SANDY TOWNSLEY, PETITIONER V. UNITED STATES OF AMERICA

   No. 88-1938

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eighth Circuit

   Supplemental Memorandum For The United States

   In Holland v. Illinois, No. 88-5050 (Jan. 22, 1990), this Court
held that the Sixth Amendment right to trial by an impartial jury is
not violated by a prosecutor's racially motivated use of peremptory
challenges.  Although Holland determined that a white defendant may
not challenge the exclusion of black jurors through peremptory strikes
on Sixth Amendment grounds, the Court did not reach the question
whether such a challenge by a white defendant may be made under the
Equal Protection Clause.  Slip op. 12 & n.3 (finding that the equal
protection claim was not properly presented).  Five Justices in
Holland, however, wrote or joined opinions expressing the view that a
white defendant has standing to make such a claim.  Holland, slip op.
1 (Kennedy, J., concurring) ("I find it essential to make clear that
if the claim here were based on the Fourteenth Amendment Equal
Protection Clause, it would have merit.");  id. at 2 (Marshall, J.,
joined by Brennan and Blackmun, JJ., dissenting) ("As a majority of
this Court has now concluded, a close reading of Batson shows that a
defendant's race is irrelevant to his standing to raise the equal
protection claim recognized in that case.");  id. at 5 (Stevens, J.,
dissenting) ("petitioner should have been permitted to prove that the
exclusion of black jurors violated the Equal Protection Clause").

   The petition in this case presents the equal protection question
discussed in the separate opinions in Holland, namely, whether a white
defendant has standing to raise an equal protection challenge to the
prosecutor's use of peremptory strikes to remove black jurors from the
petit jury panel.  Pet. i.  The decision of the court of appeals
rejecting petitioner's claim relied on language in Batson v. Kentucky,
476 U.S. 79 (1986), indicating that a defendant must share the race of
the excluded jurors in order to make an equal protection challenge
based on peremptory strikes of jurors who belong to a cognizable
racial group.  In our brief in opposition (at 7-11), we relied on a
similar reading of Batson.  The opinions in Holland indicate that a
majority of this Court has now rejected that analysis of Batson.

   In light of the opinions filed in Holland, and, in particular, in
light of the statement in Justice Kennedy's concurrence (slip op. 3)
that "different methods of proof may be appropriate" in cases
involving a challenge by a defendant who is not a member of the same
racial group as the excluded jurors, we believe that the proper
disposition of this case is to grant the petition, vacate the
judgment, and remand to the court of appeals for further consideration
in light of Holland.  The court of appeals may wish to consider the
question raised by Justice Kennedy's concurrence -- whether the
procedural framework set forth in Batson v. Kentucky, 476 U.S. 79
(1986), or some alternative procedure, should govern cases like the
instant one, a question that has not yet been addressed by any court
of appeals.  /1/

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   JANUARY 1990

   /1/ Petitioner acknowledges that a different procedural scheme may
be appropriate for considering claims of a white defendant based on
the exclusion of jurors of another race:  "Perhaps under certain
circumstances it might be argued that the white may not make a prima
facie case or raise the inference of discrimination, as a black
defendant may always do, but as Batson says (476 U.S. at 96(-97)),
'the trial court should consider all relevant circumstances.'" Pet.
14.  See Holland, slip op. 5 (Stevens, J., dissenting) ("As Justice
Kennedy states, while the inference that the discriminatory motive is
at work is stronger when the excluded jurors are of the same race or
ethnicity as the defendant, the discriminatory use of peremptory
challenges is not limited to that situation but may be present when,
as here, the excluded jurors are not of the same race as the
defendant.").