LOUISIANA PUBLIC DEFENDER BOARD

 

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IN THE FIFTIETH JUDICIAL DISTRICT, PARISH OF PEINE DE MORT
STATE OF LOUISIANA
No. _____

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STATE OF LOUISIANA, Plaintiff
v.
JOHN CLIENT, Defendant

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MOTION TO PRECLUDE THE STATE FROM USING
PEREMPTORY CHALLENGES TO EXCLUDE POTENTIAL
JURORS ON THE BASIS OF THEIR RACE

COMES NOW, JOHN CLIENT, by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article 1, Sections 2, 3, 5, 13, 14, 16 & 17 of the Louisiana Constitution to preclude the State from exercising peremptory challenges to exclude potential jurors on the basis of their race. In light of the historical abuse of peremptory challenges, Mr. Client further moves that the prosecution be barred from using peremptory challenges altogether.

1. One hundred years ago, Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896), was the law. Under the law of Plessy, the prosecutors of this state could get away with removing any black person who might have appeared on the jury. "Upon the other hand if he be a colored man and be so assigned, he has been deprived of no property, since he is not lawfully entitled to the reputation of being a white man." Id., 163 U.S. at 549. A century ago, the belief that black citizens "had no rights which the white man was bound to accept" was "universal . . . and men in every grade and position in society daily acted upon it in their private pursuits, as well as in matters of public concern." Scott v. Sanford, 60 U.S. 393, 407, 19 How. 393, 15 L. Ed. 691 (1857) (The Dred Scott Decision). If they were lucky enough to be represented at all, black slaves were represented by their owners when they were tried for capital crimes. See, e.g., Alfred v. State, 6 Ga. 483 (1849) (failure of white owner to use any peremptory strikes on behalf of his slave in capital trial not error).
2. At that time, State courts placed enormous obstacles in the path of the few black defendants who tried to assert their new Fourteenth Amendment rights. See, e.g., Neal v. Delaware, 103 U.S. 370, 397, 13 OHO 370, 26 L. Ed. 567 (1880) (state court presumed that none of the 26,000 blacks in Delaware had the "intelligence" or "moral integrity" to sit on a jury); Ex Parte Murray, 66 F. 297 (C.C. La. 1885) (state trial judge refused to sign defendant's subpoena for jury lists and denied relief for lack of proof); Smith v. State, 45 Tex. Cr. 405, 77 S.W. 453 (Tex. Cr. App. 1903) (name of dead black man placed on grand jury to feign compliance with Supreme Court decision); Fugett v. State, 45 Tex. Cr. 313, 77 S.W. 461 (Tex. Cr. App. 1903) (to defeat jury challenge, prosecutor called black physician to testify that no blacks were intelligent enough to serve); cf. Strauder v. West Virginia, 100 U.S. 303, 10 Otto 303, 25 L. Ed. 664 (1879).
3. Although the history books prove that blacks were intentionally excluded from juries in almost every county in the southern states,1 the belief that blacks were "in mind and morals, inferior to the Caucasian" was so well entrenched that it was regarded as a judicially noticeable fact. Wolfe v. Georgia Ry. & Electric Co., 2 Ga. App. 499, 58 S.E. 899, 901-02 (Ga. App. 1907). The courts believed that "no human law" could prevent juries from acting upon their bias against blacks. Id., 58 S.E. at 902.
4. That was a century ago, however. In theory, Plessy was overruled in Brown v. Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). In practice, if racial policies are to be eradicated from the jury selection processes in this State at the "deliberate speed" which some apparently propose, Plessy will still be with us well into the twenty-second century.
5. The district attorneys in this State form a white male club. These white males make at least two decisions, in every capital case that can mean the difference between life and death, and between first class citizenship and no citizenship at all: First, these people decide that Mr. Client and others like him should die. Second, they decide that white folk should sit on the jury.
6. We deal here with the second question, and the need to bar the District Attorney's Office from using strikes at all. See Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965). Where the prosecutor's overwhelming instinct is to remove all black persons from the jury pool, both judicial pronouncements and
Legislation [seem] powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation.

Plessy v. Ferguson, 163 U.S. at 551. Granted that this is so, more drastic action must be taken against this District Attorney and those others who abuse the constitutional rights of the defendants and jurors who come before them.
7. Any suspicion of racial discrimination in the criminal justice system is particularly damaging. As the Court held in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986):
The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.

Id. at 87. Indeed, "discrimination on the basis of race [is] odious in all respects." Rose v. Mitchell, 443 U.S. 545, 555, 99 S. Ct. 2993, 61 L. Ed. 2d 739 (1979). As the Georgia Supreme Court has stated clearly, the justice system has an absolute "commitment to 'ensure that no citizen is disqualified from jury service because of his [or her] race.'" Gamble v. State, 257 Ga. 325, 357 S.E.2d 792, 794 (Ga. 1987) (quoting State v. Butler, 731 S.W.2d 265 (Mo. Ct. App. 1987) (quoting Batson v. Kentucky, 106 S. Ct. at 1723))).
8. The principles set forth above found their roots in American jurisprudence long before Batson, and the analysis in this case must begin with Swain v. Alabama. The basic premise of Swain was that systematic abuse of peremptory challenges, in case after case, raises a threat to the criminal justice system which is intolerable:
His argument is that not only were the Negroes removed by the prosecutor in this case, but that there never has been a Negro on a petit jury in . . . Talladega County and that in criminal cases prosecutors have consistently and systematically exercised their strikes to prevent any and all Negroes on petit jury venires from serving on the petit jury itself. This systematic practice . . . is invidious discrimination for which the [rationale supporting the] peremptory system is insufficient justification.

Swain v. Alabama, 380 U.S. at 222-23 (emphasis supplied).

9. In cases which have considered the application of Swain v. Alabama, it appears that the defendant may meet his or her ultimate--let alone an initial--burden by studying perhaps fifteen cases. State v. Washington, 375 So. 2d 1162 (La. 1979) (15 cases over the past seven years); State v. Brown, 371 So. 2d 751 (La. 1979) (same); see also United States v. McDaniels, 379 F.Supp. 1243, 1248 n.6 (E.D. La. 1974) ("a pool of 53 cases to study appears adequate"); Garrett v. Morris, 815 F.2d 509 (8th Cir. 1987) (Swain burden met by evidence of prosecutor's discriminatory abuse of peremptory challenges).
10. As illustrated by these citations, the majority of the successful pre-Batson claims of discrimination under the Swain standard came from this area. Unfortunately, the problem continues. The question becomes the appropriate remedy. Under the Swain v. Alabama analysis, unlike Batson v. Kentucky, once the standard is met there can be no rebuttal proffered by the prosecution. This is because, once a finding is made of systematic abuse, how can the state come in and pick another jury, using strikes on black persons, and expect to rebut the former showing? In this instance, the prosecution must simply be precluded from exercising peremptory challenges to exclude members of the cognizable social groups.
WHEREFORE, Mr. Client respectfully moves this Court enjoin the State from excluding jurors on the basis of their race. In light of the historical abuse of peremptory challenges, Mr. Client further moves that the prosecution be barred from using peremptory challenges altogether.
1. For example, in the State of Georgia between 1882 and 1934 there were no published cases dealing with the issue of race discrimination in jury selection. See Herndon v. State, 178 Ga. 832, 174 S.E. 597 (Ga. 1934). For 73 years after Strauder was decided, no Georgia defendant ever obtained relief on a claim of race discrimination in jury selection in a published decision, see Avery v. Georgia, 345 U.S. 559, 73 S. Ct. 891, 97 L. Ed. 1244 (1953), although many Georgia counties had a long history of excluding blacks from juries.
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