William H. Rehnquist: We'll hear argument next in case No. 89-7645, Dionisio Hernandez v. New York. Mr. Kimerling?
Kenneth 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.
Sandra Day O'Connor: 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?
Kenneth 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--
Sandra Day O'Connor: 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--
Kenneth Kimerling: --We don't--
Sandra Day O'Connor: --on that basis.
Kenneth 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--
Sandra Day O'Connor: 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.
Kenneth 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--
Sandra Day O'Connor: Well--
Kenneth Kimerling: --follow the instruction.
Sandra Day O'Connor: --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?
Kenneth 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.
Sandra Day O'Connor: We assume in deciding this cased that the stated reason was his real reason.
Kenneth Kimerling: That's correct, Your Honor, but we believe that the real reason is the Spanish language ability of these jurors.
Sandra Day O'Connor: 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?
Kenneth 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.
William H. Rehnquist: Well isn't that... isn't your statement itself a form of stereotype to suggest that all bilingual jurors react exactly the same way?
Kenneth 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.
David H. Souter: 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.
Kenneth 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--
David H. Souter: Yeah, but--
Kenneth Kimerling: --who honestly... excuse me... who honestly reflects on the questions that he's being asked to answer. Excuse me, Your Honor.
Byron R. White: --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.
Kenneth Kimerling: That's absolutely correct, that that relying--
Byron R. White: To say that intentionally excluding a juror by peremptory challenge because the juror is bilingual--
Kenneth Kimerling: --That's correct.
Byron R. White: --is a discrimination based on race or ethnic origin.
Kenneth 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--
Byron R. White: 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?
Kenneth 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.
David H. Souter: 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?
Kenneth 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--
Anthony M. Kennedy: 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.
Kenneth 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.
Anthony M. Kennedy: 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.
Kenneth Kimerling: They said that they would try, and then they affirmed that they would. And I--
William H. Rehnquist: He's entitled to interpret their demeanor evidence to perhaps cast doubt on their assurances.
Kenneth 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.
William H. Rehnquist: 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.
Kenneth 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.
David H. Souter: 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.
Kenneth 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.
David H. Souter: 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.
Kenneth 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.
David H. Souter: 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?
Kenneth Kimerling: Absolutely, Your Honor.
David H. Souter: Now, suppose a juror says, well, judge, I can't do that.
Kenneth Kimerling: Okay, and then what happens?
David H. Souter: Is that grounds for excusing the juror?
Kenneth Kimerling: For cause.
David H. Souter: For cause or peremptory either way.
Kenneth Kimerling: For cause, because he says I can't do that. I won't do that. Then--
Anthony M. Kennedy: Well, I... suppose he says, I have... I'm just not sure I can do that. I'll have great difficulty doing that.
Kenneth 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.
Anthony M. Kennedy: 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--
Kenneth 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.
Sandra Day O'Connor: --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.
Kenneth Kimerling: I am not, Your Honor, and if I might--
Sandra Day O'Connor: It sounds like it.
Kenneth 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.
Antonin Scalia: Mr. Kimerling, you're coming up to your time limit, and I--
Kenneth Kimerling: That was my 10-minute buzzer, but--
Antonin Scalia: --Yeah, I'm worried that you haven't said anything about the second question--
Kenneth Kimerling: --I really--
Antonin Scalia: --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.
Kenneth Kimerling: --Your Honor, if I might just finish... finish my answer to Justice O'Connor.
Antonin Scalia: Well, it's your time.
Kenneth 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--
John Paul Stevens: --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?
Kenneth Kimerling: No, it rests on the fact that that is a part of his national origin... that is the name.
John Paul Stevens: Well, but it isn't always.
Kenneth Kimerling: That's correct.
John Paul Stevens: 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.
Kenneth 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.
Antonin Scalia: 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.
Kenneth Kimerling: Well, Your Honor, that--
Antonin Scalia: That's why that comes out.
Kenneth 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.
William H. Rehnquist: You probably should address the second question, Mr. Kimerling, the standard of review.
Kenneth 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.
Byron R. White: 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.
Kenneth 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.
Byron R. White: 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?
Kenneth Kimerling: One, there may be a question of a prima facie case, but I would still be here.
Byron R. White: You would still be here.
Kenneth 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--
Byron R. White: So it's hard to say... it's hard to say on those facts that he has an intentional discrimination against all Latinos.
Kenneth 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--
William H. Rehnquist: 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?
Kenneth 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.
William H. Rehnquist: Well, it's really... we're looking for, was it a race-neutral reason? Isn't that what Batson said?
Kenneth Kimerling: That's... that's--
William H. Rehnquist: 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?
Kenneth Kimerling: --That's correct, Your Honor. That--
Byron R. White: Apparently, it would have to be clearly erroneous.
Kenneth 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--
William H. Rehnquist: --clearly erroneous.
Kenneth 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--
William H. Rehnquist: 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?
Kenneth Kimerling: --The truthfulness as to his statement is that he said this, that, and the other.
William H. Rehnquist: This is the reason I'm doing it.
Kenneth Kimerling: But the constitutional question is is whether his true reason is race or national origin, and that I guess is where I--
William H. Rehnquist: 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.
Kenneth 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--
William H. Rehnquist: I think you've answered the question, Mr. Kimerling. And your time has expired.
Kenneth Kimerling: --Thank you, Your Honor. Mr. Cohen.
Jay M. 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.
Sandra Day O'Connor: Mr. Cohen, would it offend a raceneutral reason for the prosecutor to strike every bilingual juror without regard to any questions and responses?
Jay M. 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--
Sandra Day O'Connor: Well, the reason the prosecutor gives when called under Batson is they're bilingual.
Jay M. 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.
Sandra Day O'Connor: How about if he says the reason is because they had an Hispanic surname?
Jay M. 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--
Antonin Scalia: Mr. Cohen, any reason can serve as a pretext.
Jay M. Cohen: --Right.
Antonin Scalia: I mean any reason.
Jay M. Cohen: That's correct.
Antonin Scalia: 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--
Jay M. Cohen: Well, but what I mean though is that--
Antonin Scalia: --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.
Jay M. Cohen: --That--
Antonin Scalia: Can the prosecutor do that?
Jay M. 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--
Antonin Scalia: 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.
Jay M. Cohen: --Correct.
Antonin Scalia: 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?
Jay M. 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--
John Paul Stevens: Mr. Cohen, I know what we said in Batson. I'm curious to know what your answer to my question is.
Jay M. Cohen: --The answer is challenging someone simply on the basis of their language ability would not be a discriminatory reason under Batson.
John Paul Stevens: What you're saying it that would be a permissible reason on the facts I've given you?
Jay M. 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--
John Paul Stevens: 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--
Jay M. Cohen: --That's correct, Your Honor. Batson--
John Paul Stevens: --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?
Jay M. Cohen: --Yes.
John Paul Stevens: Yes.
Jay M. 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--
John Paul Stevens: 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?
Jay M. 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.
Sandra Day O'Connor: 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.
Jay M. 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.
Sandra Day O'Connor: 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?
Jay M. Cohen: This Court should apply the clear error standard.
Sandra Day O'Connor: 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?
Jay M. 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.
Sandra Day O'Connor: Do you think that a... application of the clearly erroneous rule is consistently with Norris against Alabama?
Jay M. 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.
Sandra Day O'Connor: Well, we're not concerned with the standard of review applied by the State appellate court. It's what standard does this Court apply.
Jay M. 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.
John Paul Stevens: 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?
Jay M. Cohen: Well, in this case, the courts found that a... that a prima facie case was made out.
John Paul Stevens: Right.
Jay M. 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.
John Paul Stevens: No, but you're not conceding that the universe of race-neutral reasons is limited to case-related reasons?
Jay M. Cohen: No.
John Paul Stevens: No. You could, for example, have a prejudice against bank employees or something like that and just challenge all those.
Jay M. 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.
John Paul Stevens: 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?
Jay M. Cohen: It would seem to--
John Paul Stevens: You know, there are some swarthy Caucasians who are eliminated, but overwhelmingly that criterion leads to the categorical exclusion of blacks.
Jay M. Cohen: --I believe that--
Antonin Scalia: I mean, is that all right?
Jay M. Cohen: --I believe that any judge would find that a reliance on that criterion was a pretext for a discrimination against blacks.
Antonin Scalia: But if it wasn't a pretext, it would be all right?
Jay M. 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--
Antonin Scalia: 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.
Jay M. 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.
Antonin Scalia: Which rule are you talking about? Now, mine or the language one?
Jay M. Cohen: Yours, Your Honor.
Antonin Scalia: Oh, okay.
Jay M. 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--
John Paul Stevens: 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.
Jay M. 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--
Antonin Scalia: 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?
Jay M. 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--
Antonin Scalia: Like speaking a language.
Jay M. Cohen: --Well, no, Your--
Antonin Scalia: I mean, you ought to be careful where you're going.
Jay M. 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.
David H. Souter: 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.
Jay M. 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.
John Paul Stevens: 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.
Jay M. 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--
John Paul Stevens: Did he ask everybody on the panel if they spoke Spanish?
Jay M. 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.
David H. Souter: 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?
Jay M. 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.
John Paul Stevens: 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?
Jay M. 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--
John Paul Stevens: 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.
Jay M. 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.
John Paul Stevens: I know.
Jay M. Cohen: And the evidence in this case would be the interpretation of the forum--
John Paul Stevens: 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.
Jay M. 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.
William H. Rehnquist: Thank you, Mr. Cohen. The case is submitted.


Earl Warren: And I was about to ask you just as we -- we adjourn. Suppose this man had never gotten to a jury, suppose on arraignment, the judge had made coercive statement of that kind and counsel had then decided to plead guilty and -- and he had plead guilty and it was reversed, would -- would that be in jeopardy because it deprived him of a jury trial?
Robert Kasanof: Certainly not, Your Honor.
Earl Warren: It did, isn't it?
Robert Kasanof: He would be put after his collateral attack or appellate review, what have you, in status quo ante. He would be back where he was before the harm was done to him. That's exactly our contention here. Two harms were done to him. He was coerced into pleading guilty and he sets that plea aside but he was also coerced out of a jury trial after four days of trial in which -- this is unlike Downum, no evidence was taken in. This is a case where the Government had put in most of its case. Four days of jury trial makes a critical difference and if there were magical way to avoid the passage of time and reassemble that jury and let him continue, that might be a remedy. But the passage of time, the discharge and separation of the jury forever destroyed in effective way to put him back where he was before the injury was done to him. I -- I would like to say that we are not seeking to come within an exception. The basic -- a basic question here is not the Ball rule, which the Government speaks of so eloquently, the basic question here is the Constitution, which prohibits anyone being twice put in jeopardy. The Government seeks to expand an exception which already exists. This Court is -- is called upon in this case to decide whether it will give a narrow constricted meaning to the protection against double jeopardy. We say and I think the double jeopardy protection is one of those protections which everyone talks about, laymen and lawyers alike. It's like every man's home is his castle, that's double jeopardy. This is part of the currency, which the general public associates with all fair and civilized criminal proceeding. For this Court to restrict that protection does no service to the cause of law enforcement, the Government argues that they're trying to concur a benefit on the defendant by making appellate review freer. They want to confer that benefit by abrogating an expressed provision of the Constitution. That is not the kind of benefit which defendants or society at large needs to have conferred upon. Basically, this is a standard mistrial case. The subsequent judgment, coerced judgment does not alter it. It seems incredible that the Government should argue that Tateo, because in addition to being coerced out of his jury trial, was coerced into an -- an illegal plea, served seven years, came back, the Government reinstated him, threatened him with the -- the electric chair, is in a worst position than Downum. And that is what I take to be the essential thrust of the Government's argument. We do not attack and -- and this decision does not involve changing the basic retrial rule. But it does involve something that has a real practical meaning for defendants in the trial courts today. There is a pressure on the District Courts with an increasing load of work to get dispositions to move things along, to conclude trials. This case stands, we would assert for a simple and wholesome salutary proposition that when you've reached that point, where both sides have joined issue and a jury trial has commenced, the burden of an improper termination of that trial falls on the prosecution that the defendant's liberty cannot be twice assailed, that it can't be required to run the gantlet twice and this is not an academic case. Judge Weinfeld speaks in his opinion setting this side about the very real ordeal of this trial. The Government wants Tateo to undergo that ordeal again. This Court, when it extended the mistrial rule in Gori, said that, "Where a judge acted to terminate the defendant's right of jury trial, out of the solicitude for the defendant's rights, that was not going to be used to bar retrial." And explicitly in Gori said, "We defer the question on whether on -- on the question of what happens when the judge unwisely or arbitrarily exercises his discretion to terminate a jury trial. You have here an unappealed finding. The Government has no quarrel with Judge Weinfeld's finding that this trial, Tateo's constitutional right to conclude the trial, was coercively terminated. The Government does not question the correctness of Judge Weinfeld's finding to that effect. The question which was deferred in Gori is here today. It is the question of whether when a defendant in a federal criminal case commences his jury trial and the judge takes that right from him. He can be tried again. There is no reason for distinguishing this case from the plain holding of the mistrial cases that the Government's argument is that because he is worse off before -- because he suffered a greater harm, he should have fewer rights to the protection against double jeopardy. Such an argument, I respectfully urge, does not sound logically and doesn't make good sense in view of the kind of pressure which realistically, day to day working trial on his face in the federal criminal courts.
Hugo L. Black: Did I understand you correct that they say that this would be different in -- on this -- tried the case half-way before the jury? The judge had called him in his office and told him what he said (Inaudible) what he said here and that the State could then try and fight.
Robert Kasanof: No, Your Honor.
Hugo L. Black: I did -- I -- I --
Robert Kasanof: No.
Hugo L. Black: You didn't say that?
Robert Kasanof: No, I did not say that. I didn't -- if I -- I did not -- I did not mean to express that thought. I don't recall exactly what I said. I did not mean to express that.
Byron R. White: Yes, but you're making the same argument if the prosecution had -- the prosecutors simply come to the defendant's counsel and said, "Look, you," this is midway in the trial, "You plead guilty to three counts and we'll dismiss the -- we'll dismiss the kidnapping count." And the lawyer thought it over and said, "Alright, we'll -- we'll do that." And entered the plea of guilty, he was sentenced and then this -- then this collateral proceeding, claiming that -- claiming that he was induced to terminate the trial by a (Inaudible) on one count.
Robert Kasanof: Let me say first that that is not the situation or anything like the situation here because Judge Weinfeld explicitly, in his opinion says, this is not a case where a defendant faces the realities of how a trial is going.
Byron R. White: But your principle would be --
Robert Kasanof: No.
Byron R. White: -- like the case, wouldn't it?
Robert Kasanof: No, I don't believe it would. I think my --
Byron R. White: Why not?
Robert Kasanof: -- principle would reach the case where the prosecutor comes into the defendant and his lawyer then says, "We are going to press for the death penalty, we expect to get it, we will recommend it, we -- we will -- we will use every -- every resource to punish you for seeking to -- punish you for seeking a jury trial." That's what Judge Weinfeld found here. His opinion makes it very clear that Tateo's right to continue his jury trial was being exercised under the threat of a penalty. And I say that if you force a defendant in a federal criminal trial to abandon that right under the shadow of a penalty and I don't care where the penalty comes from, whether it's the Government, the Court, I would say that when he is forced to abandon that right, he cannot be tried again.
Byron R. White: Well, if you promise to -- if you requirements to dismiss the count carrying a death penalty, where are -- is that -- is that any less coercive?
Robert Kasanof: I think that's something you have to look at specific context. I can see, as a practical reality to the kind of fair-minded, open rational discussion between prosecutors and defense counsel, which we all know goes on in trial of criminal cases, and I can see the same factual result being the result of a brutal cruel calculated threat and attempt to punish the defendant for exercising his right to a jury trial. Now, Judge Weinfeld found that this was a threat and the Government has not contested Judge Weinfeld's finding and I think that's as far as we have to go. Other cases would turn on their facts but I think this -- the mistrial cases and I think there are no exceptions to say that when a man is forced against his will and -- and certainly, no benefit, no tenderness to the defendant here, nothing like Gori, but bludgeoned effectively, objectively, whatever the judge's intention, bludgeoned out of his right to complete that jury trial, that ends it constitutionally. He can't be tried again. I -- I would -- I -- I would add, of course, that the judge's threat is far -- has a far more ominous flavor to it than a prosecutor's threat as the judge clearly is in the position to exercise the power which is implicit in the threat.
Earl Warren: Did you asked for a new trial in -- in the 2255 proceeding?
Robert Kasanof: Well, it was -- it was prior counsel and the answer is no, as I read the papers, Your Honor.
Earl Warren: Well, I -- I'm just reading Judge Weinfeld's opinion and he said accordingly, the motion to vacate and set aside the judgement --
Robert Kasanof: I can answer that --
Earl Warren: -- of the conviction entered thereon and for a new trial is granted.
Robert Kasanof: No, Your Honor, although -- neither the Government -- I don't think the Government says that, no, the -- on page 30 -- 36 of the record, it is a motion to vacate the judgment and again, the -- the nearest thing to that is to be found on page 39 where the defendant, and this is by prior counsel so I take no either pride nor --
Byron R. White: I beg your pardon.
Robert Kasanof: Page -- pages 36 and 39, "Your deponent further play -- prays that this Court thereupon that he shall be granted the vacation of judgment and discharge from custody or in the alternative to be rearranged to plead de novo of the indictment." Well, what he was re-arraigned, he plead de novo that well-recognized plea in bar of former jeopardy. I -- I don't think this case can be made to turn on scrivener's errors. I think the question is -- is squarely before you. He did not, in so many words, ask for a new trial. He asked to be discharged or plead de novo. He plead double jeopardy when he was -- when he was re-arraigned.
William J. Brennan, Jr.: I -- I'm -- am I right in my recollection that 2255 explicitly authorizes the judge gaining relief under that Section to direct a new trial?
Robert Kasanof: It -- it seems to do so, Your Honor.
William J. Brennan, Jr.: Well, I don't have it before me.
Robert Kasanof: I don't have it -- I understand that -- that it -- it authorizes him to grant an -- the construction, which I understand has been put on, to grant appropriate relief to discharge --
William J. Brennan, Jr.: Now, we are -- do you not -- you call a language whether to just grant appropriate relief?
Robert Kasanof: I think -- I think -- I think, towards a new trial appear, I just don't know. If you ask me Your Honor but I -- I don't think that -- that we -- that we make out any part of our case on the -- on the language of the statute. We make out our argument basically on the question that when that jury was coercively taken away from him, that was the last chance the Government gets out of it.
Speaker: (Inaudible)
Earl Warren: Well --
Robert Kasanof: I do, Your Honor.
Speaker: (Inaudible)
Robert Kasanof: Absolute -- I don't think -- and I don't think 2255 contemplated this -- this sort of a situation.
William J. Brennan, Jr.: Well, now, what -- what the statute says, I have it now, the Court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentences may appear appropriate. Now, what did Judge Weinfeld in fact did?
Robert Kasanof: He ordered a new trial.
Earl Warren: But wasn't he testify the --
Robert Kasanof: But Judge Tyler explicitly found that Judge Weinfeld did not consider this question. He didn't have it before. I mean this -- this was not in anyway a holding by Judge Weinfeld that a new trial was indicated. No way passed on the jeopardy question which was never tendered to him by counsel at that time.
Earl Warren: Well Mr. Kasanof, I -- I'm just wondering if this trial for relief of yours isn't a sufficient justification for -- for what Judge Weinfeld said in his last paragraph. You say your deponent further prays this Court that thereupon, he shall be granted the vacation of judgment and discharge from custody or in the alternative to be re-arraigned to plead de novo to the aforesaid indictments and for such other, further and different relief as to this Court may seem just and proper in the interest of justice, now, isn't that in essence, a request for a new trial?
Robert Kasanof: No, Your Honor.
Earl Warren: What does it mean?
Robert Kasanof: Since I wasn't the author, I can only speak from the objective evidence but I would say what it means, is that he'd be permitted to plead de novo which he did, he pleaded double jeopardy under the plea in bar and the interest of justice, this phrase, other and further relief is one which is -- some courts insist on the -- as a matter of practice, some District Courts want in all the papers in case they modify the relief in terms of date and time, submit order, that I think is a practice matter, I don't think that it would be fair to decide a constitutional question in terms of the almost liturgical language of practicing lawyers who put this in to permit a District Court to hear it on a Monday or a non-motion day. I would -- I would simply once again reiterate that we seek here to vindicate one of those few -- few rights in the area of criminal procedure and there are relatively few, which is expressly treated in the Constitution of United States. We say that under an unbroken line of cases, the termination here was improper. We say that to adopt the Government's policy arguments, for abridging that expressed provision of the Constitution in order to confer some imagined benefit in terms of freer appellate review, is to turn justice upside down. We say that Judge Tyler was right. He did the right thing in reason, law and fairness.
Earl Warren: Mr. Rosenberg -- very well.