December 04, 2015

An amicus brief written by Jenner & Block in a case argued before the US Supreme Court on November 2, 2015, was praised in an article that examined a similar, groundbreaking case nearly 30 years ago.  Titled “Three Decades Later, 'Batson' Lawyer Looks for 'Fine Tuning' of Juror Strikes,” The National Law Journal article (subscription required) quoted J. David Niehaus, the lawyer who argued and won Batson v. Kentucky in 1986.  In Batson, the Court ruled that prosecutors could not strike potential jurors because of their race.  This term, the Court will rule on Foster v. Chatman, in which Georgia prosecutors in 1987 used four of their peremptory strikes to remove all four black prospective jurors, resulting in an all-white jury that convicted Timothy Foster, a black man accused of killing a white woman, and sentenced him to death.  Mr. Niehaus is quoted, saying that he read the briefs in Foster and the one that “impressed him most” was the firm’s amicus brief, filed on behalf of former federal and state prosecutors and arguing that race discrimination persists in jury selection.  “The brief collects up all the studies.  That really informs my opinion that nationwide [Batson] has been an improvement, but it’s 30 years on and maybe everything needs to be looked at,” Mr. Niehaus says.  The firm’s brief was written by Partners Paul M. Smith and Michael B. DeSanctis and Associates Emily A. Bruemmer and Manuel C. Possolo.

In 1985, the firm also submitted an influential amicus brief in the Batson case, on behalf of the Lawyers’ Committee for Civil Rights Under Law.  The brief, which was written by a team that was led by former partner Barry Sullivan and included Partners Michael T. Brody and Richard P. Steinken, argued that a 1965 Supreme Court decision in Swain v. Alabama provided an unworkable framework for challenging racial discrimination during jury selection.  The Court in Batson agreed, striking that part of Swain that created an onerous burden on defendants to show discrimination in the use of peremptory challenges.