U.S. 537 (1896) ........ . 42

Reynolds v. City of Little Rock,
893 F.2d 1004 (8th Cir. 1990) .. 23

Ristaino v. Ross, 424 U.S. 589 
(1976) ................................. 40,43

Page

v i i



Rose v. Mitchell, 443 U.S. 545 
(1979) ................................ . 43

Runyon v. McCrary,
427 U.S. 160 (1976).......................  33

Sackett v. Ruder, 152 Mass. 397,
25 N.E. 736 (1890) ......................... 14

Smith v. Allwright,
321 U.S. 649 (1944) .. . . . ....... 50

Smith v. Texas, 311 U.S. 128 
(1940) ...........................................   48

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

Strauder v. West Virginia,
100 U.S. 303 (1880) ......... 6,22,32,33,42,47

Terry v. Adams, 345 U.S. 461 
(1944) . . . . . . . . . . . . . . . . . . . . . . . . .  50

Taylor v. Louisiana,
419 U.S. 522 (1975) ....................   20

Thiel v. Southern Pacific Co.,
328 U.S. 217 (1966) ............... 6,40,41,42,50

United States v. Hasting,
461 U.S. 499 (1983)

Page

v i i i

39



United States v. Shackleford,
18 How. (59 U.S.) 588 (1856) ... 15

Williams v. Coppola, 549 A.2d 1092 
(Sup. Ct. Conn. 1986) ........... 11,44

Wilson v. Garcia, 471 U.S. 261 
(1985) .............................. 35

Statutes and Constitutional 
Provisions:

Fourteenth Amendment, United 
States Constitution ................ 21,23

18 U.S.C. § 243 ........... . 35,36

28 U.S.C. § 1861 ....... 10,30,31,35,36

28 U.S.C. § 1862 ....... 5,26-28,31,35,36

28 U.S.C. § 1863 ...................... 27,28

28 U.S.C. § 1865 ...................... 28

28 U.S.C. § 1866 ......................  27,28,29

28 U.S.C. § 1870 ...................... Passim

42 U.S.C. § 1981 ............ ......... 5,6,32-36

42 U.S.C. § 1983 .....................  35

Page

ix



Page

Civil Rights Act of 1866 ......... 21,22,23

Civil Rights Act of 1871 ...........  21,22,23

Civil Rights Act of 1875 ............  18,26,29

Civil Rights Act of 1965,
Title V II .............................  16,22

Judiciary Act of 1790 .......................   15

Jury Selection and Service Act 
of 1968 ...............................    5,26,28

1 Stat. 119 ............................   15

5 Stat. 394 .............................    15

17 Stat. 282 .....................................  17

18 Stat. 335 .....................................  26

Other Authorities:

H.R. Rep. 1076, 90th Cong.,
2d Sess. (1968) ..................... 27,29

Cong. Globe, 42nd Cong.,
2d sess. (1872).................. 17,18,19,30,49

Cong, Globe, 43rd Cong., 2d sess.
(1875) ...........................................   30

J. Proffatt, A Treatise on Trial

x



By Jury (1877) ................. 14,15,43

Note, 53 Geo. L.J. 1050 (1965) ... 39

xx



No. 89-7743

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1990

THADDEUS DONALD EDMONDSON,

Petitioner.

v.

LEESVILLE CONCRETE COMPANY,

Respondent.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Fifth Circuit

BRIEF AMICUS CURIAE 
IN SUPPORT OF PETITIONER 

OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., LAWYERS’ 

COMMITTEE FOR CIVIL RIGHTS UNDER LAW, AND 
AMERICAN JEWISH COMMITTEE



2

INTEREST OF AMICI1

The NAACP Legal Defense and Educational Fund, Inc., 

is a non-profit corporation formed to assist blacks to secure 

their constitutional and civil rights by means of litigation. 

The Fund’s attorneys represent the plaintiffs in a number of 

federal civil rights cases which have been or will be tried 

before civil juries. E.g. City o f Little Rock v. Reynolds, No. 

90-1.

The Lawyers’ Committee for Civil Rights Under Law 

is a nationwide civil rights organization founded in 1963 by 

members of the American Bar, at the request of President 

Kennedy, to provide legal representation to blacks who were 

being deprived of their civil rights.

The American Jewish Committee is a national 

membership organization, founded in 1906 for the purpose 

of protecting the civil and religious rights of Jews. AJC has 

always believed that these rights can be secure for Jews only

'The parties have consented to the filing of this amicus brief.



3

if they axe equally secure for Americans of all faiths, races 

and ethnic backgrounds. AJC, therefore, has been actively 

involved in the civil rights cause since its inception. The 

organization has always urged that civil rights laws be 

interpreted broadly to effectuate their purposes. AJC 

believes that the exclusion of African Americans from juries 

in civil cases through the use of peremptory challenges is a 

grievous deprivation based on race which is in violation of 

existing law.



4

STATUTORY PROVISIONS INVOLVED 

The statutory provisions involved are set forth in 

Appendix A.

SUMMARY OF ARGUMENT 

The courts below should not have passed on the 

constitutionality of excluding a jury or because of a race- 

based peremptory challenge without first deciding whether 

federal law authorizes or requires the removal of such jurors. 

Section 1870, 28 U.S.C., which establishes peremptory 

challenges in civil cases, should be interpreted in a manner 

that avoids this constitutional problem.

The essence of the peremptory challenge authorized by 

section 1870 is a challenge which does not require proof that 

the juror in question should be removed for cause. But that 

is a far cry from authorizing litigants to introduce racial 

considerations into the jury selection process. The purpose 

of peremptory challenges is to enable a party to exclude a 

prospective juror who it believes may be biased. But "[a]



5

person’s race simply is ’unrelated to his fitness as a juror’". 

Batson v. Kentucky, 476 U.S. 79, 87 (1986). For that 

reason Swain v. Alabama, 380 U.S. 202, 224 (1965), 

recognized that the removal of a juror solely because of his 

or her race would be a "perverted" use of a peremptory 

challenge. Section 1870 should not be construed to authorize 

or require removal of a juror where the proposed peremptory 

challenge would frustrate rather than advance the creation of 

an impartial jury.

The general language of section 1870 must be construed 

in the light of the more specific provisions of federal laws 

prohibiting racial discrimination in jury selection. Section 

1862, 28 U.S.C., expressly provides that "[n]o citizen shall 

be excluded from service as a ... juror on account of race." 

The word "excluded" is a term of art under the Jury 

Selection and Service Act of 1968; jurors removed from a 

panel because of a peremptory challenge are said to be 

"excluded". Section 1981 of 42 U.S.C. prohibits racial



6

discrimination in jury selection. Strauder v. West Virginia, 

100 U.S. 303, 311-12 (1880). Section 1981 applies to 

private as well as government action. Patterson v. McLean 

Credit Union, 105 L.Ed.2d 132 (1989).

This Court has substantial supervisory power over the 

federal courts, and has utilized that authority to prohibit 

discriminatory jury selection practices. Thiel v. Southern 

Pacific Co,, 328 U.S. 217 (1946) (wage earners); Ballard v. 

United States, 329 U.S. 187 (1946) (women). The exercise 

of that authority is even more appropriate where the 

discrimination at issue is racial. The Court’s supervisory 

power should be exercised in the circumstances of this case 

to protect the right of black prospective jurors to participate 

in the administration of justice. "The reality is that a juror 

dismissed because of his race will leave the courtroom with 

a lasting sense of exclusion from the experience of jury 

participation...." Holland v. Illinois, 107 L.Ed.2d 905, 922



7

(Kennedy, J., concurring). Federal judges should not be 

knowing accomplices to such discriminatory practices.

ARGUMENT

I. THIS COURT NEED NOT DECIDE THE 
CONSTITUTIONAL QUESTION ADDRESSED 
BY THE COURTS BELOW

The decisions of the courts below are largely devoted to 

a constitutional question — whether Batson v. Kentucky, 476 

U.S. 79 (1986), should be applied to civil cases. Had the 

instant case arisen in state courts, it could be resolved in this 

Court only by addressing that constitutional issue. In 

Batson, for example, the Kentucky courts had already held 

that the disputed exercise of peremptory challenges in that 

case was consistent with state law. See 476 U.S. at 84. 

The instant case, however, was filed and tried in federal 

court. Accordingly, this Court would have no need or 

occasion to reach any constitutional question until and unless 

it determines that federal law required or authorized the



8

district judge to take the actions whose constitutionality was 

challenged below.

It has been the consistent practice of this Court to 

decline to address a constitutional question where a case can 

be resolved on a non-constitutional basis. Alexander v. 

Louisiana, 405 U.S. 625, 633 (1972). It is, moreover, the 

settled policy of this Court "to avoid an interpretation of a 

federal statute that engenders constitutional issues if a 

reasonable alternative interpretation poses no constitutional 

question." Gomez v. United States, 104 L.Ed.2d 923, 932 

(1989). In the instant case any legal authority for the 

exclusion of the black prospective jurors at issue can only 

derive from the federal statute establishing peremptory 

challenges in civil cases, 28 U.S.C. § 1870. If the disputed 

actions were authorized or required by section 1870 and 

those actions are indeed unconstitutional, then section 1870 

would to that degree itself be unconstitutional.



9

Despite these two well established prudential rules, the 

en banc decision below considered only the constitutional 

issue, assuming without explanation or comment that federal 

law requires federal judges to implement, indeed protect the 

use of, race-based peremptory challenges in civil cases. The 

original panel decision in petitioner’s favor, on the other 

hand, relied at least in part on a construction of section 

1870.2 A number of other lower court decisions regarding 

the use of race-based peremptory challenges in civil cases 

have specifically dealt with non-constitutional arguments 

regarding such challenges.3 This Court noted in Batson the 

existence of conflicting lower federal court decisions 

regarding whether the issue determined in that case on a

2Edmondson v. Leesville Concrete Co., 860 F.2d 1308, 1312 (5th 
Cir. 1989).

3Maloney v. Washington, 690 F. Supp. 687, 690 (N.D.I11. 1988) (28 
U.S.C, § 1862); Esposito v. Buonome, 642 F. Supp. 760, 761 (D.Conn. 
1986) (28 U.-S.C. §§ 1861, 1862); Clark v. City o f Bridgeport, 645 F. 
Supp. 890, 896 (28 U,S.C.§ 1862), 897 ("inherent supervisory power") 
(D.Conn. 1986); Holley v. J. & S. Sweeping Co., 192 Cal. Rptr. 74, 77, 
143 Cal. App. 3d 588 (1983) (relying on state statutes similar to 28 
U.S.C. §§ 1861, 1862).



10

constitutional basis could, in a federal case, be resolved by

reference to the inherent supervisory powers of the federal

courts. 476 U.S. at 82 n. 1.

The non-constitutional issues raised by this case are

fairly comprised in the questions presented by the petition.4

II. FEDERAL LAW NEITHER REQUIRES NOR 
PERMITS A FEDERAL JUDGE IN A CIVIL 
CASE TO EXCLUDE A BLACK PROSPECTIVE 
JUROR BECAUSE OF A RACE-BASED 
PEREMPTORY CHALLENGE

Petitioner first objected to the use of race-based 

peremptory challenges immediately after respondent had 

announced which jurors it wished the trial judge to exclude, 

but before the trial court had acted to remove from the jury 

box the two black venirepersons, Willie Combs and Wilton 

Simmons, to whom respondent objected.5 The issue raised 

by this first objection is whether a trial judge is obligated or 

permitted by federal law to remove a black prospective juror

"Petition, pp. i (section 1870, ”[]power to supervise"), 7 ("discretion" 
of trial judge), 8 (28 U.S.C. § 1861), 9 (28 U.S.C. § 1870).

5Tr. 52-54.



11

if a civil litigant seeks to exercise a race-based peremptory 

challenge.

In the present posture of this case we do not know 

whether respondent objected to Combs and Simmons solely 

because they were black, since the trial court declined to 

question counsel for respondent. In other cases, however, 

in response to such inquiries, defense attorneys have been 

quite brazen in proclaiming their desire to obtain an all- 

white jury:

[I]f I had a choice between a white juror and a 
black juror, I’m going to take a white juror ... 
[W]hy should I put ... my defendants at the mercy 
of the people in my opinion who make the most 
civil rights claims.6

Counsel for the defendant conceded that race was 
a factor.... Although he claimed there were other 
reasons, he did not articulate them.7

On the view of the en banc court, the obligations of the trial

6Clarkv. City o f Bridgeport, 645 F. Supp. 890, 894 (D.Conn. 1986).

7Williams v. Coppola, 41 Conn. Supp. 48, 549 A.2d 1092, 1094 
(Super. 1986) (emphasis in original).



12

judge in this case would have been the same even if counsel 

for respondent had openly proclaimed that he was objecting 

to Combs and Simmons expressly and solely because they 

were black. The court of appeals insisted that a federal 

judge, faced with an avowedly race-based peremptory 

objection to a black juror, would be legally required to 

remove the black juror at issue, and would be powerless to 

correct the racially tainted process that followed. On this 

view a Ku Klux Klan leader sued for an alleged act of racial 

violence could as a practical matter insist, brazenly and with 

success, on trial by an all-white jury, and a present or 

retired member of this Court, trying a case by designation, 

would be obligated to assist in an avowedly racist jury 

selection process.

A. . Such A Race-Based Exclusion Would 
Be Inconsistent With The Purpose of 
Section 1870

The authority of federal judges in civil cases to exclude 

jurors because of peremptory challenges derives from 28



13

U.S.C. § 1870. We contend that section 1870 should be 

construed in a manner consistent with the constitutional rule 

in Batson. Any prospective juror, regardless of race, may 

be excluded by peremptory challenge, and, so long as no 

invidious motive is involved, a party is not prohibited from 

using peremptory challenges to exclude jurors of the same 

race as the opposing party. Where, however, a party seeks 

to exercise a peremptory challenge against a venire person 

because of his or her race, section 1870 neither requires nor 

authorizes a federal judge to remove that prospective juror. 

Where a judge declines on this basis to remove a juror, the 

objecting party retains the right to exercise that challenge, 

but must do so on a non-racial basis.

The en banc panel did not explain why it believed 

federal law compels the removal of a black juror because of 

a race-based peremptory challenge, other than to assert that 

that is "what the rule requires", 895 F.2d at 222, and that 

the use of peremptory challenges in civil cases is a



14

"common law" practice of "great age." 895 F.2d at 223, 

226. In fact, however, the origin and age of peremptory 

challenges in civil cases are entirely different than those of 

the challenges accorded criminal defendants.8 The only 

form of peremptory challenge recognized under the common 

law was that provided to defendants in criminal cases; as a 

practical matter, even it was largely limited to defendants in 

capital cases. Swain v. Alabama, 380 U.S. 202, 211-13 & 

n. 9 (1965). Under the common law, no party in a civil 

case was accorded any peremptory challenges.9 *

Peremptory challenges in civil cases were virtually 

unknown in this country when the Constitution was adopted, 

and became widespread only toward the end of the

The exercise of peremptory challenges by defendants in federal 
criminal cases may raise somewhat distinct issues which we do not 
undertake to address.

9J. Proffatt, A Treatise on Trial by Jury, §§ 155, 163 (1877); 
Kabatchnick v. Hanover-Elm Bldg. Corp., 331 Mass. 366, 119 N.E.2d
169, 172 (1954); Sackett v. Ruder 152 Mass. 397, 25 N.E. 736, 738 
(1890); Lommen v. Minneapolis Gaslight Co., 65 Minn. 196, 68 N.W. 
53, 55 (1896).



15

nineteenth century.10 Consistent with the common law and 

state practice, the Judiciary Act of 1790 authorized 

peremptory challenges in federal courts only in capital 

cases.11 The use of peremptory challenges in federal civil 

cases derives from legislation first enacted by Congress in 

1872.12 The current provision regarding such challenges, 28 

U.S.C. § 1870, provides in pertinent part: "In civil cases, 

each party shall be entitled to three peremptory challenges." 

Any obligation imposed on federal judges to remove a black 

juror because of a race-based peremptory challenge must 

derive, if at all, from section 1870.

By according to civil litigants "peremptory challenges," 

Congress undoubtedly meant to create a species of challenge

!0Proffatt, supra, § 163.

" I  Stat. .119; see Holland v. Illinois, 107 L.Ed.2d 905, 917 n. 1 
(1990).

i217 Stat. 282. In 1840 Congress authorized the federal courts to 
adopt local rules regarding jury selection based on state practice. 5 Stat. 
394. This legislation was interpreted to authorize the adoption of local 
rules regarding peremptory challenges. United States v. Shackleford, 18 
How. (59 U.S.) 588 (1856). None of the federal court rules which we 
have been able to find from this era contain any references to peremptory 
challenges.



16

different than a challenge for cause. The essence of a 

peremptory challenge is that the objecting party can obtain 

the removal of a juror "without showing any cause at all." 

Lewis v. United States, 146 U.S. 370, 376 (1892). But to 

provide that a party may obtain the removal of a prospective 

juror without demonstrating good cause is a far cry from 

providing that the party has an absolute right to remove the 

juror, even if its reason be one harmful to the administration 

of justice. The law often accords individuals the freedom to 

take action arbitrarily, or for no reason at all, and yet 

forbids the same action if taken for an invidious motive. 

Under Title VII, for example, a private employer is free to 

reject a job applicant out of whim or caprice, but is 

forbidden to do so on the basis of race or sex.

The central purpose of peremptory challenges is to 

permit a party to remove potential jurors who it believes, 

but cannot demonstrate, may in fact be biased. A party

may have the strongest reasons to distrust the
character of a juror offered, from his habits and



17

associations, and yet find it difficult to formulate 
and sustain a legal objection to him. In such cases 
the peremptory challenge is a protection against his 
being accepted.

Hayes v. Missouri, 120 U.S. 68, 70 (1887). The legislative

history of section 1870 reveals that, in authorizing

peremptory challenges in civil cases, Congress sought to

provide litigants with a safeguard against biased jurors:

In civil cases in cities, where frequently we get a 
merchant on the jury, he may be as much interested 
as the man whose case is being tried, and it is 
necessary to get him off the jury. We therefore 
amend the law by entitling each party in such cases 
to three peremptory challenges.13

Resort to a peremptory challenge may also be necessary

where a juror may have taken offense because a party had

sought, without success, to remove that juror for cause.

Swain v. Alabama, 380 U.S. 202, 219-20 (1965).

In both Swain and Batson, however, this Court

emphasized that removal of a prospective juror because of

his or her race would be a "perverted" use of a peremptory

l3Cong. Globe, 42d Cong., 2d Sess., 3411 (1872) (Rep. Butler).



18

challenge. Batson v. Kentucky, 476 U. S. at 91; Swain v.

Alabama, 380 U.S. at 224.14 Such a perverse application

of section 1870 would be entirely inconsistent with the intent

of Congress to facilitate removal of possibly partial jurors:

Competence to serve as a juror ultimately depends 
on an assessment of individual qualifications and 
ability impartially to consider evidence presented at 
a trial.... A person’s race simply is "unrelated to 
his fitness as a juror."

Batson, 476 U.S. at 87.15

The larger purpose of peremptory challenges, and of 

section 1870, is to assure that civil cases will be decided by 

juries "which in fact and in the opinion of the parties are

14See also Commonwealth v. Soares, 377 Mass. 461, 387 N.E. 2d 
499, 515 n. 28 ("what is involved here is an apparent perversion of a 
system designed to preclude prejudice"), cert, denied 444 U.S. 881 
(1979).

l5In enacting the Civil Rights Act of 1875, which forbad racial 
discrimination in the selection of federal or state juries, Congress 
emphatically rejected objections that blacks as a race could not be trusted 
to fairly adjudicate the rights of whites. Cong. Globe, 42nd Cong. 2d 
sess., app. 218 (Rep. McHenry), app. 598-99 (Rep. Rice) (1972). These 
debates occurred within a month of passage of the peremptory challenge 
provision now codified in section 1870. It is inconceivable that Congress 
intended to authorize civil litigants to remove black jurors on the very 
racist premise that Congress spumed in passing the Civil Rights Act.



19

fair and impartial." Swain v. Alabama, 380 U.S. at 212; 

see also id. at 218, 222; Batson v. Kentucky, 476 U.S. at 

91. .

Peremptory challenges, by enabling each side to 
exclude those jurors it believes will be most partial 
toward the other side, are a means of 
"eliminating] extremes of partiality on both sides,"
... thereby "assuring the selection of a qualified and 
unbiased jury."

Holland v. Illinois 107 L.Ed.2d 905, 919 (1990). When 

section 1870 was first enacted, Representative Butler 

explained, "What we aim at here is to get a fair jury."16

The exclusion of black prospective jurors by means of 

race-based peremptories, however, would impair the very 

impartiality which Congress intended peremptory challenges 

to enhance. Regardless of whether the person making the 

selections is a government agent or a private party, the 

exclusion of jurors on the basis of race

16Cong. Globe 42d Cong., 2d sess., 3412 (1872).



20

cast[s] doubt on the integrity of the whole judicial 
process. [It] create[s] the appearance of bias in 
the decision of individual cases, and [it] increase[s] 
the risk of actual bias as well.

Taylor v. Louisiana, 419 U.S. 522, 532 n. 12 (1975).

As long as there are significant departures from the 
cross sectional goal, biased juries are the result - 
- biased in the sense that they reflect a slanted view 
of the community they are supposed to represent.

Id. at 529 n. 7.

[Tjhe exclusion from jury service of a substantial 
and identifiable class of citizens has a potential 
impact that is too subtle and too pervasive to admit 
of confinement to particular issues or particular 
cases.... It is in the nature of the practices ... that 
proof of actual harm, or lack of harm, is virtually 
impossible to adduce.

Peters v. Kiff, 407 U.S. 493, 503-04 (1972) (Opinion of 

Justice Marshall). The state courts of Massachusetts, 

Connecticut, California, Florida and New York have all 

concluded from practical experience that the exercise of 

race-based peremptory challenges increases substantially the 

risk that the resulting jury will be biased against members



21

of the excluded race. We set forth excerpts from those state 

court opinions in Appendix B.

It is particularly unlikely that in 1872, only four years 

after the ratification of the Fourteenth Amendment, Congress 

could have intended by enacting section 1870 to require 

federal judges to accede to the desire of civil litigants to 

purge blacks systematically from federal juries. By adopting 

the Civil Rights Acts of 1866 and 1871, Congress had 

conferred upon the federal courts primary responsibility for 

redressing violations of the rights of the newly freed slaves. 

Congress could have been under no illusion about how an 

all-white federal jury in any of the former confederate states 

would likely dispose of the civil rights claims of a black 

plaintiff.

[I]t required little knowledge of human nature to 
anticipate that those who had long been regarded as 
an inferior and subject race would ... be looked 
upon with jealousy and positive dislike.... "The 
right of trial by jury" ... is ... guarded by statutory 
enactments intended to make impossible ... 
"packing juries." It is well known that prejudices 
often exist against particular classes in the



22

community, which sway the judgment of jurors, 
and which, therefore, operate in some cases to deny 
to persons of those classes the full enjoyment of 
that protection which others enjoy.... The framers 
of the [Fourteenth] Amendment must have known 
full well the existence of such prejudice.

Strauder v. West Virginia, 100 U.S. 303, 306-09 (1880). It

is difficult to believe that the Reconstruction era Congress,

having largely rewritten the federal Constitution and enacted

revolutionary legislation in order to afford badly needed

protection to the freedmen, could have intended section 1870

to license a scheme of race-based peremptory challenges that

would have subverted all the legislative efforts of previous

years. That danger is far from past; with the exception of

the instant case, it appears that all of the reported federal

civil cases in which parties have sought to purge black jurors

involved claims under either the Civil Rights Act of 1866 or

the Civil Rights Act of 1871.17

17Clark v. City o f Bridgeport. 645 F.Supp. 890 (D.Conn. 1986) 
(1871 Civil Rights Act); King v. County o f Nassau, 581 F.Supp. 493 
(E.D.N.Y. 1984) (Civil Rights Acts of 1866, 1871, and 1964); Maloney 
v. Washington, 690 F.Supp. 687 (N.D.I11. 1988), 584 F. Supp. 1263,



23

That Congress did not intend section 1870 to sanction 

race-based peremptory challenges in civil cases is confirmed 

by the fact that the act of 1872 governed as well the exercise 

of peremptory challenges in criminal cases.18 Although 

Swain and Batson reached differing conclusions regarding 

the appropriate method of proof, no member of this Court 

has doubted that the exercise of a race-based peremptory 

challenge by a government prosecutor would, if proven, 

constitute the type of invidious government action forbidden 

by the Constitution. In 1872, when many framers of the 

Fourteenth Amendment were still members of the House and 

Senate, there would assuredly have been an outcry of protest 

had Congress understood the proposed legislation to

1264-66 (N.D.I11. 1984) (Civil Rights Act of 1866 and 1871); Reynolds 
v. City o f Little Rock, 893 F.2d 1004 (8th Cir. 1990) (Civil Rights Act 
of 1871); Fludd v. Dykes, 863 F.2d 822, 824 (5th Cir. 1989) (Civil 
Rights Act of 1871); Esposito v. Buonome, 642 F.Supp, 760 (D.Conn. 
1986), 647 F. Supp. 580, 580 (D.Conn. 1986) (Civil Rights Act of 1871; 
see also Parker v. Downing, 547 So.2d 1180 (Civ. App. Ala. 1988) 
(Civil Rights Act of 1871).

18See Appendix C.



24

authorize federal prosecutors to exercise, and federal judges 

to implement, race-based peremptory challenges in criminal 

cases. If the "peremptory challenges" authorized by the 

1872 Act in criminal cases do not encompass race-based 

objections, it is difficult to see how the same phrase in the 

same statute could have a different meaning as applied to 

civil cases.

Undeniably the language and legislative history of 

section 1870 do not address directly the question of whether 

race-based peremptory challenges may be used to exclude 

minorities from a jury. But it is, at the least, a "reasonable 

alternative interpretation" of section 1870 that that provision 

does not authorize such discrimination; section 1870 should 

be construed in that manner to avoid the constitutional 

difficulties addressed by the courts below. As we set forth 

in part III, the federal courts possess inherent authority to 

forbid jury selection practices that discriminate on the basis 

or race. The general language of section 1870 certainly



25

cannot be said to evince any clear congressional intent to 

restrict that judicial power.

B. Such A Race-Based Exclusion Would 
Be Inconsistent With Federal Statutes 
Prohibiting Discrimination In Jury 
Selection

Even if the general provisions of section 1870, 

read in isolation, might appear to authorize removal of a 

juror because of a race-based peremptory challenge, the 

illegality of excluding a juror on that basis is clear under 

the more specific congressional legislation regarding racial 

discrimination in jury selection. Section 1870 should be 

interpreted in a manner consistent with these anti- 

discrimination laws. Two federal statutes prohibit 

discriminatory jury selection in broad language fully 

applicable to the exercise of race-based peremptory 

challenges by either government or private attorneys. Two 

other statutes confirm that that was precisely the intent of 

Congress.



26

1. 28 U.S.C. § 1862

Section 1862, adopted in its present form as part

of the Jury Selection and Service Act of 1968, provides:

No citizen shall be excluded from 
service as a grand or petit juror in 
the district courts of the United 
States ... on account of race, color, 
religion, sex, national origin, or 
economic status.

Petitioner objected in the district court that venire-persons 

Combs and Simmons had indeed been excluded on account 

of their race from service as petit jurors in this case. The 

literal language of section 1862 is all-encompassing; it 

recognizes no exception for instances in which the 

discriminatory exclusion was achieved by means of a 

peremptory challenge, or where the invidious motive was 

that of a private attorney or litigant. Section 1862, which 

derives from the Civil Rights Act of 1875,19 should like

1918 Stat, 335.



27

"other Reconstruction civil rights statutes ... be[] ...

1 accord[ed] ... a sweep as broad as [its] language.’" Griffin 

v. Breckenridge, 403 U.S. 88, 97 (1971).

The manifest purpose of section 1862 was to provide 

"for the selection, without discrimination, of Federal grand 

and petit juries."20 Congress believed that juries from which 

racial minorities had been systematically excluded would be 

more likely to return biased verdicts.21 Other provisions of 

the 1968 legislation established detailed procedures designed 

to assure that minorities were not excluded from jury 

venires, either intentionally or because of practices with 

discriminatory effects. 28 U.S.C. §§ 1863-1866. Congress 

could not have intended to permit litigants to defeat this 

carefully crafted legislative scheme through the use of race- 

based peremptory challenges. "There is no point in taking 

elaborate steps to ensure that Negroes are included on

J0H.R. Rep. No. 1076, 90th Cong., 2d Sess. (1968), reprinted in 
1968 U.S. Code Cong. & Admin. News, 1792, 1792.

J1H.R. Rep. No. 1076, 90thCong., 2d Sess., 8 (1968).



28

venires simply so they can then be struck because of their 

race by a ... use of peremptory challenges." McCray v. 

New York; 461 U.S. 961, 968 (1983). (Marshall J., 

dissenting from denial of certiorari).

The deliberate use of the term "excluded" in section 

1862 leaves no doubt that the prohibition against 

discrimination applies to the use of peremptory challenges. 

In the Jury Selection and Service Act the word "excluded" 

is a term of art. Jurors deleted from a venire or removed 

from a jury panel are, depending on the reason, referred to 

in the Act as having been "disqualified,"22 "excused",23 

"exempt"24 or "excluded".25 The phrasing of the statute was 

based on "a careful articulation of the grounds upon which

“28 U.S.C. § 1865 ("qualifications" of English literacy, etc.).

^28 U.S.C. §§ 1863(b)(5) (jurors "excused" because of "extreme 
inconvenience"), 1866(c)(1).

2428 U.S.C. § 1863(b)(6) ("exemptions" for public officials).

M28 U.S.C. §§ 1866(c)(2) (jurors "excluded" because of partiality), 
1866(c)(4).



29

persons may be eliminated from jury service as: 

’disqualified,’ ’exempt,’ ’excused’ or ’excluded.’"26 Under 

section 1866(c) a juror can be removed from a jury panel at 

the behest.of a party only for cause or if "excluded upon 

peremptory challenge as provided by law." (Emphasis 

added).

The congressional purpose underlying the Civil Rights

Act of 1875, which first prohibited racial discrimination in

jury selection, would clearly be frustrated if black

prospective jurors could be purged by means of race-based

peremptory challenges. The principle concern of Congress

was that all-white juries would be hostile to black litigants.

Representative Morton argued:

I ask if with the prejudices against the colored race 
entertained by the white race ... the colored man 
enjoys the equal protection of the laws, if the jury 
that is to try him for a crime or determine his 
property must be made up exclusively of the white 
race?.... I ask ... whether the colored men ... 
have the equal protection of the laws when the

26H. R. Rep. No. 1076, 90th Cong., 2d Sess. (1968), reprinted in 
1968 U.S. Code Cong, and Admin. News, 1792, 1802.



30

control of their right to life, liberty, and property 
is placed exclusively in the hands of another race 
of men, hostile to them, in many respects 
prejudiced against them, men who have been 
educated and taught to believe that colored men 
have no civil and political rights that white men are 
bound to respect.27

It was said that blacks could not "obtain justice in State 

courts because colored fellow citizens are excluded from the 

juries."28 An end to discrimination in the selection of jurors 

was sought so that a black litigant might have among the 

jurors deciding his claims "those who would naturally have 

an interest in him."29

(2) 28 U.S.C. § 1861

Section 1861, also adopted as part of the Jury 

Selection and Service Act of 1968, provides in pertinent 

/  part:

27Cong. Globe, 43rd Cong. 2d sess., 1793-95 (1875); see also id. 
at 427 (Rep. Stowell), 945 (Rep. Lynch), 1863 (Sen. Morton).

^Cong. Globe, 42nd Cong., 2d sess., 823 (Sen. Sumner) (1872).

29Cong. Globe, 43rd Cong. 1st sess., 3455 (Sen. Frelinghuysen) 
(1874).



31

It is the policy of the United States 
that all litigants in Federal courts 
entitled to trial by jury shall have the 
right to grand and petit juries 
selected at random from a fair cross 
section of the community in the 
district or division wherein the court 
convenes.

Section 1861 is an authoritative guide to the correct 

interpretation of the jury selection provisions of Title 28, 

applicable to section 1862 as well as section 1870.

If, as petitioner alleges, prospective jurors Combs and 

Simmons were removed because they were black, the 

resulting jury was not "selected at random from a fair cross 

section of the community." Rather, the jury which tried this 

case was selected on the basis of race from what was, until 

the exercise of the peremptory challenges, a fair cross 

section of the community. Such a selection process flies in 

the face of the congressional policy announced in section

1861.



32

(3) 42 U.S.C. § 1981

Section 1981 provides in part that

All persons within the jurisdiction of 
the United States shall have the same 
right in every State and Territory ... 
to the full and equal benefit of all 
laws and proceedings for the security 
of persons and property as is enjoyed 
by white citizens.

In Georgia v. Rachel, 384 U.S. 780 (1966), and Strauder v. 

West Virginia, 100 U.S. 303 (1880), this Court held that the 

provision assuring the "full and equal benefit of all laws and 

proceedings" guaranteed to a black litigant "the right to have 

his jurors selected without discrimination on the ground of 

race." 384 U.S. at 798, citing Strauder, 100 U.S. at 311- 

12. Section 1981 is violated when prospective jurors of the 

same race as a black litigant are excluded on account of 

race, since the proceedings which follow are different than 

those which would be afforded to whites, a difference 

sought solely because of the race of the black litigant and



33

the excluded jurors.30 The discriminatory jury selection 

prohibited by section 1981 can as readily be achieved by 

peremptory challenges as by manipulation of the venire list; 

both forms of discrimination are equally prohibited.

Rachel and Strauder involved criminal prosecutions. 

But the application of section 1981 is not limited to 

discrimination by government officials. This Court held in 

Runyon v. McCrary, 427 U.S. 160, 170 (1976), that "§ 

1981 ... reaches purely private acts of racial

discrimination." The Court unanimously reaffirmed that 

interpretation of section 1981 in Patterson v. McLean Credit 

Union, 105 L.Ed.2d 132, 150 (1989) ("[W]e ... adhere to 

our decision in Runyon that § 1981 applies to private 

conduct"). If a private party had resorted to threats or

30The equal benefit clause encompasses as well a guarantee that 
blacks will be accorded to the same degree as whites the protection 
afforded by state criminal proceedings. A statute, like certain of the 
slave codes, attaching a lesser degree of criminality to a crime against a 
black victim would violate section 1981. Thus section 1981 would apply 
to some race-based peremptories by criminal defendants, i.e. a 
peremptory challenge, in the trial of an inter-racial crime, intended to 
remove prospective jurors of the same race as the victim.



34

violence to prevent blacks from serving on the jury in this 

case, section 1981 would undeniably have afforded 

petitioner, -and the prospective jurors, redress. See Griffin 

v. Breckenridge, 403 U.S. 88, 97-104 (1971). A fortiori 

section 1981 applies when a federal judge is asked "to 

compel ... discriminatory action [in the] federal courts." 

Hurd v. Hodge, 334 U.S. 24, 35-36 (1948).

Section 1981 would clearly apply to peremptory-based 

discriminatory jury selection in a contract action brought by 

a black plaintiff. The contract clause of section 1981 

"covers wholly private efforts to impede access to the 

courts" by a black litigant seeking to enforce contractual 

rights. Patterson, 105 L.Ed.2d at 151 (emphasis in 

original). Surely the equal benefit clause of section 1981 

provides the same protection when a plaintiffs claim sounds 

in tort rather than in contract. Were that not the case, 

section 1981 would preclude race-based peremptories in state 

court contract actions, but would allow the use of race-



35

based peremptories in a civil rights claim brought in federal 

court under sections 1981 and 1983. See Goodman v. 

Lukens Steel Co., 482 U.S. 656, 660-64 (1987); Wilson v. 

Garcia, 471 U.S. 261 (1985).

4. 18 U.S.C. § 243

• The only federal jury discrimination statute that

contains the kind of state action requirement adopted by the

court of appeals in this case is the criminal prohibition

against discriminatory jury selection. The wording of the

criminal provision is significant because it is deliberately

narrower than sections 1861, 1862 and 1981. Section 243

of Title 18 provides:

No citizen possessing all other 
qualifications which are or may be 
prescribed by law shall be 
disqualified for service as grand or 
petit juror in any court of the United

• States, or of any State on account of 
race, color, or previous condition of 
servitude; and whoever, being an 
officer or other person charged with 
any duty in the selection or 
summoning of jurors, excludes or 
fails to summon any citizen for such



36

cause, shall be fined not more than 
$5,000.

Section 243 is applicable only to "an officer or other person 

charged with any duty in the selection or summoning of 

jurors." Clearly counsel for respondent could not have been 

prosecuted under section 243, even if his racial motives 

were clear beyond any reasonable doubt.

Equally clearly, however, section 243 demonstrates that 

Congress knew full well how to place a state action 

requirement in federal law, and did so expressly when it 

desired such a limitation. Having enacted four different 

statutes prohibiting racial discrimination in the jury selection 

process, Congress deliberately chose to place a state action 

requirement only in section 243. The only' plausible 

interpretation of this careful distinction is that Congress did 

not desire to limit sections 1861, 1862 and 1981 to conduct 

by "an officer", but intended those provisions to extend to 

all race-based action excluding blacks from juries, regardless

of the status of the individuals involved.



37

III. THE FEDERAL COURTS HAVE INHERENT 
AUTHORITY TO DISMISS A CIVIL JURY 
ASSEMBLED BY MEANS OF RACE-BASED 
PEREMPTORY CHALLENGES

After the district judge in this case had removed

prospective jurors Combs and Simmons, and empaneled the

jury that ultimately heard the case, petitioner’s objection was

renewed.31 At this juncture the issue was not whether

section 1870 authorized the removal of Combs and

Simmons, but whether the resulting jury should be permitted

to try the case, or should be stricken because of the manner

in which it was assembled. The district judge and the en

banc court concluded that the jury in a case such as this

could not be dismissed unless the exclusion of Combs and

Simmons was itself unlawful. On the view of the en banc

majority, if the removal of those black prospective jurors

was not unconstitutional state action, "then the courts hold

no warrant to interfere" with the resulting jury. (895 F.2d

at 221).

31Tr. 54-63.



38

The courts below adhered to an unduly constricted view 

of their authority, and responsibility, in dealing with jury 

panels assembled by means of race-based peremptory 

challenges. The federal courts possess broad inherent 

authority to take measures necessary to protect the integrity 

of judicial proceedings. This Court holds commensurately 

extensive supervisory powers over the manner in which 

proceedings are conducted in the federal courts. In the 

decades since McNabb v. United States, 318 U.S. 332 

(1943), the Court has exercised that authority in a wide 

variety of circumstances. McNabb explained that the 

supervisory power could be invoked to "maintain[] civilized 

standards of procedure" and has been "guided by 

considerations of justice." 318 U.S. at 340-41. Surveying 

the diverse situations in which this power has been 

exercised, one commentator observed that the "common



39

denominator of its usage is a desire to maintain and develop 

standards of fair play...."32

This Court may interfere with the judgment or 

proceedings of a state court only when a violation of federal 

law or applicable constitutional requirements has occurred. 

But in dealing with federal proceedings, the federal courts 

have broader inherent authority, and "may, within limits, 

formulate procedural rules not specifically required by the 

Constitution or the Congress." United States v. Hasting, 

461 U.S. 499, 505 (1983). "[Tjhe appellate courtfs] ... may 

... require [trial courts] to follow procedures deemed 

desirable from the viewpoint of sound judicial practice 

although in no-wise commanded by statute or by the 

Constitution." Cupp v. Naughten, 414 U.S. 141, 146 (1973). 

In a number of instances the exercise of this supervisory 

power has led this Court to overturn judgments in federal

“Note, 53 Geo. L J . 1050, 1050 (1965).



40

cases despite sustaining similar state court judgments in 

essentially identical circumstances.33

Few practices have greater potential impact on the 

integrity of the judicial process than the manner in which 

jurors are selected. The selection process is a sensitive one, 

all too easily skewed to unduly favor one party or group, 

and to undermine public confidence in the fairness of the 

federal courts. In Thiel v. Southern Pacific Co., 328 U.S. 

217 (1946), this Court invoked its supervisory power to 

overturn a civil jury verdict because wage earners had been 

systematically excluded from the jury at issue. That 

exclusion, the Court concluded, although not the subject of 

any express statutory prohibition, was inconsistent with "the 

high standards of jury selection" that ought to prevail in 

federal courts, 328 U.S. at 225, and tainted the resulting 

verdict with "class distinctions and discriminations which are

Compare Marshall v. United States, 360 U.S. 310 (1959) with 
Murphy v. Florida, 421 U.S. 794 (1975); compare Aldridge v. United 
States, 283 U.S. 308 (1931), with Ristaino v. Ross, 424 U.S. 589 (1976).



41

abhorrent to the democratic ideals of trial by jury." 328 

U.S. at 220. In Ballard v. United States, 329 U.S. 187 

(1946), the Court again invoked its supervisory authority to 

forbid federal district courts from systematically excluding 

women from the jury rolls. The Court explained that the 

use of all-male juries "may at times be highly prejudicial to 

the defendants," and that such exclusionary practices worked 

an "injury to the jury system, to the law as an institution, 

to the community at large, and to the democratic ideal 

reflected in the processes of our courts." 329 U.S. at 195.

This Court held that the juries in Thiel and Ballard 

should not have been permitted to try those cases, even 

though the manner in which the juries had been selected 

could not be said to have violated a specific, identified 

statutory or constitutional provision. The fact that a skewed 

or tainted jury may have been the result of peremptory 

challenges, rather than of the manner in which the venire 

was composed, does not reduce the Court’s supervisory



42

authority. If, as a result of happenstance, the jury selected 

to hear a police brutality case was composed of twelve 

former police officers or of twelve ex-convicts, no sensible 

judge would hesitate to strike that jury and assemble a new 

one. The judicial responsibility is surely no less when the 

skewed nature of a jury is the result, not of coincidence, but 

of deliberate racial manipulation of the jury selection 

process.

The exclusionary practices in Ballard and Thiel 

concerned women and wage earners, respectively. The 

deliberate exclusion of blacks from civil and criminal juries 

is an abuse of unique gravity in our constitutional system. 

Discrimination against black prospective jurors was first 

condemned by this Court 110 years ago in Strauder v. West 

Virginia, 100 U.S. 303 (1880); over the course of the last 

century, even when other forms of discrimination were 

tolerated for a period under the ill-starred decision in Plessy 

v. Ferguson, 163 U.S. 537 (1896), this Court was ceaseless



43

in its efforts to eradicate race-based jury discrimination. If 

the federal courts have inherent supervisory authority to deal 

with jury discrimination involving women and wage earners, 

a fortiori they possess and should exercise that authority 

when the discrimination at issue is directed at racial 

minorities.

The deliberate exclusion of black jurors has a unique

and long recognized capacity to destroy public confidence in

the fairness of the courts.

Discrimination on the basis of race, odious in all 
aspects, is especially pernicious in the 
administration of justice.... [It] destroys the 
appearance of justice and thereby casts doubt on the 
integrity of the judicial process. The exclusion ... 
of Negroes ... impairs the confidence of the public 
in the administration of justice.... The harm ... is 
to society as a whole.

Rose v. Mitchell, 443 U.S. 545, 555-56 (1979). Such 

practices inevitably suggest "that justice in a court of law 

may turn upon the pigmentation of skin." Ristaino v. Ross, 

424 U.S. 589, 596 n. 8 (1976). The decision in Batson was 

based on an express recognition that the exclusion of black



44

prospective jurors by means of race-based peremptories

would "undermine public confidence in the fairness of our

system of justice." 476 U.S. at 87. The court in Williams

v. Coppola, 41 Conn. Supp. 48, 549 A.2d 1092, 1101

(Super. 1986), put the matter more bluntly:

The use of peremptory challenges to remove all the 
possible jurors of one of the party’s race seriously 
impairs the perception of justice. Members of a 
minority, under those circumstances, could never 
feel that they received a fair trial.

This Court has reiterated that maintaining public confidence

in the fairness of the courts was a key purpose of the

decision in Batson. Holland v. Illinois, 107 L.Ed.2d 905,

922 (Kennedy, J., concurring); Allen v. Hardy, 478 U.S.

255, 259 (1986).

The decisions below offer subtle analyses of the concept 

of state action. But such legal niceties are entirely irrelevant 

to the indelible impression that the exercise of race-based 

peremptory challenges can have on public confidence. 

Regardless of whether the action of a judge in implementing



45

such challenges is or is not technically unconstitutional, the 

parties, the public and the prospective jurors will inevitably 

regard the judge as "an accomplice to racial discrimination 

in the courtroom." Maloney v. Washington, 690 F. Supp. 

687, 690 (N.D.I11. 1988). When a racially hand-picked all- 

white jury in a racially sensitive case returns a verdict in 

favor of the white litigant, community concerns about 

unfairness will not be stilled by an admonition to read Lugar 

v. Edmondson Oil Co., 457 U.S. 922 (1982). The decision 

of the Florida courts to bar race-based peremptory 

challenges in civil cases was the result, in part, of the state’s 

tragic experience with the consequence of a collapse of 

public confidence in racially skewed juries.34 In "the 

Kingdom of Heaven" even hand-picked all-white juries might 

be relied on to do justice between black and white litigants, 

cf. Carter v. Jury Commission o f Greene County, 396 U.S. 

320, 342 (1970) (Douglas, J., concurring); but here on earth

34We set forth in Appendix D excerpts from the trial judge’s opinion 
in City o f Miami v. Cornett, 463 So.2d 399 (Fla. App. 3 Dist. 1985).



46

the public understandably shares the view of those who 

exercise race-based peremptories that the exclusion of black 

prospective jurors is likely to tilt the scales of justice in 

favor of a white litigant.

A court which condones the use of race-based 

peremptories does not, as the en banc court suggested, 

simply provide a "level playing field" on which the parties 

may do battle. (895 F.2d at 222). The decision below also 

gives the parties license to do battle with racial weapons of 

unique destructiveness; under that decision overtly race- 

based jury selection would inevitably become a part, perhaps 

the most critical part, of the trial of racially sensitive cases, 

if not of all cases in which the parties are of different races. 

The racially explicit brawling to which this would lead is 

starkly illustrated by Maloney v. Washington, 690 F. Supp. 

687 (N.D.I11. 1988). The white plaintiffs in Maloney, 

alleging that they were the victims of reverse discrimination, 

brought suit against the black mayor of Chicago. Although



47

the gravamen of the complaint was an insistence that all 

government action should be strictly color blind, the 

plaintiffs "apparently concluded that they would prefer to 

have their case tried by members of their own race." Id. 

at 688. The plaintiffs utilized all of their peremptory 

challenges against blacks; the defendants responded by using 

all of their challenges against whites. When a mistrial was 

declared on unrelated grounds, the trial judge warned 

counsel not continue making race-based peremptory 

challenges; counsel for both sides disregarded that 

admonition, forcing the court to strike the second jury and 

impose sanctions. 690 F.2d at 689-92.

■ Strauder and its progeny contemplated that the courts 

would be a safe harbor from the often virulent bigotry of an 

earlier era; today, when overt racism is regarded as 

unacceptable in most aspects of American life, the decision 

below threatens to turn the federal courts into an arena when

express exploitation of race will be entirely acceptable, and



48

even commonplace. Federal judges should not stand idly by 

while civil cases are manipulated through manifestly racial 

tactics. "For racial discrimination to result in ... exclusion 

from jury service ... is at war with our basic concepts of a 

democratic society." Smith v. Texas, 311 U.S. 128, 130 

(1940). "[I]n such a war the courts cannot be pacifists." 

People v. Wheeler, 583 P.2d 748, 755, 148 Cal. Rptr. 890 

(1978).

The Fifth Circuit insisted that by tolerating race-based 

peremptones the courts merely took a position of neutrality 

with regard to the litigants "in their dealings with each 

other." (895 F.2d at 225). But race-based peremptories, 

even if resorted to equally by both sides, have a direct 

impact on innocent third parties — the jurors excluded on 

account of race.

[T]he exclusion of Negroes from jury service ... 
denies the class of potential jurors the "privilege of 
participating equally ... in the administration of 
justice," ... and it stigmatizes the whole class, even 
those who do not wish to participate, by declaring 
them unfit for jury service and thereby putting "a



49

brand upon them ... an assertion of their 
inferiority."

Peters v. Kiff, 407 U.S. 493, 499 (1972) (opinion of Justice 

Marshall). Swain expressly recognized the injury caused to 

prospective jurors when

the peremptory system is being used to deny the 
Negro the same right and opportunity to participate 
in the administration of justice enjoyed by the white 
population. Th[is] en[d] the peremptory challenge 
is not designed to facilitate or justify.

380 U.S. at 224.35 "The reality is that a juror dismissed

because of his race will leave the courtroom with a lasting

sense of exclusion from the experience of jury

participation...." Holland v. Illinois, 107 L.Ed.2d 905, 922

(1990) (Kennedy, J., concurring). The right to participate

as a juror in the administration of justice, like the right to

participate-as a voter in the democratic process, cannot be

denied on account of race, even if the impetus for that denial

35Compare Cong. Rec., 42nd Cong., 2d sess., 900 (1872) (Sen. 
Edmunds) (prohibition against discrimination in jury selection required 
so that the black "population shall feel and the white population shall feel 
that they participate equally and fairly in the administration of justice and 
in the protection of private rights.")



50

comes to some degree from individuals who are not on the 

public payroll. See Terry v. Adams, 345 U.S. 461 (1953); 

Smith v. Allwright, 321 U.S. 649 (1944).

The jury selection practices at issue in this case are in 

all respects more harmful to the due administration of justice 

than the practices condemned in Thiel and Ballard. The 

Court should exercise its supervisory power to direct the 

federal courts not to try cases before juries selected by 

means of race-based peremptory challenges.

CONCLUSION

Were the Court to reach the constitutional question 

considered below, we would urge the Court to hold that in 

a civil case the removal of a prospective juror because of a 

race-based peremptory challenge is unconstitutional. The 

instant case, however, may more appropriately be resolved 

on non-constitutional grounds. For the above reasons the en



51

banc decision of the court of appeals should be reversed. 

Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
ERIC SCHNAPPER*

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

DEVAL L. PATRICK 
MARC GOODHEART 
JOS IE FOEHRENBACH BROWN 
MICHAEL J. PINEAULT 

Hill & Barlow 
One International Place 
Boston, Mass. 02210 
(617) 439-3555

ROBERT F. MULLEN 
DAVID S. TATEL 

Co-Chairmen 
NORMAN REDLICH 

Trustee
BARBARA ARNWINE 
THOMAS J. HENDERSON 
RICHARD T. SEYMOUR 

Lawyers’ Committee for 
Civil Rights Under Law 

1400 Eye Street, N.W.
Suite 400
Washington, D.C. 20005 
(202) 371-1212



52

SAMUEL RABINOVE 
American Jewish Committee 
165 East 65th Street 
New York, New York 10002 
(212) 751-4000

Counsel for Amici

*Counsel of Record



APPENDIX



APPENDIX A

Statutory Provisions Involved

Section 243, 18 U.S.C., provides:

No citizen possessing all 
other qualifications which are or may 
be prescribed by law shall be 
disqualified for service as grand or 
petit juror in any court of the United 
States, or of any State on account of 
race, color, or previous condition of 
servitude; and whoever being an 
officer or other person charged with 
any duty in the selection or 
summoning of jurors, excludes or 
fails to summon any citizen for such 
cause, shall be fined not more than 
$5,000.

Section 1861, 28 U.S.C., provides:

Declaration of Policy. It is the 
policy of the United States that all 
litigants in Federal Courts entitled to 
trial by jury shall have the right to 
grand and petit juries selected at 
random from a fair cross-section of 
the community in the district or 
division wherein the court convenes. 
It is further the policy of the United 
States that all citizens shall have the 
opportunity to be considered for 
service on grand and petit juries in 
the district courts of the United

l a



States, and shall have an obligation 
to serve as jurors when summoned 
for that purpose.

Section 1862, 28 U.S.C., provides:

Discrimination Prohibited. No 
citizen shall be excluded from 
service as a grand or petit juror in 
the district courts of the United 

' States and the Court of International 
Trade on account of race, color, 
religion, sex, national origin, or 
economic status.

Section 1870, 28 U.S.C., provides in pertinent part:

Challenges. In civil cases, each 
party shall be entitled to three 
peremptory challenges. Several 
defendants or several plaintiffs may 
be considered as a single party for 
the purposes of making challenges, 
or the court may allow additional 
peremptory challenges and permit 
them to be exercised separately or 
jointly.

Section 1981, 42 U.S.C., provides in pertinent part:

All persons within the jurisdiction of 
the United States shall have the same 
right in every State and Territory to 
make and enforce contracts, to sue, 
be parties, give evidence, and to the 
full and equal benefit of all laws and

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proceedings for the security of 
persons and property as is enjoyed 
by white citizens....

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APPENDIX B

State Decisions Regarding The Impact of 
Race-Based Peremptories

(1) Commonwealth v. Soares, 387 N.E.2d 499 (Sup. Jud

Ct. Mass. 1979). The lack of any prohibition against race

based peremptory to challenges

"would leave the right to a jury drawn from a 
representative cross-section of the community 
wholly susceptible to nullification through the 
intentional use of peremptory challenges to exclude 
identifiable segments of the community.... It is 
[the] very diversity of opinion among individuals, 
some of whose concepts may well have been 
influenced by their group affiliations, which is 
envisioned when we refer to ’diffused impartiality.’
No human being is wholly free of the interests and 
preferences which are the product of his cultural, 
family, and community experience. Nowhere is the 
dynamic commingling of the ideas and biases of 
such individuals more essential than inside the jury 
room....

Given an unencumbered right to exercise 
peremptory challenges ... [t]he party identified with 
the majority can altogether eliminate the minority 
from the jury.... The result is a jury in which the 
subtle biases of the majority are permitted to 
operate, while those of the minority have been 
silenced."

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387 N.E.2d at 515-18. When a party

"challenges a Negro in order to get a white juror in 
his place, he does not eliminate prejudice in 
exchange for neutrality; ... [H]e is, in fact, willy 
nilly taking advantage of racial divisions to the 
detriment of the [opposing party]."

387 N.E.2d at 516 n. 31.

"The absence of a group from petit juries in 
communities ... may lead to jury decision making 
based on prejudice rather than reason. White 
jurors, satisfied that blacks will never sit in 
judgment upon themselves or their white neighbors, 
can safely exercise their prejudices."

387 N.E.2d at 512 n. 20.

(2) People v. Wheeler, 583 P.2d 748, 761, 148 Cal.

Rptr. 890 (1978):

"[w]hen a party ... peremptorily strikes all 
[members of a racial minority] for that reason 
alone, he ... frustrates the primary purpose of the 
representative cross-section requirement. That 
purpose ... is to achieve an overall impartiality by 
allowing the interaction of the diverse beliefs and 
values the jurors bring from their group 
experiences. Manifestly if jurors are struck simply 
because they hold those very beliefs, such 
interaction becomes impossible and the jury will be 
dominated by the conscious or unconscious 
prejudices of the majority."

5a



(3) Williams v. Coppola, 549 A. 1092, 1097-98, 41

Conn. Sup. 48 (Super. 1986):

"If a party were to have the unfettered right to 
exercise peremptory challenges for any reason, the 
right to trial by an impartial jury would lose its 
meaning. So, if blacks could be struck from the 
jury merely because they were black, there would 
be no purpose in taking elaborate steps to guarantee 
their inclusion in the venire. ... Tools that deprive 
a party of a trial by an impartial jury or even the 
perception of such a trial have no place in a 
constitutional democracy."

(4) People v. Thompson, 435 N.Y.S. 2d 739, 751-

52, 79 A.D.2d 87 (1981):

”[W]e agree ... that viewing the jury as a whole, 
permitting the unencumbered exercise of 
peremptory challenges does anything but ensure the 
selection of an impartial jury.... [T]he unfettered 
use of the peremptory challenge on the basis of 
race may, in and of itself, ultimately defeat the ... 
right to trial by a'jury drawn from a fair cross- 
section of the community."

(5) State v. Neil. 457 So.2d 481, 486 (Fla. 1984):

"Article I, section 16 of the Florida Constitution 
guarantees the right to an impartial jury.... The 
primary purpose of peremptory challenge is to aid 
and assist in the selection of an impartial jury. It 
was not intended that such challenges be used 
solely as a scalpel to excise a distinct racial group

6a



from a representative cross-section of society. It 
was not intended that such challenges be used to 
encroach upon the constitutional guarantee of an 
impartial jury.... [W]e find that adhering to the 
Swain test of evaluating peremptory challenges 
impedes, rather than furthers, Article I, section 
16’s guarantee."

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APPENDIX C

17 Stat. 282 (1872)

Be it enacted by the Senate and House of 

Representatives o f the United States o f America in Congress 

assembled, That section two of the act entitled "An act 

regulating proceedings in criminal cases, and for other 

purposes," be, and the same is hereby, amended to read as 

follows:

"Sec. 2. That when the offence charged be treason or 

a capital offence, the defendant shall be entitled to twenty 

and the United States to five peremptory challenges. On the 

trial of any other felony, the defendant shall be entitled to 

ten and the United States to three peremptory challenges; and 

in all other cases, civil and criminal, each party shall be 

entitled to’ three peremptory challenges; and in all cases 

where there are several defendants or several plaintiffs, the 

parties on each side shall be deemed a single party for the 

purposes of all challenges under this section. All challenges,

8a



whether to the array or panel, or to individual jurors, for 

cause or favor, shall be tried by the court without the aid of 

triers."

9a



APPENDIX D

Trial Court Opinion in Cornett v. City o f Miami.

Reported in City o f Miami v. Cornett, 463 So. 2d 399, 400-

01 (Fla. App. 3 Dist. 1985).

"This trial commenced shortly after verdicts 
had been returned in two other much publicized 
cases. In the latter of the two cases, the county’s 
school superintendent, a black, was indicted, 
suspended from office, then convicted of grand 
theft. The Superintendent was tried before an all- 
white jury after a number of blacks had been 
challenged peremptorily. In the earlier case, an 
all-white jury acquitted several white officers of 
murder and manslaughter charges in the beating of 
a black insurance agent — the infamous ’McDuffie 
Case’. All prospective black jurors had been 
challenged, some for cause, most peremptorily. 
Moments following the verdict in that case there 
was a civil disturbance in the community resulting 
in millions of dollars of property damage and 
several deaths. Those killed included whites and 
blacks, and in a few instances the motives were 
clearly racial. Judicial notice is taken of these 
background circumstances as they shed light on 
community tensions in general at the time of this 
trial and the probable effect on the conduct of this 
trial. Some white prospective jurors admitted that 
they couldn’t be fair. At least one admitted to 
being fearful and asked to be excused.

*  *  *

"The misuse of the peremptory challenge to 
eliminate identifiable groups contributes to an

10a



undermining of the integrity of the justice system. 
Unquestionably there are cases where the outcome 
of the trial has been determined by the composition 
of the jury ~ with results contrary to the weight of 
the evidence. The existence of such an unimpaired 
ability to manipulate the outcome of a trial is a 
legitimate reason for doubt as to fairness. It then 
becomes the responsibility of the court to minimize 
that potential for abuse by imposing some 
reasonable limitations on the exercise of the 
challenge. This is essential if the community is to 
have confidence in the jury trial process. The 
facts, the issues raised, and the timing of the trial 
are circumstances which in combination made this 
case an extremely sensitive one.

11a