Dawson v. Mayor and City Council of Baltimore, MD Brief for Appellants

    No. 08-8483

In The

Supreme Court of ttp> Itnttrri States

Mumia Abu-Jamal,
Petitioner,

v.
J effrey A. Beard, Secretary 

Pennsylvania Director of Corrections, et al., 
Institutional Division,

Respondent.

On Petition for Writ of Certiorari to the 
United States Court of Appeals for the Third Circuit

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

IN SUPPORT OF PETITIONER

J ohn Payton 
Director-Counsel
Jacqueline A. Berrien 
Debo P. Adegbile 

* Christina A. Swarns 
Vincent M. Southerland 
Naacp Legal Defense and 

Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, NY 10013-2897 
(212) 965-2200

Attorneys for Amicus Curiae 
*Counsel o f Record



TABLE OF CONTENTS

Interest of Amicus Curiae...........................................  1

Summary of Argument................................................  2

I. Experience Teaches, and this Court has Held,
th a t a Light Initial Burden of Proof is 
Necessary to Assure that Jury  Selection is 
not Infected by Racial Discrimination in the 
Exercise of Peremptory Challenges...............  3

II. The Decision Below Inexplicably Departs
from This Court's Teachings and Conflicts 
with Rulings of Other Courts of Appeal 
Respecting the Elements of a Prima Facie 
Case under Batson............................................  8

Conclusion 12



TABLE OF AUTHORITIES

FEDERAL CASES

Abu-Jamal v. Horn,
520 F.3d 272 (3d Cir. 2008)...................... 3, 8, 9, 10

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

Arlington Heights v. Metropolitan Housing 
Development Corp.,
429 U.S. 252 (1977)..................... ......................... 6, 7

Avery v. Georgia,
345 U.S. 559 (1953).................................................  7

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

Carter v. Jury Commission of Greene County,
396 U.S. 320 (1970).................................................  1

Duncan v. Louisiana,
391 U.S. 145 (1968)........ .......................................... 4

Edmonson v. Leesville Concrete Co.,
500 U.S. 614 (1991).................................................  1

Georgia v. McCollum,
505 U.S. 42 (1992)........................................ ........  1, 5



Ill

TABLE OF AUTHORITIES-Continued

Ham v. South Carolina,
409 U.S. 524 (1973)................................................... 1

Johnson v. California,
545 U.S. 162 (2005).............................. ........... . 1, 8

Miller-El v. Cockrell,
537 U.S. 322 (2003).........................................  1, 6, 8

Miller-El v. Dretke,
545 U.S. 231 (2005)................. ............  1, 4, 5, 8, 11

Powers v. Ohio,
499 U.S. 400 (1991)........... ................................  4, 11

Snyder v. Louisiana,
552 U .S .__ , 128 S. Ct. 1203 (2008)..................... 8

Strauder v. West Virginia,
100 U.S. 303 (1880)................................................... 4

Swain v. Alabama,
380 U.S. 202 (1965)..............................................  1, 5

Tankleffv. Senkowski,
135 F.3d 235 (2d Cir. 1998)...................................  12

Turner v. Fouche,
396 U.S. 346 (1970)..................................................  1

Turner v. Marshall,
63 F.3d 807 (9th Cir. 1995) 12



IV

TABLE OF AUTHORITIES-Continued

United States v. Horsley,
864 F.2d 1543 (11th Cir. 1989)....... .....................  12

STATE CASES

Commonwealth v. Martin,
461 Pa. 289, 336 A.2d 290 (1975)...........................  5

DOCKETED CASES

Abu-Jamal v. Horn,
No. 08-8483 (Dec. 19, 2008).................... .......... . 10



1

INTEREST OF AMICUS CURIAE1

The NAACP Legal Defense and Educational 
Fund, Inc. (LDF) is a non-profit corporation chartered 
by the Appellate Division of the New York Supreme 
Court as a legal aid society, formed to assist African 
Americans in securing their rights through the 
prosecution of lawsuits. The Legal Defense Fund’s 
first Director-Counsel was Thurgood Marshall. LDF 
has a long-standing concern with the influence of 
racial discrimination on the criminal justice system in 
general, and on jury selection in particular. LDF has 
represented defendants in numerous jury selection 
cases before this Court including, inter alia, Swain v. 
Alabama, 380 U.S. 202 (1965), Alexander v. Louisiana 
405 U.S. 625 (1972) and Ham v. South Carolina, 409 
U.S. 524 (1973); pioneered the affirmative use of civil 
actions to end jury discrimination in, Carter v. Jury 
Comm’n of Greene County, 396 U.S. 320 (1970), and 
Turner v. Fouche, 396 U.S. 346 (1970); and appeared 
as amicus curiae in Miller-El v. Dretke, 545 U.S. 231 
(2005), Johnson v. California, 545 U.S. 162 (2005), 
Miller-El v. Cockrell, 537 U.S.322 (2003), Batson v. 
Kentucky, 476 U.S. 79 (1986), Edmonson v. Leesville 
Concrete Co., 500 U.S. 614 (1991), and Georgia v. 
McCollum, 505 U.S. 42 (1992). In addition to its jury 
discrimination work in this Court, LDF submitted an 
amicus brief and presented oral argum ent in the court 
below in the instant matter.

1 Le tte rs  of consent by the  par ties  to the  filing of th is  brief 
have  been lodged with the  Clerk of th is  Court. No counsel for any 
p a r ty  au th o red  th is  brief  in whole or in par t ,  and  no person or 
en tity , other  th a n  am icus,  m ade any m onetary  contribution to its 
p rep a ra t io n  or submission.



2

Because of its long-standing commitment to the 
elimination of racial discrimination in the criminal 
justice system and its experience litigating claims of 
discrimination in the jury selection process, LDF has 
an interest in Mr. Abu-Jamal’s petition, which 
presents im portant issues regarding the application of 
Batson and its progeny, and believes its perspective 
would be helpful to this Court in evaluating the claim 
presented in this case.

SUMMARY OF ARGUMENT

Since 1986, this Court has consistently 
recognized and reinforced the principle tha t courts 
m ust promptly examine and eradicate all founded 
allegations of discrimination in the exercise of 
peremptory challenges in order to ensure a fair trial 
for the accused, to protect prospective jurors from 
discrimination, and to protect the integrity of the 
criminal justice system. Specifically, in Batson v. 
Kentucky, 476 U.S. 79 (1986) and its progeny, this 
Court has declared that a petitioner claiming 
discrimination in the exercise of peremptory 
challenges should only be subject to a modest initial 
burden of proof, and tha t courts evaluating such a 
claim should consider “all relevant circumstances” 
suggestive of discrimination. Id. at 96-97, By 
rigorously enforcing these two core dictates, this Court 
seeks to ensure that no relevant evidence of 
discrimination is ignored and tha t public confidence in 
the integrity of the criminal justice system is assured. 
See id. a t 86-87; 103.

Amicus respectfully requests that this Court 
grant review of the decision below affirming the denial 
of Mumia Abu-Jamal’s Batson claim. The Court of



3

Appeals declared tha t Mr. Abu-Jamal failed to 
establish a prim a facie case of discrimination under 
Batson because he did not offer evidence “comparing 
the percentage of exercised challenges used against 
black potential jurors with the percentage of black 
potential jurors known to be in the venire.” Abu- 
Jam al u. Horn, 520 F.3d 272, 290 (3d Cir. 2008). In 
reaching this conclusion, the panel majority rendered 
irrelevant substantial evidence strongly indicative of 
discriminatory jury selection presented by Mr. Abu- 
Jam al.

Consequently, the lower court ruling -  which 
conflicts with decisions of the Courts of Appeals of the 
Second, N inth and Eleventh circuits -  undermines 
Batson by elevating the burden of proof to be met by 
litigants advancing Batson claims, and ignores 
numerous indicators of discrimination, thereby 
insulating credible allegations of racial discrimination 
in jury selection from constitutional scrutiny.

This Court should grant review and reaffirm 
Batson's authority as a powerful tool for the 
eradication of racial discrimination in jury selection.

I. E xperience Teaches, and th is Court has 
Held, that a Light In itial Burden o f Proof 
is N ecessary to Assure that Jury Selection  
is not Infected by Racial D iscrim ination  
in  the Exercise o f Perem ptory Challenges.

This Court’s rulings appropriately recognize 
tha t American juries operate to “safeguardQ a person 
accused of crime against the arbitrary exercise of 
power by [a] prosecutor or judge.” Batson, 476 U.S. at



4

86 (citing Duncan v. Louisiana, 391 U.S, 145, 156 
(1968)). Racial discrimination in jury selection 
diminishes the jury’s power to perform this critical 
function by subjecting a criminal defendant to trial 
before a biased tribunal and “underm ining] public 
confidence in the fairness of our system of justice.” 
Batson, 476 U.S. a t 86-87 (citations omitted); see also 
Miller-El, 545 U.S. a t 238(“When the government’s 
choice of jurors is tainted with racial bias, that ‘overt 
wrong . . . casts doubt over the obligation of the 
parties, the jury, and indeed the court to adhere to the 
law throughout the trial,’ . . .‘invites cynicism 
respecting the jury’s neutrality,’ and undermines 
public confidence in adjudication.”)(quoting Powers v. 
Ohio, 499 U.S. 400, 412 (1991)). Discriminatory jury 
selection also unfairly exposes qualified citizens of 
color to public exclusion and a “brand” of inferiority. 
Strauder v. West Virginia, 100 U.S. 303, 308 (1880) 
(explaining th a t exclusion from jury service “is 
practically a brand upon [the potential juror], affixed 
by the law, an assertion of their inferiority, and a 
stim ulant to tha t race prejudice which is an 
impediment to securing to individuals of the race that 
equal justice which the law aims to secure to all 
others.”). For each of these reasons, a prosecutor’s 
exercise of race-based peremptory challenges is 
pernicious, shameful and repugnant to the very 
underpinnings of the Constitution in general and the 
Equal Protection Clause in particular. See Batson, 476 
U.S. a t 102 (Marshall, J., concurring).

In order to ensure th a t the criminal justice 
system is not corrupted by such discrimination, this 
Court in Batson declared tha t the use of peremptory 
challenges to exclude prospective jurors from an



5

individual case because of race is unconstitutional. 
Specifically, Batson lowered the “crippling,1'"Batson, 
476 U.S. at 92, and “unworkable,” Miller-El, 545 U.S. 
a t 239, threshold burden of proof tha t had been 
imposed by this Court’s earlier decision in Swain, 
supra.2 See also Georgia v. McCollum, 505 U.S. 42, 47 
(1992) (noting tha t Batson “discarded Swain’s 
evidentiary formulation.”). This Court was compelled 
to act because petitioners claiming discrimination 
under Swain  were overwhelmingly unable to meet its 
extremely high initial burden and, as a result, the 
“misuse of the peremptory challenge to exclude black 
jurors” became “common and flagrant.” Batson, 476 
U.S. a t 103 (Marshall, J., concurring).

In response, Batson declared “inadequate]” “any 
burden of proof for racially discriminatory use of 
peremptories tha t requires tha t ‘justice . . .  sit supinely 
by’ and be flouted in case after case before a remedy is 
available.” Id. a t 102 (Marshall, J. concurring) 
(quoting Commonwealth v. Martin, 461 Pa. 289, 299, 
336 A.2d 290, 295 (1975) (Nix, J., dissenting)). It 
rejected the Swain  formulation and directed courts 
confronted with claims of discrimination in the 
exercise of peremptory challenges to “undertake ‘a 
sensitive inquiry into such circumstantial and direct

2U n d er  S w a in , a pe tit ioner alleging the  d iscrim inatory  
exercise of perem ptory  challenges had  to dem o n s tra te  t h a t  “the  
prosecutor in a county, in case after case, w hatever  the  
c ircum stances , w hatever  the  crime and whoever the defendan t  or 
th e  victim may be, is responsible for the  rem oval of Negroes who 
have been selected as qualified ju rors  by the  ju ry  commissioners 
and  who have survived challenges for cause, w ith  the re su l t  th a t  
no Negroes ever serve on pe ti t  juries. ’ Sw ain ,  380 U.S. a t  223.



6

evidence of intent as may be available,”’ Id. at 93 
(quoting Arlington Heights v. Metropolitan Housing 
Development Corp. 429 U.S. 252, 266 (1977)) and 
established the now familiar three-part test:

[f]irst, a defendant m ust make a prima  
facie showing th a t a peremptory 
challenge has been exercised on the basis 
of race. Second, if that showing has been 
made, the prosecution must offer a race- 
neutral basis for striking the juror in 
question. Third, in light of the parties’ 
submissions, the...court must determine 
whether the defendant has shown 
purposeful discrimination.

Miller-El, 537 U.S. a t 328-29 (citations omitted).

In recognition of the fact tha t Swain’s 
insurmountable first step burden had the effect of 
insulating unlawful discrimination from constitutional 
scrutiny, the Batson court declared tha t a petitioner 
seeking to establish a prim a facie case of 
discrimination need only

show tha t he is a member of a cognizable 
racial group, [ ] and that the prosecutor 
has exercised peremptory challenges to 
remove from the venire members of the 
defendant’s race. [T]he defendant is 
entitled to rely on the fact, as to which 
there can be no dispute, tha t peremptory 
challenges constitute a jury selection 
practice th a t  perm its “those to 
discriminate who are of a mind to 
discriminate.” [T]he defendant must



7

show tha t these facts and any other 
relevant circumstances raise an inference 
tha t the prosecutor used th a t practice to 
exclude the veniremen from the petit jury 
on account of their race.

Batson, 476 U.S. a t 96 (quoting Avery v. Georgia, 345 
U.S. 559, 562 (1953) (internal citations omitted).

This Court also made clear that there was no 
specific formula for establishing a prirna facie case:

[i]n deciding whether the defendant has 
made the requisite showing, the trial 
court should consider all relevant 
circumstances. For example, a ‘pattern’ of 
strikes against black jurors included in 
the particular venire might give rise to 
an inference of discrimination. Similarly, 
th e  p ro se cu to r’s q u estio n s  and  
statem ents during voir dire examination 
and in exercising his challenges may 
support or refute an inference of 
discriminatory purpose. These examples 
are merely illustrative.

Batson, a t 96-97 (emphasis added).

To make absolutely certain tha t evidence of 
discrimination was no longer ignored, the Batson 
Court repeatedly directed judges evaluating claims of 
intentional discrimination in the exercise of 
peremptory challenges to consider all “circumstantial 
and direct evidence of intent as may be available, Id. 
a t 93 (quoting Arlington Heights, 429 U.S. at 266), and 
explained tha t “any ... relevant circumstances [can] 
raise an inference tha t the prosecutor used that



8

practice to exclude the veniremen from the petit jury 
on account of their race.” Batson, 476 U.S. a t 96. See 
also Johnson, 545 U.S. at 172 (“The Batson framework 
is designed to produce actual answers to suspicions 
and inferences tha t discrimination may have infected 
the jury selection process.”); Abu-Jamal, 520 F.3d at 
314 n.44 (Ambro, J., dissenting) (“were we to 
summarize Batson in layperson’s terms, a defendant 
needs to raise, based on whatever evidence exists, a 
reasonable possibility tha t the prosecutor intended to 
exclude from the jury but one person because of race.”).

Thus, in order to ensure th a t unlawful 
discrimination in the exercise of peremptory 
challenges is exposed and eliminated, “all of the 
circumstances tha t bear upon the issue of racial 
animosity m ust be consulted.” Snyder v. Louisiana, 
552 U .S .___, 128 S.Ct. 1203, 1208 (2008).

II. The D ecision  Below Inexplicably D eparts 
from This Court’s Teachings and Conflicts 
w ith Rulings o f Other Courts o f Appeal 
R especting the E lem ents o f a P rim a  Facie  
Case under Batson.

This Court has repeatedly addressed this 
subject and provided detailed guidance to lower courts 
about how Batson claims should be analyzed and 
decided. See, e.g., Snyder, supra; Johnson, supra; 
Miller-El v. Dretke, supra; Miller-El v. Cockrell, supra. 
It is ironic, then, that in the ruling below, the panel 
majority’s opinion retreats from this Court’s directive 
to undertake a broad review of all circumstances when 
assessing claims of discrimination in the exercise of 
peremptory challenges and instead improperly 
heightens the evidentiary burden on defendants



9

raising such claims. This departure from controlling 
precedent w arrants plenary review by this Court, in 
order to assure that Batson remains an effective 
vehicle for uncovering and eradicating racial 
discrimination in the exercise of peremptory 
challenges.

In affirming the District Court’s conclusion that 
Mr. Abu-Jamal failed to establish a prim a facie case 
of discrimination under Batson, the panel majority 
failed to conduct the constitutionally required broad 
review of all relevant evidence of discrimination. 
Instead, the Court concluded tha t Mr. Abu-Jamal’s 
purported failure to proffer “evidence from which to 
determine the racial composition or total number of 
the entire venire -  facts th a t would permit the 
computation of the exclusion ra te3 and would provide 
im portant contextual m arkers to evaluate the strike 
rate”4 was, in and of itself, fatal to his effort to set 
forth a prim a facie case of discrimination under 
Batson. Abu-Jamal, 520 F.3d at 291-292. The panel 
majority conceded tha t “[tjhere may be instances 
where a prima facie case can be made without 
evidence of the strike rate  and exclusion rate,” but 
offered no insight into how a petitioner might do so

3The Third  Circuit explained th a t  the  “exclusion ra te ” is 
“calculated  by com paring the  percen tage  of exercised challenges 
u sed  a g a in s t  black po ten tia l  ju ro rs  w ith  the  percen tage  of black 
po ten tia l  ju rors  know n to be in the  ven ire .” A b u -Ja m a l ,  520 F.3d 
a t  290.

4The “str ike  ra te  is com puted by com paring the  n u m b e r  of 
perem pto ry  s tr ikes  the prosecutor used to remove black po ten tia l  
ju ro rs  with the  prosecu to r’s to ta l  n u m b er  of perem ptory  s trikes 
exercised.” A b u -Ja m a l ,  520 F.3d a t  290.



10

and summarily declared that Mr. Abu-Jamal did not 
meet this heightened and ambiguous standard. Id. at 
292. Indeed, the majority acknowledged only in 
passing the non-statistical evidence of discriminatory 
intent that was presented by Mr. Abu-Jamal. Id. at 
291 n.17.5 By focusing solely on the exclusion rate  and 
by giving Mr. Abu-Jamal’s abundant evidence of 
discriminatory intent only “cursory consideration,” the 
Court “misapplie[d] B atson,... [by] failing] to ‘consider 
all relevant circumstances’ of [the] case” and elevating 
Batson’s Step One burden. Abu-Jamal, 520 F.3d at 
319 (Ambro, J., dissenting).

The Third Circuit’s declaration th a t exclusion 
rate  evidence is a necessary component of Batson’s 
prim a facie case requirement reveals a fatal

5Mr. A bu-Jam al relied on the  following evidence in 
support  of his claim of d iscrim ination in the exercise of 
perem pto ry  challenges: the  fact th a t  he is an African American 
m an  charged  w ith  killing a white  police officer; the  fact th a t  Mr. 
A b u -Jam a l  was a p rom inen t  African A m erican com m unity  
activist; the  tr ia l  p rosecu to r’s p a t te rn  of perem pto ry  s trikes 
ag a in s t  prospective jurors of color; the  tr ia l  p rosecutor’s s ta te m e n t  
of d iscrim inatory  in ten t;  and  evidence of a cu l tu re  of 
discrim ination, including th a t  the  Philadelphia  District A ttorney’s 
Office t ra in ed  its young prosecutors on how to exclude prospective 
ju ro rs  of color, tes tim ony by Mr. A b u -Ja m a l’s t r ia l  law yer and 
o ther  Ph ilade lph ia  defense a t to rneys  indica ting  th a t  the  
Ph ilade lph ia  D istric t A tto rney’s Office routinely  used  its 
pe rem pto ry  s tr ikes  to exclude African A m erican  prospective 
jurors , a s tudy docum enting significant exclusion of prospective 
ju ro rs  of color in Ph ilade lph ia  cap ita l  tr ia ls ,  and the  fact th a t  a t  
the  time of his tr ia l,  s ta te  law au thorized  the use of race-based 
perem pto ry  challenges. See Petition  for W rit  of C ert io ra r i  to the 
U nited  S ta tes  Court of Appeals for the T h ird  Circuit a t  24-30, 
A b u -J a m a l  v. Horn, No. 08-8483 (Dec. 19, 2008) (filed on beha lf  
of Petitioner, M um ia Abu-Jam al).



11

misunderstanding of the history and purpose of the 
Batson Step One burden. Batson recognized tha t 
Swain’s flawed and singular focus on systemic 
statistical evidence impeded the identification and 
eradication of discrimination in the exercise of 
peremptory challenges and contributed to public 
m istrust in the administration of justice. It therefore 
required courts to conduct a complete assessment of 
evidence of discrimination in the exercise of 
peremptory challenges and acknowledged that a single 
strike, accompanied by such evidence, can sustain the 
prim a facie case threshold. Batson, 476 U.S. at 99 
n.22.

The decision below directly contradicts Batson 
and threatens to dramatically reduce the pool of cases 
eligible for judicial review from those th a t raise an 
inference of discrimination based on any and all 
relevant circumstances to those tha t do so based on 
“exclusion rate” evidence. By leaving those cases that 
present credible and compelling non-statistical 
evidence of discrimination beyond the reach of the 
courts, the Third Circuit leaves serious questions 
about the fairness of the criminal justice system 
unanswered. In so doing, tha t court “‘invites cynicism 
respecting the jury’s neutrality,’ and undermines 
public confidence in adjudication.” Miller-El, 545 U.S. 
a t 238 (quoting Powers, 499 U.S. at 412).

This elevation of statistical analysis above any 
other evidence of discrimination not only conflicts with 
Batson’s goals, it also contradicts its express terms. 
Batson clearly indicates tha t a pattern of strikes and 
the prosecutor’s questions and statem ents may 
establish a prim a facie case of discrimination. Batson,



12

476 U.S. at 96-97. The ruling below th a t “exclusion 
rate” evidence is an indispensable component of a 
prim a facie case fails to give effect to this guidance. 
Additionally, Batson expressly suggested tha t a 
finding of intentional discrimination would be proper 
even if based on the exclusion of a single prospective 
juror. Batson, 476 U.S. a t 99 n.22. It is entirely 
unclear how one discriminatory peremptory challenge 
could be exposed and corrected under the logic of the 
panel majority in this case.

It is for these reasons th a t several other Courts 
of Appeals have rejected the suggestion tha t statistical 
evidence such as “exclusion rate” is a necessary 
component of a Batson prima facie case. See Tankleff
u. Senkowski, 135 F.3d 235, 249 (2d Cir. 1998); Turner
v. Marshall, 63 F.3d 807, 812 (9th Cir. 1995); United 
States v. Horsley, 864 F.2d 1543,1546 (11th Cir. 1989) 
(per curiam).

This Court should grant review to resolve this 
conflict among the Circuits and to insure the integrity 
of its consistent jurisprudence applying the bedrock 
ruling in Batson.

CONCLUSION

Amicus respectfully urges this Court to affirm 
Batson’s dictate that petitioners seeking to prove racial 
discrimination in the exercise of peremptory 
challenges must face a modest threshold burden of 
proof, and tha t courts considering such challenges 
must consider “all relevant evidence” of discrimination.



13

Respectfully submitted,

J ohn Payton 
Director-Counsel

J acqueline A. Berrien 
Debo P. Adegbile 

*Christina A. Swarns 
Vincent M. Southerland 
NAACP Legal Defense and

Educational Fund, Inc. 
99 Hudson Street, Suite 1600 
New York, NY 10013 
(212) 965-2200

* Counsel of Record
March 5, 2009