Teague v. Lane Brief Amici Curiae in Support of Petitioner

    No. 87-5259

I n  t h e

dmtrt at tip Itttteft §taU$
Ootobee Teem, 1987

Frank Dean Teague,

v.
Petitioner,

Michael L ane, et al.,
Respondent.

ON WRIT OE CERTIORARI TO THE UNITED STATES COURT 
OP APPEALS POE THE SEVENTH CIRCUIT

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

AND THE AMERICAN CIVIL LIBERTIES 
UNION IN SUPPORT OF PETITIONER

J ulius LeV onne Chambers 
C harles Stephen R alston* 
NAACP Legal Defense and 

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

J ohn A. P owell 
Steven R. Shapiro 
American Civil Liberties Union 

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

Attorneys for Amici Curiae 
#Counsel o f Record



Question Presented
Whether a prosecutor's use of 

peremptory challenges to exclude Blacks 
from jury service because of their race 
violates the Sixth and Fourteenth 
Amendments to the Constitution of the 
United States?

1



Table of Contents
Page

Question Presented . . . .  ........... i
Table of Authorities...................iii
Interest of the A m i c i ................... 1

Summary of Argument............   4
I* the e x c l u s i o n o f b l a c k j u r o r s

VIOLATES THE RIGHT TO HAVE A JURY 
REPRESENTATIVE OF THE COMMUNITY. . .6

II. SWAIN DOES NOT REQUIRE THE COURT 
TO IGNORE A PROSECUTOR'S 
VOLUNTARY ADMISSION OF RACIAL 
DISCRIMINATION IN THE EXERCISE 
OF PEREMPTORY CHALLENGES . . . .  16

Conclusion . 25



Cases:
Table of Authorities

Abrams v. McCree, 92 L.Ed.2d
705 (1986) . . ............. 13

Alexander v. Louisiana, 405
U.S. 625 (1972) ............. . 3, 12

Allen v. Hardy, 478 U.S. ,
92 L.Ed.2d 199 (1986) . . . . * • 13

Apodaca v. Oregon, 406 U.S. 404
(1972) ..................... 10

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

Ballew v. Georgia, 435 U.S.
223 (1978) ................. 12

Batson v. Kentucky, 476 U.S.
79 (1986)............... 17, 21, 24

Brown V. Allen, 344 U.S. 443 (1953) • . 7
Carter v. Jury Commission, 396

U.S. 320 (1970) .............
Duncan v. Louisiana, 391

U.S. 145 (1968) .............
Fay v. New York, 332 U.S. 261

(1947) ..................... • • 10
Lockhart v. McCree, 476 U.S.

_, 90 L.Ed.2d 137 (1986) . . 10, 13
McCray v. Abrams, 750 F.2d 1113 

(2d Cir. 1984), vacated and 
remanded, 106 S.Ct.
3289 (1986)............... 4, 10, 23

iii



Michigan v. Booker, 92 L„ Ed. 
2d 705 (1986) ........ 13

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

Peters v. Kiff, 407 U.S. 493
(1972)  14

Plessy v. Ferguson, 163 U.S.
597 (1896) . . . . .    23

Smith v. Texas, 311 U.S. 128 (1940) . . 6
Swain v. Alabama, 380 U.S.

202 (1965) ........  3, 5, 17-22, 24
Taylor v. Louisiana, 419 U.S.

522 (1975) ............. 6, 7, 9, 11
Thiel v. Southern Pacific Co., 328 U.S. 217 (1946)..............................
Turner v. Fouche, 396

U.S. 346 (1970)................... ..
United States v. Danzey, 476 F. Supp.

1065 (E.D.N.Y. 1979), aff'd,
620 F.2d 286 (2d Cir.), cert, 
denied, 449 U.S. 878 (1980) . . . .23

United States v. Greene, 626 F.2d 75
(8th Cir.), cert, denied,
449 U.S. 876 (1980)............. 22

Wethersby v. Morris, 708 F.2d 1493
(9th Cir. 1 9 8 3 ) .................  22

Williams v. Florida, 399 U.S. 78 (1970)
8

IV



Statutes: Page
14 Maine Rev. St. §§ 1211

et seq. (1971) . ............. .. . 9
Colo. Rev. St. §§ 13-71-107

to 13-71-121 (1971) ...............  9
Federal Jury Selection and 

Service Act of 1968,
Pub. L. 90-274, 82 Stat.
53, 28 U.S.C. §§ 1861 et seq. . . .  9

Hawaii Rev. Stat. §§ 612-1
to 612-26 (1973)   9

Idaho Code §§ 2-201
to 2-221 (1971)   9

Indiana Code §§ 33-4-5.5-1
to 33-4-5.5-22 (1973) .   9

Md. Ann. Code § 8-1-13.................... 9
Minn. Stat. Ann. §§ 593-31

to 593-50 (1977) . . . . . . . . .  9
Miss. Code 1972, §§ 13-5-2

et seq. (1974)  9
No. Dakota Code §§ 17-09.1-01

to 27-09.1-22 (1971)   9
Uniform Jury Selection

and Service Act (National 
Conference of Commissioners on

Uniform State laws, 1970)   9

v



Other Authorities:
Sullivan, Deterring the

Discriminatory Use of 
Peremptory Challenges.
21 Am. Grim. L. Rev.
477 (1984) .....................  14

vi



No. 87-5259
IN THE

SUPREME COURT OF THE UNITED STATES 
October Term, 1987

FRANK DEAN TEAGUE,
Petitioner,

v.
MICHAEL LANE, et al..

Respondent.

On Writ of Certiorari to the 
United States Court of Appeals for 

the Seventh Circuit

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

Interest of the Amici*
The NAACP Legal Defense and Educa­

tional Fund, Inc., is a non-profit

*Letters from the parties consenting to 
the filing of this Brief have been lodged 
with the Clerk of the Court.



2

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 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 long-standing concern 
with the issue of the exclusion of Blacks 
from service on juries. Thus, it has 
raised jury discrimination claims in



3
appeals from criminal convictions,1 
pioneered in the affirmative use of civil 
actions to end discriminatory practices,2 
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.

The American Civil Liberties Union 
(ACLU) is a nationwide, non-partisan 
organization with over 250,000 members 
dedicated to the principles of liberty and 
equality embodied in the Constitution and 
civil rights laws. As part of its 
commitment to legal equality, the ACLU has 
long opposed any and all forms of racial 
discrimination in the administration of

1 E .g. . Alexander v. Louisiana. 
405 U.S. 625 (1972).

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.D. Ala. 1966).



4
justice. Of particular relevance here, 
the ACLU represented petitioner in McCray 
v. Abrams. 750 F.2d 1113 (2d Cir. 1984),
vacated and remanded. 106 S.Ct. 3289 
(1986) , the first federal case holding 
that a prosecutor's use of peremptory 
challenges to screen prospective jurors on 
racial grounds violates the Sixth 
Amendment.

SUMMARY OF ARGUMENT
I.

The use of peremptory challenges to 
affirmatively create an unrepresentative 
jury by striking Blacks violates the Sixth 
Amendment. This Court has held on a 
number of occasions that there is no 
constitutional right that the particular 
jury that tries a defendant minor the 
community from which jurors are drawn. 
However, when the fair opportunity to 
obtain a representative jury is thwarted



5
by the exclusion of Blacks at the final 
selection stage, then the result is 
precisely the same as if the jury pool 
itself were unrepresentative. Therefore, 
the basic right guaranteed by the Sixth 
Amendment is violated.

II.
The action of the prosecutor in this 

case violated Swain v. Alabama. 380 U.S. 
202 (1965). Nothing in that decision
requires the result that an admission by 
the prosecutor that a Black venireman was 
excluded because of race did not establish 
a violation of the Fourteenth Amendment. 
To the contrary, such an admission is 
d i r e c t  e v i d e n c e  of intentional 
discrimination and is the strongest 
evidence on which to base a holding that 
the equal protection clause has been
violated.



6

THE EXCLUSION OF BLACK JURORS
VIOLATES THE RIGHT TO HAVE A JURY
REPRESENTATIVE OF THE COMMUNITY.
The question presented by this case 

may be simply stated: if the use of
peremptory challenges to exclude Blacks 
r e s u l t s  in j u r i e s  t h a t  a r e  
unrepresentative of the community, does 
the practice violate the Sixth Amendment, 
which is applicable to the states through 
the Fourteenth. 3

Taylor v. Louisiana. 419 U.S. 522 
(1975), held that "[t]he unmistakable 
import of this Court's opinions, at least 
since 1940 . . .  is 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." 419 U.S. at 528. In Smith

3 Duncan v. Louisiana. 391 U.S. 
145 (1958); Taylor v. Louisiana. 419 U.S.
522 (1975).

I.



7
v. Texas, 311 U.S. 128, 130 (1940), the
Court declared that exclusion of racial 
groups from jury service was "at war with 
our basic concepts of a democratic society 
and a representative government." Ballard 
v. United States. 329 U.S. 187 (1946),
reversed a conviction by a jury from which 
women had been excluded, relying on a 
federal statutory "design to make the jury 
a ' cross-section of the community.'" In 
Brown V. Allen. 344 U.S. 443, 474 (1953),
the Court asserted that the source of jury 
lists must "reasonably reflect . . .  a 
cross-section of the population suitable 
in character and intelligence for that 

, civic duty."
In Taylor the Court also relied on 

its decision in the six-person jury case, 
which had stated that a jury should "be 
large enough to promote group deliberation 
. . . and to provide a fair possibility



8
for obtaining a representative cross- 
section of the community." Williams v. 
Florida. 399 U.S. 78, 100 (1970).
(Emphasis added.) On the basis of this 
precedent, the Court declared:

We accept the fair-cross­
section as fundamental to the jury- 
trial guaranteed 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 available the common 
sense 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 administration 
of the criminal law, moreover, is not 
only consistent with our democratic 
heritage but is also critical to 
public confidence in the fairness of 
the criminal justice system .
[TJhe broad representative 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 
responsibility.' Thiel v. Southern 
Pacific Co., 328 U.S. 217, 227 (1946) 
(Frankfurter, J., dissenting).



9
Taylor v. Louisiana. 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." 4 Taylor quoted
approvingly from the House Report on the 
Federal Jury Selection and Service Act.

Federal Jury Selection and 
Service Act of 1968, Pub. L. 90-274, 82
Stat. 53, 28 U.S.C. §§ 1861 et seq.
Section 1862 provides that:

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

See also, Section 2 of the Uniform Jury 
Selection and Service Act (National 
Conference of Commissioners on Uniform 
State laws, 1970), and Md. Ann. Code § 8- 
1-13. The Uniform Act has been
substantially adopted by eight states. 
Colo. Rev. St. §§ 13-71-107 to 13-71-121
(1971); Idaho Code §§ 2-201 to 2-221
(1971); Hawaii Rev. Stat. §§ 612-1 to 612- 
26 (1973); Indiana Code §§ 33-4-5.5-1 to
33-4-5.5-22 (1973); 14 Maine Rev. St. §§
1211 et seq. (1971); Minn. Stat. Ann. §§ 
593-31 to 593-50 (1977); Miss. Code 1972,
§§ 13-5-2 et seq. (1974); No. Dakota Code 
§§ 17-09.1-01 to 27-09.1-22 (1971).



10
It must be remembered that the 

jury is designed not only to
understand the case, but also to 
reflect the community'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.

419 U.S. at 26 n. 37.
The conclusion that the Sixth

Amendment bars the use of peremptory
challenges to exclude Blacks from the jury
that will sit is not inconsistent with
decisions of this Court, relied upon by
the court below, which hold that the
defendant has no right to have his
particular jury represent the community
with precision. 5 Thus, for example, in a

D Apodaca v. Oregon. 406 U.S. 404, 
413 (1972) (plurality opinion); Fay v. New 
York. 332 U.S. 261, 284 (1947); Lockhart
v. McCree. 476 U.S. __, 90 L.Ed.2d 137
(1986). 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).



11
community in which one third of the 
persons eligible for jury service are 
Black there is no absolute right to have a 
jury with four Blacks out of the 12 
jurors.

Although this proposition is correct, 
it does not negate the conclusion that the 
affirmative use of peremptory challenges 
to produce an unrepresentative jury 
violates the Sixth Amendment. What this 
Court has held is that, assuming a system 
of jury selection that results in jury 
lists that are representative of the 
community, the use of a neutral device to 
select particular juries does not violate 
the Fourteenth Amendment just because in a 
particular case the jury may not precisely 
mirror that community. 5 6 Put another way, 
although there is an affirmative

5 See. e.g. , Taylor v, Louisiana.
419 U.S. at 538.



12
obligation to have a process by which a 
representative jury can be chosen, there 
is not an affirmative obligation to 
achieve the result of juries that are 
precisely representative.

But the converse must also be true: 
there is a right not to have selection 
methods that result in unrepresentative 
juries. The protections of the Sixth and 
Fourteenth Amendments cannot stop with the 
composition of the jury roll, but extend 
to the selection of the specific jury 
itself. See Ballew v. Georgia. 435 U.S. 
223 (1978) ; Alexander v. Louisiana. 405
U.S. 625 (1972). Thus, a defendant has
the right to a fair opportunity for a jury 
on which are represented the various 
groups that make up the community in which 
he is tried. To allow the unscrutinized 
use of peremptory challenges on the basis 
of race biases the process as surely as



13
the exclusion of Blacks from the jury
lists. Lockhart v. McCree. 476 U.S. ___,
90 L.Ed.2d 137 (1986), hardly requires 
this result. Fairly read, the statement 
in Lockhart that "extension of the fair 
cross-section requirement to petit juries 
would be unworkable and unsound," id. at 
148, only rejected the notion of 
proportional representation on the petit 
jury. Id. It did not reject, or even 
address the claim presented by petitioner 
here. Thus, this Court did not cite 
Lockhart when it remanded for "further 
consideration in light of" Batson and
Allen v. Hardy. 478 U.S. ___, 92 L.Ed.2d
199 (1986) , two cases holding that the
d i s c r i m i n a t o r y  use of peremptory 
challenges violates the Sixth Amendment. 
See Abrams v, McCree. 92 L.Ed.2d 705 
(1986); Michigan v. Booker. 92 L.Ed.2d 705 
(1986).



14
The right to a fair cross-section is 

not based on the notion that individuals 
vote to convict or acquit because of the 
racial group to which they belong; rather, 
it derives from the principle that juries 
should contain representatives of the 
various groups in the community so that 
their opinions, voices, points of view, 
and perceptions come to bear on the 
deliberative process. When a prosecutor 
removes Blacks from the jury the result is 
a jury which is insulated from one of 
those viewpoints and voices. 7

The question of whether the use of 
peremptory challenges has violated the 
cross-section requirement will, after all, 
only arise in a particular case when a

7 Peters v. Kiff. 407 U.S. 493, 
503-04 (1972); see Sullivan, Deterring the 
D i s c r i m i n a t o r y  Use of Peremptory 
Challenges. 21 Am. Crim. L. Rev. 477
(1984), for an example of the impact on a 
jury's deliberations of the experiences of 
a black juror.



15
fair system has produced a panel of 
potential jurors that includes Blacks. 
Unless the prosecutor strikes them, a 
representative jury will sit. If then the 
prosecutor makes the jury unrepresentative 
by striking some or all of the Blacks, his 
abuse of the peremptory challenge violates 
the Sixth Amendment.

To illustrate, one may assume a 
county that is 2 0% 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 excused for a valid, 
racially-neutral reason, and an all-white 
jury sits. That result does not violate 
the Sixth Amendment.

In trial #2, twenty potential jurors 
are randomly selected, 4 of whom, or 20%, 
are black. Through neutral selection



16
criteria 2 of the 12 jurors to sit will be 
black, or almost 20%. The prosecutor then 
a f f i r m a t i v e l y  c r e a t e s  a n o n ­
representative jury by striking the two 
Blacks for racial reasons. That result 
does violate the Sixth Amendment. To hold 
otherwise would render wholly abstract and 
nugatory the right to jury rolls that 
represent a cross-section of the 
community, since the benefit that flows 
from that right —  a fair number of juries 
on which Blacks actually sit —  can always 
be thwarted.

II.
SWAIN DOES NOT REQUIRE THE COURT TO 

IGNORE A PROSECUTOR'S VOLUNTARY 
ADMISSION OF RACIAL DISCRIMINATION IN 
THE EXERCISE OF PEREMPTORY CHALLENGES

In addition to the Sixth Amendment
argument discussed above, petitioner also
challenges the prosecutor's use of
peremptory challenges on equal protection
grounds. The narrow issue now presented



17
for review is whether this Court's 
decision in Swain v. Alabama, 380 U.S. 202 
(1965), was meant to foreclose an equal 
protection claim even when the prosecutor 
candidly acknowledges that his or her use 
of peremptory challenges was prompted by 
racially discriminatory motives.

Clearly, any such admission would be 
dispositive after Batson v. Kentucky. 476 
U.S. 79 (1986). The Seventh Circuit, 
however, has classified petitioner as one 
of a class of defendants who cannot take 
advantage of Batson because their direct 
appeals were completed before Batson was 
decided. See Allen v. Hardy. 478 U.S.
___, 92 L.Ed. 2d 199 (1986). Under these
circumstances, the Seventh Circuit ruled 
that even an open admission of racial 
discrimination in jury selection could not 
give rise to an equal protection claim. 
820 F.2d at 834 n. 6. Nothing in the



18
ruling or reasoning of Swain compels that 
result. Even if the question were closer 
than it is, the fact that Swain has now 
been overruled surely argues against an 
unduly restrictive interpretation of its 
discredited holding.

Fairly read, Swain is a case about 
evidentiary presumptions. It is not a 
case endorsing discrimination in jury 
selection. Indeed, the majority opinion 
in Swain begins by restating the Court's 
longstanding view that "a State's 
purposeful or deliberate denial to Negroes 
on account of race of participation as 
jurors in the administration of justice 
violates the Equal Protection Clause." 
380 U.S. at 203-4. 8

The concern in Swain was how that

This principle traces back at 
least as far as Strauder v. West Virginia. 
100 U.S. 303 (1880), which struck down a
state statute barring blacks from jury 
service.



19
principle could best be enforced in the 
context of peremptory challenges. In 
particular, the Court was anxious to 
preserve "[t]he essential nature of the 
peremptory challenge [as] one exercised 
without a reason stated . . Id. at
220. Accordingly, the Court held that the 
mere "allegation" that peremptory 
challenges were being used in a particular 
case to exclude prospective black jurors 
was insufficient to establish a prima 
facie case of discrimination. Id. at 222. 
Rather, under Swain. the presumption that 
a prosecutor's use of peremptory 
challenges is constitutionally legitimate 
can only be overcome by proof that all 
blacks within a given jurisdiction are 
being barred from jury service "in case 
after case, whatever the circumstances, 
whatever the crime and whoever the 
defendant or the victim may be . . . Id.



20
at 223.

The tension in Swain between 
e n f o r c i n g  the principle of non­
discrimination and preserving the 
peremptory as a challenge for which no 
reason need be given does not exist when 
the prosecutor voluntarily offers a reason 
for the peremptory challenge that, on its 
face, is racially discriminatory. At that 
point, the presumption of regularity 
a r t i c u l a t e d  by Swain necessarily 
disappears unless it is irrebuttable. Yet 
clearly, Swain did not create an 
irrebuttable presumption or it would not 
have permitted even systemic proof of 
racial discrimination.9

9 Swain could also be read as 
holding that the statistical disparities 
arising in a single case are ordinarily 
not strong enough to support an inference 
of invidious intent without corroboration, 
and that the transactional cost of 
obtaining corroboration was simply too 
high for the Court to accept. A voluntary 
admission of discriminatory motive,



21
As Justice White, the author of 

Swain, noted in Batson; "Swain itself 
indicated that the presumption of 
legitimacy with respect to the striking of 
black venire persons could be overcome by 
evidence that over a period of time the 
prosecution had consistently excluded 
blacks from petit juries." 106 S.Ct. at 
1725. In a critical footnote, Justice 
White then added: "Nor would it have been
inconsistent with Swain for the trial 
judge to invalidate peremptory challenges 
of blacks if the prosecutor, in response 
to an objection to his strikes, stated 
that he struck blacks because he believed 
that they were not qualified to serve as 
jurors, especially in the trial of a black 
defendant." Id. at n. *.

The view of Swain articulated by

however, solves the evidentiary problems 
and eliminates the transactional costs.



22
Justice White is also the prevailing one 
in the circuits. For example, in
Wethersbv v. Morris. 708 F.2d 1493, 1496
(9th Cir. 1983), the Ninth Circuit 
concluded that the necessity of proving a 
p a t t e r n  and p r a c t i c e  of racial 
discrimination to satisfy Swain only 
becomes relevant if the prosecutor's 
motives in a particular case are not 
otherwise disclosed. Once the state has 
confessed its racial animus, there is no 
need to rely on c i r c u m s t a n t i a l  
evidence. 10 In the apt words of the 
Ninth Circuit: "a court need not blind
itself to the obvious . . . "  ibid. 11

10 Cf- McCleskv v. Kemp. 107 S.Ct.
1756, 1766 (1987) (rejecting equal
protection challenge to capital sentence 
because defendant relied "solely" on 
statistics and did not offer any evidence 
"specific to his own case").

11 Similarly, in United States v.
Greene, 626 F.2d 75, 76 (8th Cir.), cert.
denied. 449 U.S. 876 (1980), the court
implied that Swain would not preclude



23
Indeed, amici are aware of no case in 

any context in which this Court has ever 
said that the government's voluntary 
confession of racial discrimination is 
constitutionally irrelevant. Even in 
cases like Plessy v, Ferguson. 163 U.S. 
597 (1896), the fiction of equal treatment 
was integral to the state's defense and 
essential to the Court's ruling. 
Disregarding this tradition, the Seventh 
Circuit has advanced an interpretation of

relief if the record revealed that the 
prosecutor's use of peremptory challenges 
was impermissibly based on race in even a 
single case. But see United States v. 
Danzev. 476 F. Supp. 1065 (E.D.N.Y. 1979), 
aff'd. 620 F.2d 286 (2d Cir.), cert.
d e n i e d . 449 U.S. 878 (1980).
Interestingly, the judge who decided 
Danzev was also the first federal judge to 
rule that the fair cross-section 
requirement of the Sixth Amendment barred 
the state from using its peremptory 
challenges in a racially discriminatory 
fashion. See McCray v. Abrams. 576 F. 
Supp. 1244 (E.D.N.Y. 1983), aff'd in part
and rev'd in part, 750 F.2d 1113 (2d Cir.
1984), vacated and remanded. 92 L.Ed.2d 
705 (1986).



24
Swain that condemns discrimination if it 
is based on statistics but condones 
d i s c r i m i n a t i o n  if it is openly 
acknowledged. Especially after Batson. 
this Court should not affirm such an 
illogical approach, which is difficult to 
reconcile with Swain and impossible to 
reconcile with the equal protection goals 
of the Fourteenth Amendment.



25
Conclusion

For the foregoing reasons, the 
decision below should be reversed.

Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON* 
NAACP Legal Defense and

Educational Fund, Inc. 
99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900
JOHN A. POWELL 
STEVEN R. SHAPIRO 
American Civil

Liberties Union 
132 West 43rd Street 
New York, N.Y. 10036 
(212) 944-9800
Attorneys for Amici Curiae
* Counsel of Record



Hamilton Graphics, Inc.— 200 Hudson Street, New York, N.Y.— (212) 966-4177