Georgia v. McCollum Petitioner's Brief on the Merits

    No. 91-372

In The

Supreme Court of the United States
O ctober Term, 1991

-----------------♦-----------------

STATE OF GEORGIA,
Petitioner,

THOMAS McCOLLUM, WILLIAM JOSEPH McCOLLUM, 
and ELLA HAMPTON McCOLLUM,

Respondents.

On Writ Of Certiorari To The 
Suprem e Court Of Georgia

-----------------♦-----------------

PETITIONER'S BRIEF ON THE MERITS
---------------♦---------------

H arrison  W. K ohler
Senior Assistant Attorney General
Counsel of Record for Petitioner
M ichael  J. Bowers 
Attorney General
C harles M . R ichards

Senior Assistant Attorney General
Please Serve:
H arrison  W. K ohler  
Senior Assistant Attorney General 
132 State Judicial Building 
Atlanta, Georgia 30334 
(404) 651-6194

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
OR CALL COLLECT (402) 342-2831



1

QUESTION PRESENTED

Does the United States Constitution prohibit a white 
crim inal defendan t from exercising his perem ptory  
strikes in a racially discriminatory manner?



11

TABLE OF CONTENTS
Page

Opinion B elow .............     1

Ju r is d ic t io n ... . ................................................................... ' 1

Constitutional Provision .........................    2

Statement of the C a se ..............................................   2

Summary of the Argument .................. ........................ . 3

A rgum en t.................................     3

Conclusion ......................     15



iii

TABLE OF AUTHORITIES
Page

C ases C ited :

Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90
L.Ed.2d 69 (1986)............................... ...................  4, 12, 13

Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 
499 (1979), cert, denied, 444 U.S. 881 (1979).............. 11

Edmondson v. Leesville Concrete Company, Inc., 500
U.S. ___, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991)

............................................................................ 4, 5, 9, 10, 12

Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95
L.Ed.2d 622 (1987)................................................ 9

Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89
L.Ed.2d 123 (1986)..................... .................... ................  12

People v. Kern, 555 N.Y.S.2d 647, 554 N.E.2d 1235
(1990), cert, denied, 111 S.Ct. 77 (1990)......... .11, 13

People v. Pagel, 186 Cal. App. 3d Supp. 1, 232 Cal.
Rptr. 104 (1986), cert, denied, 481 U.S. 1028 (1987) . . . .  11

Powers v. Ohio, 499 U.S. ___, 111 S.Ct. 1364, 113
L.Ed.2d 411 (1991)................................. 4, 6, 7, 8, 12, 13

State v. McCollum, 261 Ga. 473, 405 S.E.2d 688 
(1991)..................................................................... 1, 3, 5, 10

State v. Neil, 457 So.2d 481 (Fla. S.Ct. 1984)................ 11

Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13
L.Ed.2d 759 (1965)......................................................9, 10

United States v. De Gross, 913 F.2d 1417 (9th Cir.
1990), reh. granted 930 F.2d 695 (1991)......................... 5

United States v. Greer, 939 F.2d 1076 (5th Cir. 1991), 
reh. granted __ F.2d ___  (Dec. 3, 1991).............. 5



IV

Page

C o n stitutional  A m en d m en ts  C ited :

U.S. Const, amend. IV .................... ................... ........... . 12

U.S. Const, amend. V ..........................................................12

U.S. Const, amend. V I   ..........12, 14

U.S. Const, amend. XIV................................. ............. 2, 3, 4

C onstitu tio n a l  A rticles C ited :

Ga. Const, art. I, § 1, 12........................   7

Ga. Const, art. I, § 2, 11........................................................ 8

Ga. Const, art. V, § 3, 1 1 ...........................................   8

Statutes C ited :

28 U.S.C. § 1 2 5 7 . . . . . . . . . . . ........................................... .. 1

1833 Ga. Laws, Cobb's 1851 Digest, p. 835 ................ .10

O.C.G.A. § 15-12-160........................................................ .. 2

O.C.G.A. § 15-12-165.........................................................2, 10

O.C.G.A. § 16-5-21............................. ....................................2

TABLE OF AUTHORITIES -  Continued



No. 91-372
------ 4-------

In The

Supreme Court of the United States
O ctober Term, 1991 

•--------------- ♦---------------

STATE OF GEORGIA,

v.
Petitioner,

THOMAS McCOLLUM, WILLIAM JOSEPH McCOLLUM, 
and ELLA HAMPTON McCOLLUM,

4
Respondents.

On Writ Of Certiorari To The 
Suprem e Court Of Georgia

-----------------♦-----------------

PETITIONER'S BRIEF ON THE MERITS
--------------- 4---------------

OPINION BELOW

The Georgia Supreme Court's decision is reported as 
State v. McCollum, 261 Ga. 473, 405 S.E.2d 688 (1991).

----- -----------4---------------

JURISDICTION

Pursuant to 28 U.S.C. § 1257, this Court has jurisdic­
tion to review a state criminal appeal.

---------------- 4----------------

1



2

CONSTITUTIONAL PROVISION

Fourteenth Amendment, United States Constitution:

. . . [N]or shall any State . . . deny to any person 
w ithin its jurisdiction the equal protection of the 
laws. . . .

--------------- 4---------------

STATEMENT OF THE CASE

Respondents Thomas McCollum, William McCollum, 
and Ella McCollum -  who are white -  were indicted on 
August 10, 1990, for several assaultive crimes against 
Jerry and Myra Collins, who are black (J.A. 2-5, 6, 14).

According to the latest published census, Dougherty 
County's population is 43% black (J.A. 9-10). In Georgia, 
forty-two jurors are em paneled in a felony trial. O.C.G.A. 
§ 15-12-160. Since aggravated assault carries a potential 
punishm ent of tw enty  years im prisonm ent, O.C.G.A. 
§ 16-5-21, the McCollums will have twenty perem ptory 
strikes and the State ten. O.C.G.A. § 15-12-165.

The State filed a pretrial motion to prohibit the 
McCollums from exercising their perem ptory strikes in a 
racially  d iscrim inatory  m anner (J.A. 6-8). The State 
pointed out that if the jury panel at the McCollums' trial 
mirrors the racial makeup of Dougherty County, there 
will be eighteen black persons on the panel (J.A. 7). 
Therefore, the McCollums potentially will be able to 
remove with their twenty perem ptory strikes all black 
persons from the panel and be tried by an all-white jury 
(J.A. 7).



3

The trial court denied the State's motion but certified 
the issue for im m ediate review (J.A. 14-15). The Georgia 
Suprem e Court granted an interlocutory appeal (J.A. 
16-17), but on July 12, 1991, in a 4-3 decision, affirmed the 
trial court (J.A. 46-57). State v. McCollum, 261 Ga. 473, 405 
S.E.2d 688 (1991).

This Court granted Georgia's petition for writ of 
certiorari on November 4, 1991.

--------- ♦---------

SUMMARY OF THE ARGUMENT

A juror's  Fourteenth Amendment right to equal pro­
tection is violated when a criminal defendant uses a 
perem ptory strike to remove that juror for racially dis­
criminatory reasons. The prosecutor, on behalf of the 
State, has standing to object to the criminal defendant's 
discrim inatory exclusion of the jurors.

Racial discrim ination by a criminal defendant within 
the courtroom  calls into question the fairness and integ­
rity of the criminal justice system and prevents jurors, 
merely because of their race, from participating in jury 
service, one of our significant democratic institutions.

------- ------------

ARGUMENT

A. THIS CASE PRESENTS THE OPPORTUNITY FOR
THIS COURT TO ELIMINATE FURTHER RACIAL
DISCRIMINATION IN JURY SELECTION.

Earlier this year this Court noted there has been 
"over a cen tu ry  of ju risp ru d en ce  d ed ica ted  to the



4

elimination of race prejudice within the jury selection 
process." Edmondson v. Leesville Concrete Company, Inc.,
500 U.S. ___/ 111 S. Ct. 2077, 2081-82, 114 L.Ed. 2d 660,
672 (1991). Less than six years ago this Court ruled that a 
prosecutor's racially discriminatory exercise of perem p­
tory strikes to remove black jurors from the panel violates 
a black d efendan t's  Fourteenth A m endm ent right to 
equal protection. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 
1712, 90 L.Ed.2d 69 (1986). Justice Powell's opinion speci­
fically did not reach the issue of whether defense counsel 
is similarly lim ited in the exercise of perem ptory strikes. 
Batson v. Kentucky, 476 U.S. at 89 n. 12,106 S.Ct. at 1719 n. 
12, 90 L.Ed.2d at 82 n. 12.

Two dissenters in Batson, then Chief Justice Burger 
joined by the present Chief Justice, asked rhetorically that 
if prosecutors are limited, can this Court rationally hold 
that defendants are not. Batson v. Kentucky, 476 U.S. at 
126, 106 S.Ct. at 1738, 90 L.Ed.2d at 107. In his concurring 
opinion, Justice M arshall stated:

Our criminal justice system "requires not only 
freedom from any bias against the accused, but 
also from any prejudice against his prosecution. 
Between him and the state the scales are to be 
evenly held."

Batson v. Kentucky, 476 U.S. at 107, 106 S.Ct. at 1729, 90 
L.Ed.2d at 95.

This Court has now ruled that in the trial of a white 
crim inal defendant, a prosecutor is prohibited  from 
excluding black jurors on the basis of race. Powers v. Ohio,
499 U .S .___, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Then,
approxim ately  two m onths after Powers, this C ourt



5

decided that in a civil case, private litigants cannot exer­
cise their perem ptory strikes in a racially discriminatory 
manner. Edmondson v. Leesville Concrete Company, Inc., 500
U.S. ___, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). In his
dissent Justice Scalia stated, "The effect of today's deci­
sion . . . logically must apply to criminal prosecutions. . . . "
Edmondson v. Leesville Concrete Company, Inc., 500 U.S. a t ___,
111 S.Ct. at 2095, 114 L.Ed.2d at 689.

Although the panel decisions have been vacated by 
the granting of rehearings en banc, two federal circuits 
had  p ro h ib ited  crim inal defendan ts  from exercising 
perem ptory strikes in a racially discriminatory manner. 
See, e.g., United States v. De Gross, 913 F.2d 1417, 1420 (9th 
Cir. 1990), reh. granted 930 F.2d 695 (1991); United States v.
Greer, 939 F.2d 1076, 1086 (5th Cir. 1991), reh. granted__
F.2d __  (Dec. 3, 1991).

Therefore, the question left unanswered in Batson is 
squarely presented in the present case. The McCollums, 
who are white, have been indicted for assaultive crimes 
against black victims. Counsel for the McCollums have 
clearly indicated their intention to use their perem ptory 
strikes in a racially discriminatory manner, arguing that 
the circumstances of their case give them the right to 
exclude black citizens from participating as jurors in the 
trial of this case (J.A. 35-37). The Georgia Supreme Court 
upheld the "right" of McCollums' counsel to exercise 
th e ir  p e re m p to ry  s tr ik e s  in th is  fash ion . State v. 
McCollum, 261 Ga. 473, 405 S.E. 2d 688 (1991).

Georgia subm its that the M cCollums' position is 
unconstitutional. With this case, this Court can further



6

advance the elimination of racial discrim ination within 
the jury selection process.

B. THE STATE ATTORNEY GENERAL, ON BEHALF 
OF THE STATE OF GEORGIA, HAS STANDING 
TO RAISE THE CONSTITUTIONAL CLAIMS OF 
BLACK JURORS SUBJECTED TO RACIAL DIS­
CRIMINATION IN THE JURY SELECTION PRO­
CESS.

This Court has unequivocally declared that, under 
the Equal Protection Clause, individual jurors "possess 
the right not to be excluded from [a petit jury] on account
of race." Powers v. Ohio, 499 U.S. at ___, 111 S.Ct. at 1370;
113 L.Ed.2d at 424. In this case, absent relief from this 
Court, black potential jurors will be deprived of that 
right.

This Petition is brought, not by black potential jurors, 
but by Michael J. Bowers, Attorney General, on behalf of 
and in the name of the State of Georgia. It is subm itted 
that Petitioner has standing to bring this case on behalf of 
the black citizens of Georgia who are the targets of racial 
discrimination in this case.

In Powers v. Ohio, supra, this Court held that a white 
criminal defendant had standing to raise the equal protection 
rights of black jurors wrongfully excluded from jury service. 
There was cognizable injury in Powers because of the damage 
done, not to the defendant as an individual, but to the
criminal justice system. Powers v. Ohio, 500 U.S. a t ___, 111
S.Ct. at 1371, 113 L.Ed.2d at 425-26.

The trial court and the Georgia Supreme Court have 
both given approval to the announced in ten tion  of



7

Respondents' counsel to discriminate against black Geor­
gia citizens. The effect of the decision of the Georgia 
Supreme Court is to institutionalize this form of racial 
discrim ination in Georgia law. Moreover, the dam age to 
the criminal justice system is just as great when the 
defendant uses his perem ptory strikes in a racially dis­
crim inatory fashion, as when a prosecutor does so. Where 
the community judges that criminal cases are decided by 
jurors who are unrepresentative and unfair, an acquittal 
perceived to be tainted by racial discrimination is just as 
dam aging as an unfair conviction would be.

In the McCollums' case there has not been a jury 
verdict. However, once the State received an adverse pre­
trial ruling in the trial court (J.A. 14-15), the only way the 
State could prevent the racial discrimination was to seek 
interlocutory review. If the McCollums' case had gone to 
trial and there had been an acquittal, jeopardy would 
have attached and the State could not appeal. Even if 
there were to have been a conviction of the McCollums, 
the State as appellee could not have appealed an adverse 
trial court ru ling  perm itting  racially d iscrim inatory  
perem ptory strikes by a criminal defendant.

In Powers v. Ohio, supra, this Court held that the 
relationship of a white criminal defendant to potential 
jurors is sufficiently close for the defendant to assert the 
equal protection rights of the excluded black juror. Cer­
tainly the prosecutor has a relationship to potential jurors 
that is equally as close as that of the white criminal 
defendant. The P etitioner's  relationship to potential 
jurors in this case is, it is submitted, closer than the 
relationship approved in Powers. Art. I, § 1, f2  of the 1983 
Georgia Constitution establishes the relationship between



8

Georgia citizens and their state government: "Protection 
to person and property is the param ount duty of govern­
ment and shall be im partial and complete. No person 
shall be denied the equal protection of the laws."

In addition, the McCollums are being prosecuted by a 
government official, the Attorney General, on behalf of 
and in the name of the State. In Georgia the Attorney 
General is a statew ide elected official. Ga. Const. Art. V, 
§ 3, 1 1. Georgia's "[p]ublic officers are the trustees and 
servants of the people. . . . "  Ga. Const. Art. I, § 2, |  1. 
The relationship of Petitioner to black potential jurors is 
sufficiently close for the Attorney General to assert, on 
behalf of the State, the equal protection rights of these 
persons.

Although individuals excluded from jury service on 
the basis of their race have a right to bring suit on their 
own behalf, the "barriers to such a suit by an excluded
juror are daunting." Powers v. Ohio, 499 U.S. a t ___, 111
S.Ct. at 1373, 113 L.Ed.2d at 427. As a practical matter, 
un less a p ro secu to r has s tan d in g  to challenge the 
defense's use of perem ptory strikes in a racially discrim i­
natory manner, it is likely that the practice will go 
unchallenged. It is both legally consistent and fair for a 
prosecutor (in this case the State A ttorney General), 
whose duty it is to prosecute for the violation of crimes as 
defined by the people's elected representatives, to have 
standing, on behalf of and in the name of the State, to 
challenge a criminal defendant's racially discriminatory 
exercise of perem ptory strikes.



9

C. THE USE OF PEREM PTORY STRIKES IN A 
R A C I A L L Y  D I S C R I M I N A T O R Y  M A N N E R  
INVOLVES STATE A C TIO N , VIOLATES THE 
EQUAL PROTECTION RIGHTS OF THE JURORS 
AND U ND ER MI N E S  THE PU BLIC 'S C O N FI­
DENCE IN THE CRIMINAL JUSTICE SYSTEM.

The M cCollum s, R espondents in th is case, suc­
cessfully asserted in the Georgia Supreme Court that the 
circumstances of their case give them the right to exclude 
black citizens from participating as jurors in the trial of 
this case (J.A. 35-37). This position is untenable in law, 
logic or policy. The use of perem ptory strikes in a racially 
discrim inatory m anner by a white criminal defendant 
violates the United States Constitution, and underm ines 
public confidence in our criminal justice system. Such a 
practice deprives citizens, on the basis of their race, of 
their im portant right to participate in the adm inistration 
of justice. This practice reflects discredit on our legal 
system in that it creates opportunities for the outcome of 
criminal cases to be m anipulated, so that "justice" may 
vary depending upon the race of the defendant and of the 
victim.

"The perem ptory challenge has very old credentials." 
Swain v. Alabama, 380 U.S. 202, 212, 85 S.Ct. 824, 831, 13 
L.Ed.2d 759, 768 (1965). Although perem ptory challenges 
are rarely used in England today, their history in English 
law goes back several hundred years. Swain v. Alabama, 
380 U.S. at 213, 85 S.Ct. at 832, 13 L.Ed.2d at 769, Yet this 
Court has also noted that peremptory challenges are not of 
constitutional origin. Edmondson v. Leesville Concrete Com­
pany, Inc., 500 U.S. a t ___, 111 S.Ct. at 2083, 114 L.Ed.2d at
673; Gray v. Mississippi, 481 U.S. 648, 663, 107 S.Ct. 2045,



10

2054, 95 L.Ed.2d 622, 636 (1987); Swain v. Alabama, 380 
U.S. at 219, 85 S.Ct. at 835, 13 L.Ed,2d at 772.

In Georgia, perem ptory strikes are statutory in ori­
g in . T h is law  is p re se n tly  cod i f i ed  at  O .C .G .A . 
§ 15-12-165, a statute which has rem ained essentially 
unchanged in Georgia law since 1833. See 1833 Ga. Laws, 
Cobb's 1851 Digest, p. 835. Despite this lengthy statutory 
history in Georgia, the perem ptory strike has no state 
constitutional foundation. See State v. McCollum, 261 Ga. 
at 475, 405 S.E.2d at 690 (Hunt, J. dissenting.)

No private party can exercise perem ptory challenges 
w ithout overt, significant assistance of the trial court, and 
the exercise of these s trikes involves State action. 
Edmondson v. Leesville Concrete Company, Inc., 500 U.S. at
___, 111 S.Ct. at 2084-85, 114 L.Ed.2d at 675. The State
summons the jurors and subjects the jurors to public 
scrutiny and examination during the voir dire. Id. Once 
the perem ptory strike, which is granted by State statute, 
is exercised, the trial court excuses the juror, thus ulti­
mately denying the juror the opportunity to serve on the 
petit jury. Id.

When any person is excluded from jury service solely 
on the basis of his or her race, w hether by the prosecution 
or the defense, that person is deprived of an im portant 
right of citizenship. When the mechanism for this dis­
crimination is a perem ptory strike in a court of law, this 
deprivation of rights is perpetrated under state auspices 
and w ith the state's imprimatur. Edmondson v. Leesville
Concrete Company, Inc., 500 U.S. at ___, 111 S.Ct. at
2084-85, 114 L.Ed.2d at 675-76. It is no less a violation of



11

the constitutional rights of potential jurors if this depriva­
tion is instigated by the defense rather than the prosecu­
tion.

Several State appellate courts have ruled that their 
respective state constitutions prohibit a criminal defen­
dant from exercising perem ptory strikes in a racially dis­
criminatory manner. See, e.g., People v. Kerri, 555 N.Y.2d 
647, 655, 554 N.E.2d 1235, 1243 (1990), cert, denied, 111 
S.Ct. 77 (1990); State v. Neil, 457 So.2d 481, 487 (Fla. S.Ct. 
1984); People v. Pagel, 186 Cal. App. 3d Supp. 1, 232 Cal. 
Rptr. 104, 106-07 (1986), cert, denied, 481 U.S. 1028 (1987); 
Commonwealth v. Soares, 377 Mass. 461, 387 N.E.2d 499, 
517 n.35 (1979), cert, denied, 444 U.S. 881 (1979). Georgia 
has been able to locate only one appellate court decision -  
its own -  which has ruled a criminal defendant is not 
prohibited from exercising his peremptory strikes in a 
racially discrim inatory manner.

Because perem ptory strikes have such a long history, 
an argum ent can be m ade that the availability of perem p­
tory strikes is a significant part of what is conceived of as 
a "fair trial." However, it is subm itted that it would be an 
affront to justice to argue that the notion of a "fair trial" 
includes the right to discriminate against a group of 
citizens based upon their race. In fact, it is difficult to 
envision a practice that would be more at odds with the 
concept of "fairness" in a court of law.

A criminal defendant in Georgia is granted signifi­
cant federal and state constitutional protection. He is 
presum ed innocent, and the burden is upon the State to 
prove his guilt beyond a reasonable doubt. The jury must 
be impartial. The defendant cannot be forced to testify,



12

nor can the State comment on his failure to testify. Evi­
dence gained from searches and seizures or from custo­
dial interrogation may be suppressed or excluded if there 
are Fourth, Fifth or Sixth Amendment violations. The 
State must disclose exculpatory evidence to the defendant 
along with any promises or inducem ents to the State's 
witnesses. Before a defendant can be convicted, there 
m ust be a unanim ous verdict of guilty by twelve jurors. 
These protections ensure a fair trial; the notion of a fair 
trial does not include the right to engage in racial dis­
crimination. Defense counsel is limited to "legitimate, 
lawful conduct," Nix v. Whiteside, 475 U.S. 157, 166, 106 
S.Ct. 988, 994, 89 L.Ed.2d 123, 134 (1986); and should not 
be p e rm itte d  to engage in rac ia lly  d isc rim in a to ry  
perem ptory strikes.

When a juror is perem ptorily struck for a racially 
discrim inatory reason, the juror is unfairly deprived of 
the opportunity to participate in one of our significant 
democratic institutions. Edmondson v. Leesville Concrete
Company, Inc., 500 U.S. at ___, 111 S.Ct. at 2082, 114
L.Ed.2d at 672. A person's race is irrelevant to the per­
son's fitness as a juror. Batson v. Kentucky, 476 U.S. at 87, 
106 S.Ct. at 1718, 90 L.Ed.2d at 81.

The opportunity for ordinary citizens to partici­
pate in the adm inistration of justice has long 
been recognized as one of the principal justifica­
tions for retaining the jury system.

Powers v. Ohio, 499 U.S. at ___, 111 S.Ct. at 1368, 113
L.Ed.2d at 422. Just as a juror's  equal protection rights are 
violated when the prosecutor or private litigants strike 
the juror for racially discriminatory reasons, the juror's 
rights are similarly violated when the criminal defendant



13

exercises the perem ptory strike for racially discrim ina­
tory reasons.

If systematic discrimination against members of a 
particular race is tolerated in jury selection, damage is 
done to the public's confidence in the integrity of our 
system of justice. Racial discrimination in the courtroom 
raises serious questions as to the fairness of the proceed­
ings and underm ines public confidence in the criminal
justice system. Powers v. Ohio, 499 U.S. a t __ , 111 S.Ct. at
1371,113 L.Ed.2d at 425; Batson v. Kentucky, 476 U.S. at 87, 
106 S.Ct. at 1718, 90 L.Ed.2d at 81. Just as public confi­
dence in criminal justice was underm ined by a conviction 
in a trial where racial discrim ination occurred in jury 
selection, so is public confidence underm ined where a 
defendant, assisted by racially discrim inatory perem p­
tory strikes, obtains an acquittal.

W hether the result of the trial is a conviction or 
acquittal, the public is entitled to the legitimate expecta­
tion that the trial was fair and the jury was biased neither 
in favor of the State nor the defendant. In the trial over 
the highly publicized "Howard Beach incident" the white 
defendants were convicted of second degree m anslaugh­
ter and first degree assault of minority victims. People v. 
Kern, 555 N.Y.S.2d at 658, 554 N.E.2d at 1246. In a case of 
such a nature, emotions in the affected community will 
inevitably be heated and volatile. Public confidence in the 
integrity of the criminal justice system is an absolutely 
essential element in preserving community peace and 
cohesion in such cases. In the "Howard Beach" prosecu­
tions, New York courts did not allow the white defen­
dants to exercise their strikes in a racially discriminatory 
manner. Had the policy of the New York courts been



14

otherwise, the convictions on lesser included offenses 
might well have been the cause of increased alienation 
and hostility among segments of the affected community. 
The "H ow ard  Beach incident" illu stra tes  w hy there 
should be no tolerance of the practice of racial discrim i­
nation by means of perem ptory strikes. Such a practice 
has real and tragic potential for making the criminal 
justice system a divisive force in society, rather than a 
unifying one.

U nder the Sixth Amendment, a criminal defendant is 
entitled to a trial "by an im partial jury." The defendant is 
not entitled under the Sixth Amendment to trial before a 
jury chosen for its racial characteristics. The criminal 
defendant is not entitled under the Sixth Amendment to 
racially  d iscrim inate  against o ther citizens, thereby 
depriving them of their constitutional rights. The guaran­
tee of a fair trial protects both the defendant and society. 
The Sixth Amendm ent is not an instrum ent the defendant 
may use to save himself by harm ing society. The guaran­
tee of a fair trial simply does not give a defendant a 
"right" to exercise his perem ptory strikes in a racially 
discrim inatory manner.

♦



15

CONCLUSION

Georgia respectfully requests this Court reverse the 
Georgia Supreme Court and rule that a criminal defen­
dant is constitutionally prohibited from exercising his 
perem ptory strikes in a racially discriminatory manner.

Respectfully submitted,
M ichael  J. Bowers 071650 
Attorney General

C harles M. R ichards  603825 
Senior Assistant Attorney General

H arrison  W. K ohler  427725 
Senior Assistant Attorney General
Please Serve:
H arrison  W. K ohler  
Senior Assistant A ttorney General 
132 State Judicial Building 
Atlanta, Georgia 30334 
(404) 651-6194



M I C H A E L  J .  B O W E R S  

A T T O R N E Y  G E N E R A L

tUlfe of jHafa
J iia te  trf (&torgta 

A tlan ta
3 0 3 3 4 -  132 STATE J U D IC IA L  B U IL D IN G

T E L E P H O N E  6 5 © - 3 3 0 0

December 27, 1991
Mr. Charles Stephen Ralston 
NAACP Legal Defense Fund 
Suite 1600 
99 Hudson Street 
New York, New York 10013

Re: Georgia v. McCollum

Dear Mr. Ralston:
Enclosed is a copy of Georgia's brief in the above case.

Sincerely,

Harrison Kohler