Powers v. Ohio – Oral Argument – October 09, 1990

Media for Powers v. Ohio

Audio Transcription for Opinion Announcement – April 01, 1991 in Powers v. Ohio

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William H. Rehnquist:

We’ll hear argument next in No. 89-5011, Larry Joe Powers v. Ohio.

Mr. Lane, you may begin whenever you are ready.

Robert L. Lane:

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

In 1986 this Court rendered its decision in the case of Batson v. Kentucky, a case involving a black defendant who objected to the State’s use of peremptory challenges to exclude blacks from his jury.

Batson reaffirmed the principle that the equal protection clause prohibits the removal of black prospective jurors on the basis of their race.

The issue in today’s case is whether a white defendant has standing under Batson to object to the State’s use of peremptory challenges to exclude blacks from his jury.

Approximately 1 year after this Court’s decision in Batson, Larry Joe Powers stood trial on two counts of aggravated murder with death penalty specifications, and one count of attempted aggravated murder.

During the jury selection process the State used 10 peremptory challenges.

Seven of those challenges were used to exclude blacks from the jury.

The defense objected to these peremptory challenges and pointed out to the court that what the State was trying to do was to remove all the blacks from the jury.

Neither the State nor the court refuted defense counsel’s statements.

The court overruled the objections, and the court failed to compel the State to put its reasons on the record, even though defense counsel had requested such a requirement.

Mr. Powers was ultimately found guilty, and he was sentenced to 53 years to life in the Ohio penal system, where he is today.

Mr. Powers appealed his conviction to the Franklin County, Ohio, court of appeals.

In that appeal he argued that both his rights and the rights of those excluded jurors had been denied under this Court’s decision in Batson by the State’s actions and by the court’s actions.

The court of appeals rejected this claim and affirmed Mr. Powers’ conviction, finding that Mr. Powers could not make a Batson claim because he was not the same race as those jurors.

Mr. Powers then raised the same issue in the Ohio Supreme Court.

That court denied him discretionary review, finding that no substantial constitutional question existed in this case.

For well over 100 years this Court has steadfastly prohibited racial discrimination in the criminal justice system.

The Batson decision stands on three important values, values that are important to all criminal defendants regardless of their race.

Among these values is the… that the Court has recognized, is the value that a democratic society cannot survive unless the people in that society have the faith and the confidence in the integrity of the criminal justice system.

Racial discrimination erodes that faith and confidence.

Antonin Scalia:

On that basis anybody would have the right to challenge it then, he wouldn’t even have to be the defendant.

I guess everybody has standing on that theory, right?

Robert L. Lane:

Your Honor, the–

Antonin Scalia:

I mean any citizen.

Robert L. Lane:

–There are real impediments to someone else coming in and making that challenge.

Now, another citizen could file an action under 1983, they could bring a civil action, as the plaintiffs did in Carter v. Greene County Commissioners, or there is the Federal statute.

But what we’re talking about here is Mr. Powers’ standing as a criminal defendant.

Antonin Scalia:

You think a member of the public at large, not a juror who has been excluded, but a member of the public at large would have standing to challenge this?

Robert L. Lane:

Under the criminal statute, if someone was a witness to it they probably could file a complaint against the prosecutor or the guilty party for a violation of that criminal statute.

And this Court has also recognized, as in the Carter case, that aggrieved parties could file civil action before so.

The problem, Your Honor, is that we’re talking about peremptory challenges.

Antonin Scalia:

All right.

I think you… the first ground that you mentioned, if it is a ground for giving standing to your client, is also a ground for giving standing to everybody.

And you acknowledge that.

You say everybody would have standing.

They might not sue, but they would have standing.

Robert L. Lane:

They would have to meet the requirements that this Court has set down in Singleton v. Wulff and other cases on standing, showing an injury in fact, showing a substantial relationship, and so forth.

They would have to show those standing requirements, Your Honor.

Antonin Scalia:

Okay, so you don’t consider the deprivation of that interest in having… the whole society’s interest in having regular procedures.

You don’t consider that to be injury in fact?

Robert L. Lane:

The problem is, Your Honor, is that we’re talking about a situation that is not a problem that arises before the trial.

It arises during a trial, and it would be very difficult for a party to say that in the upcoming trial that this prosecutor is going to use his peremptory challenges in a racially discriminatory manner.

Sometimes, the lawsuit would have to precede the injury, and there may be a problem there.

This Court has recognized in prior decisions that a criminal defendant is in the best position to vindicate the rights of the community, the excluded jurors, and himself.

This Court has recognized that a reversal of conviction is generally the best vehicle by way this racial discrimination can be prohibited and vindicated.

Antonin Scalia:

What are the second and third interests you were going to mention, which I presume one of which does contain the injury in fact?

Robert L. Lane:

Yes, Your Honor.

The defendant has suffered an injury in fact, and the jurors have an interest in seeing that their rights have been protected.

The jurors have an equal protection right to participate in the criminal justice system, and where they are denied that right, their equal protection rights have been violated.

The harm to the community is the same regardless of the defendant’s race.

Whether a defendant is white or black, if he is denied the opportunity to sit before a jury that has been chosen in the absence of racial discrimination, the community is still going to see this as a very serious problem with the criminal justice system.

This Court cannot tolerate racial discrimination simply because the defendant is not of the same race as the jurors.

As Justice Kennedy stated in his opinion in Holland v. Illinois, citizens cannot be denied the duty and honor of jury service on the basis of race just because the defendant is not of the same race as those jurors.

Batson is based on the need to preserve public confidence in the criminal justice system.

That need is the same regardless of the defendant’s race.

The need is the same regardless of the juror’s race.

In the case of Strauder v. West Virginia this Court recognized that racial discrimination in the criminal justice system creates and further stimulates the kind of racial discrimination, race prejudice, that forecloses people from participating in the justice system.

Anthony M. Kennedy:

Is the showing that’s required to elicit an explanation the same when a black venire person is excluded as when a white venire person is excluded?

Anthony M. Kennedy:

Assume that the defendant is white.

Robert L. Lane:

Your Honor, if the defendant can make a prima facie showing that that juror has been excluded–

Anthony M. Kennedy:

How do you do that?

Suppose you have a prosecutor in a majority white city in a case where the defendant is white, and he challenges five white venire persons?

Robert L. Lane:

–That would have to be decided on a case-by-case basis, Your Honor, and the defendant would have the burden of showing what–

Anthony M. Kennedy:

Suppose the opposing counsel stands up and says I want an explanation.

I think there is racial motivation here.

Robert L. Lane:

–It would be up to the judge at that point to decide whether a prima facie case has been–

Anthony M. Kennedy:

How does he decide that?

Robert L. Lane:

–Well, it would be the factors of… he could look at the questions that the prosecutor–

Anthony M. Kennedy:

A peremptory challenge.

You are just excused.

I excuse Mr. Jones.

Robert L. Lane:

–This Court recognized that a court, in determining that prima facie case, must look at the pattern of questioning, can look at the type of questioning, it could be the prosecutor’s attitude in a specific case, it could be the issues in the case.

There are a lot of issues, Your Honor.

Anthony M. Kennedy:

The fact that the race of the defendant and the race of the juror is the same or different, those aren’t relevant?

Robert L. Lane:

This Court has recognized that where the juror and the defendant are of the same race that the discrimination may be more obvious.

But it is not the only question to be determined.

Byron R. White:

What’s your position of why a defendant who is of the same race as the excluded juror, why does he have standing to raise that issue at all, even though he is of the same race?

Robert L. Lane:

Every defendant should have standing, Your Honor, regardless of the race of the defendant–

Byron R. White:

But why does… why does any of them have standing?

Robert L. Lane:

–Because there is clearly–

Byron R. White:

You think it… must he prove some obvious injury to himself?

Robert L. Lane:

–In order to have standing there has to be an injury in fact.

There has to–

Byron R. White:

To him.

Robert L. Lane:

–To him, Your Honor.

Byron R. White:

What is it?

Robert L. Lane:

The injury in this case is that Mr. Powers, just as Mr. Batson, was denied a jury that meets Fourteenth Amendment requirements.

A jury stands to protect a defendant from the oppressive and arbitrary powers of the Government.

Robert L. Lane:

The jury protects the defendant from… protects his civil liberties.

And wherever racial discrimination arises in the selection of that jury, that jury does not meet the definition in the Fourteenth Amendment.

Byron R. White:

You think this… that sounds like a Sixth Amendment claim.

Robert L. Lane:

No, Your Honor.

It is not a Sixth Amendment claim.

Byron R. White:

What is it?

Robert L. Lane:

It’s an equal protection claim, Your Honor.

Every–

Byron R. White:

You mean in… who… what other person is treated better?

Robert L. Lane:

–In this situation a black defendant would receive better treatment because he is granted standing–

Byron R. White:

Yeah, but I’m talking about a black defendant… I’m talking about a black defendant challenging the exclusion of a black.

What is his injury in fact?

Robert L. Lane:

–He has been denied a jury that has been chosen in the absence of racial discrimination.

Byron R. White:

And you says it’s an equal protection challenge?

Robert L. Lane:

Yes, Your Honor.

Byron R. White:

As compared to whom is he being treated worse?

Robert L. Lane:

The defendant in that case, the black defendant and the black juror, he has been denied this jury that protects him, where this jury should come between him and the powers of the Government, and where race enters into that selection of the jury.

Byron R. White:

So you’re… you give the same answer when you say, when you describe the standing of the white defendant… I mean the white plaintiff… or the white defendant challenging the exclusion of a black.

He has been denied the right kind of a jury–

Robert L. Lane:

Yes, Your Honor.

Byron R. White:

–Whereas some other people get it.

Robert L. Lane:

Yes, Your Honor.

Mr. Powers has the same standing as Mr. Batson.

All criminal defendants–

Byron R. White:

And you would say the same thing even though there is no claim that the jury was not impartial?

Robert L. Lane:

–Your Honor, the… there is a lack of impartiality here in that in order for a jury to meet Fourteenth Amendment impartiality standards there must not be any racial discrimination in the selection of that jury.

This Court–

William H. Rehnquist:

Aren’t you confusing impartiality with equal protection there?

I mean, we have not… we have talked about jury impartiality in some cases quite independently of equal protection.

Robert L. Lane:

–Your Honor, the equal protection violation that is most succinct to Mr. Powers is that he has been treated differently than a similarly situated black defendant.

Robert L. Lane:

And there is an equal protection violation there.

There is also–

William H. Rehnquist:

Yes, but does that necessarily go to the impartiality of the jury?

Robert L. Lane:

–Your Honor, this Court has recognized that when racial discrimination enters into the jury selection process, that that jury does not meet the impartiality test of the Fourteenth Amendment, and a criminal conviction should be reversed.

Antonin Scalia:

Mr. Lane, why do you say he is being treated differently from a similarly situated black defendant?

I mean, I guess it depends on what you mean by similarly situated.

Robert L. Lane:

Their similar situation is that they are criminal defendants.

Antonin Scalia:

Yes, but… and the black defendant can challenge the prosecutor’s decision to strike all blacks from the jury, and the white defendant presumably can challenge the prosecutor’s decision to strike all whites from the jury.

It seems to me that is very even handed.

Why is that not equal somehow?

Robert L. Lane:

Under the decision of the Franklin County, Ohio, court of appeals, the black, the white defendant does not have that same opportunity.

Larry Powers was denied the opportunity to vindicate his rights, the rights of the those jurors, and the rights of–

Antonin Scalia:

To challenge white defendants?

Robert L. Lane:

–No, I am sorry.

Maybe I misunderstood your question.

Antonin Scalia:

No, I am saying why is it a denial of equal… of equal protection if the black defendant can challenge the prosecutor’s intentional striking of all black jury persons, and the white defendant can challenge the prosecutor’s intentionally striking white ones?

Isn’t that even handed?

Robert L. Lane:

Your Honor, the problem with that is that the defendant does not have the opportunity to object to the striking of black defendants… the black jurors.

Antonin Scalia:

Well, neither does the black have the opportunity to object to the striking of white jurors.

Robert L. Lane:

They should, Your Honor.

Antonin Scalia:

Well, maybe they should, but not because of equal protection.

You’ve got to give me some other reason.

I mean, as far as the even-handedness goes, it is quite even handed.

Robert L. Lane:

It is not even handed when you draw lines on racial criteria, Your Honor.

When you say a white defendant can do something that a black defendant cannot, and in another case a black defendant can do something that a white defendant cannot, that is drawing lines on a racial criteria.

That’s the type of racial discrimination that the Fourteenth Amendment was designed to eliminate.

And when a defendant is made to stand trial before a jury in the selection of which there has been racial discrimination, that defendant, regardless of his or her race, has been denied equal protection.

Anthony M. Kennedy:

Do you propose the same rule with respect to gender?

Robert L. Lane:

Your Honor, gender is a separate question.

Anthony M. Kennedy:

I know that isn’t your case, but we have to be concerned with the consequences of what we write and the reason.

Robert L. Lane:

Your Honor, if this Court has determined that gender is a suspect class for equal protection analysis, then I would say it would be proper to do so.

But in this case, on the facts of this case we are dealing with racial discrimination.

Antonin Scalia:

Your opponent asked us to decide whether the… whether it is similarly unlawful for the defense to strike on the basis of race.

I’m not sure we have to decide that, in fact, I can’t imagine why we do.

But in deciding how to resolve this case, certainly we must have that prospect before us, right?

Robert L. Lane:

Yes, Your Honor, that is before the Court.

Antonin Scalia:

It is possible that… so it is really quite possible to have all defendants precluded from striking people of the opposite race, or the same race, or women, or men, or what other categories?

A criminal defendant who wanted to strike all, I don’t know, fundamentalists, or whatever he thought might give him an edge in the decision.

That would be bad if we had to extend that.

Robert L. Lane:

The issue proffered by the State in the second part of their brief is not properly before this Court.

Antonin Scalia:

Yes, but how… well, how we come out on this case plays out quite differently depending on how far we are prepared to go in extending the same right to the defense, isn’t it?

Or the same obligation to the defense.

Robert L. Lane:

It may have an impact, Your Honor, but the fact remains that there are a lot of different issues involved in trying to extend the Batson principles to a defendant’s use of peremptory challenges, a lot of issues in addition to racial discrimination.

When a juror has been excluded from a criminal defense jury on the basis of his or her race, that juror has been denied their equal protection rights.

They have been denied the right to participate in the criminal justice system.

Byron R. White:

And the defendant, you think, has the right to press their claims as well as his own, right?

Robert L. Lane:

Absolutely, Your Honor, because to bar that claim to the defendant would be to say that this Court is going to condone or tolerate racial discrimination simply because the defendant is not of the same race as the jurors.

Anthony M. Kennedy:

Of course there is a criminal statute on the books, 18 U.S.C. 243–

Robert L. Lane:

Yes, Your Honor.

Anthony M. Kennedy:

–I’m sure that is not often invoked, but it is quite specific on this point.

Robert L. Lane:

Your Honor, it is not very often invoked, and I believe there is a footnote in Peters that indicates that there have been very, very few convictions under that, and very, very… very few–

Anthony M. Kennedy:

But if there is a criminal sanction, it seems to me that maybe that would suffice and we don’t need the civil cause of action.

Robert L. Lane:

–Your Honor, that statute has been on the books for over 100 years, and as this Court has noted, racial discrimination has continued despite the existence of that statute.

The problem with that statute is you may take a prosecutor or other guilty party and fine that person $5,000, but the community’s faith and confidence in the system is still going to be harmed.

The jurors are still denied their equal protection rights, and the defendant is still convicted of criminal offenses.

The criminal statute which you could impose on a person guilty of racial discrimination does not address the harm suffered by all the parties.

John Paul Stevens:

May I just go back a second?

In the equal protection claim, is it clear to you that the defendant is a member of the class that is being discriminated against?

I thought you defined the class as black citizens who want to serve as jurors.

Robert L. Lane:

Yes, Your Honor.

Robert L. Lane:

The class–

John Paul Stevens:

The defendant isn’t a member of that class.

Robert L. Lane:

–Exactly.

And there is, that recognition is made in the Batson decision that the class… the defendant is not of the class of the jurors.

He has no interest in sitting on a jury.

John Paul Stevens:

So he has third party standing whether he is black or white, and whether the… whether the challengers are black jurors or white jurors.

Robert L. Lane:

Absolutely, Your Honor.

He has standing.

Byron R. White:

Well, but you… whether he is raising… if he is… even if he is raising the right, claiming the rights of the jury, the excluded jurors, he has to have an injury in fact himself, doesn’t he?

Robert L. Lane:

Yes, Your Honor.

Byron R. White:

And that’s… and the most you can say to that is that he has just been… that he is entitled to a jury that is selected without discrimination.

Robert L. Lane:

It’s a very important injury, sir.

It’s a very severe injury.

Byron R. White:

Well, all you can say, though, is the same thing.

His injury is not having that kind of a jury.

Robert L. Lane:

This Court has recognized that, Your Honor, where racial discrimination has existed in the selection of–

Byron R. White:

Yes, you agree that all you can say is to repeat yourself that he’s entitled to that kind of a jury, and if he doesn’t get it that’s… he’s been injured.

Robert L. Lane:

–This Court has recognized that, Your Honor, in Vasquez v. Hillery, Rose v. Mitchell, in a lot of other cases.

This Court has determined that when racial discrimination exists in the selection of a jury, a criminal defendant’s conviction should be reversed, even in the cases where the racial discrimination occurred at the grand jury stage and there was no allegation of discrimination in the petit jury.

Antonin Scalia:

That’s because he would… there he had an injury, and the injury was that he had been deprived of an impartial jury, or of the opportunity to have an impartial jury that was granted by the Sixth Amendment.

That is an injury.

Robert L. Lane:

The impartiality springs from the racial discrimination, Your Honor.

The jury that is chosen along racial criteria contravenes the very idea of the jury.

Antonin Scalia:

Well, I understand that, but this is not a Sixth Amendment claim you are pressing here.

It’s–

Robert L. Lane:

That is true, Your Honor.

It is not a Sixth Amendment claim.

It’s an equal protection claim, because everyone, regardless of their race, has a right to that same jury, a right to a jury that has been chosen in the absence of racial discrimination.

Byron R. White:

–So the… there are just lots of cases that say if Negroes are kept out of the jury venire, the defendant has got a good claim.

Robert L. Lane:

If racial discrimination exists, Your Honor, that defendant has been harmed.

Robert L. Lane:

He has suffered the injury in fact that is required.

Antonin Scalia:

But let’s assume there is a Federal statute that says, you know, all jury have to arrive at the court house at 9:00, and the jury doesn’t… the jury in this particular case doesn’t arrive at 9:00, and you move for dismissal of the case against your client because he’s entitled to a jury that arrives at the court house at 9:00.

Would you think that that motion should be granted?

Robert L. Lane:

I don’t see the analogy there–

Antonin Scalia:

Wouldn’t you insist–

Robert L. Lane:

–with racial discrimination.

This Court has–

Antonin Scalia:

–Well, wouldn’t the judge insist how did the jury not getting there at 9:00 hurt your client?

Robert L. Lane:

–It doesn’t have that same imprimatur of racial discrimination in impart… in partiality.

Antonin Scalia:

Well, I agree it’s nastier, but how does it hurt your client?

I mean, that’s the point.

It isn’t whether it is good or bad or nasty.

We all agree it’s terrible.

But how did it hurt your client?

Robert L. Lane:

That he did not have a jury because the jurors arrived late?

Maybe I misunderstand your question, Your Honor.

I–

Antonin Scalia:

In this case it may well have been bad to discriminate, but if that discrimination didn’t hurt your client in anyway, how… how does he have standing?

Robert L. Lane:

–Mr. Powers–

Antonin Scalia:

It’s the same thing with the jury arriving at 9:00.

They broke the law.

But why does it hurt your client?

Robert L. Lane:

–The jury must be chosen in the absence of racial criteria.

This Court has set forth that standard.

I don’t… I don’t see the analogy between a jury arriving late and invidious racial discrimination.

This Court has held that racial discrimination in the selection of a jury makes that jury inadequate for Fourteenth Amendment requirements.

That defendant has been denied the jury that the Fourteenth Amendment requires.

And the only way that that type of discrimination is going to be effectively answered is if the criminal defendant can object to it and raise it on appeal.

Mr. Powers–

Byron R. White:

To satisfy you, it would seem to me that if you say that his injury in fact is proved by having Negroes excluded from his jury, I would think you would say that the only Negroes who may be excluded from the jury are those who may be challenged for cause.

Robert L. Lane:

–No, Your Honor, because the peremptory challenge is not the same as a challenge for cause, and the injury in fact–

Byron R. White:

Well, I know, but I would think you would argue that peremptory challenges certainly can’t do away with a defendant’s right to have the kind of a jury he’s entitled to, can they?

Robert L. Lane:

–No, Your Honor, they can’t.

Peremptory challenges cannot be used in a manner to–

Byron R. White:

I know, but you don’t think they have to be… the peremptory challenge of a Negro has to be justified by a cause, by technically that he is disqualified for cause?

Robert L. Lane:

–The prosecutor has to have nonracial reasons.

They don’t have to rise to the level of a challenge for cause, but they have to be nonracial reasons, and they cannot be based on the juror’s race.

Byron R. White:

Uh-hum.

You just say that I don’t think that person is… I think that person is too well educated to sit on a case like this, or that that person isn’t well enough educated to sit on a case like this?

Robert L. Lane:

A juror must be chosen on his personal qualifications and characteristics–

Byron R. White:

But you say that might be enough to overcome this entitlement to a jury that… from which blacks aren’t excluded?

Robert L. Lane:

–That a juror is not a… not educated enough?

Your Honor, some lower courts have looked at those type of responses and found them wanting, founding… found that they did not survive a Batson challenge.

And that was, would have to be a decision made by the–

Byron R. White:

I suppose there is a whole range of acceptable excuses for a peremptory challenge short of a challenge for cause.

Robert L. Lane:

–Yes, Your Honor.

Byron R. White:

Well, just imagine what one of those, what they are, and then you would say that that overcomes this entitlement to the kind of a jury you have been talking about.

Robert L. Lane:

It does, does not overcome it, Your Honor, because this is a constitutional requirement.

And what Batson says is if the prosecution can show to the court, can demonstrate to the court that the prosecution used nonracial reasons, then it may survive a Batson challenge.

William H. Rehnquist:

Nonracial reasons for what is the effect of peremptory strike.

Robert L. Lane:

Yes, Your Honor, for mutual reasons, reasons related to the juror’s individual qualifications and characteristics.

Not related to race.

William H. Rehnquist:

Which could be all over the lot, I suppose.

If lack of education was not found to be a proxy for race, that would be a perfectly good basis for a peremptory challenge, just as too much education might be a perfectly good basis for a peremptory challenge.

Robert L. Lane:

The trial court has the burden, Your Honor, of looking at–

William H. Rehnquist:

I’m asking you a question.

If they were not found to be a proxy for race, would either lack of education or over education be an adequate basis for justifying a peremptory challenge?

Robert L. Lane:

–If the court, or the trial court, or the reviewing court felt that it was not–

William H. Rehnquist:

No, I–

Robert L. Lane:

–a racial reason for a–

William H. Rehnquist:

–We stipulate it is not a proxy for race.

Robert L. Lane:

–Okay.

Then it would probably survive the Batson challenge, Your Honor.

William H. Rehnquist:

Well, you say probably.

Why would it not automatically survive it if it’s not a proxy for race?

Robert L. Lane:

Well, if we stipulate, as Your Honor said, then it probably… it would survive.

William H. Rehnquist:

It would survive.

Robert L. Lane:

I will use the rest of my time for rebuttal.

Thank you.

William H. Rehnquist:

Very well, Mr. Lane.

We will hear now from Mr. Travis.

Alan C. Travis:

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

I think I would like to begin simply by addressing some of the questions raised by the Court.

I would note to the Court that this is not a novel proposition.

As Mr. Lane has argued, and as this Court is fully aware, the use of peremptory… not peremptory, but the use of removal of individuals from the criminal justice system based upon race has been a violation of the Equal Protection Clause since at least Strauder, 110 years.

Just as that is not a novel proposition, I would suggest to this Court that Batson did nothing more than change the evidentiary standard which is required before an accused may make a challenge against the prosecution’s use of peremptories.

In this instance I think it is significant, and this Court has found it significant, that much of the argument presented by the petitioner in this case I think sounds of a Sixth Amendment challenge.

In this instance we have a significantly different basis for the objections by the defendant, if they are coming out of the Sixth versus the Fourteenth Amendment.

The issue which has been discussed with Mr. Lane, the necessity of a injury in fact to the defendant, historically, and certainly nothing since Swain has changed this, historically this Court has consistently and continually stated in equal protection cases that in order to show a violation of the equal protection rights of the accused he must show that he is a member of the distinct class, and that members of his class have been excluded from the jury service.

Sandra Day O’Connor:

What do you do about Peters v. Kiff, and the statutory provision?

Alan C. Travis:

I would say simply to the Court that if the statutory basis were brought, as the middle three opinions of that case suggested, that might be a basis for review or handling of this matter.

But it was not brought in this case, nor was a due process clause claim brought.

Mr. Justice Marshall’s lead opinion suggests that the issue involved due process and equal protection.

But as I read the opinion and as I believe the dissent points out, it was resolved as far as the lead opinion goes on due process grounds, and for the center three opinions, written by Justice White, on statutory grounds.

I think that is significantly different.

Certainly it is not what was brought by this petitioner.

Just as in Holland, a petitioner brought a Sixth Amendment claim, feeling he was foreclosed under Fourteenth Amendment grounds, and this Court found that while he had standing, he had no remedy.

And the concurring opinion of Justice Kennedy suggested the contrary would be true under Fourteenth Amendment grounds.

I think if it came up under the criminal prosecution of 243, perhaps if it came up under due process grounds, there might be a remedy.

But it did not, and we are taking the position that under the traditional view that this Court has had for equal protection cases, there is no injury in fact to this defendant.

Byron R. White:

Batson is the law, I suppose–

Alan C. Travis:

Certainly.

Byron R. White:

–And what do you understand to be the black defendant’s standing to challenge the exclusion of black jurors?

What is his injury in fact?

Alan C. Travis:

My understanding, Your Honor, is that… and Batson relied so heavily on Casteneda against Partida, that the injury is that members of his race, his cognizable group, have been excluded.

And that is the injury in fact.

Byron R. White:

Well, how does that hurt him?

Alan C. Travis:

I’m sorry?

Byron R. White:

How does that hurt him?

I’m… we’re talking about injury in fact.

Alan C. Travis:

The petitioner?

Byron R. White:

What is the in fact injury?

Alan C. Travis:

Well, of course the Court has changed its position since Swain, where there was discussion of the fact that the peremptory challenge was validly used for certain purposes, including–

Byron R. White:

But even Swain said that there would be standing to challenge it if they… if you could show a pattern in practice.

Alan C. Travis:

–A pattern in practice, but to my knowledge the Court has never suggested that pattern in practice would have other than a correlation between the defendant and the removed juror.

Byron R. White:

I agree, but I’m still wondering what your notion is of the injury in fact.

Alan C. Travis:

Well, it’s… it is simply that, and perhaps I’m in Mr. Lane’s position on the other side of the Court’s question.

Byron R. White:

You don’t agree that it’s… his injury in fact is the fact he has been deprived of a juror… jury that has been–

Alan C. Travis:

This defendant?

Byron R. White:

–that has not been chosen on nondiscriminatory grounds?

Alan C. Travis:

I am sorry.

Are we talking about this defendant petitioner?

Byron R. White:

Well, and the Batson defendant, and the Swain defendant.

Alan C. Travis:

No, I don’t.

I believe that the injury in fact is that the defendant has been deprived of members of his own race on the jury.

That is my understanding.

Byron R. White:

But is that… can’t you say generally then that the defendant has been deprived of a jury that hasn’t been chosen on a nondiscriminatory basis?

Alan C. Travis:

But once again, I think that that sounds more of a Sixth Amendment fair cross-section claim, which this Court has rejected, than it does a true equal protection claim.

John Paul Stevens:

Mr. Travis, I am curious to know how far your argument takes.

Assume a case in which the final jury that is selected is proportional to the community, so there is no Sixth Amendment claim.

John Paul Stevens:

But a white defendant finds out that the prosecutor has deliberately, during the entire prior 6 months including the selection of his own jury, followed a deliberate policy of taking as few blacks as he could get away with.

They had marked them separately or they coded them or something.

But he deliberately tried to keep the number of blacks who get into the venires down.

Would the white defendant have any equal protection basis for challenging that practice?

Alan C. Travis:

No, I would say not.

John Paul Stevens:

You’d say not.

Yeah.

Alan C. Travis:

That would be our position.

John Paul Stevens:

Right.

Alan C. Travis:

Quite simply, we take the position that the Equal Protection Clause does not grant standing to this particular defendant, but even if it were to, even if this Court were to conclude that those cases, that historic line of cases which has seemingly required a correlation between the defendant and the excluded juror, even if that series of cases were not what it appears to be and what it has appeared to be to so many lower courts, so many members… or so many members of the circuit courts, then I suggest, as Justice Kennedy raised in his concurring opinion in Holland, that in this case on this record it is not… we don’t have a sufficient record in which to determine whether there was a prima facie case advanced at all by the defendant.

What the Court indicated, and what Justice Kennedy, I should say, indicated in his concurring opinion is that in Batson, and I think this is true from a reading of the case, there is an inference of racial discrimination when there is a showing that members of the defendant’s race have been removed from the jury.

At some point we reach the point where you can draw an inference of racial discrimination.

That inference is not present when you do not have a correlation between the excused juror and the class… and the defendant’s class.

If that correlation is not present, and if, as this Court has continually said, it is the burden of the defendant in this case, the movant, to establish from the record a prima facie case, then we suggest that the record is insufficient in this case, as we did in our Brief in Opposition, to determine that there was even a prima facie case made.

For example, if we were to assume for purposes of argument that the venue of this case was in a or were in a jurisdiction in which the members of the black race were the overwhelming majority of the population, the mere fact that 7 of 10 peremptory challenges, and I am now referring to this record, were used to excuse citizens who happen to be black would not have any meaning.

It would be meaningless without a review and a correlation between the excusing of those jurors and the pool from which they came.

John Paul Stevens:

But isn’t it correct that in this case that determination was just not made at all, because the holding was there was no standing?

You may be dead right, but isn’t it still correct for us to send it back and let the trial court or the court of appeals make that?

Alan C. Travis:

Well, Justice Stevens, that’s an alternative, but what I am suggesting to the Court is that it is the movant’s, the defendant’s burden to establish a record to prevail on appeal.

At the time I think it was clear that the Court read the language in Batson, Casteneda, and so forth as requiring correlation between race.

But nonetheless, it is our position and we would urge to the Court that it’s the defendant’s burden to establish a record to support a prima facie showing.

John Paul Stevens:

That’s right.

Alan C. Travis:

And if it has not been done, if he has failed to establish that prima facie case, then there is no basis to reverse.

John Paul Stevens:

You’re saying if there is no prima facie case we should not reach the standing issue, which would normally be the anterior issue?

Alan C. Travis:

If that’s not inconsistent.

John Paul Stevens:

Yeah.

Let’s assume the defendant challenges the elimination of a particular juror, or of all the black jurors, and the court asks the… asks the lawyer what his reasons are and determines that they really are racial reasons, that he really did… throwing the Negroes off because they are Negroes.

Now, would the… would the Negroes who have been excluded have a case against him?

Alan C. Travis:

I think quite clearly they would.

They would apply their equal protection rights.

John Paul Stevens:

Uh-hum.

And you don’t think that the white defendant has standing to press their rights?

Alan C. Travis:

I don’t believe so.

If we were to say, as I think the defendant is suggesting in this case, petitioner is suggesting that because he is a defendant he is in the best position to raise the rights of others, because he is opposed to the State by virtue of the fact that he is the opposite party.

If that were the case, this Court’s teachings on standing would have… would be totally cut adrift.

I realize it is not a trial issue, but I am thinking of Salvuche, for example.

There is a defendant who with his, if not co-defendant, compatriot is caught basically connected with drugs that are in someone else’s possession, and of course this Court said quite clearly no standing to object to the violation of that person’s Fourth Amendment rights.

I simply would argue to the Court that merely because one is a defendant doesn’t… should not grant one standing to object and raise the right violations of everyone involved.

John Paul Stevens:

Well, but you don’t take the position… I want to be sure.

You don’t take the position that an equal protection challenge must always be made by a member of the disfavored class?

You have to be a member of the class discriminated against?

You don’t make that claim, do you?

Alan C. Travis:

I am sorry.

If I understand you correctly, Justice Stevens–

John Paul Stevens:

Well, take Craig against Boren, for example, which was a case involving discrimination against females, as I remember.

The bartender, the owner of the bar was able to raise the–

Alan C. Travis:

–If there is a sufficient correlation, and I recognize that that’s petitioner’s argument.

John Paul Stevens:

–If there is an independent injury other than the discrimination that justifies.

And why isn’t that true here, when the defendant has the right to object to the selection of the jury panel?

He just thinks if there had been a different panel he might have had a better chance of acquittal.

Why doesn’t he have standing?

Alan C. Travis:

I think that’s… I may be giving a fairly weak response to you, Your Honor, but I think that is true in any case where the defendant objects.

John Paul Stevens:

Right.

Alan C. Travis:

People object, and I don’t mean this facetiously, to virtually anything that the opposing party wants to do.

John Paul Stevens:

You have standing to make all sorts of objections–

Alan C. Travis:

That’s true.

John Paul Stevens:

–and one of them is that you don’t like that jury panel because it is unconstitutionally… it was selected in an unconstitutional manner.

Alan C. Travis:

Which brings me back to, I believe, the argument made earlier that I think that sounds more of a Sixth Amendment fair cross-section analysis.

John Paul Stevens:

Well, but that’s on the merits, it is, yeah.

Alan C. Travis:

On the merits, yes.

Thurgood Marshall:

Counsel, suppose there is a white and an Afro-American charged together.

Alan C. Travis:

A what, Your Honor?

I’m sorry.

Thurgood Marshall:

An Afro-American.

Alan C. Travis:

Yes.

Thurgood Marshall:

You don’t know what that is?

Alan C. Travis:

No, I didn’t hear the next word.

The next word I didn’t hear.

Thurgood Marshall:

Well, there’s a white and an Afro-American, two defendants–

Alan C. Travis:

Charged.

Thurgood Marshall:

–And the charge is made that Negroes have been systematically excluded from the jury.

You can’t try the Negro, right?

But that same jury can try the white man.

Is that your position?

Alan C. Travis:

That is the position of one of the circuits that we cited below, an en banc position–

Thurgood Marshall:

Is that your position?

Alan C. Travis:

–We take that position, difficult as it is.

Byron R. White:

You don’t think that… go ahead, sorry.

Alan C. Travis:

If I may, if I… and perhaps I misspoke myself or spoke too rapidly, I think when you have a correlation with co-defendants you may have a very different position.

Excuse me, I think I did misspoke… misspeak myself.

I think you could have a situation where if you have co-defendants, you might, as some of the dissenters in that lower court decision suggested, have the standing.

It is not an easy position, I recognize, but that is the, that was the indication of the lower court.

Thurgood Marshall:

You might have [inaudible].

Alan C. Travis:

I have… Your Honor, I have great difficulty with this entire series of cases in dealing with the difficult problem of racial discrimination, but at the same time recognizing that merely because the defendant accuses one of being racially discriminatory in a trial, that the defendant has suddenly reached a prima facie case.

For example, in this case, whether he misunderstood Batson or not, the very first peremptory challenge was challenged, if you will, by the defendant, the petitioner, stating that you simply cannot peremptorily challenge a member of a minority without giving an explanation.

That was the attack made.

That’s the difficulty I think all of us have had with dealing with Batson.

I note that the Court has today accepted Hernandez on the question of whether or not removal of Latinos in a case involving an interpreter, whether they would follow the literal interpretation of the court… the court interpreter would be a valid reason to object, and it would be a nonracial reason.

It has been a very difficult time, I think, for the lower courts.

I think this Court will be giving further guidance, but yes, I have difficulty with that.

Alan C. Travis:

If that answers your question.

Byron R. White:

Well, if you do have difficulty, I would think you would have difficulty with Swain, too, even saying that you can challenge a prosecutor’s systematic and… practice over a series of cases of excluding all Negroes.

Alan C. Travis:

No, I would, no, I don’t have… I’m saying that I think courts have had difficulty in knowing what a prima facie case is in the context of Batson.

Some certainly have said if there is a strike and the jury pool is of minimal number of Afro-Americans, if there’s a minimal number in the jury pool, then that might be a prima facie case.

Indeed it has been held a prima facie case.

That’s why I say that in this case we don’t have a sufficient record for this Court to determine that issue.

Byron R. White:

So you think they ought to wait until you know whether all of the jurors, or all of the blacks are thrown off?

Is that it?

Alan C. Travis:

No, I don’t think that’s the case, Your Honor.

I would not argue that.

I think that at some point, and I think this Court has made it clear that you examine the totality of circumstances.

I think I would concede quite clearly that if you look at things such as the prosecutors’ or, in our position, defendants’, use of the peremptory, immediately, for example, without any particular inquiry of the juror, the type of the questioning that is done, so forth and so on.

I think it is a totality of circumstances, but I also argue strenuously to the Court that in this case it is the burden on the defendant to make that record, and he failed to do so.

Byron R. White:

You don’t think it would be a prima facie case if as soon as a black juror is… he doesn’t ask him any questions, he just challenges him.

Alan C. Travis:

I think perhaps that would be the… something that if I were sitting as trial judge I would, I would perhaps ask.

Yes.

I think that very well could be.

But as I say, I think you have to look at the totality of circumstances in determining whether such prima facie case has been made.

We would argue that in this case there is a significant difference between the Sixth Amendment fair cross-section analysis and the equal protection analysis.

We have taken the position, as we indicate, that in this case historically the Court has always required a correlation which is not present.

But even if this Court were to determine, as was perhaps suggested in some of the dissent and concurring opinions in Holland, that that correlation is not necessary, I would also argue to this Court very strenuously that there is a need for the defendant to make his record, and it was not done in this case.

On that basis, unless there are further questions, I would conclude my argument.

William H. Rehnquist:

Thank you, Mr. Travis.

Mr. Lane, you have 3 minutes remaining.

Robert L. Lane:

Your Honor, I would respectfully submit to this Court that this record is actually stronger than the record made by Mr. Batson.

We have in this case 7 peremptory challenges out of 10 used to exclude blacks from this jury.

Defense counsel, without refutation by prosecutor or by the court, said that what the State is trying to do is to remove all blacks from this jury.

Second of all, addressing the criminal statute, 18 U.S.C. 243, that statute has its foundation, its basis in the Equal Protection Clause.

The statute was designed to implement those goals of the elimination of racial discrimination.

Thirdly, this Court–

Sandra Day O’Connor:

Was that relied on here, in this case?

Robert L. Lane:

–It was not raised in the trial level, Your Honor, and again I would submit to the Court that this Court has recognized in Rose v. Mitchell that that is an ineffective way of eliminating racial discrimination.

Now, we did cite that statute in our analysis of Peters v. Kiff.

We cited it in the lower courts, and we talked about it here.

But this Court has recognized that that criminal statute will not eliminate racial discrimination.

That statute has been on the books for well over 100 years, and as this Court has recognized, racial discrimination still continues.

And I would submit to this Court that unless every defendant, regardless of race, is granted standing to object to the prosecution’s use of racial discrimination in selecting that defendant’s jury, that racial discrimination will continue in this country.

And that is a situation that this Court cannot condone nor tolerate.

Thank you.

William H. Rehnquist:

Thank you, Mr. Lane.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.