Nixon v. Kent County Supplemental Brief on Rehearing En Banc of Amicus Curiae

    No. 88-5050

In t h e

Batpreme (Emtrt of tljE llttitefc ^tatts
October Term, 1988

Daniel Holland,
Petitioner,

People of the State of Illinois,
Respondent.

ON WRIT OF CERTIORARITO THE SUPREME COURT OF ILLINOIS

BRIEF A M IC U S  C U R IA E  OF THE AMERICAN CIVIL 
LIBERTIES UNION, ACLU OF ILLINOIS, AND  
NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC. IN SUPPORT OF PETITIONER

Steven R. Shapiro 
{Counsel o f Record) 

American Civil Liberties Union 
Foundation 

132 West 43 Street 
New York, New York 10036 
(212) 944-9800

Julius LeVonne Chambers 
Charles Stephen Ralston 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street
New York, New York 10013
(212) 219-1900



QUESTIONS PRESENTED

1. Is the fair cross-section require­

ment of the Sixth Amendment violated by a 

prosecutor's use of peremptory challenges 

to exclude Black jurors solely on account 

of their race?

2. Does a prosecutor's use of peremp­

tory challenges to exclude Black jurors 

solely on account of their race violate the 

Sixth Amendment only if the defendant is

also Black?



TABLE OF CONTENTS

Page

TABLE OF A U T H O R I T I E S ................... ii

INTEREST OF AMICI .....................  1

STATEMENT OF THE C A S E ................  4

SUMMARY OF ARGUMENT ...................  5

ARGUMENT .................................  9

I. A PROSECUTOR'S USE OF PEREMPTORY 
CHALLENGES TO EXCLUDE POTENTIAL 
JURORS SOLELY ON ACCOUNT OF RACE 
VIOLATES THE FAIR CROSS-SECTION 
REQUIREMENT OF THE SIXTH
AMENDMENT ..........................  9

II. A DEFENDANT'S RACE SHOULD NOT
DETERMINE HIS STANDING TO CHAL­
LENGE A VIOLATION OF THE FAIR 
CROSS-SECTION REQUIREMENT . . . .  22

C O N C L U S I O N ..............................  3 2

1



TABLE OF AUTHORITIES

Page

CASES

Alexander v. Louisiana.
405 U.S. 625 (1972) ..................... 3

Allen v. Hardy.
478 U.S. 255 (1986) .....................  19

Ballard v. United States.
329 U.S. 187 (1946) .............. . 11, 27

Ballew v. Georgia.
435 U.S. 223 (1978) ................  15, 26

Batson v. Kentucky.
476 U.S. 79 ( 1 9 8 6 ) ...................passim

Booker v. Jabe.
801 F .2d 871 (6th Cir. 1986), 
cert. denied,
479 U.S. 1046 (1987) ...................... 19

Brown v. Allen.
344 U.S. 443 (1953) .....................  11

Carter v. Jury Commission.
396 U.S. 320 (1970) ......................3

Duncan v. Louisiana.
391 U.S. 145 (1968) .............. 10

Duren v. Missouri.
439 U.S. 357 (1979) .....................  20

ii



Page

Harris v. Texas,
467 U.S. 1261 (1984) ...................... 18

Hobby v. United States.
468 U.S. 339 (1984) .....................  28

Lockhart v. McCree.
476 U.S. 162 (1986) ................  18, 19

McCray v. Abrams.
750 F.2d 1113 (2d Cir. 1984), 
vacated and remanded.
478 U.S. 1001 ( 1 9 8 6 ) ............ 1, 16, 19

McDonnell Douglas Corp. v. Green.
411 U.S. 792 (1973) .....................  21

Michigan v, Booker.
478 U.S. 1001 ( 1 9 8 6 ) .....................  19

Mitchell v. Johnson,
250 F.Supp. 117 (M.D.Ala. 1966) . . . .  3

Peters v. Kiff.
407 U.S. 493 (1972) . . . .  8, 23, 26, 30

Roman v. Abrams.
822 F .2d 214 (2d Cir. 1987), 
cert, denied, ___  U.S. ___ ,
57 U.S.L.W. 3570 (Feb. 27, 1989) . . . .  20

Rose v. Mitchell.
443 U.S. 545 (1979) ................  26, 29

Smith v. Texas.
311 U.S. 128 (1940) .....................  11



Page

Strauder v. West Virginia.
100 U.S. 303 (1880) .............. 28

Swain v. Alabama.
380 U.S. 202 (1965) ..................... 3

Taylor v. Louisiana.
419 U.S. 522 (1975) .............. . passim

Teague v. Lane.
109 S.Ct. 1060 (1989) . . . . . . .  passim

Thiel v. Southern Pacific Co.,
328 U.S. 217 (1946) .............. 13

Turner v. Fouche.
396 U.S. 346 (1970) ..................... 3

Williams v. Florida.
399 U.S. 78 ( 1 9 7 0 ) ................... 12, 16

Witherspoon v. Illinois.
391 U.S. 510 (1968) .....................  15

STATUTES

Federal Jury Selection and 
Service Act of 1968,
28 U.S.C. §§1861, et seg..................13

LEGISLATIVE HISTORY 

H.R.Rep. No. 1076,
90th Cong., 2d Sess. (1968) ............ 14

iv



Page

OTHER AUTHORITIES

Goldwasser, "Limiting A 
Criminal Defendant's Use Of 
Peremptory Challenges: On
Symmetry And The Jury In A 
Criminal Trial,"
102 Harv. L. Rev. 808 ( 1 9 8 9 ) ..............  28

Uniform Jury Selection and 
Service Act, (National 
Conference of Commissioners
on Uniform State Laws, 1970) ............ 13

v



INTEREST OF AMICI-V
The American Civil Liberties Union 

(ACLU) is a nationwide, nonpartisan organ­

ization with over 250,000 members dedicated 

to the principles of liberty and equality 

embodied in the Constitution and civil 

rights laws of this country. The ACLU of 

Illinois is one of its state affiliates.

As part of its commitment to legal 

equality, the ACLU has long opposed any and 

all forms of racial discrimination in the 

administration of justice. Of particular 

relevance here, the ACLU represented peti­

tioner in McCray v. Abrams. 750 F.2d 1113 

(2d Cir. 1984), vacated and remanded. 478 

U.S. 1001 (1986), the first federal case 

holding that a prosecutor's use of

^  Pursuant to Rule 36.2, letters of consent to 
the filing of this brief have been lodged with the 
Clerk of the Court.

1



peremptory challenges to screen prospective 

jurors on the basis of race violates the 

Sixth Amendment.

The NAACP Legal Defense and Education­

al Fund, Inc., is a nonprofit corporation, 

incorporated under the laws of the State of 

New York in 1939. It was formed to assist 

Blacks to secure their constitutional 

rights by the prosecution of lawsuits. Its 

charter declares that its purposes include 

rendering legal aid without cost to Blacks 

suffering injustice by reason of race who 

are unable, on account of poverty, to 

employ legal counsel on their own behalf. 

For many years, its attorneys have repre­

sented parties and have participated as 

amicus curiae in this Court and in the 

lower federal courts in cases involving 

many facets of the law.

2



The Fund has a long-standing concern 

with the issue of exclusion of Blacks from 

service on juries. Thus, it has raised 

jury discrimination claims in appeals from 

criminal convictions,A/ pioneered in the 

affirmative use of civil actions to end 

discriminatory practices^/ and, indeed, 

represented the petitioner in Swain v. 

Alabama, 380 U.S. 202 (1965), the case 

which first raised the issue of the use of 

peremptory challenges to exclude Blacks 

from jury venires.

More recently, both the ACLU and the 

Fund participated as amicus curiae in 

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

A/ E.q. , Alexander v. Louisiana. 405 U.S. 625 
(1972) .

A/ Carter v. Jury Commission, 396 U.S. 320 
(1970); Turner v. Fouche. 396 U.S. 346 (1970); 
Mitchell v. Johnson. 250 F.Supp. 117 (M.D.Ala.
1966).

3



Teaaue v. Lane, 109 S.Ct. 1060 (1989), two 

cases that raised issues similar to the 

issues presented here.

STATEMENT OF THE CASE

The petitioner in this case was 

convicted by an all-white jury after the 

prosecutor used his peremptory challenges 

to exclude the only two potential Black 

jurors. Petitioner objected to those 

exclusions both at trial and on appeal.

His objections were rejected by the 

Illinois state courts at every stage.

Most significantly, the Illinois 

Supreme Court ruled that petitioner did not 

have standing to raise a Batson claim 

because he is white and the excluded jurors 

were Black. People v. Holland. 121 111.2d 

136, 157 (1988). The Illinois Supreme 

Court also rejected petitioner's Sixth

4



Amendment claim on the ground that the fair 

cross-section requirement of the Sixth 

Amendment does not apply to the petit jury. 

Id. at 158.

SUMMARY OF ARGUMENT 

Under the Sixth Amendment, every 

criminal defendant has the constitutional 

right to be tried before an impartial jury 

drawn from a fair cross-section of the 

community. Contrary to the view of the 

court below, this fair cross-section 

requirement does not apply only to the jury 

venire. Indeed, any such limitation would 

be illogical and self-defeating.

The only function of the jury venire 

is to serve as a pool from which petit 

juries are chosen. The only reason for 

insisting that the jury venire reflect a 

fair cross-section of the community is to

5



maximize the possibility that petit juries 

chosen from that pool will be similarly 

representative.

That possibility may not always ripen 

into reality. In individual cases, the 

process of random selection and non-racial 

exclusion may produce all-white or all- 

Black juries. For both practical and 

principled reasons, therefore, the Consti­

tution does not guarantee proportional 

representation on the petit jury, nor does 

petitioner seek that result. It is quite 

another thing, however, when the government 

uses its peremptory challenges as part of 

an intentional strategy to exclude poten­

tial jurors solely because of their race. 

There is no state interest that supports 

such behavior, as this Court properly 

recognized in Batson v. Kentucky. 476 U.S. 

162 (1986) .

6



While Batson obviously rested on equal 

protection grounds, the government's delib­

erate misuse of its peremptory challenges 

is also inconsistent with the underlying 

purposes of the fair cross-section require­

ment. Indeed, this Court has invoked the 

fair cross-section requirement on several 

occasions to strike down other efforts by 

the government to distort the jury selec­

tion process based on impermissible 

criteria. The analysis in this case should 

be precisely the same.

The fact that the petitioner in this 

case is white and the excluded jurors were 

Black should have no bearing on the out­

come. The values served by the fair cross- 

section requirement do not turn on the 

racial or sexual identity of the defendant. 

Thus, in Taylor v. Louisiana. 419 U.S. 522, 

526 (1975), this Court specifically upheld

7



a male defendant's standing to challenge 

the exclusion of female jurors on fair 

cross-section grounds.

The decision in Taylor effectively 

resolves the standing issue in this case. 

More generally, however, amici believe that 

the rationale of Tavlor should apply in any 

case involving discriminatory jury selec­

tion, regardless of the constitutional 

theory on which the case proceeds. As this 

Court observed in Peters v. Kiff. 407 U.S. 

493, 498 (1972), "[t]he exclusion of 

Negroes from jury service, like the arbi­

trary exclusion of any other well-defined 

class of citizens, offends a number of 

related constitutional values." Not the 

least of these is the interest of the 

excluded juror, who has no other practical 

way to voice her complaint except through 

the medium of the defendant.

8



Amici acknowledge, of course, this

Court's reference in Batson to a criminal 

defendant's right to challenge potential 

jurors "of the defendant's race." 476 U.S. 

at 96. In light of contrary precedent, 

however, amici respectfully suggest that 

this reference can best be understood as an 

allusion to the facts of Batson and not a 

statement of the controlling law, even in 

equal protection cases.

ARGUMENT

I. A PROSECUTOR'S USE OF PEREMPTORY 
CHALLENGES TO EXCLUDE POTENTIAL 
JURORS SOLELY ON ACCOUNT OF RACE 
VIOLATES THE FAIR CROSS-SECTION 
REQUIREMENT OF THE SIXTH AMENDMENT

The principal issue in this case is 

whether a prosecutor's use of peremptory 

challenges to exclude potential jurors on 

the basis of race violates the fair cross- 

section requirement of the Sixth Amend­

9



ment.3/ Four members of this Court ex­

pressed their views on that subject only a 

few weeks ago in Teague v. Lane.4/ All 

four agreed with Justice Stevens, who 

wrote:

It is clear to me that a procedure 
that allows a prosecutor to exclude 
all black venirepersons, without any 
reason for the exclusions other than 
their race appearing in the record, 
does not comport with the Sixth Amend­
ment's impartiality requirement.

109 S.Ct. at 1079 n.l. See also, id. at 

1079 (Blackmun, J.); id. at 1091-92 (Bren­

nan and Marshall, JJ.).

This Court's decisions fully support 

that conclusion. Indeed, this Court has

3/ The jury trial provisions of the Sixth Amend­
ment were applied to the states through the Four­
teenth Amendment in EXmcan v. Louisiana. 391 U.S. 
145 (1968).

y  Because of its holding on the scope of habeas 
relief, the majority opinion expressly declined to 
address the Sixth Amendment question presented in 
Teague. 109 S.Ct. at 1069.

10



repeatedly stressed that "the selection of 

a petit jury from a representative cross 

section of the community is an essential 

component of the Sixth Amendment right to a 

jury trial." Taylor v. Louisiana. 419 U.S. 

at 528.

Thus, in Smith v. Texas. 311 U.S. 128, 

130 (1940), the Court declared that the 

exclusion of racial groups from jury serv­

ice was "at war with our basic concepts of 

a democratic society and a representative 

government." In Ballard v. United States. 

329 U.S. 187, 191 (1946), the Court relied 

on a federal statutory "design to make the 

jury 'a cross-section of the community,'" 

in reversing a conviction by a jury from 

which all women had been excluded. In Brown 

V. Allen, 344 U.S. 443, 474 (1953), the 

Court asserted that jury lists must "rea­

sonably reflect[s] . . .  a cross-section of

11



the population suitable in character and 

intelligence for that civic duty." And in 

Williams v. Florida. 399 U.S. 78, 100 

(1970), the constitutional validity of a 

six-person jury was upheld on the ground 

that it was both "large enough to promote 

group deliberation . . . and to provide a

fair possibility for obtaining a repre­

sentative cross-section of the community."

Summarizing this case law in Taylor, 

the Court declared:

We accept the fair-cross-section as 
fundamental to the jury trial guaran­
teed by the Sixth Amendment and are 
convinced that the requirement has 
solid foundation. The purpose of a 
jury is to guard against the exercise 
of arbitrary power —  to make availa­
ble the commonsense judgment of the 
community as a hedge against the over- 
zealous or mistaken prosecutor . . . 
This prophylactic vehicle is not 
provided if the jury pool is made up 
of only special segments of the 
populace or if large, distinctive 
groups are excluded from the pool. 
Community participation in the admin­
istration of the criminal law, more-

12



over, is not only consistent with our 
democratic heritage but is also 
critical to public confidence in the 
fairness of the criminal justice 
system . . . " [T]he broad representa­
tive character of the jury should be 
maintained, partly as assurance of a 
diffused impartiality and partly 
because sharing in the administration 
of justice is a phase of civic respon­
sibility." Thiel v. Southern Pacific 
Co.. 328 U.S. 217, 227 (1946)(Frank­
furter, J . , dissenting).

419 U.S. at 530-31.

The requirement of a fair cross-

section in jury selection has also been

adopted by statute as "the policy of the

United States."5/ The basis for this

-§/ See Federal Jury Selection and Service Act of 
1968, 28 U.S.C. §§1861, et seq. Section 1862 pro­
vides:

No citizen shall be excluded from jury 
service as a grand or petit juror . . .  on 
account of race, color, religion, sex, 
national origin, or economic status.

See also. Uniform Jury Selection and Service Act,
§2 (National Conference of Commissioners on Uniform 
State Laws, 1970).

13



"policy" was set forth in the accompanying 

House Report:

It must be remembered that the jury is 
designed not only to understand the 
case, but also to reflect the communi­
ty's sense of justice in deciding it. 
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.

H.R.Rep. No. 1076, 90th Cong., 2d Sess. 8

(1968), quoted in Taylor v. Louisiana, 419

U.S. at 529 n .7.

Respondent does not quarrel with this 

general proposition. Instead, the state 

argues that the fair cross-section require­

ment applies only to the jury venire and 

not to the jury panel. This Court has 

never adopted that proposition, at least in 

the very broad sense that respondent now 

urges it. To the contrary, this Court has 

often referred with approval to the fair

14



cross-section requirement in cases dealing 

solely with the composition of the petit 

jury.

For example, in Ballew v. Georgia. 435 

U.S. 223 (1978), this Court held that a 

five-person jury was too small to represent 

the community's judgment in a meaningful 

way —  in part because a five-person jury 

threatened "the representation of minority 

groups in the community," id. at 236 

although there was no indication that the 

jury venire was in any way defective or 

unrepresentative.

Similarly, in Witherspoon v. Illinois. 

391 U.S. 510 (1968), the Court struck down 

a legislative scheme that permitted the 

prosecution to challenge for cause any 

potential juror opposed to the death 

penalty. In Witherspoon, as in Ballew. the 

concern focused clearly on the jury panel

15



rather than the jury venire. See also 

Apodaca v. Oregon. 406 U.S. 404, 410-11 

(1972); Williams v. Florida. 399 U.S. 78, 

100 (1970).£/

That focus is plainly correct. The 

point of demanding a representative jury 

pool is to maximize the chance of obtaining 

a representative jury. McCray v. Abrams, 

750 F.2d at 1124-25. The intentional 

exclusion of potential jurors on the basis 

of race, whether in the process of com­

piling a jury pool or selecting a jury 

panel, is equally destructive of this 

constitutional goal.-2/ " [T]he State may

For a careful analysis of this Court's Sixth 
Amendment decisions, see McCray v. Abrams. 750 F.2d 
1113 (2d Cir. 1984), vacated and remanded. 106 
S.Ct. 3289 (1986).

2/ Another goal of the fair cross-section 
requirement recognized in Taylor is to promote 
"public confidence in the fairness of the criminal 
justice system." 419 U.S. at 530. Such confidence

(continued__)

16



not draw up its jury lists pursuant to 

neutral procedures but then resort to dis­

crimination at 'other stages in the selec­

tion process.'" Batson. 476 U.S. at 88.

Amici do not suggest that the jury 

chosen in any particular case must faith­

fully duplicate the demographic profile of 

the surrounding community. See Teague v. 

Lane, 109 S.Ct. at 1090-91 (Brennan, J., 
dissenting). As this Court has held,

" [d]efendants are not entitled to a jury of 

any particular composition." Taylor v. 

Louisiana. 419 U.S. at 538. But the con­

stitutional imperative of an impartial 

jury drawn from a fair cross-section of the 

community that Taylor endorsed is undenia-

U  (...continued)
is unlikely to be felt by a minority community 
that observes the systematic exclusion of every 
Black juror through the prosecutor's use of per­
emptory challenges.

17



bly frustrated by the prosecutor's use of 

peremptory challenges to exclude potential 

jurors on the basis of race alone.£/ 

Lockhart v. McCree. 476 U.S. 162 

(1986), is not to the contrary. Fairly 

read, the statement in Lockhart that 

"extension of the fair-cross-section 

requirement to petit juries would be 

unworkable and unsound," id. at 174, only 

rejected the notion of proportional repre­

sentation on the petit jury. It did not 

reject, or even address, the claim pre­

sented by petitioner here.

-§/ "When the prosecution employs its peremptory 
challenges to remove from jury participation all 
Negro jurors, the right guaranteed in Taylor is 
denied just as effectively as it would be had 
Negroes not been included on the jury rolls in the 
first place." Harris v. Texas. 467 U.S. 1261, 1262 
(1984)(Marshall, J., dissenting from the denial of 
certiorari).

18



Indeed, shortly after Lockhart was 

announced, this Court vacated and remanded 

the decisions in Abrams v. McCray. 478 U.S. 

1001 (1986), and Michigan v. Booker. 478 

U.S. 1001 (1986) —  two cases holding that 

the discriminatory use of peremptory chal­

lenges violates the Sixth Amendment —  

without even mentioning Lockhart .■§■/ Fur­

thermore, the Sixth Amendment rulings in 

McCray and Booker were reaffirmed on remand 

and, in each case, this Court subseguently 

declined review. See Booker v. Jabe. 801 

F.2d 871 (6th Cir. 1986), cert, denied. 479

5/ Both cases were remanded "for further consid­
eration in light of" Batson and the retroactivity 
ruling in Allen v. Hardy. 478 U.S. 255 (1986).
Chief Justice Burger filed a dissenting opinion 
from the remand order in Booker, in which he argued 
that its Sixth Amendment holding should be summa­
rily reversed. 478 U.S. at 1001-02. Even Chief 
Justice Burger, however, did not mention Lockhart 
as the basis for his conclusion. Moreover, no 
other member of the Court joined in his opinion.

19



U.S. 1046 (1987); Roman v. Abrams, 822 

F . 2d 214, 224-27 (2d Cir. 1987), cert.

denied. ___  U.S. ___ , 57 U.S.L.W. 3570

(Feb. 27, 1989).

The flaw in respondent's reliance on 

the rule against proportional representa­

tion is best illustrated by example.

Assume a county that is 20% Black and that 

has a jury roll that is also 20% Black. In 

trial #1, 20 potential jurors are randomly 

selected, one of whom is Black, a result 

well within the range of probability. That 

single Black is then excused for a valid, 

racially-neutral reason. The resulting, 

all-white jury does not violate the Sixth 

Amendment, and neither petitioner nor amici 

have ever claimed otherwise.-1-0/

10/ it is in this narrow sense that the majority 
in Teague distinguished this Court's reliance on 
statistical comparisons in Duren v. Missouri. 439

(continued__)
20



In trial #2, twenty potential jurors 

are once again chosen through a process of 

random selection. This time, four of the 

selected jurors are Black, or 20%. Uti­

lizing neutral criteria, two of the Blacks 

are excused from jury service. Not content 

with that outcome, our hypothetical prose­

cutor then challenges the remaining two 

Black jurors on racial grounds, thus 

affirmatively creating an unrepresentative 

jury.

■3=2/ (... continued)
U.S. 357 (1979), to establish a violation of the 
fair cross-section requirement with regard to the 
jury venire. 109 S.Ct. at 1070 n.l. The inappro­
priateness of statistical evidence in certain 
contexts, however, has never meant that discrimina­
tion cannot be proved in other ways. Cf. McDonnell 
Douglas Corp. v. Green. 411 U.S. 792 (1973).
Indeed, that recognition formed the basis for this 
Court's decision in Batson. There is no apparent 
reason why the evidentiary rules should be any 
different in a Sixth Amendment case.

21



Under any reasonable interpretation of 

the Sixth Amendment, this invidious manipu­

lation of the jury system must be deemed 

unconstitutional. To rule otherwise would 

mean that the Sixth Amendment guarantees 

little more than the right of Blacks and 

other minorities to be summoned for jury 

duty and then summarily dismissed because 

of their race. The constitutional framers 

could not have intended such a hypocritical 

result.

II. A DEFENDANT'S RACE SHOULD
NOT DETERMINE HIS STANDING TO 
CHALLENGE A VIOLATION OF THE 
FAIR CROSS-SECTION REQUIREMENT

In holding that a white defendant 

lacks standing to object to the discrim­

inatory exclusion of Black jurors, the 

Illinois Supreme Court made two fundamental 

errors. First, its judgment that a white

22



defendant suffers no injury-in-fact when 

Black jurors are excluded necessarily rests 

on precisely the sort of racial stereo­

typing that this Court rejected as improper 

in Batson. Second, its decision implicitly 

assumes that the defendant's interest is 

the only interest of constitutional magni­

tude in assessing the impact of an unrepre­

sentative jury. This Court has never taken 

such a narrow view of the jury's role in 

the administration of justice.

Having begun with false premises, it 

is hardly surprising that the Illinois 

Supreme Court ultimately reached a conclu­

sion that directly conflicts with explicit 

rulings of this Court on the standing ques­

tion. Specifically, in Peters v. Kiff. 407 

U.S. 493, 504 (1972), the Court held that

whatever his race, a criminal defend­
ant has standing to challenge the 
system used to select his grand or

23



petit jury, on the ground that it 
arbitrarily excludes from service the 
members of any race . . . .

Likewise, in Taylor v. Louisiana, this

Court upheld the right of a male defendant

to challenge the exclusion of women from

jury service, stating:

Taylor was not a member of the ex­
cluded class; but there is no rule 
that claims such as Taylor presents 
may be made only by those defendants 
who are members of the group excluded 
from jury service.

419 U.S. at 526.

The distinction that the Illinois 

Supreme Court drew for standing purposes 

between white and Black defendants only 

makes sense if one assumes that jurors are 

more likely to vote their race than their 

conscience. Operating on that assumption, 

the court below appeared to believe that a 

white defendant's chance for acquittal 

actually increased (or at least did not

24



diminish) by the exclusion of potential 

Black jurors. Thus, the court implied, a 

white defendant has nothing to complain 

about under those circumstances.

It is just as inappropriate, however, 

to base standing doctrine on racial stereo­

types as it is to base a prosecutor's use 

of peremptory challenges on racial stereo­

types. As Batson makes clear:

Competence to serve as a juror ulti­
mately depends on an assessment of 
individual qualifications and ability 
impartially to consider evidence pre­
sented at a trial. A person's race 
simply "is unrelated to his fitness 
as a juror."

476 U.S. at 87 (citations omitted).

Once jurors are seen as individuals 

rather than members of a racial group, it 

is impossible to sustain the facile assump­

tion that a white defendant can never be 

harmed by the discriminatory selection of 

an all-white jury.

25



When any large and identifiable seg­
ment of the community is excluded 
from jury service, the effect is to 
remove from the jury room qualities of 
human nature and varieties of human 
experience, the range of which is 
unknown and perhaps unknowable. It is 
not necessary to assume that the 
excluded group will consistently vote 
as a class in order to conclude, as we 
do, that their exclusion deprives the 
jury of a perspective on human events 
that may have unsuspected importance 
in any case that may be presented.

Peters v. Kiff. 407 U.S. at 503-04 (foot­

note omitted).Ai/

In addition, this Court has repeatedly 

emphasized that jury discrimination harms 

not only the accused, but "society as a 

whole." Rose v. Mitchell, 443 U.S. 545,

556 (1979). "[Tjhere is injury to the jury 

system, to the law as an institution, to

A V  See also Ballew v. Georgia, 435 U.S. at 234 
("the counterbalancing of various biases is 
critical to the accurate application of the common 
sense of the community to the facts of any given 
case") .

26



the community at large, and to the demo­

cratic ideal reflected in the processes of 

our courts." Ballard v. United States. 329 

U.S. at 195. Accordingly, the Court in 

Ballard refused to permit the perpetuation 

of all-male juries in federal court 

although acknowledging that the presence of 

women on the jury "may not in a given case 

make an iota of difference. Yet a flavor, 

a distinct guality is lost if either sex is 

excluded." Id. at 193-94.

The loss of those qualities referred 

to in Ballard —  whether the challenged 

exclusion is based on race, religion or 

sex —  inevitably affects the public per­

ception of justice.

There is good reason why public 
confidence in the integrity of the 
judiciary is diminished whenever 
invidious prejudice seeps into its 
processes. This diminution of confi­
dence largely stems from a recognition 
that the institutions of criminal

27



justice serve purposes independent of 
accurate factfinding. These institu­
tions also serve to exemplify, by the 
manner in which they operate, our 
fundamental notions of fairness and 
our central faith in democratic norms.

Hobby v. United States. 468 U.S. 339, 352

(1984)(Marshall, J . , dissenting)(footnote

omitted).12/

These important social values are 

jeopardized by jury discrimination regard­

less of the defendant's race.12/ Moreover,

12/ For the excluded juror, the prosecutor's dis­
criminatory exercise of peremptory challenges con­
veys an official message of second-class citizen­
ship that is even more direct and personal. Over a 
century ago, this Court observed that jury discrim­
ination denies excluded jurors "the privilege of 
participating equally . . .  in the administration 
of justice," and thereby places "a brand upon them, 
affixed by the law; an assertion of their 
inferiority . . . "  Strauder v. West Virginia. 100 
U.S. 303, 308 (1880).

22/ See generally. Goldwasser, "Limiting A 
Criminal Defendant's Use Of Peremptory Challenges: 
On Symmetry And The Jury In A Criminal Trial," 102 
Harv.L.Rev. 808, 835 (1989)("The harm that race- 
based prosecution perernptories inflict on excluded 
jurors and the community does not disappear when

(continued...)

28



only the defendant is in a position to

protect these social values by objecting to

the state's discriminatory jury practices.

This Court has recognized as much on

numerous occasions:

It is clear from the earliest cases 
applying the Equal Protection Clause 
in the context of racial discrimina­
tion in the selection of a . . . jury, 
that the Court from the first was 
concerned with the broad aspects of 
racial discrimination that the Equal 
Protection Clause was designed to 
eradicate, and with the fundamental 
social values the Fourteenth Amendment 
was adopted to protect, even though it 
addressed the issue in the context of 
reviewing an individual criminal con­
viction .

Rose v. Mitchell. 443 U.S. at 555.

The decision below largely ignores 

this Court's extensive body of case law 

discussing the problem of jury discrimina-

^2/ (...continued)
the jurors and the defendant are members of 
different races").

29



tion. Its one paragraph discussion on 

standing relies entirely on a single com­

ment from Batson, which refers to a 

defendant's right to challenge the exclu­

sion of jurors "of the defendant's race." 

476 U.S. at 96.

That comment accurately describes the 

facts of Batson itself. To elevate it into 

a controlling principle of law, it is nec­

essary to believe that this Court intended 

to overrule its decision in Peters v. Kiff 

without even mentioning it. Nothing in 

Batson even remotely supports that unlikely 

interpretation. It is less likely still 

that Batson intended to overrule the law on 

Sixth Amendment standing established in 

Taylor v. Louisiana when the merits of 

Batson's Sixth Amendment claim were never 

reached by the Court. 476 U.S. at 85 n.4.

30



The dispute over standing is more than 

an academic one. If the defendant does not 

have standing to object in cases like this 

one, then nobody does. And unlike many 

other contexts where the absence of stand­

ing means the absence of harm, that is not 

the case here.

Put in its starkest terms, the prac­

tical consequence of the decision below is 

to condone, in a wide category of cases, 

the very sort of invidious discrimination 

that this Court condemned only three years 

when Batson was decided. Amici urge this 

Court not to endorse that result.

31



CONCLUSION
For the reasons stated herein, the 

decision below should be reversed.

Respectfully submitted,

Steven R. Shapiro 
(Counsel of Record) 

John A. Powell 
American Civil Liberties 

Union Foundation 
132 West 43 Street 
New York, N.Y. 10036 
(212) 944-9800

Julius LeVonne Chambers 
Charles Stephen Ralston 
NAACP Legal Defense and 

Educational Fund, Inc. 
99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

Dated: April 12, 1989

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