Frank Teague v. Michael Lane, Director, Department of Corrections, and Michael O'leary, Warden

RIPPLE, Circuit Judge,

concurring.

I concur in the judgment of the court.

In my view, as Judge Cudahy points out in his dissent, Mr. Teague may properly *844 assert an equal protection claim in this court under the unique circumstances presented here. The Supreme Court, in Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 1716 n. 4, 90 L.Ed.2d 69 (1986), refused to hold that the petitioner was procedurally barred from obtaining relief on the basis of the equal protection clause even though he had not raised an equal protection claim. I agree with Judge Cudahy that “[i]f one has no obligation to argue to the Supreme Court itself that it overrule one of its own cases, one surely need not argue to a district court that a Supreme Court case is wrong.” Dissent at 845 (Cudahy, J.).

Although the equal protection claim is properly before us under the Supreme Court’s ruling in Batson , that Court’s subsequent holding in Allen v. Hardy, — U.S.-, 106 S.Ct. 2878 , 92 L.Ed.2d 199 (1986), controls our disposition of that claim. In Allen , the Supreme Court held that its holding in Batson should not be applied retroactively to cases on collateral review of convictions that became final before the Batson opinion. 106 S.Ct. at 2880.

I do not believe that the sixth amendment affords Mr. Teague a basis for relief independent from the equal protection analysis set forth in Batson . In the period between Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), and Batson , the sixth amendment analysis was, I respectfully suggest, simply an elliptical way for the lower courts to avoid the precedential effect of Swain. See, e.g., McCray v. Abrams, 750 F.2d 1113 (2d Cir.1984), vacated, — U.S.-, 106. S.Ct. 3289, 92 L.Ed.2d 705 (1986). Indeed, in Batson itself, the Supreme Court seemed to acknowledge that the sixth amendment argument had played this role. 106 S.Ct. at 1716 n. 4. Further, in Batson , the Court deliberately noted that application of sixth amendment principles to the petit jury situation would indeed be difficult. Id. at 1716 n. 6.

Moreover, in deciding that the rule in Batson was not retroactive for cases on collateral review, the Supreme Court quite pointedly did not distinguish between equal protection and sixth amendment policy concerns when discussing Batson’s theoretical underpinnings:

By serving a criminal defendant’s interest in neutral jury selection procedures, the rule in Batson may have some bearing on the truthfinding function of a criminal trial. But the decision serves other values as well. Our holding ensures that States do not discriminate against citizens who are summoned to sit in judgment against a member of their own race and strengthens public confidence in the administration of justice. The rule in Batson , therefore, was designed “to serve multiple ends,” only the first of which may have some impact on truthfinding.

Allen, 106 S.Ct. at 2880 (citations omitted). Nor can we avoid noting that, in disposing of two cases after its decision in Batson where the lower courts had granted relief to a state prisoner on sixth amendment grounds, the Supreme Court vacated the judgments and required reconsideration in light of Batson and its non-retroactivity rule. 1 If the sixth amendment analysis of those courts were worthy of independent review, there was ample opportunity to undertake the inquiry or to let the judgments of the lower courts stand. Under these circumstances, I find the subsequent denial of certiorari in Michigan v. Booker, — U.S. -, 107 S.Ct. 910 , 93 L.Ed.2d 860 (1987), when the Sixth Circuit failed to apply Batson and Allen , worthy of little weight in our determination. In my view, therefore, the court should not address Mr. Teague's sixth amendment formulation of the equal protection claim he is barred from making because of the non-retroactive application of Batson .

CUDAHY, Circuit Judge, with whom CUMMINGS, Circuit Judge, concurs, dissenting:

This case was heard originally by a panel consisting of Judge John W. Peck of the *845 Sixth Circuit, Judge Coffey and me. I wrote an opinion for the majority finding that Teague had established at least a prima facie case of a violation of his constitutional rights. Judge Coffey dissented. The opinion was circulated to the active members of the court under Rule 16(e), and the court voted to hear the case in banc. I dissented from the order setting the case in banc; the order, together with my dissent (which is a much-condensed version of the original panel opinion), appears at 779 F.2d 1332 (7th Cir.1985). I rely on that dissent as a statement of my position on the merits here. After that order but before the in banc court heard oral argument, the Supreme Court decided Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986), which, by overruling Swain v. Alabama, 380 U.S. 202 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), determined the merits of the underlying issue favorably to the position of the original panel majority.

I.

At the outset, I find the majority’s procedural analysis far-fetched and overreaching, although it is unclear how much of this really matters in the end. For example, the majority asserts that it is “persuaded by the State’s argument that Teague did not specifically raise a Swain v. Alabama claim in the district court and therefore he is procedurally barred from doing so under Wainwright v. Sykes, 433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977).” Supra p. 834 n. 6. Presumably the majority also claims a failure to raise an equal protection claim in the state courts (which would be more relevant to Wainwright v. Sykes). In any event, the contention that Teague has waived his equal protection claim by failing to raise it in any of the courts prior to this one (state or federal) where the peremptory challenge issue has been argued will not stand analysis.

The short answer to these waiver arguments is that the Supreme Court itself in Batson v. Kentucky heard argument from the petitioner, Batson, which was directed solely to the Sixth Amendment point (and included the Fourteenth Amendment only to the extent that that amendment applied the Sixth Amendment to the states and not for equal protection purposes). The Court noted that:

[Petitioner has argued that the prosecutor’s conduct violated his rights under the Sixth and Fourteenth Amendments to an impartial jury and to a jury drawn from a cross-section of the community. Petitioner has framed his argument in these terms in an apparent effort to avoid inviting the Court directly to reconsider one of its own precedents. On the other hand, the State has insisted that petitioner is claiming a denial of equal protection and that we must reconsider Swain to find a constitutional violation on this record.

106 S.Ct. at 1716 n. 4.

Chief Justice Burger’s dissent in Batson makes a major point of Batson’s failure to raise an equal protection claim either in the state courts or in the Supreme Court:

In the Kentucky Supreme Court, petitioner disclaimed specifically any reliance on the Equal Protection Clause of the Fourteenth Amendment, pressing instead only a claim based on the Sixth Amendment. ...

Even if the equal protection issue had been pressed in the Kentucky Supreme Court, it has surely not been pressed here.

106 S.Ct. at 1731 (Burger, C.J., dissenting). The Supreme Court in Batson , of course, ignored these arguments and so should we here. Batson itself is thus on all fours procedurally with Teague. If one has no obligation to argue to the Supreme Court itself that it overrule one of its own cases, one surely need not argue to a district court that a Supreme Court case is wrong. In Batson the State of Kentucky contended that an equal protection claim was being made and that Swain controlled. Whether or not Teague has made equal protection an issue in the Illinois courts or in the district court (and the extent to which he *846 has is perhaps debatable), 1 he was answered at every level by the state’s contention that an equal protection claim was being made and Swain controlled. Having itself relied upon Swain , the state is estopped from arguing that equal protection was not properly raised. 2

I thus conclude that there is no barrier based on waiver, in the prior history of this litigation or in his arguments made here, to Teague’s relying on Batson before this court. Teague’s opponents in all the courts before this one have relied on Swain to defeat Teague’s claim. Now that Batson has trumped Swain , there can be no principled objection to Teague’s present reliance on Batson .

This still leaves us, of course, with the problem of Batson’s non-retroactivity under Allen v. Hardy, — U.S. -, 106 S.Ct. 2878 , 92 L.Ed.2d 199 (1986). At least arguendo, I would agree with the majority that Teague’s claim must be sustainable on Sixth Amendment grounds in order to avoid the Batson non-retroactivity hurdle erected in Allen .

Teague’s case is thus entirely parallel to Booker v. Jabe, 775 F.2d 762 (6th Cir.1985). There the Sixth Circuit, on facts similar to those before us, used a Sixth Amendment analysis to decide that the use of peremptory challenges to exclude blacks from a petit jury was unconstitutional. The State of Michigan petitioned for certiorari and, while the petition was pending, the Supreme Court decided both Batson and Allen . The Court then vacated the judgment in Booker and remanded the case to the Sixth Circuit for reconsideration in light of Batson and Allen. Michigan v. Booker, — U.S.-, 106 S.Ct. 3289 , 92 L.Ed.2d 705 (1986).

On remand, the Sixth Circuit reinstated the Booker judgment and opinion, Booker v. Jabe, 801 F.2d 871 (6th Cir.1986); the State of Michigan again petitioned for certiorari but its petition was denied, Michigan v. Booker, — U.S.-, 107 S.Ct. 910 , 93 L.Ed.2d 860 (1987). This sequence would, of course, strongly suggest that the non-retroactivity of Batson , as determined in Allen , had no application to Booker (and by extension to Teague). Since the Sixth Circuit had decided that Booker prevailed on Sixth Amendment principles — an issue left undecided in Batson —its decision (entirely consistent with the result in Batson) was undisturbed either by Batson or by Allen . I will, therefore, because of Allen join battle on the merits on Sixth Amendment terrain. I will not rely directly on Batson’s equal protection analysis even though, as shown, Teague did not waive his right to assert an equal protection claim in this court.

I shall, however, take account of Batson to this very important (in fact critical) extent: The Supreme Court in Batson reweighed the costs of imposing inhibitions *847 upon the exercise of the peremptory challenge and of additional administrative burdens on the courts in order to sustain constitutional values in every criminal jury trial. 3 Batson was a policy judgment by the Court that these were costs which could and should be borne. 106 S.Ct. at 1724. If a like policy judgment becomes part of the Sixth Amendment analysis, the results of that analysis become dramatically more favorable to the defendant — even though his rights derive from a different amendment. The reweighing of costs against constitutional demands in Batson is a more than adequate response to the claimed inhibitions on the exercise of peremptory challenges and the administrative difficulties that the majority finds to be such decisive considerations. Batson completely demolishes the majority’s arguments based on policy. In this respect, the majority opinion is little more than a compendium of outmoded views.

II.

In Taylor v. Louisiana, 419 U.S. 522 , 95 S.Ct. 692 , 42 L.Ed.2d 690 (1975), the Supreme Court held that the Sixth Amendment guaranteed that the jury pool from which juries are selected must be a representative cross-section of the community. At the time, Louisiana law required that no woman be selected for jury service unless she had previously filed a written declaration of her desire to serve on a jury; in the Taylor case itself, there was no woman on the venire from which the jury was drawn. Reviewing earlier cases, the Court said that “the American concept of the jury trial contemplates a jury drawn from a fair cross-section of the community.” 419 U.S. at 527 , 95 S.Ct. at 696 . It cited Smith v. Texas, 311 U.S. 128, 130 , 61 S.Ct. 164, 165 , 85 L.Ed. 84 (1940), in which it had held that the exclusion of racial groups from jury service was “ ‘at war with our basic concepts of a democratic society and a representative government,’ ” 419 U.S. at 527 , 95 S.Ct. at 696 , and went on to say:

We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a jury is to guard against the exercise of arbitrary power — to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge____ This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool.

Id. at 530 , 95 S.Ct. at 697 (citation omitted).

As the majority correctly points out, this requirement of representativeness does not *848 extend directly to the petit jury; no defendant has the right to a trial jury that reflects the make-up of the community. The majority opinion devotes many pages to establishing this point, though I must confess that I am at a loss to explain why. No one seems to quarrel with this proposition, least of all Teague. Appellant’s Brief at 21.

Teague’s position, which was adopted by the panel opinion and which even the majority here seems to endorse at one point in its opinion, supra p. 838, is that although there is no right to be tried by a representative petit jury, the Sixth Amendment guarantees the possibility that the jury selected will contain a representative cross-section of the community. In Williams v. Florida, 399 U.S. 78 , 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970), the Court held that a six-person jury was constitutionally acceptable; in Ballew v. Georgia, 435 U.S. 223 , 98 S.Ct. 1029 , 55 L.Ed.2d 234 (1978), it held that a five-person jury was not. In each case the Court was guided by the need to draw a line that would preserve the possibility of a representative jury. In Williams , the Court indicated that a jury should be large enough “to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community.” 399 U.S. at 100 , 90 S.Ct. at 1906 (emphasis added). In Ballew , likewise, the Court expressed concern “about the ability of juries truly to represent the community as membership decreases below six,” 435 U.S. at 242 , 98 S.Ct. at 1040 (emphasis added), and held that “any further reduction ... that prevents juries from truly representing their communities, attains constitutional significance,” id. at 239 , 98 S.Ct. at 1039 . See also id. at 245 , 98 S.Ct. at 1042 (White, J., concurring); id. at 246 , 98 S.Ct. at 1042 (Brennan, J., concurring).

Thus, although the Sixth Amendment does not guarantee a representative trial jury, it does guarantee the possibility of a representative jury. It would be odd if the right to a representative jury pool did not reach, in some way or other, into the trial jury, that is, if the Sixth Amendment’s reach ended with the first stage of jury selection. If the Sixth Amendment has implications for the jury pool, it can only be because it has some implication for the jury that actually sits at trial. As the Supreme Judicial Court of Massachusetts said in Commonwealth v. Soares, 377 Mass. 461 , 387 N.E.2d 499, 513 , cert. denied, 444 U.S. 881 , 100 S.Ct. 170 , 62 L.Ed.2d 110 (1979):

It is not enough that there be a representative venire or panel. The desired interaction of a cross-section of the community does not occur there; it is only effectuated within the jury room itself.

Thus, it would be nonsensical if the Sixth Amendment’s requirement of representativeness in the jury pool were not intended to have some sort of effect in the jury room.

If the Sixth Amendment does guarantee something about the trial jury, then, it can only be the possibility or chance that the various groups that make up a community will be represented on the jury, and that is the conclusion that the Supreme Court drew in Williams, 399 U.S. 78 , 90 S.Ct. 1893 , and Ballew, 435 U.S. 223 , 98 S.Ct. 1029 . The six-person jury is constitutionally acceptable because it is large enough to allow for the possibility that the jury will be representative; the five-person jury is not acceptable because it does not. The majority cites Ballew and Williams for the proposition that “merely decreasing the possibility of obtaining a fair cross section of the community on the petit jury does not violate the sixth amendment right to a trial by an impartial jury.” Supra p. 843. The relevant question, however, is whether the possibility is decreased for a constitutionally permissible reason. Excluding jurors on the basis of race is not a constitutionally acceptable reason for reducing the possibility of a representative jury, and the majority makes no attempt to meet this argument. Race-based peremptory challenges obviously impact upon the process of jury selection in a way that reduces the statistical probability of a representative jury. Fields v. People, 732 P.2d 1145, 1155 (Colo.Sup.Ct.1987) (“The right to trial by an impartial jury does guarantee that the possi *849 bility of a petit jury in a given case representing a fair cross-section of the community will not be limited arbitrarily by the discriminatory and systematic use of peremptory challenges.”). 4

The majority asserts that in this case “the record is barren of any proof or testimony establishing community prejudice towards Teague.” Supra p. 843. The crucial question, however, is not whether the particular jurors selected were prejudiced against Teague but whether the prosecution used its peremptory challenges to reduce the possibility that blacks would be sitting on the jury, and there is overwhelming evidence that the state did just that. The prosecution and the defense each had ten peremptory challenges. The state exercised every single one of its challenges to exclude a black venireman. 5 After the state had used six of its peremptory challenges and then again after it had used all ten of its challenges, the defense moved for a mistrial on the ground that the state was using its challenges only against black jurors. In responding to the second motion, the state explained that it had excused some of the veniremen because they were very young and that it had excused others because it was attempting to obtain an equal number of men and women. The state appellate court found the prosecution’s explanation unpersuasive, 439 N.E.2d 1066, 1069-70 , and after examining the manner in which the state exercised its peremptory challenges, I would agree that the state’s proffered explanations were pretextual. 6

When members of a certain group can be excluded from service on a particular petit jury, the negative effect upon defendants who happen to belong to that group is not difficult to imagine; and it will be especially severe where the group suffers from community prejudice. In such circumstances, the defendant may not even have the protection of the prosecutor’s usual concern to bring only well-supported cases into court, for the prosecutor will know that the defendant’s group will not be represented and that he can count to some extent upon the prejudice of the community. The protection provided by the Sixth Amendment lies in the general requirement that the state cannot interfere with the possibility that the jury will be representative. And it is that requirement that explains the need for the jury pool to be actually representative, which would otherwise be a great mystery. And it is that requirement which demands a process of getting from the jury pool to the trial jury which does not affect unjustifiably the statistical probability of any group’s being represented.

Further, in a case of this sort the perception is almost as important as the reality. Knowledge that blacks could be excluded *850 at will by prosecutors trying black defendants, for example, would lead to cynicism among blacks in viewing the jury system. The importance of general confidence in the accuracy and reliability of the penal system — confidence that the guilty tend to be convicted and the innocent tend to be acquitted — should not be underestimated; such confidence is crucial to the deterrent effect punishment must have. We do not increase general respect for the law by simply making it easier to get convictions; and we cannot increase the respect a certain group has for the law by simply making it easier to convict members of that group. There must be the accompanying perception that the law operates with some precision, tending to convict all those and only those who are guilty. In the extreme case, the law would convict members of a group arbitrarily or at random; and of course in that case punishment would have no effect at all. But if members of a group that suffers from prejudice can be tried before juries from which fellow group members have been excluded, to some extent convictions may be perceived as attributable to prejudice against the group and therefore arbitrary. To the extent that they are so perceived, the purpose of punishment is defeated. 7

I think it is beyond dispute, therefore, that although the Sixth Amendment does not give the defendant the right to a representative trial jury, it assures him of the possibility that his jury will contain members of the various groups in his community, a possibility that cannot be impaired by the exercise of peremptory challenges based solely on the race of the prospective juror.

The majority does not really address why it believes that the exercise of peremptory *851 challenges solely on the basis of a juror’s race does not violate the Sixth Amendment. Instead, it seems to rest its opinion on the practical problems involved in restricting the exercise of peremptory challenges. I do not disagree that the peremptory challenge is itself an important guarantor of an impartial jury. The peremptory challenge allows each side to eliminate jurors it suspects, for reasons it cannot articulate or for reasons that do not reach the level of cause, of being partial to the other side. Where challenges are used in that way, the resulting jury should be closer to the ideal of a body without sympathies for either side. Since the selection of juries from the master roll is more or less random, the problem of one-sided sympathies in a group drawn for service on a particular day is not farfetched. Hence, the peremptory challenge has an important function, along with the challenge for cause, in our rough- and-ready system for arriving at impartiality. The problem I find with the majority opinion is that the Supreme Court in Bat-son has already rejected the argument that the exercise of peremptory challenges cannot be policed without destroying the effectiveness of the challenges. The majority is thus pursuing a contention that is unrelated to any particular constitutional doctrine and which has been thoroughly discredited by the Supreme Court in Batson .

I agree with the majority that the problems of maintaining the effectiveness of the peremptory challenge and of relieving the administrative burden on courts are the considerations which led the Court for many years to cling to Swain . The Court has now decided, however, that the effectiveness and credibility of the criminal justice system is at stake and these problems which traditionally aroused concern must simply be accepted and solved. This momentous policy decision by the Supreme Court opens the way just as much to reconsideration of the issues under the Sixth Amendment as under the equal protection clause. The “practical” arguments of the majority have already been answered by the highest judicial authority, and I should think they would be considered anachronisms rather than a source of guidance to this court in the post-Batson era.

For the foregoing reasons, I respectfully dissent.

. Booker v. Jabe, 775 F.2d 762 (6th Cir.1985), vacated sub nom. Michigan v. Booker, — U.S. -, 106 S.Ct. 3289 , 92 L.Ed.2d 705 , aff’d on reconsideration, 801 F.2d 871 (6th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 910 , 93 L.Ed.2d 860 (1987); McCray v. Abrams, 750 F.2d 1113 (2d Cir.1984), vacated, — U.S.-, 106 S.Ct. 3289 , 92 L.Ed.2d 705 (1986).

. Teague contends that he made a Swain -based argument in the district court and in this court, citing Weathersby v. Morris, 708 F.2d 1493 (9th Cir.1983), cert. denied, 464 U.S. 1046 , 104 S.Ct. 719 , 79 L.Ed.2d 181 (1984). This provides an additional answer to the waiver argument.

. Wainwright v. Sykes, 433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977), does not help the state here because, whether or not Teague raised the equal protection issue in the Illinois courts, those courts rejected Teague’s claim on its equal protection merits. See Ulster County Court v. Allen, 442 U.S. 140, 152-54 , 99 S.Ct. 2213, 2222-23 , 60 L.Ed.2d 777 (1979); United States ex rel. Ross v. Franzen, 688 F.2d 1181, 1183 (7th Cir.1982). The Illinois Appellate Court rejected Teague’s argument because he ostensibly failed to demonstrate that blacks had been systematically precluded from jury service, as required by Swain v. Alabama. People v. Teague, 108 Ill.App.3d 891, 895-96 , 64 Ill.Dec. 401, 405 , 439 N.E.2d 1066, 1070 (1st Dist.1982), cert. denied, 464 U.S. 867 , 104 S.Ct. 206 , 78 L.Ed.2d 179 (1983). Since the state court denied Teague relief on the ground that Swain controlled the result, we could reach the equal protection claim without concerning ourselves with the cause-and-prejudice standard.

As noted, each time Teague has argued a constitutional violation, whether in the state or federal courts, his opponent and the court in question has cited Swain as the controlling authority. Two issues may, of course, be so factually and logically related that the raising of one affords the state courts a fair opportunity to consider both. Williams v. Holbrook, 691 F.2d 3, 8 (1st Cir.1982). The majority cannot plausibly conclude that Teague is now making a new or different argument when the other state and federal courts which have heard the matter have determined that Swain was dispositive.

. Thus, Batson says:

The State contends that our holding will eviscerate the fair trial values served by the peremptory challenge. Conceding that the Constitution does not guarantee a right to peremptory challenges and that Swain did state that their use ultimately is subject to the strictures of equal protection, the State argues that the privilege of unfettered exercise of the challenge is of vital importance to the criminal justice system.

White we recognize, of course, that the peremptory challenge occupies an important position in our trial procedures, we do not agree that our decision today will undermine the contribution the challenge generally makes to the administration of justice. The reality of practice, amply reflected in many state and federal court opinions, shows that the challenge may be, and unfortunately at times has been, used to discriminate against black jurors. By requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision enforces the mandate of equal protection and furthers the ends of justice. In view of the heterogeneous population of our nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race.

Nor are we persuaded by the State’s suggestion that our holding will create serious administrative difficulties. In those states applying a version of the evidentiary standard we recognize today, courts have not experienced serious administrative burdens, and the peremptory challenge system has survived. We decline, however, to formulate particular procedures to be followed upon a defendant’s timely objection to a prosecutor’s challenges.

Batson, 106 S.Ct. at 1724 (emphasis supplied) (footnotes omitted).

. In Fields the Colorado Supreme Court held that a prosecutor’s use of peremptory challenges to systematically exclude Spanish-surnamed veniremen from a jury deprives a defendant of his right to an impartial jury under the Sixth Amendment of the federal Constitution.

. It is true that the defense used one of its challenges to excuse a black; however, the husband of that juror was a policeman and since Teague’s trial involved the shooting of a policeman, that decision would seem to be justified on grounds apart from race.

. After its first challenge, every juror rejected by the state was a black woman. At that point, at which the only jurors seated were four males, the prosecution had already rejected five black women. It had also accepted three women, ultimately rejected by the defense. It is highly improbable, therefore, that in exercising its first six challenges the state was motivated to exclude women in order to achieve a balance of males and females. Of the next four jurors, all were female; the two whites were accepted by the state and seated; the two blacks were rejected by the state. By the time the tenth juror was seated, seven were male and only three female. Yet the state accepted two males, rejected by the defense, and rejected two black females. The last two women — giving the more or less balanced result of seven men and five women which the state points to in support of its explanation — were added sifter the state had exhausted its peremptories. In light of this pattern, the state’s explanation that it sought to balance men and women is very unpersuasive.

The state also claimed to be excluding jurors of "very young years.” The state rejected four jurors who were college or business school students, or recent graduates; all were black women. The systematic exclusion of younger jurors is perhaps as pernicious as the exclusion of blacks; but in any case, this rationale cannot by itself explain the state's action.

. A shocking number of defendants [in Illinois had] alleged [as of 1983] that prosecutors used peremptory challenges to exclude black people from the juries that convicted them:

People v. Payne (1983), 99 Ill.2d 135 , 75 111. Dec. 643, 457 N.E.2d 1202 ; People v. Yates (1983), 98 Ill.2d 502 at 540 , 75 Ill.Dec. 188 , 456 N.E.2d 1369 (Simon, J., dissenting); People v. Cobb (1983), 97 Ill.2d 465 , 74 Ill.Dec. 1 , 455 N.E.2d 31 ; People v. Williams (1983), 97 Ill.2d 252 , 73 Ill.Dec. 360 , 454 N.E.2d 220 ; People v. Bonilla (1983), 117 Ill.App.3d 1041 , 73 Ill.Dec. 187 , 453 N.E.2d 1322 ; People v. Gosberry (1983), 93 Ill.2d 544 , 70 Ill.Dec. 468 , 449 N.E.2d 815 ; People v. Davis (1983), 95 Ill.2d 1 , 69 Ill.Dec. 136 , 447 N.E.2d 353 ; People v. Gilliard (1983), 112 Ill.App.3d 799 , 68 Ill.Dec. 440 , 445 N.E.2d 1293 ; People v. New-some (1982), 110 Ill.App.3d 1043 , 66 Ill.Dec. 708 , 443 N.E.2d 634 ; People v. Turner (1982), 110 Ill.App.3d 519 , 66 Ill.Dec. 211 , 442 N.E.2d 637 ; People v. Teague (1982), 108 Ill.App.3d 891 , 64 Ill.Dec. 401 , 439 N.E.2d 1066 ; People v. Belton (1982), 105 Ill.App.3d 10 , 60 Ill.Dec. 881 , 433 N.E.2d 1119 ; People v. Dixon (1982), 105 Ill.App.3d 340 , 61 Ill.Dec. 216 , 434 N.E.2d 369 ; People v. Gaines (1981), 88 Ill.2d 342 , 58 Ill.Dec. 795 , 430 N.E.2d 1046 ; People v. Mims (1981), 103 Ill.App.3d 673 , 59 Ill.Dec. 369 , 431 N.E.2d 1126 ; People v. Lavinder (1981), 102 Ill.App.3d 662 , 58 Ill.Dec. 301 , 430 N.E.2d 243 ; People v. Clearlee (1981), 101 Ill.App.3d 16 , 56 Ill.Dec. 600 , 427 N.E.2d 1005 ; People v. Vaughn (1981), 100 Ill.App.3d 1082 , 56 Ill.Dec. 508 , 427 N.E.2d 840 ; People v. Tucker (1981), 99 Ill.App.3d 606 , 54 Ill.Dec. 646 , 425 N.E.2d 511 ; People v. Allen (1981), 96 Ill.App.3d 871 , 52 Ill.Dec. 419 , 422 N.E.2d 100 ; People v. Bracey (1981), 93 Ill.App.3d 864 , 49 Ill.Dec. 202 , 417 N.E.2d 1029 ; People v. Smith (1980), 91 Ill.App.3d 523 , 47 Ill.Dec. 1 , 414 N.E.2d 1117 ; People v. Fleming (1980), 91 Ill.App.3d 99 , 46 Ill.Dec. 217 , 413 N.E.2d 1330 ; People v. Attaway (1976), 41 Ill.App.3d 837 , 354 N.E.2d 448 ; People v. Thornhill (1975), 31 Ill.App.3d 779 , 333 N.E.2d 8 ; People v. King (1973), 54 Ill.2d 291 , 296 N.E.2d 731 ; People v. Petty (1972), 3 Ill.App.3d 951 , 279 N.E.2d 509 ; People v. Fort (1971), 133 Ill.App.2d 473 , 273 N.E.2d 439 ; People v. Butler (1970), 46 III.2d 162, 263 N.E.2d 89 ; People v. Cross (1968), 40 Ill.2d 85 , 237 N.E.2d 437 ; People v. Dukes (1960), 19 Ill.2d 532 , 169 N.E.2d 84 ; People v. Harris (1959), 17 Ill.2d 446 , 161 N.E.2d 809 .

People v. Payne, 99 Ill.2d 135, 152-53 , 75 Ill.Dec. 643, 651-52 , 457 N.E.2d 1202, 1210-11 (1983) (Simon, J., dissenting).

[I]t is an open secret that prosecutors in Chicago and elsewhere have been using their peremptory challenges to systematically eliminate all blacks, or all but token blacks, from juries in criminal cases where the defendants are blacks.

People v. Gilliard, 112 Ill.App.3d 799, 807 , 68 Ill.Dec. 440, 446 , 445 N.E.2d 1293, 1299 (1983) (footnote omitted), rev'd, 96 Ill.2d 544 , 73 111. Dec. 470, 454 N.E.2d 330 (1983).

This problem is not unique to Illinois. After the Supreme Court decided Griffith v. Kentucky, — U.S. -, 107 S.Ct. 708 , 93 L.Ed.2d 649 (1987), which held that Batson would be applied retroactively to cases pending on direct state or federal review when Batson was decided, the Court granted certiorari in 24 cases from various jurisdictions in which a Batson claim was raised, vacated the judgment in each case and remanded for reconsideration in light of Griffith .