HERNANDEZ v. NEW YORK

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Argument of Kenneth Kimerling

Chief Justice Rehnquist: We'll hear argument next in case No. 89-7645, Dionisio Hernandez v. New York.

Mr. Kimerling?

Mr. Kimerling: Mr. Chief Justice, and may it please the Court:

This case presents a narrow issue under the Court's decision in Batson v. Kentucky, an issue important not only the petitioner here but to every other Puerto Rican and Latino in this country.

The issue in this case boils down to whether or not after a prima facie case of discrimination in the selection of jurors, a prosecutor can respond by simply saying, I did not exclude Latino jurors because they were Latino.

I excluded these jurors, because they speak and understand Spanish.

The way that this issue arises in this case, Your Honors, is as follows.

The petitioner was on trial.

The prosecutor excluded every Latino juror that came before him, using his peremptory challenges.

Thus a prima facie case of discrimination was established under Batson.

The prosecutor was called on to give his reasons for excluding Latino jurors.

At that point the prosecutor said that he and the court had questioned the jurors about an instruction to follow an interpreter.

There was going to be some testimony in Spanish.

And in essence he was asking them whether or not... the jurors... whether or not they could disregard what the witness was going to say in Spanish and rely only on the English language rendition of that testimony provided by the interpreter.

Unknown Speaker: Well, now, if that reason is true that that was the basis for the prosecutor's strike, are you arguing that there can be no peremptory strike on that basis?

Mr. Kimerling: That's correct, Your Honor.

We argue that is a per se violation of Batson, given that reason.

If I might just continue to give you--

Unknown Speaker: Well, that's rather a remarkable position to take, isn't it?

I mean ordinarily if, if a prosecutor is aware that there's going to some foreign language translation required, and if the prosecutor thinks that some particular perspective juror will not abide by the translation of the language and yet speaks the language, I think it's quite remarkable to say that there cannot be a peremptory challenge, may be even a challenge for cause--

Mr. Kimerling: --We don't--

Unknown Speaker: --on that basis.

Mr. Kimerling: --Your Honor, we don't... we don't dispute the opportunity challenge for cause, but we do argue, as you said, that a prosecutor could not exercise a peremptory challenge.

And if I might explain why I think that rule should be applied.

It's very clearly because the prosecutor has not learned anything about the individual juror.

The prosecutor has learned simply that this juror has, as other bilingual jurors, an understanding of Spanish that the--

Unknown Speaker: Well, isn't--

--There was some evidence here I thought that the prosecutor challenge was based some of the reaction of the particular jurors to the questions.

Mr. Kimerling: --The prosecutor here said that he believed that these jurors were hesitant in their responses in that they said that I will try to follow that instruction.

Later, I must say that all these... both jurors affirmed that they could and would--

Unknown Speaker: Well--

Mr. Kimerling: --follow the instruction.

Unknown Speaker: --But didn't the trial judge find that the prosecutor stated reason was his real reason?

Isn't that a finding of the trial court judge?

Mr. Kimerling: He made no specific finding, Your Honor, but he did deny the motion.

We are not arguing, Your Honor, that the reason stated was not his reason.

Unknown Speaker: We assume in deciding this cased that the stated reason was his real reason.

Mr. Kimerling: That's correct, Your Honor, but we believe that the real reason is the Spanish language ability of these jurors.

Unknown Speaker: Well, do you--

--But then you're not accepting it.

Go ahead, Justice.

Do you understand Batson to require some kind of disparate impact analysis as opposed to a finding of intention discrimination?

Mr. Kimerling: No, we don't, Your Honor.

We do... it does require finding an intent.

But what is at issue here is essentially that these jurors answered the questions in the way that every other bilingual juror would.

That the nature of what's being asked and the difficulty that bilingual jurors face in giving, as an initial response, anything more than I will try, is an honest response.

Unknown Speaker: Well isn't that... isn't your statement itself a form of stereotype to suggest that all bilingual jurors react exactly the same way?

Mr. Kimerling: Yes, it is, Your Honor.

It is a form of stereotype, but it's an appropriate one in this setting, because... let me examine... let us examine what's being asked of these jurors.

This Court has, on a number of occasions, recognized the difficulty that jurors generally have in disregarding things that are said in court, evidence that's been provided in court even when instructed to do so by the judge.

It's particularly difficult for... to do what these bilingual jurors had been asked to do.

They had been asked, essentially, to disregard the words of the witness from his or her mouth that they understand and take instead an English language rendition of that.

To do so creates two problems in minimum for these jurors.

One, it runs against their natural inclination.

Unknown Speaker: But this... this is true in any case, when you've got a juror who is bilingual.

I mean, there's nothing peculiar to the situation in which the juror happens to speak the same language as one of the witnesses who is a member of the ethnic group that includes the defendant.

Mr. Kimerling: That's our argument.

That's absolutely right.

We believe that the reluctance demonstrated or the... or the I-will-try answers here are the kinds of answers that would be given by every bilingual juror--

Unknown Speaker: Yeah, but--

Mr. Kimerling: --who honestly... excuse me... who honestly reflects on the questions that he's being asked to answer.

Excuse me, Your Honor.

Unknown Speaker: --Well, what if... so what.

These may be that kind of an answer, but I thought your argument was that... that it amounts to intentional discrimination based on race or ethnic origin to say that because you're bilingual, you can't sit on this jury.

Mr. Kimerling: That's absolutely correct, that that relying--

Unknown Speaker: To say that intentionally excluding a juror by peremptory challenge because the juror is bilingual--

Mr. Kimerling: --That's correct.

Unknown Speaker: --is a discrimination based on race or ethnic origin.

Mr. Kimerling: The connection between national origin and language is a clear one, Your Honor.

It is something that... that this Court has looked to and relied on in Yu Cong Eng--

Unknown Speaker: Well, let's assume that... let's assume that the witness or that a juror is from a certain... from a certain section of a foreign country, now a nationalized citizen, but that foreign country has all sorts of areas in it and people speak a different kind of language in each area.

I mean, they have a little nuances... different nuances... dialects.

Don't you think the... do you think that a juror then should be required to follow the official translations?

Mr. Kimerling: --We don't dispute that in the least, Your Honor.

These jurors said that they would and could and the court is... would presume that they would follow the court's instructions.

What we're saying is that initially, in response to these questions, the hesitancy that triggered the exclusion of these jurors is the natural and foreseeable hesitancy that would be found in all bilingual people.

Unknown Speaker: Well, you've... you've argued the case as if the juror was being asked to completely disregard what he or she heard.

But I'm not quite sure if that's what the prosecutor said.

He said, I want to be sure that they would accept the interpreter as the final arbiter, that is to say if there was, I suppose, some dispute in the person's mind as to what he said.

Now, that's different from saying that he must disregard every nuance.

That's quite different it seems to me.

We don't... and incidentally I take it we don't have the actual transcript of what went on in the voir dire?

Mr. Kimerling: We do not, Your Honor.

But the instructions that... that normally accompany an interpreter are just that, that you have to disregard what you hear in Spanish and rely on what you hear in English.

The problem--

Unknown Speaker: Well, the prosecutor here said, I was uncertain as to whether they could accept the interpreter as the final arbiter, and it seems to me that's different than saying completely disregard what you've heard.

Mr. Kimerling: --Well, I don't know if it makes a distinction in the minds of the juror, Your Honor, because what's at issue is whether or not they can essentially screen out what it is that they hear in Spanish.

And I don't... I don't think that that's an easy process to do, and I obviously the literature that we have cited to in our briefs, one empirical study and a number of linguistics... experts have... studies have demonstrated that it's very difficult to do just that... to identify at some point what it is you've heard in one language as it opposed to another, because it's coming in.

It's something that you're going to understand.

And what I... what I don't want this Court to believe is that we think that... that a juror has a right to disregard what the interpreter says.

We're not saying that.

These... these jurors agree that they could and that they would rely on what the interpreter said.

All we're saying is that this initial response will impact on every bilingual juror.

Unknown Speaker: That's what I have some difference with you, because that's all that the prosecutor was asking that you would accept the interpretation.

And he said, I had great uncertainty... a great deal of uncertainty as to whether or not they could do that.

Mr. Kimerling: They said that they would try, and then they affirmed that they would.

And I--

Unknown Speaker: He's entitled to interpret their demeanor evidence to perhaps cast doubt on their assurances.

Mr. Kimerling: --Your Honor, if... if that's the distinction, then I don't think it's a very meaningful one in most settings.

If, in fact, you can point as a prosecutor to these initial hesitant responses anytime you'd want to, it means that... that you can eliminate bilingual Latino jurors from a jury anytime you want to.

Unknown Speaker: Mr. Kimerling, there you're... you have to rely on the trial judge.

I mean, you really have two questions here, but you're only raising the second one.

The first question is is the prosecutor's reason that he gives really the true reason why he made the strike.

And here you concede that that's correct.

Now, the trial judge can say, no, I don't believe the prosecutor.

You said it was the witnesses' hesitancy, but I think you really wanted just to get rid of all the Latinos.

But here the finding on credibility is against you.

Mr. Kimerling: Your Honor, we think that it is a per se violation, that credibility has nothing to do with it.

That by relying on the I-will-try answers of these jurors, the prosecutor's relying on the Spanish language ability of these jurors.

The court of appeals, for example, recognized that these jurors answered in the way they did as a resalt of their Spanish language ability.

And that same Spanish language ability makes it difficult for every other bilingual person to answer these questions.

Unknown Speaker: Well, except that the correlation is never going to be what you say it is, because in the first place, as I understand, somewhere in the briefs, the statement is made that about 25 percent of those who are ethnically Latino do not speak Spanish.

So you've... you've got a class of 25 percent right off the bat, if that's correct, it will not be eliminated.

And in addition to that, you cannot assume that in every case in which there maybe a Latino defendant there is going to be a translation problem.

So you then have another category that's eliminated.

And once you eliminate those two categories from your argument for correlation, you don't have an argument that this particular criterion is going to eliminate every Latino juror.

Mr. Kimerling: Your Honor, I... you're absolutely correct.

And we're not trying to argue that.

What we're arguing is that in cases in which there is going to be testimony in Spanish or maybe testimony in Spanish, a prosecutor with the will to do so can simply ask these same kinds of questions, get these same types of hesitant I-will-try responses, rely on those, and knock out those jurors.

Unknown Speaker: But you're now telling us that even on the assumption that that is the prosecutor's real reason and not merely a covert reason to eliminate an ethnic group, that that cannot be done.

And I thought the reason you were telling us that could not be done is that it would effectively eliminate or give prosecutors the opportunity to eliminate, in this particular case, every Latino juror from a case in which there's a Latino defendant.

And we know that's not so.

Mr. Kimerling: Your Honor, the... there is no difference between somebody who does it unconsciously and somebody who does it consciously.

The effect is that you're relying on a trait of national origin to accomplish what you want.

For example, if this prosecutor had said, I did not exclude these jurors because they're Latino.

I excluded them because they have Spanish surnames.

And I've had real bad luck with Spanish surname jurors.

Spanish surnames doesn't include all Latinos.

It includes people who are not Latino, who... many women who marry Latino men, yet I think it would not be... that this Court would find under Batson that that would be a violation of Batson.

Unknown Speaker: Well, then the question is, what is the permissible criterion and what is a impermissible one?

I think I infer from your earlier remarks that it's proper for the judge to instruct the jurors, if you can understand this foreign language, I am instructing you that you must abide by what the interpreter said.

That's the record in this case, and that's how you must decide this case.

Do you agree that the judge could instruct the jury that?

Mr. Kimerling: Absolutely, Your Honor.

Unknown Speaker: Now, suppose a juror says, well, judge, I can't do that.

Mr. Kimerling: Okay, and then what happens?

Unknown Speaker: Is that grounds for excusing the juror?

Mr. Kimerling: For cause.

Unknown Speaker: For cause or peremptory either way.

Mr. Kimerling: For cause, because he says I can't do that.

I won't do that.

Then--

Unknown Speaker: Well, I... suppose he says, I have... I'm just not sure I can do that.

I'll have great difficulty doing that.

Mr. Kimerling: --And if in the context of that voir dire, he concedes that he will and can, our position is that it makes no difference between that juror and one shows less hesitancy.

That the peremptory challenge is still based on the language ability of that juror, and as such, would impact and effectively mean that... the prosecutor in that same setting, if I might go back and respond a little clearer... there's another juror in that case, too, who just says, I'll try.

And he says, well, you'll have to do more than try, you'll have to do it.

And I'll do it.

So you have at one end of the spectrum that the I will try, and at the other, grave, grave difficulty.

I don't think this Court can distinguish between those, or any court can distinguish between those, when it's a peremptory challenge, because the prosecutor has to do more than point to a reason for his peremptory challenge.

In both cases, he'd have a reason.

Unknown Speaker: Well, it's a very odd proposition that you concede that an instruction from the court, a direction from the court, is correct, that it's binding.

And then you say that a prosecutor cannot either for cause or peremptorily excuse a juror who can't comply with that.

I'm--

Mr. Kimerling: We don't argue that he can't for cause, but we argue that by allowing a prosecutor to do it with peremptory challenges, allows him in essence to exclude any time he wants... in which there... anytime... in a trial, as Judge Souter pointed out... Justice Souter pointed out... where there's going to be testimony in Spanish, a bilingual Latino.

Unknown Speaker: --Well, that just sounds to me like a rule applying a disparate impact analysis as opposed to a finding of intentional discrimination.

I think you're asking us for a... some kind of a blanket rule, based on disparate impact on Latinos.

Mr. Kimerling: I am not, Your Honor, and if I might--

Unknown Speaker: It sounds like it.

Mr. Kimerling: --Fine, and I'll... fine.

If I could try to give you why I think it's different from a disparate impact analysis.

If, for example, a prosecutor was concerned with cross-racial identifications.

He had a black defendant and... to be tried... and a white witness that was going to make the identification, he might ask the jurors if they could rely on the cross-racial identification of a white witness of a black defendant.

It might be empirically true that more African-Americans would say, I have some questions about the reliability of whites identifying black defendants, with my history that I've been misidentified, and I know that it's maybe a problem.

But I can put that aside, and I'll try this case fairly.

The prosecutor exercises he peremptory challenge, knocks off that black juror.

Disparate impact in a broad sense in that you could probably demonstrate empirically that... that more African-Americans might have difficulty in that setting.

But at the same time I think the difference between our case and that case is that it is an individual determination that... there's something individual in that juror's response that is being brought forth from the voir dire.

Here, all that is coming forth is that I speak Spanish.

I can... going to hear what that witness says.

I will try to follow the interpreter, and I will follow the interpreter.

Unknown Speaker: Mr. Kimerling, you're coming up to your time limit, and I--

Mr. Kimerling: That was my 10-minute buzzer, but--

Unknown Speaker: --Yeah, I'm worried that you haven't said anything about the second question--

Mr. Kimerling: --I really--

Unknown Speaker: --that you've taken this case for and which to my mind is a... is a more significant one as far as its impact on other cases.

Mr. Kimerling: --Your Honor, if I might just finish... finish my answer to Justice O'Connor.

Unknown Speaker: Well, it's your time.

Mr. Kimerling: Thank you.

The difference I think is that the jurors in our case were excluded because of a national origin trait: Spanish speaking.

The jurors in this hypothetical are excluded because of their individual responses to questions.

We think that there's a causal relationship, a direct causal relationship between speaking Spanish and these I-will-try responses.

In the hypothetical, although there may be some impact, the fact is that there's no direct causal relationship between the hesitancy that that individual black juror showed... Afro-American juror showed... and his or her responses.

Secondly, I think the distinction that... that in that case, there was a case-specific fact that is going to be resolved by those jurors, that is, whether or not this identification is accurate.

In our case, it is not.

There is no issue presented in this case or cases in which testimony is being provided in Spanish that is at issue.

It's not as if it's a case-specific issue.

And thirdly, there's a showing of specific bias and by that I mean the... in the hypothetical case, the black African-American juror, demonstrates a potential bias against the prosecution or... or favor for the defendant.

In our case, the juror shows neither a... bent... a partial bias for the defendant or an antithesis... antithetical position to the State.

I think that is what really separates ours, and why we think it's very narrow.

While it's very important, it's very narrow at the same time.

We do not encompass disparate impact.

And I think it's my hypothetical--

Unknown Speaker: --May I just question that?

You say you don't encompass disparate impact.

But doesn't your Latino name example rest on a disparate analysis?

Mr. Kimerling: No, it rests on the fact that that is a part of his national origin... that is the name.

Unknown Speaker: Well, but it isn't always.

Mr. Kimerling: That's correct.

Unknown Speaker: And it may well be true that the prosecutor is 100 percent sincere in believing that people... if he's had bad experience with the people with Latino names.

Mr. Kimerling: Well, I think the difference is that we're looking at traits in the Fourteenth Amendment context that have led to discrimination.

After all, the most derogatory remark directed at Latinos is spic, and that comes from... from a... a characterization of how somebody might say I speak English, based on language.

The Congress has enacted numbers of provisions and regulatory agencies to protect language minorities.

Spanish surname is a basis by which the census counts Latinos.

Unknown Speaker: Mr. Kimerling, I think that hypothetical would come out the way you do... the way you suggest, that is, that it would be in violation of Batson.

But it... to my mind, it... that would be the result only because no, no trial judge in his right mind would believe that argument.

Mr. Kimerling: Well, Your Honor, that--

Unknown Speaker: That's why that comes out.

Mr. Kimerling: --That... that might be, but I... but I think that had a trial judge found so, it would still be a per se question before this court, and not one clearly erroneous.

In the same way that we ask this Court to address this question as a per se violation, the reliance on a per se violation is very important, because it... you can't prove pretext, because if you go from the will... I will try to the very difficult, you always have something on the record.

Secondly, as I point out, it doesn't undermine... a per se rule does not undermine the primary purpose of peremptory challenges, which is to eliminate jurors that are potentially biased.

Unknown Speaker: You probably should address the second question, Mr. Kimerling, the standard of review.

Mr. Kimerling: If I just might put one more point on this, because we believe that the second question doesn't affect us because we have a per se violation here.

But let me just put one more point here which is that the... there is a nondiscriminatorial alternative.

I think in the context of the Fourteenth Amendment, that's very valid.

They can be instructed if there's a difference to... to pass a note to the judge and the judge will clarify it.

You do not have to eliminate these people as a group.

Unknown Speaker: Well, you would have a better case I suppose if... if one of these... if the prosecutor asks, can you follow the interpreter, and he says, of course, I can and I will.

Nevertheless, he's got... the prosecutor struck him.

Mr. Kimerling: Well, that... that's right, but we wouldn't be talking per se.

We'd be talking pretext.

But... but that's not our case, and that's what we think the jurors would say, if they honestly answer the question, Your Honor.

Unknown Speaker: So, if there... if there were six jurors, Latino jurors, that he was examining and three of them said, of course, I can.

And he seated them and he didn't strike them.

And three others said, I will try, but I'm going to have some difficulty.

And he struck them, you would still be here I guess?

Mr. Kimerling: One, there may be a question of a prima facie case, but I would still be here.

Unknown Speaker: You would still be here.

Mr. Kimerling: I would still be here, Your Honor, because in the context of explaining those reasons, for striking those jurors, he would say just what we've said.

And he could point to something on the record--

Unknown Speaker: So it's hard to say... it's hard to say on those facts that he has an intentional discrimination against all Latinos.

Mr. Kimerling: --Your Honor, it's not a question of motive being good or bad.

It's a question about whether the answer is a neutral one, and we believe that an answer based on language cannot be neutral under the Fourteenth Amendment and under Batson.

Quickly turning to point two... I'm sorry.

Obviously we think we have per se violation here.

We think the plenary review, therefore, is appropriate by this Court.

This Court has, however... if this Court does not find per se... consistently applied the independent review in jury discrimination cases starting in Norris... with Norris v. Alabama in 1935 continuing right up to the present.

We don't think that it any reason not to comply with those earlier precedents.

They're not--

Unknown Speaker: You don't think any deference should be accorded to the finding of the trial court who was there as he obviously was at the time the prosecutor took these actions as to the truthfulness of the prosecutor's statement?

Mr. Kimerling: --That... absolutely should, Your Honor.

We believe that independent review as... as... and its mixed question of law and fact... that the appellate court would give deference to findings of credibility and other factual findings.

But the ultimate question or the question of constitutional importance is whether or not that shows intent to discriminate.

In most cases, it will be simple.

Unknown Speaker: Well, it's really... we're looking for, was it a race-neutral reason?

Isn't that what Batson said?

Mr. Kimerling: That's... that's--

Unknown Speaker: And that presumably is I suppose a question of law.

But the other question of whether the reason assigned by the prosecutor is the truthful reason, there you would agree deference should be given to the finding of the trial judge?

Mr. Kimerling: --That's correct, Your Honor.

That--

Unknown Speaker: Apparently, it would have to be clearly erroneous.

Mr. Kimerling: --That's correct.

It's an issue of credibility.

But if you take all that into account, and then you... let me back up by when you say truthful.

What I mean to say is that his denial of discrimination is not sufficient.

But if his reason is that I knocked off juror 2, because he had some hesitancy about cross-racial identification, the court can find that... it to be his reason.

But if the appellate court sees that three non-African-Americans show the same hesitancy as the African-American that was knocked off, in light of all those subsidiary facts, it could find--

Unknown Speaker: --clearly erroneous.

Mr. Kimerling: --Clearly erroneous or it find as... without determining clearly erroneous under independent review, that it would find discrimination regardless of whether or not the trial court did not.

So that the credibility--

Unknown Speaker: Well, is... does that mean that the appellate court is substituting its view, as it may on some cases... for the trial judges as to the truthfulness of the prosecutor's statement?

Mr. Kimerling: --The truthfulness as to his statement is that he said this, that, and the other.

Unknown Speaker: This is the reason I'm doing it.

Mr. Kimerling: But the constitutional question is is whether his true reason is race or national origin, and that I guess is where I--

Unknown Speaker: To find out what is true, isn't it, you first have to decide whether the reason he gives is or is not his true reason.

Mr. Kimerling: --It is... it is what he says is his reason, and therefore, the court will treat it as such.

But if there are other indicia in the record that would lead a court to another conclusion that this Court or any appellate court could rely on those other facts... in the First Amendment area--

Unknown Speaker: I think you've answered the question, Mr. Kimerling.

And your time has expired.

Mr. Kimerling: --Thank you, Your Honor.

Mr. Cohen.

Argument of Jay M. Cohen

Mr. Cohen: Mr. Chief Justice, and may it please the Court:

The central premise of petitioner's case that the peremptory challenges here must be rejected because all bilingual Latinos will answer these questions in the same way is fundamentally at odds with this Court's equal protection analysis in three ways.

First, he substitutes a prediction of what caused the jurors to give the case-related answers that they gave for proof of an intent to discriminate on the part of the prosecutor.

Second, he rejects the individualized assessment of each juror's ability to serve in this case that actually occurred here in favor of an assumption, a group-based assumption or stereotype, about the behavior of bilingual Latinos in general... the kind of stereotype that this Court has condemned.

And third, acceptance of his argument would require the acceptance of jurors even when they often case-related... a nondiscriminatory basis for their challenge under certain circumstances.

Unknown Speaker: Mr. Cohen, would it offend a raceneutral reason for the prosecutor to strike every bilingual juror without regard to any questions and responses?

Mr. Cohen: Not necessarily.

However, if the prosecutors... it could be a race-neutral reason, but there are a couple of circumstances under which it would not be.

If the basis for the prosecutor's challenge--

Unknown Speaker: Well, the reason the prosecutor gives when called under Batson is they're bilingual.

Mr. Cohen: --That reason could serve, depending on how it's applied to the case, as a pretext for discrimination on the basis of their national origin.

Unknown Speaker: How about if he says the reason is because they had an Hispanic surname?

Mr. Cohen: Well, by the same token, that reason could serve as a pretext, particularly with regard to the second one.

It would be very difficult for a prosecutor to show that their surname had any relevance whatsoever to the case and--

Unknown Speaker: Mr. Cohen, any reason can serve as a pretext.

Mr. Cohen: --Right.

Unknown Speaker: I mean any reason.

Mr. Cohen: That's correct.

Unknown Speaker: You can give me the best reason in the world and if I don't believe it, it's a pretext.

I mean, I don't see what--

Mr. Cohen: Well, but what I mean though is that--

Unknown Speaker: --it proves to say it could serve as a pretext.

Why isn't it reasonable for a prosecutor to say look at... I don't care whether he says confidently, I can do it or not.

The fact is it's very hard if you know the language the fellow is speaking to believe the translator who mistranslates it.

It's very hard to do.

So I don't care whether this person says he can do it or not.

I would rather have people on the jury who don't understand the language that's being translated.

Mr. Cohen: --That--

Unknown Speaker: Can the prosecutor do that?

Mr. Cohen: --That... challenging bilingual jurors is on its face, race-neutral.

However, if the prosecutor uses that reason in a disparate way... he uses it for example to challenge only Latino bilinguals or if the particular issue in the case doesn't really indicate that their ability to speak another language will affect their ability to serve as jurors--

Unknown Speaker: Let me interpret if I may, Mr. Cohen.

Supposing there isn't any question about the bona fides of the prosecutor's belief that bilingual jurors may have an undue influence when they get in the jury room and they may not believe the judge's instruction that they should follow the translator's version rather than their own view.

Mr. Cohen: --Correct.

Unknown Speaker: And therefore, the prosecutor's office adopts as a matter of office policy in writing, always challenge bilingual jurors for that reason, would we say that was a sufficient reason under... no question of pretext... should we accept that as a sufficient reason?

Mr. Cohen: This Court in Batson said that challenges to cognizable groups would raise an inference, a prima facie case of discrimination and challenges on that basis alone would reflect discrimination on the part of the prosecutor.

Now, this Court has held and in fact--

Unknown Speaker: Mr. Cohen, I know what we said in Batson.

I'm curious to know what your answer to my question is.

Mr. Cohen: --The answer is challenging someone simply on the basis of their language ability would not be a discriminatory reason under Batson.

Unknown Speaker: What you're saying it that would be a permissible reason on the facts I've given you?

Mr. Cohen: If... yes.

If, however... if, however, that reason was used to challenge in either one particular case or in a series of cases Latinos, the court could still determine that the real reason for the prosecutor's use of that... of language ability was an intent to discriminate in violation of Batson.

For example, if the prosecutor in this case, had not asked the jury--

Unknown Speaker: Of course, you could do that, but you're suggesting that even if that's not the fact, they regard the importance of not following the translator as more important than the interest in having a diverse jury, that's still permissible.

And I... it certainly fits within the language of Batson, but I just wanted--

Mr. Cohen: --That's correct, Your Honor.

Batson--

Unknown Speaker: --Is there any limit on the sufficiency of the reason that must be given as long as it's in good faith?

Supposing, for example, the prosecutor had a prejudice against... a prejudice against people who wore bow ties--

[Laughter]

--that happened that all the blacks on the jury wore bow ties, would that be a sufficient reason, even it's truthful?

Mr. Cohen: --Yes.

Unknown Speaker: Yes.

Mr. Cohen: But in that situation if the court could not determine why the fact that a juror wore a bow tie was at all relevant to the case, and if it actual happened in that particular case that the only jurors who wore bow ties were black jurors, he could--

Unknown Speaker: Infer prejudice... but I'm assuming that the... I'm assuming that he knows the prosecutor and he knows he wouldn't misrepresent something.

He just happens to have an idiosyncratic view about a particular characteristic of people.

And he just gets all those off, but it happens in the case that's the only reason he... he excused all of the Latinos or all of the blacks.

It's nevertheless okay?

Mr. Cohen: --This Court in its Sixth Amendment cases and in its Fourteenth Amendment cases has indicated that Batson prohibits challenges exercised on the basis of some discrimination and does not challenge... prohibit challenges exercised on the basis of other kinds of assumptions based on other criteria.

Unknown Speaker: I thought it was racial discrimination, not just discrimination.

It's... Justice Stevens is posing discrimination on the basis of the tie that one wears.

That's discrimination.

Mr. Cohen: But there's nothing in Batson that prohibits a prosecutor's reliance on that criteria so long as his reliance on that criteria is not a pretext for discrimination on the basis of some prohibited characteristic.

Now, it's important to realize that in this case the prosecutor did not rely on any of those kinds of criteria.

The prosecutor relied instead on the answers that the jurors gave in response to questions about a case-related concern.

Petitioner concedes that they in fact gave those answers, that they did express that hesitation or equivocation, and he also concedes that the concern that the prosecutor asked them about was related to the case on trial.

But he nonetheless says that this Court is required to find what he calls a per se violation of Batson in the absence of any indication in the record that the prosecutor used that case-related concern to discriminate against Latinos.

Unknown Speaker: Mr. Cohen, what... what is the standard of review that this Court should apply to the determinations made in State court in this case concerning the prosecutors' motives?

Mr. Cohen: This Court should apply the clear error standard.

Unknown Speaker: Is that consistent, do you think, with Norris against Alabama and some other cases from this Court saying at least that we will conduct an independent review of State court fact finding in jury discrimination cases?

Mr. Cohen: Yes, there is nothing inconsistent with independent review of the record, including the record on the facts, and deference to the trial court's fact finding.

Unknown Speaker: Do you think that a... application of the clearly erroneous rule is consistently with Norris against Alabama?

Mr. Cohen: Yes, in Norris this Court indicated that it came to the conclusion that the facts compelled a result from the result that the State court had found.

But that... and that is not inconsistent with clear error standard.

This Court has also indicated that even within the clear error standard, if this Court or another appellate court is left with the definite and firm conviction that the result is incorrect that despite the fact finding below, that this Court can still come to a different conclusion.

The standard of review that the New York Court of Appeals applied in this case is the standard of review that this Court cited in Batson, that this Court has applied consistently in its discrimination cases.

Unknown Speaker: Well, we're not concerned with the standard of review applied by the State appellate court.

It's what standard does this Court apply.

Mr. Cohen: But the standard that the New York Court of Appeals has applied... applied, Your Honor, is the same standard that this Court has itself applied to state court determinations of discrimination.

Unknown Speaker: Mr. Cohen, may I just clarify one thing?

You stressed the case-related character of this particular... you're not conceding, I don't suppose, that the reason must be case related?

You just argue that that's factor that tends to support the conclusion there was not a pretext, is that right?

Mr. Cohen: Well, in this case, the courts found that a... that a prima facie case was made out.

Unknown Speaker: Right.

Mr. Cohen: In response to that prima facie case, this Court in Batson indicated that a prosecutor must offer a race-neutral reason.

And one of the ways that this Court expressly judged whether or not a reason is race neutral is whether or not it's related to the case on trial.

Unknown Speaker: No, but you're not conceding that the universe of race-neutral reasons is limited to case-related reasons?

Mr. Cohen: No.

Unknown Speaker: No.

You could, for example, have a prejudice against bank employees or something like that and just challenge all those.

Mr. Cohen: Well, yes, Your Honor.

And once again in this Court's expression in Holland v. Illinois, for example, of its concern about extending the Sixth Amendment... applying a Batson analysis to Sixth Amendment cases and its reference in Batson to cognizable racial groups indicates that what the Court meant in Batson was to prohibit discrimination under the Equal Protection Clause.

And I would believe that the kinds of characteristics that this Court would prohibit would be those kinds of characteristics that this Court has said reflect an intent to discriminate under equal protection, such as race or national origin.

And those characteristics can operate in two ways.

First, the prosecutor can offer them as the reason and this Court has clearly said that that reason on its face is a violation of Batson.

But second, the prosecutor can offer another reason that is race neutral on its face, but nonetheless in the facts and circumstance of the particular case reflect an intent to discriminate.

Unknown Speaker: Oh, or even you've said not in the facts and... oh, I see.

Discrimination has to be in the case.

What if... what if the prosecutor says, I have no racial biases, but I have found in my experience that people with dark skins are not as good jurors as other people?

Mr. Cohen: It would seem to--

Unknown Speaker: You know, there are some swarthy Caucasians who are eliminated, but overwhelmingly that criterion leads to the categorical exclusion of blacks.

Mr. Cohen: --I believe that--

Unknown Speaker: I mean, is that all right?

Mr. Cohen: --I believe that any judge would find that a reliance on that criterion was a pretext for a discrimination against blacks.

Unknown Speaker: But if it wasn't a pretext, it would be all right?

Mr. Cohen: Well, but in order it not to be a pretext, the prosecutor would have to demonstrate in some way that skin color was relevant to the particular case on trial, and I don't think a prosecutor could ever establish that it would not--

Unknown Speaker: No, you said... you said the prosecutor could adopt general rules before I think in response to Justice Stevens.

You said he could adopt a general rule, that we are not going to ever allow to sit on the jury somebody that... in the case where there's a translation necessary... somebody who speaks that language.

And you said that was okay.

Mr. Cohen: --I believe that that general rule reflect a pretext on the part of the prosecutor to discriminate.

And the fact that that rule has a certain impact on blacks as opposed to others is not irrelevant to the analysis.

Unknown Speaker: Which rule are you talking about?

Now, mine or the language one?

Mr. Cohen: Yours, Your Honor.

Unknown Speaker: Oh, okay.

Mr. Cohen: But even if the prosecutor adopts a general rule, if a prima facie case of discrimination is made out, the court is still required to determine that the application of the general rule in the particular case on trial does not reflect an intent to discriminate.

And one of the ways the court does that is to determine if, in fact, the application of that rule is at all related to the case in question.

In addition to--

Unknown Speaker: I'd like to push Justice Scalia's example one step further.

Supposing his example of swarthy, dark-skinned people... supposing the prosecutor could show and he tries dozens of cases before the same judge and he'd done it.

The judge had seen him regularly exclude people with a swarthey complexion.

So he knows he's telling the truth.

It just happens that about 70 percent of them were also Afro-Americans.

Mr. Cohen: --I believe that a judge... if the judge could not find... first of all, that that in fact would not be the case.

But second of all, that is a judge could not find that that criteria was at all related to the case on trial, that not only the trial judge, but the appellate judge would be compelled to find that what the prosecutor was in fact doing was--

Unknown Speaker: Was pretext.

It doesn't have to be related to the case on trial.

What good is a peremptory unless you can use it if you think it's related?

The judge doesn't have to agree that it's related.

He can strike people because he doesn't like the way they comb their hair, can't he?

Mr. Cohen: --But that kind of a factor, because it has such an impact and because it is in general... it would seem to me it--

Unknown Speaker: Like speaking a language.

Mr. Cohen: --Well, no, Your--

Unknown Speaker: I mean, you ought to be careful where you're going.

Mr. Cohen: --No, Your... it would seem to me appropriate in that particular case for the Court to conclude that the prosecutor had intended to discriminate.

But if there is evidence before the court that the prosecutor did not in fact intend to discriminate on the basis of a prohibited characteristic like race or national origin, then the use of that criteria would not be prohibited by this Court's decision on that.

Unknown Speaker: In other words you're saying the impact is never enough, but the impact may be evidence which on the total evidence of the case is sufficient to tip it in favor of a conclusion that there was intentional discrimination.

Mr. Cohen: That's correct, Your Honor.

It can furnish very important evidence of intent, but in petitioner's analysis it is the impact alone that substitutes for proof of an intent to discriminate, because he calls this... this a per se violation of Batson that doesn't require that there be any to... intent to discriminate found.

And another problem that's created by that analysis is let's suppose that two bilingual jurors answer the questions the same way in the same case.

One of those jurors is Latino and one of those is not Latino.

The prosecutor's reason... the record... and the prosecutor's intent is the same.

Under petitioner's analysis, it would be open to show that if the hesitation, the equivocation... if the answers that they gave in the course of that trial were somehow caused by their national origin, that the Latino jurors would have to be seated, whereas the non-Latino jurors would not have to be seated.

And that is not, I submit, what this Court's decision in Batson requires.

In addition, if reliance on the juror's hesitation and equivocation in this case is, as petitioner calls it, a per se violation of Batson, there's no reason to stop the analysis at a peremptory challenge.

A prosecutor could no more rely on race alone in the exercise of a cause challenge, I submit, than a peremptory challenge.

But if this hesitation and equivocation is on the same plane as race, then had the jurors in this case said, no, Your Honor, we cannot do what we are being asked to do.

If it's a per se violation of Batson, the prosecutor could not even rely on it for the exercise of a cause challenge.

Unknown Speaker: Your hypothetical about non-Latinos having the same hesitation assumes that the prosecutor asked the same question to the non-Latino, which I guess he didn't even do in this case.

Mr. Cohen: Well, in fact, Your Honor, the evidence in the record indicates the prosecutor told the court that he believed that at least one of the jurors in this case might not have been Latino.

And while that was not central to the decision, because in New York even challenging one Latino on the basis of--

Unknown Speaker: Did he ask everybody on the panel if they spoke Spanish?

Mr. Cohen: --There's no evidence in the record one way or the other.

Although the defendant, during the course of the colloquy about the prosecutor's exercise of challenges, the defense attorney raised no issue as to the fact that the prosecutor might have treated certain kinds of jurors different than other kinds of jurors.

So there was no evidence in the record of any disparate treatment on his part.

Unknown Speaker: Mr. Cohen, let me ask your... ask you a question about the way the rule that you would have us apply might be applied to other ethnic groups.

What if we were dealing in a... in a different time period in the history of Latin emigration so that in fact it would be true to say that virtually every juror with a Latin name would be a Spanish speaker and it would also probably be true that any case in which there was going to be a Latin defendant would probably involve some translation so that we would have on these... on the criteria that you proposed to allow, we would... we would really have an exclusion of every Latin surnamed juror who hesitate in any way.

Is there anything in our jurisprudence that would say, even assuming on these ethnically neutral grounds, that the exclusion would be appropriate, we nonetheless will not allow it?

Would there be any reason for us to conclude that?

Mr. Cohen: No.

An extension of this Court's equal protection analysis beyond just national origin and beyond language to a juror's hesitation or equivocation in response to case... questions about the juror's ability to do the job in a particular case... I don't believe there is anything in this Court's equal protection analysis that would extend the prohibited classifications for equal protection purposes to that degree.

But I think it's important to realize, too, Your Honor, and that is that there is no evidence whatsoever that this assumption that all bilingual Latinos will answer the same way, will in fact occur.

It's already been indicated here that some of the evidence in the record is that not all Latinos are bilingual at all.

Other evidence in the record offered by petitioner... other evidence on appeal offered by petitioner indicates that there's a wide range of bilingualism from people who have a great ability to speak and understand Spanish to people to have very little ability to speak and understand Spanish.

And there's certainly no reason for this Court to assume that within that range of ability to understand this language, that every single one of the jurors who are called for jury service are going to answer the questions in the same way.

That is exactly the kind of leap that this Court rejected in Batson.

Petitioner has also not shown anything about the relevant... the eligible jury pool and how this issue of bilingualism fits into that.

This case was not argued and asserted on the basis of this per se Batson violation that... that petitioner offers.

There was not even any evidence entered into the record that every single bilingual juror would answer the questions the same way that these jurors did.

So that that assumption is not only contrary to the Court's equal protection principles but is by no means shown and certainly not... not proven.

In contrast to this new way that petitioner would approach the equal protection clause, the record in this case is entirely consistent with Batson.

There was lengthy questioning by both the district attorney and the court on the issue of the juror's ability to follow the interpreter.

There was a great deal of uncertainty as characterized by the prosecutor in their answers.

The basis for the challenge was not just their demeanor but the answers that they gave in response to these questions.

Petitioner concedes that the questions... the attribute that the prosecutor was seeking to question about was related to the case on trial.

And the reason that the prosecutor offered was clear and specific, and there's no evidence that it was pretext for discrimination.

Unknown Speaker: Mr. Cohen, can you tell me based on your experience with these case, because I guess it's... it is a problem that this sort of thing happens in New York a great deal.

Is there a standard instruction that the trial judges give to the... those who are bilingual to say, be sure you adhere to the translation given by the translator rather than your own views?

Mr. Cohen: Well, I don't know, Your Honor.

Although I also don't know that this is a problem that... how often the problem comes up... at least as far as jury challenge--

Unknown Speaker: It must come up repeatedly I would think, because there must a number of bilingual jurors and I would think the prosecutor would always be concerned... have the same concern you described.

Mr. Cohen: --Well, the prosecutors wouldn't in each individual case necessarily have the same concern.

The court does charge the jury that they are required to decide the case based on the evidence.

Unknown Speaker: I know.

Mr. Cohen: And the evidence in this case would be the interpretation of the forum--

Unknown Speaker: He doesn't explain it on... as far as you know there's not a standard... it seems to me it might be something... be worth considering.

Mr. Cohen: --That's correct, Your Honor.

I presume that if the issue comes up in a particular trial the court may very well explain to the jurors what their particular responsibility... responsibility is in that case.

If I may conclude, we firmly reject the view that this case represents any retreat from Batson, that it creates, in the words of petitioner, any loophole or exception to Batson or that it means that Batson does not apply to Latinos?

The reality is that the reason in this case cannot be... that Latinos will continue to be judged by their individual ability to serve in a particular case.

All this case stands for we submit is the proposition that Latinos, like other jurors, who actually exhibit during the course of a voir dire, a case-related, record-supported basis to question their ability to serve as jurors in a particular case, that they can be subject to a peremptory challenge in the absence of a finding that the district attorney intended to discriminate in any way.

That's what the New York Court of Appeals found.

That's what this Court's equal protection analysis says, identified in Batson holds, and therefore, we respectfully urge that this Court affirm the holding of the New York Court of Appeals in this case.

Chief Justice Rehnquist: Thank you, Mr. Cohen.

The case is submitted.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 89-7645, Hernandez against New York will be announced by Justice Kennedy.

Argument of Justice Kennedy

Mr. Kennedy: This case comes to us on direct review from the New York Court of Appeals.

The petitioner was convicted on two counts of attempted murder and two counts of criminal possession of a weapon.

During jury selection, the prosecutor used four preemptory challenges to exclude Latinos from serving on the jury.

Petitioner who himself is Latino objected that the prosecutor was exercising preemptory challenges on the basis of race in violation of the Equal Protection Clause as it interpreted by our decision in Batson verus Kentucky.

The petitioner no longer presses his objection with respect to two of the Latino jury persons.

As to the other two jurors in question, the prosecutor explained that certain testimony in the case would be given in Spanish and translated by a court interpreter.

These two jurors were bilingual and the prosecutor and judge had questioned them about their ability to accept the official translation of the Spanish language testimony rather than relying on their own understanding of it.

The prosecutor stated that he challenged these jurors because their demeanor and hesitation in answering his questions caused him to doubt their ability to defer to the official interpreter.

New York courts found no violation of our decision in Batson.

Today, we affirm but no opinion commands the majority of the Court.

In an opinion for plurality of the Court, in which I am joined by the Chief Justice, Justice White, and Justice Souter, we find that the prosecutor offered a race-neutral explanation for the preemptory challenges.

In this portion of the Batson analysis, we review the facial validity of the prosecutor's given reason for the challenges.

Here, the prosecutor offered a reason for challenging these jurors other than their race, specifically his perception that they would have difficulty deferring to the translator.

We explained that under established equal protection principles, the fact that the prosecutor's reasoning might result in the disproportionate exclusion of Latinos from jury service does not mean that the prosecutor's basis for the challenge violates the Equal Protection Clause.

Equal protection analysis turns on the intended consequences of government classifications.

Unless a government act or adapts a criterion with the intent of causing a particular impact, that impact does not cause the criterion to violate the principle of race neutrality.

Nothing in this prosecutor's explanation shows that he chose to exclude jurors who hesitated in answering questions about following the interpreter because he wanted to prevent bilingual Latinos from serving on the jury.

If we deemed the prosecutor's reasons for striking these jurors a racial classification on its face, it would follow that the trial judge could not excuse for cause a juror whose hesitation convinced the judge of the juror's inability to follow the official translation of foreign language testimony.

If the explanation is not race-neutral for the prosecutor, it is no more so for the trial judge.

While the reason offered by the prosecutor for a preemptory strike need not rise to the level of the challenge for cause.

The fact that it corresponds to a valid for cause challenge will demonstrate its race-neutral character.

Since the reason given by the prosecutor for its peremptory challenge was race-neutral, the issue then becomes, whether the State Courts could believe the prosecutor.

The plurality concludes that the State Court's decision to believe the prosecutor's explanation for his preemptory challenges should be reversed only if clearly erroneous.

This conclusion represents a finding of fact, and Batson explain that such findings should be accorded great deference.

Applying this differential standard of review, the plurality finds no clear error in the State Court's determination that the prosecutor had given the true reason for his challenge of these jurors.

The plurality opinion emphasizes that our decision today does not imply that exclusion of bilinguals from jury service is wise or even that it is constitutional in all cases.

We would face a quite different case if the prosecutor had justified his peremptory challenges on the ground that he simply did not want Spanish-speaking jurors.

It may be for certain ethnic groups and in some communities that proficiency in a particular language, like skin color, should be treated as a surrogate for race under an equal protection analysis.

Further, a policy striking all those who speak a given language without regard that the particular circumstance of the trial where the responses of the jurors might be found by the trial judge to be a pretext for racial discrimination.

Justice O'Connor has filed a concurring opinion in which Justice Scalia joins; Justice Stevens has filed a dissent, joined by Justice Marshall; Justice Blackmun has also filed a dissenting opinion.