Powers v. Ohio Brief Amicus Curiae

    No. 89-5011

In  th e

Supreme (tart of t^z ISnttrfc States
October  T e r m , 1989

LARRY JOE POWERS,

-v.—

Petitioner,

STATE OF OHIO,
Respondent.

ON WRIT OF CERTIORARI TO THE TENTH DISTRICT 
COURT OF APPEALS, FRANKLIN COUNTY, OHIO

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL LIBERTIES 
UNION, THE ACLU OF OHIO, AND THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC., IN SUPPORT OF PETITIONER

Barbara D. Underwood 
(Counsel o f Record)

40 Washington Square South 
New York, New York 10012 
(212) 998-6188

Steven R. Shapiro 
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



TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... ii

INTEREST OF A M IC I ................................................. 1

STATEMENT OF THE C A S E ..................................  2

SUMMARY OF A R G U M E N T..................................  3

A R G U M EN T..................................................................  4

I. A CRIMINAL DEFENDANT HAS 
STANDING, WITHOUT REGARD 
TO RACE, TO ASSERT THE 
RIGHTS OF POTENTIAL JURORS 
TO BE FREE OF RACE DISCRIMI­
NATION IN THE SELECTION OF
THE JURY THAT TRIES HIS CASE . . .  4

II. A CRIMINAL DEFENDANT OF ANY 
RACE HAS A CONSTITUTIONAL 
RIGHT, UNDER THE EQUAL PRO­
TECTION CLAUSE, TO FREEDOM 
FROM RACE DISCRIMINATION IN
THE JURY SELECTION PROCESS ____ 10
A. The Decision Below Rests On

An Unsupportable Factual 
Premise That This And Other 
C o u rts  H ave P rev iously  
R ejected ......................................................  12

B. The Equal Protection Clause 
Itself Prohibits This Court From 
Relying On Any Race-Based 
Presumption About The Likely
Views Of J u r o r s .......................................  14

l



Page

C. R ace-B ased  P re su m p tio n s  
About The Views Of Jurors Do 
Not Justify The Standing Rule 
Announced B elow ..................................... 17

CONCLUSION ............................................................. 19

n



TABLE OF AUTHORITIES

Cases

Ballard v. United States,
329 U.S. 187 (1946) ........................................................  14
Barrows v. Jackson,
346 U.S. 249 (1953) ........................................................  8
Batson v. Kentucky,
476 U.S. 79 (1986) ................................................... passim
Brown v. Board o f Education,
347 U.S. 483 (1954) ........................................................  16
Carter v. Jury Commission,
396 U.S. 320 (1970) .......................................  2, 4, 5, 6, 8
Castaneda v. Partida,
430 U.S. 482 (1977) ........................................................  13
City o f Los Angeles v. Lyons,
461 U.S. 95 (1983) ........................................................... 8
Craig v. Boren,
429 U.S. 190 (1976) ...................................................  7, 15

Dep’t o f Labor v. Triplett,
110 S.Ct. 1428 (1990) ......................................................  8
Doe v. Bolton,
410 U.S. 179 (1973) ........................................................  7
Eisenstadt v. Baird,
405 U.S. 438 (1972) ........................................................  7
Fludd v. Dykes,
863 F.2d 822 (11th Cir. 1989) .......................................  11
Griswold v. Connecticut,
381 U.S. 479 (1965) ........................................................  7

Page

iii



Page

Holland v. Illinois,
110 S.Ct. 803 (1990) ...................... ........................ passim

Loving v. Virginia,
388 U.S. 1 (1967) ...........................
McCray v. Abrams,
750 F.2d 1113 (2d Cir. 1984),
vacated and remanded,
478 U.S. 1001 (1986)...................... ...........................1, 13

Mitchell v. Johnson,
250 F.Supp. 117 (M.D.Ala. 1966) . ................................ 2

Peters v. Kiff,
407 U.S. 493 (1972)........................ . . 5, 6, 11, 13, 14, 15

Pierce v. Society o f Sisters,
268 U.S. 510 (1925) ...................... ................................ 7

Rizzo v. Goode,
423 U.S. 362 (1976) ...................... ................................ 8

Singleton v. Wulff,
428 U.S. 106 (1976) ...................... ................................  7

State v. Superior Court,
760 P.2d 541 (Ariz. 1988) ............ ................................ 9

Strauder v. West Virginia,
100 U.S. 303 (1879) ...................... 4, 5, 6, 10, 11, 12, 15

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

Taylor v. Louisiana,
419 U.S. 522 (1975) ...................... ...........................7, 11

Thiel v. Southern Pacific Co.,
328 U.S. 217 (1946) ...................... ................................14

IV



Page

Trafficante v. Metropolitan Life Insurance Co.,
409 U.S. 205 (1972) ........................................................  16
Turner v. Fouche,
396 U.S. 346 (1970) ........................................................  2
United States v. Newman,
549 F.2d 240 (2d Cir.1977) ............................................  13
United States v. Townsley,
856 F.2d 1189 (8th Cir. 1988) .......................................  9

Other Authorities

Alschuler, "The Supreme Court and the Jury:
Voir Dire, Peremptory Challenges, and 
the Review of Jury Verdicts,"
56 U.Chi.L.Rev. 153 (1 9 8 9 )............................................  17

v



INTEREST OF AM ICP

The American Civil Liberties Union (ACLU) is a 
nationwide, nonpartisan organization with over 275,000 
members dedicated to the principles of liberty and 
equality embodied in the Constitution and civil rights 
laws of this country. The ACLU of Ohio 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 
petitioner 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 per­
emptory challenges to screen prospective jurors on the 
basis of race violates the Constitution.

The NAACP Legal Defense and Educational 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 un­
able, on account of poverty, to employ legal counsel on 
their own behalf. For many years, its attorneys have 
represented parties and have participated as amicus 
curiae in this Court and in the lower federal courts in 
cases involving many facets of the law.

The Fund has a longstanding concern with the issue 
of exclusion of blacks from service on juries. Thus, it 
has raised jury discrimination claims in appeals from 
criminal convictions, pioneered in the affirmative use of 1

1 Letters of consent to the filing of this brief have been lodged with 
the Clerk of the Court pursuant to Rule 37.3.

1



civil actions to end discriminatory practices,2 and repre­
sented 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 partici­
pated as amicus curiae in Batson v. Kentucky, 476 U.S. 79 
(1986), and Holland v. Illinois, 110 S.Ct. 803 (1990), two 
cases that raised issues similar to the issues presented 
here.

STATEMENT OF THE CASE
The petitioner in this case was convicted of murder 

by an all white jury after "the state utilized seven of ten 
peremptory challenges to excuse prospective jurors who 
were black." (J.A.24).3 Petitioner objected to those 
exclusions at trial and on appeal. Id. Both courts con­
cluded, however, that petitioner lacked standing to raise 
a Batson claim on the facts of this case because he is 
white. (J.A.8, 31). As expressed by Ohio’s intermediate 
appellate court: "We find no reason to extend Batson to 
include an automatic contention of denial of equal pro­
tection or some other constitutional claim by a white 
defendant because of the use of peremptory challenges 
by a prosecutor to exclude black members from the 
jury." (J.A.31). Petitioner’s appeal to the Ohio Supreme 
Court was then dismissed sua sponte "for the reason that 
no substantial constitutional question exists . . . 
(J.A.42). Apparently disagreeing with that assessment, 
this Court granted certiorari.

2 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 .DAla. 
1966).

3 The record does not indicate whether any blacks were ultimately 
chosen for the petit jury. (J.A.24).

2



SUMMARY OF ARGUMENT

It is now clear beyond any doubt that the Equal 
Protection Clause of the Fourteenth Amendment pro­
hibits a prosecutor from using peremptory challenges to 
exclude potential jurors on the basis of race. Batson v. 
Kentucky, 476 U.S. 79. Moreover, a criminal defendant 
may clearly enforce that ban on discriminatory jury se­
lection when the defendant is of the same race as the ex­
cluded jurors. Id. The Ohio courts held in this case that 
a white criminal defendant had no right to enforce the 
ban on the state’s use of peremptory challenges to ex­
clude black potential jurors. That limitation, based on 
the race of the defendant, is inconsistent with this 
Court’s precedents, undermines the effectiveness of the 
ban on jury discrimination, and should be rejected.

Indeed, amici believe it was rejected only a few 
months ago when five Justices of this Court clearly 
stated that a defendant’s race does not affect his stand­
ing to raise a Batson claim under the Equal Protection 
Clause. Holland v. Illinois, 109 S.Ct. at 811-812 (con­
curring opinion of Justice Kennedy); id. at 812-14 (dis­
senting opinion of Justices Marshall, Brennan, and 
Blackmun); id. at 821-22 (dissenting opinion of Justice 
Stevens).

These statements in Holland reflect well settled law. 
First, a criminal defendant of any race is entitled to 
assert the rights of the excluded jurors under this Court’s 
precedents concerning standing to raise questions of jury 
discrimination, and under settled general principles of 
third party standing. Those principles do not require, or 
even suggest, that such standing should be limited on the 
basis of the race of the defendant. Second, a criminal 
defendant is entitled to assert his own equal protection 
right to be free of race discrimination in the selection of 
the jury that hears his case. That right extends to all

3



defendants and not merely to those of the same race as 
the excluded jurors.

The evil of race-based jury selection is so great, and 
so persistent, that its elimination cannot be reconciled 
with a cramped view of the class of persons entitled to 
raise the claim. Our national commitment to eradicate 
racial discrimination from American society, and the 
commitment of our courts to eliminate race discrimina­
tion from the judicial system, require that we extend to 
everyone affected by race discrimination in jury selection 
the right to challenge it.

ARGUMENT
I. A CRIMINAL DEFENDANT HAS STANDING, 

WITHOUT REGARD TO RACE, TO ASSERT THE 
RIGHTS OF POTENTIAL JURORS TO BE FREE 
OF RACE DISCRIMINATION IN THE SELEC­
TION OF THE JURY THAT TRIES HIS CASE
When the state selects jurors on the basis of race, it 

denies the excluded jurors the equal protection of the 
laws guaranteed by the Fourteenth Amendment to the 
United States Constitution. As early as 1880 this Court 
recognized that race-based jury selection harms the ex­
cluded jurors by casting upon them "a brand" and "an 
assertion of their inferiority." Strauder v. West Virginia, 
100 U.S. 303, 308 (1879). In that case, the Court noted 
the harm to the excluded jurors in the course of holding 
that the practice violated the rights of the criminal de­
fendant. In 1970, however, this Court expressly held that 
the rights of the jurors themselves are violated by race- 
based jury selection. Carter v. Jury Commission, 396 U.S. 
320, 329-30 (1970). Finally, in 1972, the Court recog­
nized the standing of a white defendant to challenge the 
race-based exclusion of blacks from the grand jury that

4



indicted him and the petit jury that convicted him. 
Peters v. Kiff, 407 U.S. 493 (1972).

While Peters rests partly on the rights of the indi­
vidual defendant, it also stands for the proposition that a 
white criminal defendant has standing to raise the rights 
of excluded black jurors. Three members of the Court, 
stating that the defendant was denied his own due proc­
ess right to be tried by a jury selected by nondiscrimi- 
natory means, noted that the rights of the excluded 
jurors had been violated as well. 407 U.S. at 499-500 
(opinion of Marshall, J.). Three other members of the 
Court joined in the holding on the ground that it was 
necessary to give the white defendant standing in order 
to "implement the strong statutory policy of [18 U.S.C.] 
§243 [making race discrimination in jury selection a 
crime], which reflects the central concern of the Four­
teenth Amendment with racial discrimination . . . 407
U.S. at 507 (opinion of White, J.). In effect, then, both 
opinions are grounded in the view that a broad standing 
rule is necessary in order to implement the strong consti­
tutional and statutory policy against race discrimination 
in jury selection, a policy which protects excluded jurors 
as well as criminal defendants.

In sum, Strauder held that a black defendant could 
challenge the exclusion of black potential jurors, recog­
nizing that the rights of the jurors were implicated. 
Carter held that the jurors could challenge their own 
exclusion. And Peters held that a white defendant could 
challenge the exclusion of black potential jurors.

The logic of those standing decisions applies with 
equal force to any claim of race-based jury selection, 
whether the race-based selection occurs at the peremp­
tory challenge stage, or at any other stage of the jury 
selection process. In Batson this Court recognized that 
the Equal Protection Clause is as much violated by race- 
based peremptory challenges as by any other race-based 
jury selection practices. And Batson reaffirmed in the

5



context of peremptory challenges the observation of the 
Strauder Court that race-based jury selection violates the 
rights of the excluded jurors, 476 U.S. at 87. It follows 
under Carter that standing to object to race-based per­
emptory challenges extends to excluded jurors, and 
under Peters that such standing extends to any criminal 
defendant without regard to race. Just as Strauder com­
pelled the holdings of Carter and Peters, so too Batson 
compels the holding that race-based peremptory chal­
lenges violate the equal protection rights of the excluded 
jurors, and that all criminal defendants, regardless of 
race, have standing to assert those rights.

In the case at bar, the Ohio courts misread this 
Court’s precedents to reach the contrary conclusion. 
First, the Ohio Court read Batson as denying standing to 
a criminal defendant whose race was different from that 
of the excluded jurors. (J.A.31). But of course Batson 
did no such thing; it simply limited its holding to the 
facts of the case presented, reserving for another day the 
question of standing for other parties. Second, the Ohio 
Court read Peters v. Kiff as extending standing to defend­
ants without regard to race only to challenge discrimina­
tion in the selection of grand jurors rather than petit 
jurors, noting that the concurring opinion of Justice 
White omitted any discussion of petit jurors. (J.A.25-27). 
But the logic of Justice White’s opinion admits of no 
such limiting principle. Surely the strong constitutional 
and statutory policy against race discrimination in jury 
selection is not more concerned with grand jurors than 
with petit jurors. The most likely explanation for Justice 
White’s omission of any discussion of the petit jury is 
that the defendant likewise failed to mention the petit 
jury in his list of questions presented in the petition for 
certiorari, see 407 U.S. at 495-96, and not that the con­
curring justices would have denied the white defendant 
standing to challenge the exclusion of blacks from the 
petit jury. Finally, the Ohio Court attempted to distin­
guish Peters on the ground that it involved the exclusion

6



of blacks by statute rather than by peremptory challenge. 
(J.A.27). But, after Batson, that is a distinction without 
a difference as far as the Equal Protection Clause is con­
cerned.4

Furthermore, the conclusion that a white criminal 
defendant has standing to challenge the use of peremp­
tory challenges to exclude blacks from his jury is com­
pelled not only by this Court’s precedents in the area of 
jury discrimination, but also by general principles of 
third party standing.

In a long line of cases, this Court has recognized a 
litigant’s standing to assert the rights of third parties 
when the following conditions are satisfied: a) serious 
obstacles to the assertion of the right by the third parties 
themselves, b)injury-in-fact to the litigant, and c) a close 
nexus between the litigant and the third parties whose 
constitutional rights are at stake. Thus, private schools 
have standing to assert the rights of parents and students 
to choose private school education, Pierce v. Society o f 
Sisters, 268 U.S. 510, 535 (1925). Likewise, physicians 
have standing to assert the rights of their patients to 
contraceptives, Griswold v. Connecticut, 381 U.S. 479, 481 
(1965); cf. Eisenstadt v. Baird, 405 U.S. 438, 443-46 
(1972)(nonphysician distributor of contraceptives); and to 
abortion, Singleton v. Wulff, 428 U.S. 106, 111-18 (1976); 
Doe v. Bolton, 410 U.S. 179, 188-89 (1973). Beer sellers 
have standing to invoke their young male customers’ 
equal protection rights to buy beer at the same age as 
women, Craig v. Boren, 429 U.S. 190, 192-97 (1976). 
Attorneys have standing to invoke their clients’ rights to

4 The Ohio Court correctly noted that Taylor v. Louisiana, 419 U.S. 
522 (1975), relied on the Sixth Amendment and not the Equal Protec­
tion Clause to uphold a defendant’s right to challenge the exclusion 
from his jury of a class to which he did not belong. But while Taylor 
does not compel the recognition of cross-class standing here, the case 
is certainly not adverse to defendant’s claim.

7



adequate legal representation, Dep’t o f Labor v. Triplett, 
110 S.Ct. 1428 (1990). White property sellers have 
standing to invoke the equal protection rights of black 
prospective buyers to avoid the enforcement of a racially 
restrictive covenant, Barrows v. Jackson, 346 U.S. 249, 
255-58 (1953).

In all of these cases the primary victims were ill 
situated to litigate on their own behalf, whether for 
reasons of privacy, a small individual stake in the out­
come, or for other reasons. The litigants, by contrast, 
had a large stake in the outcome and were seriously 
harmed by the action at issue, whether or not their own 
constitutional rights were also violated. The nexus be­
tween the litigants and the victims whose constitutional 
rights were violated was sufficient to assure the court of 
vigorous advocacy of the victims’ rights. Here, too, the 
excluded jurors are extremely ill situated to challenge 
their exclusion, the criminal defendant is seriously in­
jured in fact, and the nexus between the interests of the 
defendant and the jurors is strong enough to assure 
vigorous advocacy of the jurors’ rights.

In particular, the jurors improperly excluded on the 
basis of race are ill suited to assert their own rights for 
several reasons. First, potential jurors are not parties to 
the jury selection process and have no opportunity to be 
heard at the time of their selection or exclusion. 
Second, the excluded jurors cannot easily obtain declara­
tory or injunctive relief when discrimination occurs 
through an individual prosecutor’s exercise of peremp­
tory challenges rather than through the systematic prac­
tices of the jury clerk and commissioners at issue in 
Carter, see 396 U.S. at 324-28, because it is difficult to 
make the necessary showing that the discrimination is 
likely to recur. See City o f Los Angeles v. Lyons, 461 
U.S. 95, 105-10 (1983); Rizzo v. Goode, 423 U.S. 362, 
371-72 (1976). And third, the practical barriers to suit by 
an excluded juror are at least as great as the legal bar­

8



riers because of the small stake of any individual juror, 
and the economic and other burdens of litigation.5

Moreover, a criminal defendant of any race is un­
questionably injured by race discrimination in the selec­
tion of the jury that tries him, and his interest in avoid­
ing that injury is strong enough to assure the court that 
he will vigorously represent the interests of the excluded 
jurors. First, every defendant has an interest in diversity 
on his jury, with its prospect for increasing the chance 
that at least one juror will construe the evidence his way, 
and the chance that the jury will fail to reach a unani­
mous verdict. Second, every defendant has an interest in 
defeating the prosecutor’s efforts to select a favorable 
jury. Thus, in any case where the prosecutor chooses to 
exclude members of one race from the jury, it follows 
that the defendant has an interest in including them. 
Sometimes it will be apparent why the prosecutor wants 
to exclude members of a particular race. For example, 
he might want to exclude members of the same race as 
the defendant, or the defendant’s lawyer, e.g., State v. 
Superior Court, 760 P.2d 541 (Ariz. 1988), or the defend­
ant’s co-defendants or co-perpetrators, e.g., United States 
v. Townsley, 856 F.2d 1189 (8th Cir. 1988)(narrowly 
divided en banc court denying standing). In those cases, 
the prosecutor seems to rely on the assumption, ques­
tionable but widespread, that jurors will favor members 
of their own race. In other cases, like this one, the 
motivations may be less apparent from the record. Per­
haps the prosecutor makes the assumption that minority

5 "Individual jurors subjected to peremptory racial exclusion have the 
legal right to bring suit on their own behalf, but as a practical matter 
this sort of challenge is most unlikely. The reality is that a juror dis­
missed because of his race will leave the courtroom with a lasting 
sense of exclusion from the experience of jury participation, but pos­
sessing little incentive or resources to set in motion the arduous proc­
ess needed to vindicate his own rights." Holland, 110 S.Ct. at 812 
(Kennedy, J., concurring)(citation omitted).

9



jurors are generally hostile to law enforcement, or to the 
victims, or to prosecutions for a particular kind of crime, 
or to prosecutions where -- as here -- capital punishment 
is a possibility. Whether those assumptions are well 
founded or not, and whether the defendant shares them 
or not, the prosecutor’s preferences give the defendant a 
strong incentive to try to defeat them.

The defendant’s interest in creating diversity on the 
jury, and in defeating the prosecutor’s strategy for jury 
selection, are each important enough to assure that he 
will vigorously represent the rights of the excluded jurors 
in order to protect those interests. A further guarantee 
of vigorous advocacy is the obvious fact that every de­
fendant has an overwhelming interest in identifying and 
preserving reversible error at trial, and asserting reversi­
ble error on appeal. When, as here, a white defendant 
sees a chance to overturn his conviction by challenging 
the race-based exclusion of black jurors, his interest in 
the success of that claim guarantees the vigorous advoca­
cy required by principles of third party standing.

Thus, a straightforward application of general princi­
ples of third party standing leads to the conclusion that 
any criminal defendant, without regard to race, has 
standing to raise the rights of potential jurors to be free 
of race discrimination in jury selection.

II. A CRIMINAL DEFENDANT OF ANY RACE HAS A 
CONSTITUTIONAL RIGHT, UNDER THE EQUAL 
PROTECTION CLAUSE, TO FREEDOM FROM 
RACE DISCRIMINATION IN THE JURY SELEC­
TION PROCESS

This Court has long recognized that race discrimina­
tion in jury selection violates the rights of the criminal 
defendant who is tried by a jury selected through dis­
criminatory means. In Strauder v. West Virginia, 100 U.S. 
303, the Court held that a black defendant was denied

10



equal protection of the laws when blacks were excluded 
from the jury that tried him. In Peters v. Kiff, the Court 
expressly reserved the equal protection question, 407 
U.S. at 497 n.5, while holding that a white defendant was 
denied his personal right to due process of law when he 
was indicted and tried by juries "selected in an arbitrary 
and discriminatory manner . . . Id. at 502 (opinion of 
Marshall, J.); accord, id. at 507 (opinion of White, J.). 
And in Taylor v. Louisiana, 419 U.S. at 530, this Court 
held that race and sex discrimination in the selection of 
the venire violates the defendant’s Sixth Amendment 
right to a jury drawn from a representative cross-section 
of the community. After this Court’s ruling in Holland, 
of course, the Sixth Amendment does not protect the 
defendant from race discrimination in the use of per­
emptory challenges. Nevertheless, the Due Process and 
Equal Protection Clauses continue to protect the defend­
ant from race discrimination at every stage in the selec­
tion of the jury that hears his case.

The defendant’s right to be free of race discrimina­
tion in jury selection is not, as some have supposed, 
simply a right to the opportunity to have his "racial 
peers" on the jury. See, e.g., Fludd v. Dykes, 863 F.2d 
822, 825 & n.5 (11th Cir. 1989). Rather, it is a right to 
be free from racial discrimination in the jury selection 
process.6 Strauder, like Batson, addressed the right of a 
defendant to be free of discrimination against jurors of 
his own race because those were the facts presented to 
the Court, and perhaps because the Strauder Court did 
not foresee the possibility that a white defendant would 
object to the exclusion of black jurors. None of this 
Court’s decisions, however, even remotely endorses the 
principle that white defendants suffer no cognizable

6 "[W]hatever his race, a criminal defendant has standing to challenge 
the system used to select his grand or petit jury, on the ground that it 
arbitrarily excludes from service the members of any race . . . ." 
Peters v. Kiff, 407 U.S. at 504.

11



injury when blacks are excluded from jury service on 
racial grounds. To the contrary, that proposition, which 
lies at the heart of the decision below, is factually and 
constitutionally unsupportable for reasons stated as early 
as Strauder, and as recently as Batson and Holland.

The view that the exclusion of black jurors violates 
only the rights of black defendants and not the rights of 
white defendants rests on the factual presumption that 
jurors routinely ignore their oath and favor defendants of 
their own race. That factual presumption is unsupporta­
ble, and has been repeatedly rejected by this and other 
courts. Moreover, even if some loose statistical support 
could be found for that race-based generalization, settled 
principles of equal protection would prohibit any govern­
mental body from relying on it. Just as the Constitution 
prohibits prosecutors from relying on any such race- 
based generalization, see Batson v. Kentucky, so too does 
the Constitution prohibit this Court from relying on race- 
based generalizations. Finally, even if the factual and 
legal bars to reliance on the presumption were not insur­
mountable, there would be insuperable practical barriers. 
For the presumption of race-based bias on the part of 
jurors supports a much broader standing rule than the 
one in fact adopted by the court below. In short, the 
decision is flawed for factual, legal and practical reasons, 
any one of which would be sufficient to justify reversal.

A. The Decision Below Rests On An Unsup­
portable Factual Premise That This And 
Other Courts Have Previously Rejected

The view that the exclusion of black jurors violates 
only the rights of black defendants and not the rights of 
white defendants rests on the factual presumption that 
jurors routinely ignore their oath and favor defendants of 
their own race. That presumption, not surprisingly, is 
neither articulated in the opinion nor supported by any 
evidence in the record. It is also belied by the everyday

12



experience of numerous other courts. As Judge Kearse 
has observed: "[I]t is fallacious to assume that all per­
sons sharing an attribute of skin color, or of gender or 
ethnic origin, etc., will ipso facto be partial to others 
sharing that attribute." McCray v. Abrams, 750 F.2d at 
1121. Three other Second Circuit judges made the same 
point in more personal terms in United States v. New­
man, 549 F.2d 240, 250 n.8 (2d Cir. 1977):

Blacks are the major victims of wrong­
doers and it is unlikely that they hesitate 
to convict where the case warrants it.
All of the members of this court, hear­
ing the present case, have served more 
than a decade as judges of the United 
States District Court for the District of 
Connecticut. It has been our experience 
that Black persons, summoned and 
drawn for jury panels in that court, have 
been excellent jurors and have shown no 
predilection to favor or harm any group, 
class or kind of persons but have judged 
the facts on the evidence presented in 
court in the light of the court’s charge.

Social science evidence, too, shows that jurors of a 
particular race do not speak with a single voice. While 
some members of minority groups may be sympathetic to 
members of their own group, others "respond to discrimi­
nation and prejudice by attempting to disassociate them­
selves from the group, even to the point of adopting the 
majority’s negative attitudes towards the minority." 
Castaneda v. Partida, 430 U.S. 482, 503 (1977)(Marshall, 
J., concurring)(citing sources at nn.2-3).

Moreover, this Court has already declined to adopt 
any presumption about the likely views of jurors of a 
particular race. As Justice Marshall put it in Peters v.m

13



[W]e are unwilling to make the assump­
tion that the exclusion of Negroes has 
relevance only for issues involving race.
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 as­
sume that the excluded group will con­
sistently vote as a class in order to con­
clude, as we do, that their exclusion 
deprives the jury of a perspective on 
human events that may have unsus­
pected importance in any case that may 
be presented.

407 U.S. at 503-04.7 In short, "a person’s race simply ‘is 
unrelated to his fitness as a juror.’" Batson, 476 U.S. at 
87, quoting Thiel v. Southern Pacific Co., 328 U.S. 217, 
227 (1946)(Frankfurter, J., dissenting).

B. The Equal Protection Clause Itself Prohibits 
This Court From Relying On Any Race- 
Based Presumption About The Likely Views 
Of Jurors

Even if there were some loose statistical validity to 
the presumption that jurors favor members of their own 
race, it would be profoundly wrong to enshrine in our 
constitutional jurisprudence any such presumption. The 
Constitution prohibits state legislatures, public employ­
ers, public universities, and a host of other institutions

7 See also Ballard v. United States, 329 U.S. 187, 193-94 (1946) (exclu­
sion of women from federal juries "may not in a given case make an 
iota of difference. Yet a flavor, a distinct quality is lost if either sex is 
excluded").

14



from acting on generalizations based on race, sex, or 
certain other suspect classifications, even when there is 
some statistical support for those classifications. See, 
e.g., Craig v. Boren, 429 U.S. at 208 n.22, 209 (different 
drinking ages for men and women unconstitutional 
despite statistics tending to show some disparity between 
sexes in incidence of driving while intoxicated).

Classifications based on race, in particular, have 
been so pernicious, so susceptible to misinterpretation 
and misuse, so ill founded, and so antithetical to the 
American conception of fairness and individual dignity, 
that this Court has regularly held that the Constitution 
prohibits their use. Most recently, in Batson, this Court 
prohibited prosecutors from relying on any such pre­
sumption in exercising peremptory challenges. A rule 
limiting standing to defendants of the same race as the 
excluded jurors would be based on the same illicit pre­
sumption that this Court rightly rejected in Batson. It 
cannot be the law that the same race-based presumption 
that is constitutionally forbidden to prosecutors is the 
foundation of this Court’s jury discrimination jurispru­
dence.

Moreover, the ban on jury discrimination announced 
in Batson does not in fact rest on any presumption about 
the likely views of minority jurors. Whether the defend­
ant is deprived of jurors of his own race, as in Strauder, 
or jurors of a different race, as in Peters, his trial is 
tainted by race discrimination in a manner prohibited by 
the Equal Protection Clause, as well as the Due Process 
Clause, of the Fourteenth Amendment.

That taint, as this Court recognized in Strauder, 
Peters, and Batson, harms not only the excluded jurors, 
but also "the accused whose life or liberty they are sum­
moned to try," Batson, 476 U.S. at 87, and finally the 
entire community, because "[selection procedures that 
purposefully exclude black persons from juries under­

15



mine public confidence in the fairness of our system of 
justice." Id.

Whether or not the community has a right to a 
verdict that commands community confidence, surely the 
defendant himself has that right. To deprive only de­
fendants in petitioner’s situation of a remedy when the 
prosecutor intentionally selects the jury in a way that 
undermines community confidence in the verdict is to 
deny such defendants both the equal protection of the 
laws, and due process.

It is no more incongruous to recognize a defendant’s 
equal protection right to the possibility of jurors of a 
different race than to recognize a person’s equal protec­
tion right to marry a person of a different race, Loving v. 
Virginia, 388 U.S. 1 (1967), or to go to school with chil­
dren of a different race, Brown v. Board o f Education, 
347 U.S. 483 (1954).8 In each case, the state prevents an 
association between persons of different races, and that 
action amounts to unconstitutional race discrimination, 
violating the equal protection rights of both parties to 
the obstructed association.

The right to that association does not rest on any 
presumption that members of another race have particu­
lar qualities or views that make them especially desirable 
as spouses, classmates, or jurors. Instead, it rests on the 
simple proposition that the state may not act on the 
basis of race to prevent the association.

8 Cf. Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205 
(1972)(white tenant of apartment complex is injured by discrimination 
against nonwhite applicants for apartment, and therefore may enforce 
statutory ban on race discrimination in housing).

16



C. Race-Based Presumptions About The Views 
Of Jurors Do Not Justify The Standing Rule 
Announced Below

Even if this Court were to try to fashion a standing 
rule based on the dubious presumption at issue, that 
presumption would fail to justify the limitation of stand­
ing to defendants of the same race as the excluded 
jurors. For the presumption that jurors will favor mem­
bers of their own race may lead jurors to favor not only 
defendants of their own race, but also defense attorneys 
or defense witnesses of that race, or defendants in some 
other way associated with the race of the jurors. Thus, a 
rule of standing grounded in the presumption should 
give standing to any defendant who could show some as­
sociation or community of interest with persons of the 
race of the excluded jurors sufficient to risk bringing the 
presumed bias into play.9 Surely to state that rule is to 
demonstrate its absurdity. For, as argued above at pp.9- 
10, any time the prosecutor concludes that he would 
benefit from excluding jurors of a particular race, it fol­
lows that the defendant has some community of interest 
with the members of the excluded race, sufficient to sup­
port a claim of standing.

Indeed, in a case like this one, where the record 
does not reveal any specific association between the 
white defendants and members of the excluded race, the 
most likely explanation for any efforts by the prosecutor 
to exclude black jurors rests not on a presumption that 
minority jurors favor members of their own race, but on 
a different presumption: that minority jurors are likely

9 That community of interest might be established, for example, by the 
race of the defendant’s lawyer or co-perpetrator, or his publicly stated 
views, see pp.9-10, supra and cases cited; see also Alschuler, T h e  
Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and 
the Review of Jury Verdicts," 56 U.Chi.L.Rev. 153, 191-92 (1989), 
cited in Holland, 110 S.Ct. at 822 n.6 (Stevens, J., dissenting).

17



to be unsympathetic to the government, particularly in a 
capital case. That presumption, like any other presump­
tion based on race, simply has no place in a criminal 
trial. The constitutional prohibition on race discrimina­
tion requires the state to ferret out hostility to law en­
forcement, or to the death penalty, by methods other 
than reliance on racial stereotypes. But if, for the sake 
of argument, we assume there may be some loose statis­
tical validity to the forbidden presumption, then another 
reason appears for recognizing that all criminal defend­
ants must have standing to challenge it. For if white 
defendants are denied standing to challenge that race- 
based exclusion, then the result will be that black de­
fendants, but not white defendants, are entitled to object 
to the race-based exclusion from their juries of people 
widely thought sympathetic to capital defendants of any 
race. To give black defendants, but not white defend­
ants, the right to prevent such an exclusion, would be to 
deny white defendants the equal protection of the laws.

18



CONCLUSION
Five members of this Court have already acknowl­

edged, in Holland v. Illinois, that a white criminal de­
fendant has standing to raise an equal protection chal­
lenge to the exclusion of blacks from his jury. That con­
clusion is compelled by logic, by precedent, and by the 
constitutional and statutory commitment to eliminate the 
last vestiges of race discrimination from the trial of a 
criminal case.

For the reasons stated in Holland, as well as those 
stated above, this Court should reverse the decision be­
low, and hold that a criminal defendant of any race has 
standing to challenge the use of peremptory challenges 
to exclude potential jurors on the basis of race.

Respectfully submitted,

Barbara D. Underwood 
(Counsel o f Record)

40 Washington Square South 
New York, New York 10012 
(212) 998-6188
Steven R. Shapiro 
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

Dated: April 20, 1990

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