BATSON v. KENTUCKY

Batson Clip: Jerry -- Check to see if this is really White speaking to the attorney. Needing your expert opinion

ORAL ARGUMENT OF J. DAVID NIEHAUS, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments next in Batson against Kentucky.

Mr. Niehaus, I think you may proceed whenever you are ready.

Mr. Niehaus: Thank you, Your Honor.

Mr. Chief Justice, and may it please the Court, the issue presented today arose out of a state criminal proceeding in Jefferson County, Kentucky, in which the prosecutor employed four of the six peremptory challenges that were allotted to him under court rule to remove all black persons on the panel of jurors.

These panel members had all survived the challenges for cause under the Kentucky system, which is called the blind strike system, and peremptory challenges are made at all... at the close of all challenges for cause, and they are made by means of striking from identical lists simultaneously names of the jurors that either party wishes to have removed.

But before the jury was sworn, trial counsel for petitioner made a motion to discharge the panel on the ground that the removal of the four blacks by these peremptory challenges denied the right to trial by an impartial jury under the Sixth and Fourteenth Amendments to the Constitution and also denied equal protection of the law.

Unidentified Justice: Were you trial counsel?

Mr. Niehaus: No, Your Honor.

The petitioner asked for a hearing on his motion, but it was denied basically on the ground that anybody can strike anybody they want to.

Those are the words of the trial judge in the case.

The same issue was raised on appeal, on direct appeal to the Supreme Court of Kentucky, and that court also affirmed by stating that an allegation of lack of a fair cross section on a jury which does not concern systematic exclusion from the jury drum, which is the composition device for the jury list, does not rise to constitutional proportions, and therefore the court refused to adopt any law.

I think as the Court can see, neither of the trial court nor the Supreme Court of Kentucky was willing to consider any regulation of peremptory challenges, and I think both followed the conventional interpretation of Swain versus Alabama which this Court decided in 1965.

Unidentified Justice: Well, the court could have, without regard to Swain, could have proceeded under state law to regulate.

Mr. Niehaus: Your Honor, that was not raised in this particular case, although it certainly could.

It was not argued, although it was mentioned, but there is no doubt that they could have proceeded on that basis.

The conventional interpretation of Swain is that there can be no question of peremptory challenges and the way that they are exercised in any one particular case.

This has been the basis for decisions of the many state courts who have refused to consider the newer rules that have been advanced by the Supreme Court of California, the court in Massachusetts, and more recently by two federal appellate courts.

Unidentified Justice: Mr. Niehaus, Swain was an equal protection challenge, was it not?

Mr. Niehaus: Yes.

Unidentified Justice: Your claim here is based solely on the Sixth Amendment?

Mr. Niehaus: Yes.

Unidentified Justice: Is that correct?

Mr. Niehaus: That is what we are arguing, yes.

Unidentified Justice: You are not asking for a reconsideration of Swain, and you are making no equal protection claim here.

Is that correct?

Mr. Niehaus: We have not made an equal protection claim.

I think that Swain will have to be reconsidered to a certain extent if only to consider the arguments that are made on behalf of affirmance by the respondent and the solicitor general.

Unidentified Justice: Why do you fall short of a direct attack on Swain on equal protection?

Mr. Niehaus: Swain within the conventional interpretation simply states that no attack can be made on the exercise in one particular case, and as the record in this case shows no more than what happened in this one particular case.

Unidentified Justice: But Swain preceded the time, did it not, when the amendment was made applicable to the states?

Mr. Niehaus: Certainly.

The Sixth Amendment?

Unidentified Justice: Yes.

Mr. Niehaus: Yes, Your Honor.

Unidentified Justice: So I ask again, why don't you attack Swain head on?

Mr. Niehaus: I believe that we will be attacking it in the course of our argument, Your Honor, because I think that the bases that underlie the proof standard in Swain have been eroded somewhat by a reexamination of the historical--

Unidentified Justice: I though you just answered Justice O'Connor by saying, no, you weren't really attacking Swain except by implication.

Mr. Niehaus: --We have not made a specific argument in the briefs that have been filed either in the Supreme Court of Kentucky or in this Court saying that we are attacking Swain as such.

We have maintained that because the Sixth Amendment guarantees a right to a jury that is as representative of the community as possible, that the Court may proceed on that basis alone and may or may not have to alter its holding in Swain in order to achieve its desire.

Unidentified Justice: Are you saying the Sixth Amendment right requires that the actual petit jury that tries the case must be representative, or have our cases talked about the panel?

Mr. Niehaus: No case specifically holds what we are asking for today.

The most apposite case, which of course is Taylor versus Louisiana, speaks only to the panels from which the petit jury is actually selected.

We are asking for an extension.

Unidentified Justice: I would suppose until peremptory challenges are just out entirely, you would have to just be talking about the panel, because even if you win this case, there are going to be a lot of peremptory challenges exercised for other reasons that might well eliminate identifiable groups in the community.

Mr. Niehaus: I think that that is quite so, and as long as these peremptory challenges are exercised for some reason related to the matter at hand, I think that the cause for objection is going to be removed.

If the Court will recall the remedy that we have proposed in this case, which is based primarily on the Supreme Court of California's rules set out in Wheeler, if there is some reason that explains in the context of a particular case, and I would ask the Court to note that in the first section of Swain the Court also linked the exercise of peremptory challenges to the context of a particular case.

If this explanation is satisfactory, then certainly groups will and probably should be removed, but it is the argument here that if they are being removed, as in this case, simply for reasons of race, this is a destruction of the representative nature of the jury without sufficient reason, and for that reason the peremptory challenges that are exercised must be regulated.

Unidentified Justice: As I understand the California rule, it also applies to peremptories by defendants?

Am I correct?

Mr. Niehaus: Yes.

Most of the courts have adopted that--

Unidentified Justice: And that would follow along with your argument?

Mr. Niehaus: --Your Honor, we have not put that argument forward simply because it is not necessary to obtain the relief we desire in this case.

Unidentified Justice: Well, but I think at least speaking for myself I would like to know what the consequences, the logical consequences of adopting your rule are, and I take it if most state courts have adopted it and felt obliged to extend it to defendants, that might well be a logical consequence.

Mr. Niehaus: Oh, I think that it could be, Your Honor, but the Court could also consider--

Unidentified Justice: Well, how can you do that under a Sixth Amendment claim?

I can understand how you could reach that result under an equal protection claim, which you aren't making, but I don't see how the Sixth Amendment does anything but speak to the defendant's own rights.

Mr. Niehaus: --This is quite right, Your Honor, but the courts that have addressed the matter and more recently the case in Booker versus Jade from the Sixth Circuit, which we have not had time to file with the Court, simply talks about fairness between the parties, and that it does tend to diminish the perception of fairness in the eyes of the public, and those courts have perceived a... I guess you would say a right emanating, although not specifically state, out of the Sixth Amendment, wherein the courts may impose the same rule on the defendant in order to bring out the confidence necessary for--

Unidentified Justice: Well, it certainly is doctrinally difficult to justify under the Sixth Amendment, isn't it?

Mr. Niehaus: --Yes, Your Honor.

Unidentified Justice: So I come back again to my question why you didn't attack Swain head on, but I take it if the Court were to overrule Swain, you wouldn't like that result.

Mr. Niehaus: Simply overrule Swain without adopting the remedy?

Unidentified Justice: Yes.

Mr. Niehaus: I do not think that would give us much comfort, Your Honor, no.

Unidentified Justice: That is a concession.

Mr. Niehaus: Pardon?

Unidentified Justice: I said, that is a concession.

Mr. Niehaus: The Court has always recognized that a jury must be representative of the community in order to discharge its function.

Unidentified Justice: Are you speaking now of a petit jury, the trial jury, or the grand jury, the array?

Mr. Niehaus: The cases that have been decided by this Court in particular speak about the panel that is set up.

No case that I have been able to find gets down directly to the petit jury.

Unidentified Justice: And you must.

Mr. Niehaus: Yes, Your Honor.

But before speaking about the Court's cases, Beal of Glasser, there has always been this idea--

Unidentified Justice: Well, I just should go back.

Swain dealt with just a specific jury, but not in terms of the Sixth Amendment.

Is that it?

Mr. Niehaus: --No, it was equal protection under the Fourteenth Amendment.

Put even before this Court's cases decided in the