Petition for Writ of Certiorari — Teague v. Lane

EDITOR'S NOTE

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a ee | 10 1987

‘ OFFICE THE CLERK

1 SUPREME-GRt a

No.

IN THE

SUPREME COURT OF UNITED STATES

October Term, 1986

FRANK DEAN TEAGUE,

Petitioner,

v.

MICHAEL LANE, Director, Department of Corrections,

oo te pgagaaa O'LEARY, Warden, Stateville Correctional

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

STEVEN CLARK

Deputy Defender

ii UNS INN

Assistant Appellate Defender

pe

Office of the State Appellate Defender

State of Illinois Center

100 West Randolph St., Suite 5-500

Chicago, Illinois 60601

(312) 917-5472

COUNSEL FOR PETITIONER

*COUNSEL OF RECORD

QUESTIONS PRESENTED FOR REVIEW

Whether the Sixth Amendment fair cross-section requirement

prohibits the prosecution's racially discriminatory use of the

peremptory challenge.

Whether Batson should be applied retroactively to all

convictions not final at the time certiorari was denied in McCray

v._New York in order to correct the inequity and confusion

resulting from the intentional postponement of the re-examination

of Swain.

Whether a defendant overcomes the presumption of correctness

of the prosecution's proper use of its peremptory challenges, as

recognized by Swain v. Alabama, where examination of the

prosecutor's volunteered reasons for its exercise of its chal-

lenges to exclude black jurors demonstrates that the prosecution

has engaged in racial discrimination.

TABLE OF CONTENTS

SeSOSESRS TOOSSRE SOP BITE c ccccccccceseceseseseeceeccccsses

FEC PT OCTET TTT TTT CCTTT ETT TT eT oe

PT coh eccee eats eth eu bs 6ONShSbh CceKe ewes etesticcaee

PTT TTTIT TITTLE LITT ITT TTP TTT eT eee

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WHETHER THE SIXTH AMENDMENT FAIR CROSS-SECTION

REQUIREMENT EXTENDS TO THE PETIT JURY SO AS TO BAR

THE RACIALLY DISCRIMINATORY USE OF THE PEREMPTORY

CHALLENGE IS A RECURRING QUESTION ON WHICH THIS

COURT EXPRESSED NO VIEW IN BATSON, BUT WHICH

REMAINS CONTROVERSIAL, RESULTING IN CONFLICTING

DECISIONS FROM BOTH STATE AND FEDERAL COURTS, THUS

MERITING THIS COURT'S REVIEW... ....cccccecccccccscccess

BATSON SHOULD BE APPLIED RETROACTIVELY TO ALL

CONVICTIONS NOT FINAL AT THE TIME CERTIORARI WAS

DENIED IN McCRAY v. NEW YORK IN ORDER TO CORRECT

THE INEQUITY AND CONFUSION WHICH RESULTED WHEN

THIS COURT, WHILE SIGNALING THAT SWAIN WAS NO

LONGER DISPOSITIVE, INTENTIONALLY DELAYED A

DECISION ON THE ISSUE RESOLVED BY BATSON...............

THE DIRECT CONFLICT BETWEEN THE DECISIONS OF THE

EIGHT AND NINTH CIRCUIT COURTS OF APPEALS AND THE

SEVENTH CIRCUIT COURT OF APPEALS, REGARDING WHETHER

AN EQUAL PROTECTION VIOLATION MAY BE PROVEN PURSUANT

TO SWAIN v. ALABAMA, OTHER THAN BY PROOF OF A

SYSTEMATIC EXCLUSTON OF BLACK JURORS BY PEREMPTORY

CHALLENGE IN CASE AFTER CASE, A QUESTION LEFT OPEN BY

SWAIN, SHOULD BE RESOLVED BY THIS COURT................

Ns ok dou bb oo 65606600 65500b5508 660505 06S 6K RO6KOESe

Appendix A

Unpublished and vacated panel decision-of the Seventh

Circuit Court of Appeals reversing district court

Appendix B

Order of Seventh Circuit Court of Appeals directing

rehearing en banc, reported at 779 F.2d 1332 (1985)

Appendix C

Opinion of the en banc United States Cov~« of segeere

for the Seventh Circuit, reported at 820 F.2. 332 (1987)

Appendix D

Unpublished order of the United States District Court for

the Northern District of Illinois denying habeas corpus relief

to Petitioner, dated August 8, 1984.

ii

—~

TABLE OF AUTHORITIES

CASES PAGES

Allen v. Hardy, 106 S.Ct. 2878 (1986)..........44.. 7

Apodaca v. Oregon, 406 U.S. 404 (1972).....0eseeees ?

Ballew v. Georgia, 435 U.S. 223 (1978).......e0eee: 7

Batson v. Kentucky, 106 S.Ct. 1712 (1986).......... passim

Booker v. Jabe, 775 F.2d 762 (6th Cir. 1985), vacated,

~~~ 106 S.Ct. 3289, aff'd on reconsideration, 801 F.2d

871 (1980), cert. denied, 106 S.Ct. 3289....... 6, 7

Desist v. United States, 394 U.S. 244 (1969)........ 8

Fields v. People, 732 P.2d 1145 (Colo. 1987)........ 7

Garrett v. Morris, 815 F.2d 509 (8th Cir. 1987)..... 12

Granberry v. Greer, 95 L.Ed.2d 119 (1987)........+++- 13

Griffith v. Kentucky, 107 S.Ct. 708 (1987).......... 8, 9

Lockhart v. McCree, 106 S.Ct. 1758 (1986)........... 7

Mackey v. United States, 401 U.S. 667 (1971)........ 8, 9, 10

McCray v. Abrams, 750 F.2d 1113 (2nd Cir. 1984)..... 7

McCray v. New York, 461 U.S. 961 (1983)........5-45- 9

Roman v. Abrams, 41 Crl 2245 (2nd Cir. 6/9/87)..... 6, 7

Taylor v. Louisiana, 419 U.S. 522 (1975).........44-. 7

Solem v. Stumes, 465 U.S. 638 (1984)........ceeeeues 10

Swain v. Alabama, 380 U.S. 202 (1965)..........5eee- 9, 11, 12

Ulster County Court v. Allen, 442 U.S. 140 (1979)... 13

United States v. Johnson, 457 U.S. 537 (1982)....... 10

San ces cme «Lp pereeererserereeeereeeheenae

Wainwright v. Sykes, 433 U.S. 72 (1977) ....eeeueeees 13

Weathersby v. Morris, 708 F.2d 1493 (9th Cir. 1983).. 12

iii

No.

IN THE

SUPR©ME COURT OF UNITED STATES

October Term, 1986

FRANK DEAN TEAGUE,

Petitioner,

v.

MICHAEL LANE, Director, Department of Corrections,

a O'LEARY, Warden, Stateville Correctional

Respondents.

INTRODUCTION

TO THE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURT

OF THE UNITED STATES:

May it Please the Court:

Petitioner, Frank Dean Teague, respectfully prays that this

Court issue a writ of certiorari to review the en banc decision

of the United States Court of Appeals for the Seventh Circuit.

OPINIONS BELOW

The original panel opinion reversed the district court's

denial of habeas corpus relief. That panel decision is unreport-

ed but is attached to this Petition as Appendix A. The panel

opinion was vacated and the cause was set for rehearing en banc

pursuant to Circuit Court Rule l6(e). That order is reported at

779 F.2d 1332 (7th Cir. 1985) and is attached as Appendix B. On

May 11, 1987, the en banc Covwrt of Appeals affirmed the decision

of the district court denying habeas corpus relief, Cudahy and

Cummings, JJ., dissenting. That opinion is reported at 820 F.2d

832 (7th Cir. 1987) and is attached as Appendix C. The district

court order granting summary judgment in favor of Respondents is

unreported and attached as Appendix D.

STATEMENT OF JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28

ee

U.S.C. 1254(1). This Petition is being filed within 90 days of

the decision of the Court of Appeals, which issued on May 11,

1987.

CONSTITUTIONAL PROVISIONS INVOLVED

AMENDMENT VI

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been committed,

which district shall have been previously ascertained by law, and

to be informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the

assistance of counsel for hi» defense.

AMENDMENT XIV

Section 1. All persons born or naturalized in the United

Ststes, and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property without

due process of law; nor deny to any person within its

jurisdiction the equal protection of laws. -

STATEMENT OF THE CASE

Frank Teague, a black man, was convicted of the offense of

armed robbery of an A & P supermarket and attempt murder of

police officers who were shot at following the robbery. His

defense was insanity which he contended was caused in part by his

wrongful incarceration in a federal penitentiary for aluost eight

years. The jurors who were selected and sworn to decide the

issue of his guilt or innocence were white, the prosecution

having electe? to exercise all ten of the peremptory challenges

afforded it by statute, I11.Rev.Stat., Ch. 38, Sec. 115-4(e), to

excuse prospective jurors who were black. Defense counsel also

excused a prospective black juror because she was married to a

ofa

police officer and his client was charged with attempt murder of

police officers. (R. 97)

When objection was made during jury selectior to the prose-

cution's use of its peremptory challenges to exclude blacks from

the jury, the prosecutor represented that he was attempting to

achieve a balance of men and women and age groups, noting also

defense counsel's use of a single peremptory to excuse a prospec-

tive black juror and that the prosecution had also excused a

white juror who was a prospective alternate. (R. 97, 98, 177,

178) The trial judge made no finding with respect to the validi-

ty of the State's reasons for exercise of its challenges, but the

record refutes the contention that blacks were eliminated from

the jury in an effort to achieve sexual and age balance. See

Appendix A, panel opinion, pp. 24-27.

Although not disputing that the prosecution had utilized its

peremptory challenges solely for the purpose of excluding a

racial group from the jury, the Illinois Appellate Court conclud-

ed that Teague was not entitled to any relief from his conviction

because he had made no showing of systematic exclusion of the

group as required by Swain v. Alabama, 380 U.S. 202 (1965). The

Court declined to follow People v. Wheeler, 22 Cal. 3d 258, 584

P.2d 748 (1978) on the basis that the remedy it proposed was

vague and uncertain and would alter the nature of the peremptory

challenge. The Court concluded that abolition of the peremptory

challenge by the legislature would be the appropriate weans to

end the prosecution's practice of using its challenges to exclude

a racial group. People v. Teague, 108 I)1.App.3d 891, 439 N.E.2d

1066 (lst Dist. 1982)(Campbell, J. dissenting). The Illinois

Appellate Court denied a Petition for Rehearing and the Illinois

Supreme Court denied leave to appeal. People v. Teague, 449

N.E.2d 820 (111. 1983)(Simon,J. dissenting). This Court denied a

Petition for Writ of Certiorari. Teague v. Illinois, 464 U.S.

867 (1983)(Marshall and Brennan, JJ., dissenting).

On March 5, 1984, Petitioner filed a Petition for Writ of

Habeas Corpus in the United States District Court for the North-

ern District of Illinois, complaining that his Sixth and Four-

teenth Amendment rights were violated when the prosecution

o9e

utilized its peremptory challenges to exclude black jurors. In

his Brief submitted in support of the Petition, Teague asked the

district court to accept the invitation of this Court in McCray

v. New York, 461 U.S. 961 (1983) to re-examine the issue of

whether the Constitution prohibits the use of peremptory chal-

lenges to exclude a racial group from the jury and to conclude

that an accused is denied his right to a jury drawn from a fair

cross section of the community when the prosecutor employs

peremptory challenges to exclude jurors on the basis of race.

(Petitioner's Brief, p. 16) Petitioner also cited in support of

his argument McCray v. Abrams, 576 F.Supp. 1244 (E.D.N.Y.1983),

which held that the Equai Protection Clause, either alone or in

in conjunction with the ‘ixth Amendment, prohibits the racially

discriminatory use of the peremptory challenge. (Petitioner's

Brief. p. 15) Respondents moved for summary judgment, contending

Swain v. Alabama, 380 U.S. 202 (1965) controlled. (Memorandum in

Support of Respondents’ Motion for Summary Judgment) Petitioner

cross-moved for summary judgment and cited in support thereof

Weathersby v. Morris, 708 F.2d 1493 (9th Cir. 1983), wherein the

Court held that if a prosecutor volunteers explanations for his

challenges, those explanations may be reviewed to determine

whether there has been a perversion of the peremptory challenge

contrary to Swain. (Memorandum In Support of Cross-Motion, p. 6)

The district court on August 8, 1984 granted summary judgment in

favor of Respondents, concluding that although it found Petition-

er's arguments persuasive and might be inclined to adopt his

reasoning if the court were writing on a clean slate, the issue

was foreclosed by Swain and Seventh Circuit decisions declining

to depart from Swain. (Order p. 2)

In the Court of Appeals, Petitioner again urged that Swain

be re-examined and a procedure such as that outlined by the

Courts in McCray v. Abrams or Weathersby v. Morris be adopted

whereby an accused could complain of the prosecutor's racially

discriminatory use of peremptory challenges in a single case.

(Appellant's Brief, pp. 15, 25) A divided panel concluded that

the Sixth Amendment does bar the racially discriminatory use of

peremptory challenges so as to deprive an accused of the fair

abe

possibility of obtaining a representative jury, but that opinion

was vacated and the case set for rehearing en banc pursuant to

Circuit Rule l6é(e). U.S. ex rel. Teague v. Lane, 779 F.2d 1332

(7th Cir.1985).

Following the decision of ‘this Court in Batson v. Kentucky,

106 S.Ct. 1712 (1986), the parties were directed by the Court of

Appeals to file additional memoranda discussing the impact of

Batson on this case. Petitioner argued that his Sixth Amendment

claim remined viable (Memorandum of Appellant, pp. 3-7) and that

even if it would be determined that Batson would not be given

full retroactive effect, Batson should apply to all cases,

including Petitioner's, not yet final at the time certiorari was

denied in McCray v. New York, 461 U.S. 961 (1983). (Memorandum of

Appellant, pp. 14-18) In response to Respondents’ argument, made

for the first time in its post-Batson memorandum, that Petitioner

had waived any equal protection claim by a procedural default in

the state court (Memorandum of Respondents, pp. 2-6), Petitioner

argued there had been no procedural default, whether or not the

equal protection claim had been raised in state court, because

that claim had been rejected on its merits by the state court,

which had denied Petitioner relief on the grounds that Swain

controlled. Petitioner cited Ulster County Court v. Allen, 442

U.S. 140 (1979), Umited States ex rel. Ross v. Franzen, 688 F.2d

1181 (7th Cir. 1982) and Thomas v. Blackburn, 623 F.2d 283 (5th

Cir. 1980) as support for this argument. (Responsive Memorandum,

pp. 3-4) Following en banc reargument, the Court of Appeals de-

termined that Allen v. Hardy, 106 S.Ct. 2878 (1986) foreclosed

retroactive application of Batson to Petitioner, Teague v. Lane,

820 F.2d 832, 834 and n.4 (1987), that Petitioner had not made a

showing of an equal protection violation pursuant to Swain, even

assuming that claim was not procedurally barred by Wainwright v.

Sykes, 433 U.S. 72 (1977), 829 F.2d at 834 n.6, and that the

Sixth Amendment fair cross-section requirement was inapplicable

to the petit jury.

REASONS FOR ALLOWANCE OF WRIT

WHETHER THE SIXTH AMENDMENT FAIR CROSS-SECTION REQUIREMENT

of»

EXTENDS TO THE PETIT JURY SO AS TO BAR THE RACIALLY DIS-

CRIMINATORY USE OF THE PEREMPTORY CHALLENGE IS A RECURRING

QUESTION ON WHICH THIS COURT EXPRESSED NO VIEW IN BATSON

BUT WHICH REMAINS CONTROVERSIAL, RESULTING IN CONFLICTING

DECISIONS FROM BOTH STATE AND FEDERAL COURTS, THUS MERITING

THIS COURT'S REVIEW.

Petitioner was tried by an all white jury as 4 consequence

of the prosecution's use of all ten of its peremptory challenges

to exclude black jurors. Petitioner contends the prosecution's

racially discriminatory use of its challenges violated his Sixth

Amendment right to be tried by a jury drawn from a fair cross

section of the community. Petitioner does not complain that the

jury that was chosen in his case did not mirror the community or

insist that he is entitled to a jury of any particular composi-

tion, but contends that the fair cross-section requirement

prohibits the prosecution's use of peremptory challenges in a

racially discriminatory manner to unreasonably restrict the

possibility the jury is comprised of a fair cross section of the

community. This issue was expressly left undecided by this Court

in Batson v. Kentucky, 106 S.Ct. 1712, 1716 n.4 (1986), and

considerable conflict exists among the circuit courts of appeals

and other courts regarding whether the prosecution's racially

discriminatory use of the peremptory challenge violates the Sixth

Amendment. Therefore, it is appropriate that this Court grant

certiorari.

Both the Second and Sixth Circuit Courts of Appeals have

adopted the view that the Sixth Amendment fair cross-section

requirement extends to the petit jury so as to bar the prose-

cution's use of the peremptory challenge on the basis of race.

Roman v. Abrams, 41 Crl 2245 (2nd Cir. 6/9/87); Booker v. Jabe,

775 F.2d 762 (6th Cir. 1985), vacated, 106 S.Ct. 3289, aff'd on

reconsideration, 801 F.2d 871 (1986), cert. denied, 107 S.Ct.

910. The split among the circuit courts of appeals and various

state courts on this issue was noted in United States ex rel.

Yates v. Hardiman, 656 F.Supp. 1006, 1012 (N.D.I11. 1987), which

court concluded that the fair cross-section requirement is

violated where jurors are peremptorily challenged by the

-6-

prosecution because they are the same race as the defendant. See

also Fields v. People, 732 P.2d 1145 (Colo. 1987)(claim of

racially discriminary use of peremptory challenges subject to

Sixth Amendment analysis).

The Seventh Circuit Court of Appeals rejected Petitioner's

argument on the grounds that the fair cross-section requirement

has no applicability to the petit jury, only to the venire from

which the petit jury is drawn. Teague, 820 F.2d at 839. While

Lockhart v. McCree, 106 S.Ct. 1758 (1986) has been interpreted as

supporting that position, the question was left unresolved in

Lockhart since this Court determined Witherspoon-excludables were

not a distinctive greup in the community for Sixth Amendment

purposes. 106 S.Ct. at 1765. That this Court vacated and

remanded McCray v. Abrams, 750 F.2d 1113 (2nd Cir. 1984) and

Booker v. Jabe, 775 F.2d 762 (1985) in light of Allen v. Hardy,

106 S.Ct. 2878 (1986) and Batson v. Kentucky, 106 S.Ct 1712

(1986), and not in light of Lockhart, has also been held

indicative of an absence of intent that Lockhart settles the

Sixth Amendment issue. Yates, 656 F.Supp. at 1015.

Prior decisions of this Court provide a basis to conclude

that the fair cross-section requirement extends beyond the jury

venire. In Apodaca v. Oregon, 406 U.S. 404, 413 (1972), this

Court expressed the view that the fair cross-section requirement

forbids “systematic exclusion of identifiable segments of the

community from jury panels and from the juries ultimately drawn

from those panels." (Emphasis added) Louisiana's special ex-

emption for women was held to violate the Sixth and Fourteenth

Amendments in Taylor v. Louisiana, 419 U.S. 522, 538 (1975) not

merely because women were thereby excluded from the jury pool but

because it “operate(d] to exclude them from petit juries." Trial

by jury of less than six person was held to violate the Sixth

Amendment in Ballew v. Georgia, 435 U.S. 223, 237 (1978) because

it deceases the opportunity for meaningful and appropriate

representation of a cross section of the community on the petit

jury, mot on the panel or venire from which the jury is drawn.

Permitting the prosecution to exercise its peremptory

challenges to excuse perspective jurors on the basis of race

™

alone similarly violates the fair cross-section requirement

because it presents no less an obstacle to the possibility of

minority representation on the jury. Selection of a jury drawn

from a fair cross section of the community is not an end in

itself, but contemplates the possibility that the petit jury will

be similarly comprised. The fair cross-section requirement would

be illusory if no restriction existed on the ability of the

prosecution to interpose an obstacle to minority representation

on the petit jury so long as minorities were not excluded from

the venire.

The controversy over the continued vitality of the Sixth

Amendment analysis to the peremptory challenge issue persists. A

direct conflict exists among the circuit courts of appeals

regarding whether the fair cross-section requirement can have any

applicability to the petit jury. This Court declined to adopt

any view on this issue in Batson but the continued divergence of

opinions demands that this Court grant certiorari to finally

resolve the dispute.

BATSON SHOULD BE APPLIED RETOACTIVELY TO ALL CONVICTIONS

NOT FINAL AT THE TIME CERTIORARI WAS DENIED IN McCRAY

v._NEW YORK IN ORDER TO CORRECT THE INEQUITY AND

CONFUSION WHICH RESULTED WHEN THIS COURT, WHILE SIGNALING

THAT SWAIN WAS NO LONGER DISPOSITIVE, INTENTIONALLY DELAYED

A DECISION ON THE ISSUE RESOLVED BY BATSON.

In Griffith v. Kentucky, 107 S.Ct. 708 (1987), this Court

extended the benefits of Batson v. Kentucky, 106 S.Ct. 1712

(2986) to all cases pending on direct review or not yet final at

the time the decision in Batson was reached. In a concurring

opinion, Justice Powell expressed his agreement with the views of

Justice Harlan respecting rules of retroactivity as stated in

Mackey v. United States, 401 U.S. 667, 675 (1971)(Harlan, J.

concurring and dissenting) and Desist v. United States, 394 U.S.

244, 256 (1969) (Harlan, J. dissenting), and his hope that, when

squarely presented with the question, the Harlan view that habeas

petitions should generally be judged according to the constitu-

tional standards existing at the time of the conviction, would be

adopted by the Court. Griffith, 107 S.Ct. at 716 (Powell, J.,

concurring). Petitioner submits that this case squarely

presentes the issue of the retroactivity of decisions to habeas

petitions and asks that a rule of retroactivity be adopted to

extend the benefits of Batson to those habeas corpus petitioners,

including Petitioner herein, whose cases were not yet final at

the time this Court denied certiorar in McCway v. New York, 461

U.S. 961 (1983).

In Harlan's view, generally, the law prevailing at the time

a conviction became final is to be applied in adjudicating habeas

petitions. The justification for extending the scope of habeas

to all alleged constitutional errors being to force trial and

appellate courts in the federal and state system to toe the

constitutional mark, it is unnecessary to apply new constitution-

al rules on habeas to serve that interest. Mackey, 401 U.S. at

688.

At the time Petitioner's conviction became final,} the state

of the law respecting a prosecutor's discr‘minatory use of

peremptory challenges was uncertain. When certiorari was denied

in McCray v. New York, 461 U.S. 961 (1983), Justices Brennan and

Marshall dissented, while Justices Stevens, Powell and Blackman

joined in an opinion stating they recognized the importance of

the issue presented, but believed further consideration of the

problem by other courts would enable the Court to address the

problem more wisely at a later date and asked that the various

states serve as laboratories in which the issue would receive

further study before it was finally addressed. This concurrence,

coupled with the dissent, signaled that the state courts were no

longer bound by Swain v. Alabama, 380 U.S. 202 (1965). At the

same time the Court intentionally delayed resolution of the issue

on the assumption that lower courts would accept the Court's

invitation to re-examine the issue on its merits, an assumption

which proved to be untrue in Illinois which continued to hold the

issue foreclosed by Swain.

leertiorari was denied in McCray on May 31, 1983. Petitioner's

traces became final when certiorari was denied on October 3,

efe

Just as Justice Harlan found it indefensible for the Court

to “(fish) one case from the stream of appellate review, [use] it

as a vehicle for pronouncing new constitutional standards, and

then [permit] a stream of similar cases to flow by unaffected by

that new rule,” Mackey, 401 U.S. at 679 (Harlan, J., dissenting),

it is indefensible to fish one case from the stream of appellate

»view, signal that a change is forthcoming, yet leave it entire-

ly to the discretion of lower courts whether to follow precedent

that was at that point questioned or discredited, though not

expressly overruled. In intentionally delaying a decision, this

Court increased the possibility that different constitutional

protection would be meted out to defendants simultaneously

subjected to identical constitutional deprivation, which is

inconsistent with the goal of treating similarly situated defen-

dants similarly. United States v. Johnson, 457 U.S. 537, 556

(1982). Moreover, since the opinion of Justice Stevens

respecting the denial of certiorari in McCray made it difficult

if not impossible for lower courts to discern what was the

prevailing state of the law since thev were cast in the role of

laboratories where the law was open to experimentation, lower

courts were unable to determine after McCray if they were "toeing

the constitutional mark." Solem v.Stumes, 465 U.S. 638, 653

(1983). The failure of this Court to provide firm guidance to

the lower courts from the time of denial of certiorari in McCray

until Batson compels the conclusion that if Batson is to be given

limited retroactive effect, it should be measured from the date

of denial of certiorari in McCray and be held applicable to all

cases then pending on direct review.”

The inequity and confusion

which resulted from the Supreme Court's intentional postponement

of resolution of the issue of the vitality of Swain can only be

corrected by extension of the benfits of Batson to all those thus

affected. i

2 This holding would be consistent with this Court's

resolution of Allen v. Hardy, 106 S.Ct. 2878 (1986) inasmuch as

Allen's conviction was nal when certiorari was denied in

McCray.

-10-

THE DIRECT CONFLICT BETWEEN THE DECISIONS OF THE EIGHTH

AND NINTH CIRCUIT COURTS OF APPEALS AND THE SEVENTH CIRCUIT

COURT OF APPEALS REGARDING WHETHER AN EQUAL PROTECTION

VIOLATION MAY BE PROVEN PURSUANT TO SWAIN v. ALABAMA

OTHER THAN BY PROOF OF A SYSTEMATIC EXCLUSION OF BLACK

JURORS BY PEREMPTORY CHALLENGE IN CASE AFTER CASE, A

QUESTION LEFT OPEN BY SWAIN, SHOULD BE RESOLVED BY

THIS COURT.

Even should this Court decline to hold Batson v. Kentucky,

106 S.Ct. 1712 (1986) has any retrospective application to his

case, Petitioner contends that he is entitled to relief from his

conviction because the record establishes an equal protection

violation pursuant to Swain v. Alabama, 380 U.S. 202 (1965). In

Swain, this Court reaffirmed that a "State's purposeful or

deliberate denial to Negroes on account of race of participation

as jurors in the administration of justice violates the Equal

Proctection Clause." 380 U.S. at 204. However, after reviewing

the purpose and function of the peremptory challenge system, it

concluded that a presumption must exist in any particular case

that the prosecution is using its challenges to obtain a fair and

impartial jury to try the case before the court, and that this

presumption would not be overcome by allegations that all the

Negroes had been removed or that they were removed because they

were Negroes. 380 U.S. at 222. The Court did agree that the

presumption of proper use might be overcome if a prosecutor in a

county, in case after case, whatever the circumstances, whatever

the crime and whoever the defendant or victim may be, is respon-

sible for the removal of Negroes with the result that none ever

serve on petit juries. 380 U.S. at 223, 224. Swain did not limit

a defendant's demonstration of a perversion of the peremptory

challenge amounting to an equal protection violation to proof of

such circumstances, but merely acknowledged such proof would

overcome the presumption of proper use. The question remains,

therefore, as to what other circumstances might demonstrate

purposeful discrimination by a prosecutor in his use of his

challenges.

Petitioner contends that where a prosecutor volunteers his

wi%e

reasons for exercising his peremptory challenges, the prosecutor

is no longer cloaked with the presumption of correctness, but

opens up the issue and the court may review his motives to

determine whether the purposes of the peremptory challenge are

being perverted. The court must then be satisfied that the

challenges are being exercised for permissible trial-related

considerations, and that the proffered reasons are genuine ones

and not merely a pretext for discrimination. The Ninth and

Eighth Circuit Courts of Appeals have both held that a defendant

may establish a violation of the equal protection principles of

Swain by such a method. Weathersby v. Morris, 708 F.2d 1493 (9th

Cir. 1983); Garrett v. Morris, 815 F.2d 509 (8th Cir. 1987). The

Seventh Circuit Court of Appeals in Petitioner's case refuses "to

read Swain so broadly," and insists that absent evidence that

establishes a pattern of systematic exclusion of blacks larger

than the single case there is no basis for an equal protection

challenge even if it could be demonstrated that the prosecution

exercised its peremptories on the basis of race. Teague, 820 F.2d

at 834 n.6. This interpretation of Swain is questionable in light

of the fact that the Batson Court attributed the requirement of

proof of repeated striking over a number of cases to lower

courts, 106 S.Ct. at 1720, and Justice White, author of the Swain

opinion, noted in his Batson concurrence that it would not be

“inconsistent with Swain for the trial judge to invalidate

peremptory challenges of blacks if the prosecutor, in response to

an objection to his strikes, stated that he struck blacks because

he believed they were not qualified to serve as jurors,

especially in the trial of a black defendant." Batson 106 S.Ct

at 1725 n.* (White, J., concurring). Certiorari jurisdiction

should therefore be exercised by this Court to resolve the direct

conflict which exists among the circuit courts of appeals

regarding whether an equal protection violation may be found,

consistent with Swain, in circumstances other than where a

Systematic pattern of exclusion occurs over a large number of

cases, a question which is not resolved by Swain or Batson.

Although the Seventh Circuit opinion in this case states

ol2-

that no Swain claim was raised in state court and therefore it is

procedurally barred pursuant to Wainwright v. Sykes, 433 U.S. 72

(1977), this circumstance does not make it inappropriate for this

Court to grant certiorari. Not only did the State waive this

argument by failing to raise this objection when Weathersby was

cited and argued by Petitioner in the district court and court of

appeals, but the court of appeals reached this argument on its

merits. Cf Granberry v. Greer, 95 L.Ed.2d 119 (1987). Moreover,

since Petitioner was denied relief in the state court on the

ground that a Swain equal protection analysis controlled the

result, Teague, 439 N.E. at 1070, thus rejecting any equal

protection claim on its merits, there has been no procedural

default which bars the federal courts from addressing this issue.

Ulster County Court v. Allen, 442 U.S. 140 (1979).

CONCLUSION

Wherefore, Petitioner, Frank Dean Teague, prays that a writ

of certiorari issue to the United States Court of Appeals for the

Seventh Circuit.

Respectfully submitted,

STEVEN CLARK

Deputy Defender

PATRICIA UNSINN

Assistant een seee Defender

Office of the State Appellate Defender

State of Illinois Center

100 West Randolph St., Suite 5-500

Chicago, Illinois 60601

COUNSEL FOR PETITIONER

o13-

“e IN THE

af . UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 84-2474

UNITED STATES OF AMERICA, ex rel. FRANK TEAGUE,

Petitioner-Appellant,

y.

MICHAEL P. LANE, Director, Department of Corrections and

MICHAEL O'LEARY, Warden, Stateville Correctional Center,

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 84 C 1934 -- William T. Hart, Judge.

“

ARGUED APRIL 9, 1985 -- DECIDED 4

Before CUDAHY and COFFEY, Circuit Judges, and PECK, Senior

Circuit Judge.*

CUDAHY, Circuit Judge. The question we must decide is

whether the Constitution prohibits prosecutors from excluding

APPENDIX A potential jurors solely on the basis of race.

Be

Frank Teague was tried before a jury in an Illinois court

and convicted of attempted murder and armed robbery. At the

time of Teague’s trial, each side had ten peremptory challenges

® The Honorable John W. Peck, Senior Circuit Judge for the

Sizth Circuit, is sitting by designation.

No. 84-2474 Page 2

in a case of this sort, 38 Ill. Rev. Stat. § 115-4, and the

state exercised all ten of its challenges to exclude black

jurors. The defense also challenged one black, and there were

no blacks on the resulting jury.

The defense moved for a mistrial twice, after the .

prosecution had used siz peremptory challenges to exclude siz

blacks and again at the conclusion of selection proceedings; it

argued that the state was denying Teague his right to a trial

by a jury of his peers by excluding prospective jurors on the

basis of cece. These motions were denied. A prosecutor need

not defend his peremptory challenges, as things now stand.

Nevertheless, the state in this case offered reasons for the

3 choices that were made: it said that it was attempting to

optain a balance of men and women and that numerous individuals

who were excused were of “very young years.”

The Illinois Appellate Court took note of the state's

rationale for its actions, but also noted that “the record

shows that white jurors who fell within the [gender] and age

groups to which the State referred were not excused

peremptorily by the State." 439 N.E.2d 1066, 1069-70 (111.

App. 1982). It held, however, that under existing law no

restriction could be placed on a prosecutor's exercise of

peremptory challenges in an isolated case. 439 N.E.2¢ at 1071.

II.

The precise issue raised here is whether it is a violation

of a defendant's sixth amendment rights for a prosecutor to use

s

his peremptory challenges for the purpose of excluding the

members of a given race from the petit jury. We must assume,

as given, that such a use is not a violation of the equal

protection clause of the fourteenth amendment. Swain v.

Alabama, 380 U.S. 202 (1965).

The sixth amendment question was raised, but not decided,

in two recent cases in this circuit. In United States v.

Clack, 737 F.24 679 (7th Cir. 1984), we held that that the

facts of the case failed to raise a presumption of racial

motivation:

But we need not decide in this case whether it is ever

permissible to challenge, as racially motivated, the

exercise (not pursuant to a systematic policy of racial

exclusion) of a peremptory challenge; for Kunkel's lawyer

failed to establish a sufficient likelihood of racial :

pane nay to warrant the judge's holding a hearing on the

question.

737 F.2d at 682. And in United States ex rel. Palmer v.

ReRobertis, 738 F.2d 168 (7th Cir.), cert, denied, 105 S. Ct.

306 (1984), a habeas proceeding, we upheld the holding of the

Gistrict court that the petitioner had waived the objection by

1

failing to raise it in state court. 738 F.24 at 171. In

1 In Palmer, the state appellate court declined to consider

the issue not because it had not been raised below--which it

had not--but on the ground that there was no record:

Defendant next contends that the State improperly exercised

its peremptory challenges to exclude members of his race

Crom the jury. By agreement of the parties, no report of

proceedings was had of jury selection. As a result,

defendant's argument cannot be considered.

People vy. Palmer, No. 80-1132, Slip Op. at 3-4 (First Judicial

District, August 5, 1981).

No. 84-2474 &.. .

both cases there was some consideration of the merits, but in

neither case was consideration essential to the outcome. We

believe that the time for deciding the issue has arrived.

A. Equal Protection.

In Swain vy. Alabama, 380 U.S. 202 (1965), the Supreme Court

helé that it is not a denial of equal protection of the laws,

under the fourteenth amendment, for a prosecutor to exercise

his peremptory challenges on racial grounds, so long as such

exclusion of a race from petit juries is not done in such a way

as to prevent members of the race from ever serving on juries.

The Court held that a prima facie case of discrimination could

be established by showing that blacks had been systematically

struck from trial juries; but it went on to say what would be

required for such a prima facie showing, and in doing so set a

standard difficult to meet: “If the State has not seen fit to

leave a single Negro on any jury in a criminal case, the

presumption protecting the prosecutor may well be overcome.”

380 U.S. 224. But the policy must work to exclude every black

in a venue, “in case after case, whatever the circumstances,

whatever the crime and whoever the defendant or victim may

be.* 380 U.S. 223. Swain himself had established “by

competent evidence and without contradiction that not only was

there no Negro on the jury that convicted and sentenced him,

but also that no Negro within the memory of persons now living

has ever served on any petit jury in any civil or criminal case

tried in Talladega County, Alabama." 380 U.S. at 231-32

No. 84-2474 Page 5

(Goldberg, J., dissenting). But since he had not established

that every black excluded was excluded by the state, he did not

succeed in raising an inference of systematic exclusion. See

United States v. Childress, 715 F.2d 1313, 1316-17 (8th Cir.

1983), cert, denied, 104 S. Ct. 744 (1984).

The Swain case was clearly decided on equal protection

grounds. Although the Court did not question the standing of

the defendant Swain, the rights being asserted and the rights

addressed by the Court were in large measure the rights of

blacks not to be excluded from jury service. Swain's motions

had claimed discrimination “against members of the Negro race

in order to prevent them from serving on juries,” and making it

“impossible for qualified members of the Negro race to serve as

2

jurors in this cause or any cause." The Court responded

that the equal protection clause did not apply unless there was

2 The issue was raised at trial in the Swain case in two

Gifferent motions. The motion to quash the venire said in part:

4. Defendant avers the existence of a system or practice .

. Geliberately designed to discriminate against members

of the Negro race.in order to prevent them from serving on

juries . °

And the motion to declare void the petit jury selected said, in

part:

(3) That because of the systematic and arbitrary method of

selecting the names of qualified male citizens... it is

impossible for gualified members of the negro race to serve

as jurors in this cause or any cause . e

Swain, 380 U.S. at 210-11 n.6.

No. 84-2474 Page 6

a system and practice of exclusion; but that where a system and

practice can be shown, proof of that

might support ¢ reasonable inference that Negroes are

excluded from juries for reasons wholly unrelated to the

outcome of the particular case on trial and that the

peremptory system is being used to deny the Negro the same

right and opportunity to participate in the administration

of justice enjoyed by the white population. These ends the

peremptory challenge is not intended to facilitate or

justify.

380 U.S. at 224. But the right of blacks to serve on juries--a

right violated, according to Swain, only when a pattern or

practice of exclusion is shown--is quite distinct from the

right of the defendant to « fair trial. And thus the question

to what extent the defendant's right to a fair trial includes

the right to have members of a given race on his jury would

seem to be utterly distinct from the question answered in Swain.

B. Sixth Amendment Right to an Impartial] Jury.

The fourteenth amendment guarantees not only equal

protection but also due process; at the time Swain was decided,

however, it was not clear precisely what jury-trial rights were

guaranteed by the amendment's due process clause. It has since

been held, in Duncan v. Louisiana, 391 U.S. 145 (1968), that

the sixth amendment applies to the states through the

fourteenth amendment; but it has not yet been resolved whether

the sixth amendment right to a jury of one's peers includes the

right not to have eligible jurors excluded from one's trial

jury on the basis of race. Thus the question we must answer is

really independent of Swain; for granted that there is no equal

protection argument against such a use of peremptory

No. 84-2474 Page 7

challenges, the question remains whether such an argument can

be based on the due process clause and the sixth amendment.

In McCray vy. New York, 103 S. Ct. 2438 (1983), the Supreme

Court was given the opportunity to decide the question, but

Geclined to grant certiorari. Justice Marshall, with whom

Justice Brennan joined, dissented from the denial, arguing that

Swain ought to be reconsidered in light of Taylor and other

recent sixth amendment cases:

{In Taylor vy. Louisiana,)] we accepted the

“fair-cross-section requirement as fundamental to the jury

trial guaranteed by the Sizth Amendment,” 419 U.S. at 530.

. « « (But the) right to a jury drawn from a fair

cross-section of the community is rendered meaningless if

the State is permitted to utilize several peremptory

challenges to exclude all Negroes from the jury.

103 S. Ct. at 2442 (Marshall, J., dissenting from denial of

certiorari). Significantly, three other justices explained

that although they voted to deny certiorari, they agreed with

Justice Marshall about the importance of the issue, but

believed that eventual consideration by the Court would benefit

by submitting the issue first to other courts. 103 S. Ct. at

2438 (Stevens, J., joined by Justices Blackmun and Powell) .°

3 The Court has now granted certiorari in the case of Batson

; , 105 S. Ct. 2111 (1985), an unpublished opinion in

which the Kentucky Supreme Court rejected the defendant's sizth

amendment claim in one short paragraph:

Appellant next contends that it was error to permit

the prosecuting attorney to exercise preemptory challenges

to all of the blacks who were called as jurors in this

case. Appellant acknowledged that the United States

(footnote continued on next page)

“No. 84-2474 Page 8

Thus the Court has, by five votes, effectively urged the

lower courts to consider the issue that we grapple with today.

The Second Circuit, in later proceedings in the McCray case

itself, reached the issue. In light of the opinions

accompanying the denial of certiorari, McCray had taken his

case to the federal district court for a writ of habeas corpus,

and the district court had ruled that the sixth amendment

required judicial scrutiny of discriminatory prosecutorial

challenges.‘ Relying in part on developments in the state

courts in California and Massachusetts, the district court laid

out a format for litigating allegations of an abuse of

peremptory challenges.

3 Continued

Supreme Court in Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824,

13 L. Ed. 24 759 (1965), held that preemptory challenges

against blacks, by themselves, do not violate the Fourteenth

Amendment equal-protection clause. However, appellant uryes

this court to adopt the position of other states based upon the

Sizth Amendment and their own state constitutions, that

preemptory challenges against minority groups can be

unconstitutional if they were shown to be a pattern of

challenges against jurors from a discrete group and a

likelihood that the challenges were bused solely on group

membership. People v. Wheeler, 583 ».2d 748 (Cal. 1978), and

Commonwealth v. Soares, 387 N.E.2¢ 499 (Mass. 1979). We have

recently reaffirmed our reliance upon Swain in Commonwealth v.

» Ky., —.. S.W.2d __s_—s- (1984), holding that an

allegation of the lack of a fiir cross-sectional jury which

does not concern a systematic exclusion from the jury drum does

mot rise to constitutional proportions, and we decline to adopt

another rule.

Batson v. Commonwealth, No. 84-SC-733-MR, slip op. at 4-5

(Kentucky, December 20, 1984).

4/ The district court also held that Swain was no longer good

law, but that holding was not essential to the decision, and it

was rejected by the Second Circuit.

No. 84-2474 Page 9

If the prosecution's peremptories have been used in such a

way as to establish a prima facie case of racial

Giscrimination, the presumption of proper use of the

peremptory gives way and the burden shifts to the

prosecution to justify its challenges on nonracial grounds.

. « « (A) prima facie case of improper challenges may be

established when the venire-persons excluded are members of

a ‘cognizable group, discrimination against which is

prohibited,’ and the probable reason for their exclusion is

their membership in the group rather than any

predisposition regarding the specific case at bar ....

Once this showing is made, the prosecution may rebut the

prima facie case by demonstrating that its peremptory

challenges were motivated by perceived case-specific

biases, rather than by group association.

McCray vy. Abrams, 750 F.2d 1113, 1117 (24 Cir. 1984)

(paraphrasing the district court opinion, 576 F. Supp. 1244,

1249 (E.D.N.¥. 1983)). Because the state court had not

followed the format and inquired into discrimination, the

district court ordered a new trial.

The Court of Appeals agreed that McCray had made a prima

facie showing of discrimination, but reversed the grant of the

writ, sending the matter back to the district court for a

hearing into the state's rebuttal. 750 F.2d at 1134-35.

Itt.

A body of reasoning has developed which supports the Second

Circuit's conclusion that the sixth amendment prohibits

prosecutors from using the peremptory challenge to exclude

prospective jurors on the basis of race. Because of the

importance of the issue, and because there is a split in the

5

circuits on the matter,” we think a careful review of the

5 Compare Weathersby v. Morris, 708 F.2d 1493, 1497 (9th

Cir. 1983) ("we .. . reject [the] contention that the

(Footnote continued on next page)

No. 84-2474 Page 10

argument is in order.

As we see it, the problem arises in the first place out of

the clash between two devices, both intended to secure the

impartiality of the jury, and neither of which we would like to

see destroyed: the peremptory challenge and the requirement of

representativeness in the jury pool. For the most part they do

not conflict; but where they do, as in the present case, one or

the other must give way. And where one or the other must give

way, the choice will depend on the policies underlying each

device--taking into consideration that one is constitutionally

guaranteed but the other is not--and the degree to which

favoring one will require the abandonment of the other.

A. The Requirement of a Representative Jury Pool.

In Taylor v. Louisiana, 419 U.S. 522 (1975), the Supreme

5 Continued

prosecutor's use of peremptory challenges to exclude black

persons from (defendant's) petit jury violated his sixth

amendment rights“) and United States v. Childress, 715 F.2d

1313, 1318 (8th Cir. 1983) ("After careful consideration of

[the question], we must reluctantly conclude that there is no

sixth amendment exception to the equal protection analysis in

Swain.") with McCray v. Abrams, 750 F.2d 1113 (2d Cir. 1984).

In addition, the Sixth Circuit, in a unanimous panel

opinion, recently aligned itself with the Second Circuit's

approach in McCray v. Abrams. The Sixth Circuit ruled that a

prosecutor or defense counsel may not systematically exercise

his peremptory challenges to discriminate racially. Booker v.

Jabe, No. 83-1136 (6th Cir. October 29, 1985). We believe the

Sizth Circuit standard is substantially identical to our own

and that a “systematic exercise” would necessarily occur if a

prosecutor or defense counsel intended to use peremptory

challenges for purposes of racial exclusion.

Yo. 84-2474 Page 11

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. It cited Smith v. Texas, 311

U.S. 128, 130 (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,** 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

and 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.

419 U.S. at $30.

As the Taylor court made clear, however, this requirement

of representativeness does not extend directly to the petit

jury; no defendant has the right to a trial jury that reflects

the make-up of the community. But the fact that the connection

is not direct does not mean that it is not there at all. In

Williams v. Florida, 399 U.S. 78 (1970), the Court held that a

No. 84-2474 Page 12

six-person jury was constitutionally acceptable; in Ballew yv.

Georgia, 435 U.S. 223 (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 (emphasis added). In Ballew, likewise, the

Court expressed concern “about the ability of juries truly to

represent the community a) membership decreases below six," 435

U.S. at 242 (emphasis added), and held that “any further

reduction... that prevents juries from truly representing

their communities, attains constitutional significance," 435

U.S. at 239. See also 435 U.S. at 245 (White, J., concurring)

and 435 U.S. at 246 (Brennan, J., concurring).

That is, 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

stopped 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 or other for the jury that

actually sits at trial. As the the Supreme Judicial Court of

No. 84-2474 Page 13

Massachusetts said in Commonwealth v. Soares, 387 N.E.24 499,

513 (Mass. 1979):

It is not enough that there be 4 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.

And in precisely the same vein, the Second Circuit said in

McCray, 750 F.2d at 1128:

The venire gua venire is a body that, assuredly, gives

service to the community by standing ready to serve on a

petit jury if called upon to do so; but it is @ group that

takes no action and makes no decisions. No defendant has

ever been tried before a venire; the venire is not the body

that deliberates in the jury room; no defendant has ever

been found guilty by a venire.

Thus, as we say, it would be odd if the sixth smendment's

requirement of representativeness in the jury poo] were not

intended to have some sort of effect in the jury soon.

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. supra, and Ballew, supra. The siz-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.

This requirement that it be possible for the trial jury to

be representative is not difficult to understand. For in the

absence of that possibility--where members of a certain group

can be excluded from service on a particular petit jury--the

No. 84-2474 Page 1

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. tin

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 protect.on 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

thet requirement that explains the need for the jury pool to be

actually representative, which would otherwise be a great

mystery.

Further, in a case of this sort the perception is almost as

important as the reality. Knowledge that blacks could be

excluded at will by prosecutors trying black defendants, for

example, would lead to cynicism among blacks in regard to the

jury system. The importance of a general confidence in the

accuracy 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

No. 84-2474 Page 15

the law operates with some precision, tending to convict all

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.

We 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.

B,. The Peremptory Challenge.

The conclusion we draw is that the prosecutor ought not to

be able to eliminate jurors solely on the basis of race (or

sex, or religion). And yet the peremptory challenge--the

exclusion of a juror without explanation or reason--is itself

one of the mechanisms for insuring the impartiality of the

jury; and how can that mechanism survive if the exercise of

such challenges is restricted and made subject to objection?

There is no constitutional right to peremptory challenges,

of course. See Swain, 380 U.S. at 219; Stilson v, United

States, 250 U.S. 583, 586 (1919). Nevertheless the peremptory

challenge has a long history and serves an important function,

and should not be lightly abandoned.

The point of all challenges is to remove jurors who are

inclined to be biased. 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 far-fetched; and thus

the peremptory challenge has an important function, along with

the challenge for cause, in our rough and ready system for

arriving at impartiality.

And yet the peremptory challenge is in obvious conflict

with the goal of securing to each defendant the chance of a

representative jury. For with enough peremptory challenges, a

prosecutor can, if he chooses, make sure that members of a

minority group in the community do not appear on any jury on

which their presence would be an inconvenience for him.

Cc, The Resolution.

We must choose, therefore, whether it is the peremptory

challenge or the requirement of representativeness that must

give way. We have no doubt that, if we were to insist on

preserving the peremptory challenge as it is, immune to

objection in any given case, the constitutional goal of

No. 84-2474 Page 17

representativeness would be thwarted entirely. The right to a

representative venire would avail no particular defendant; the

appearance of particular groups on his jury would be entirely

in the hands of the prosecutor. And what prosecutor is so

superhuman as to neglect an opportunity granted him by law to

stack the jury against the defendant? If he is & conscientious

and agressive prosecutor, he will -pass up the opportunity to

eliminate blacks in the trial of a black only if he thinks it-

would do him no good, and thus blacks would be assured of the

chance to have blacks on their jury only when it would make no

Gifference. And that means that, for minority groups that have

traditionally been the object of prejudice, the guarantee of

representativeness would amount to nothing at all.

We think that the only option open to us, therefore, is to

limit the peremptory challenge in some way. Our aim is to find

away that will require as little modification as possible.

One suggestion, implemented recently by the Supreme Court

of Illinois, see 105 111.24 (advance sheet), April 17, 1985, p.

7, is to reduce the number of peremptory challenges available

to either side. Although any reduction in the number of

challenges lessens the ability of the state to prevent groups

from finding places on the jury, we do not follow the Illinois

court, for two reasons. For one thing, the number of

challenges would have to be reduced radically to have a

significant effect, and we do not think that the problem we are

faced with necessitates what would amount to the practical

elimination of the peremptory challenge. The Illinois rule has

been changed from ten to seven in cases of this sort, @

No. 84-2474 Page 18

reduction that a dissenting justice argued was too little to do

much good. Ig. at 9. But a more effective reduction--to

three, say--is in effect an elimination of the peremptory

challenge as we know it.

For another thing, more goes into the determination of the

mumber of challenges than considerations of representativeness,

and we think that the legislatures are better equipped to make

that sort of determination than are the courts. For that

reason, it would be inappropriate to hold that the constitution

mandates a limit on the number of peremptory challenges.

The better course seems to us to be the one adopted by

federal courts in the exercise of their supervisory powers over

the lower courts; by some state courts, interpreting both their

own constitutions and the sizth amendment; and by the Second

Circuit in McCray. We hold, accordingly, that the prosecutor's

right to reject jurors peremptorily is limited by the procedure

to be set out below. We find that this limitation preserves

the prosecutor's use of peremptory challenges except in extreme

cases of discriminatory abuse.

Relying on the supervisory power and not on the

constitution, a number of circuits have placed such limits on

the use of peremptory challenges in federal courts. See United

States v, Leslie, 759 F.2d 366, 374 (Sth Cir. 1985) (en banc);

United States v. Jackson, 696 F.2d 578, 593 (8th Cir. 1982),

cert. denied, 460 U.S. 1073 (1983). See also United States v.

McDaniels, 379 F. Supp. 1243, 1249 (E.D. La. 1974). As the

Fifth Circuit said in Leslie:

No. 84-2474 Page 19

We thus invoke our supervisory power to assure a minimum

level of protection against the use of peremptory

challenges to practice invidious racial discrimination in

individual cases. We recognize that giving effect to the

precept of equality conficts with the total peremptoriness

of peremptory challenges on the part of the prcsecutor but

hold that at some point the threat of invidious

Giscrimination by federal officers sworn to effect justice

exceeds the bounds of tolerance.

759 F.24 at 373. Nevertheless:

We do not go so far as to hold that racial consideration in

every case invariably constitutes invidious racial

discrimination.

Rather,

{t]he district court has [the burden of decidin, if

peremptory challenges have been used for) unjus:ifiable

racially discriminatory reasons.

759 F.2d at 374.

State Supreme Courts in Florida, Massachusetts and

California have hammered out similar compromises. S§tate v,

Neil, 457 So.2d 481 (Fla. 1984); Commonwealth v. Soares, 387

N.E.20 499 (Mass. 1979); People v, Wheeler, 583 P.2d 748 (Cal.

1978). In Soares, the Massachusetts court said:

In fashioning a balance between the goal of diffused

impartiality in the petit jury and the limitations inherent

in a feasible and fair process of jury selection, we

preserve a legitimate and significant role for the

peremptory challenge .

What we view [the Massachusetts] Declaration of Rights

as proscribing is the use of peremptory challenges to

exclude prospective jurors solely by virtue of their

membership in, or affiliation with, particular defined

groupings in the community. Were we to decline so to hold,

we would leave the right to a jury drawn from a

representative cross-section of the community wholly

susceptible to nullification through the intentional use of

peremptory challenges to exclude identifiable segments of

that community.

387 N.E.2¢6 at 515.

No. 84-2474 Page 20

And finally in McCray, the Second Circuit chose the same

sort of solution:

h remptory challenge) is an important right; it may be

= taveluente Tight in certain circumstances; but it is not

a right of constitutional dimension... . [when .

the prosecution's use of its peremptories conflicts with a

fundamental right that is protected by the Sizth Amendment,

it is the inscrutability of the peremptory challenge that

must yield, not the constitutional right.

Accordingly, we conclude that a defendant may '

appropriately subject to scrutiny under the Sixth Amendment

the prosecution's use of its peremptory challenges on the

basis of its actions in his own particular case.

750 F.24 at 1130-31.

This, as we say, seems to us the better approach. We leave

to the legislatures to decide the appropriate number of

peremptory challenges. We decide only that the prosecutor's

use of such challenges is not unrestricted, even in the

particular case; that such challenges are properly exercised

against specific biases; and that the obvious abuse of those

challenges is subject to the procedure set out below.

D. The Format for Protesting Abuse of the Peremptory Challenge.

In Wheeler, the California court rejected the statistical

analysis used in determining discrimination in venires as

inappropriate, and opted for “more traditional procedures.” it

has been followed in this by the Second Circuit in McCray v.

Abrams; in Massachusetts, Commonwealth v. Soares, 387 N.E.2¢

499 (1979); and in New Mexico, State v. Crespin, 612 P.2d 716

(N.M. App. 1980). According to the procedure adopted by these

courts, the defendant must raise a timely objection and make a

No. 84-2474 Pose 21

prima facie case. He must show that the persons excluded are

members of a cognizable group “within the meaning of the

representative cross section rule." Wheeler, 583 P.24 at 764;

see Soares, 387 N.E.24 at 517. Without exploring further the

question just what groups these sre, see Duren v. Miasouri, 439

U.S. 357, 364 (1979), we note that race is surely one.

To make the prima facie case, the defendant must also show

a likelihood that those challenged are more likely to have been

challenged because of the group they belong to than because of

any specific bias. Wheeler at 764; Soares at 517; McCray at

1132. Wheeler suggested some ways in which such a showing

could be made:

The party may show that his opponent has struck most or all

of the members of the identified group from the venire, or

has used a disproportionate number of his peremptories

against the group.

583 P.2¢ at 764. Such evidence is indeed relevant, but it may

not be conclusive. If, for example, there are only three

blacks on a panel, it may be more difficult to persuade a trial

judge of racial animus when the prosecutor eliminates them than

in the case in which there ere eight blacks on a panel, and

most or all are challenged. The strongest case, of course,

will be where the prosecutor has used most or all of his

challenges to remove most or all of the blacks on the panel.

We note with approval the Wheeler admonition that the defense

make “as complete a record of the circumstances as is

feasible.” Jq@.

Once the prima facie case has been made, it will be up to

the prosecutor to rebut it. No court that has addressed this

issue has seen fit to require a showing of cause for each juror

rejected; all that is necessary is that the prosecutor indicate”

some basis for supposing bias, even though it would not support

a challenge for cause. The appropriate rebuttal involves bias,

of course, because bias--specific bias grounded in personal

history or conduct--is supposed to be the reason for challenges

in the first place. “Such reasons, if they appear to be

genuine, should be accepted by the court." McCray at 1132. If

they do not appear to be genuine, the court will call for a new

panel, and the process of selecting a jury will begin again.

Although we say, therefore, that the prosecutor has no

right to peremptorily exclude jurors because of rece, in

practical effect what we mean is that the prosecutor may not go

so far as to create a prima facie case; and if he does go that

far he will be required to come up with a plausible

explanation. The procedure we have set down does not in fact

prevent the prosecutor from excluding two, or three, or four on

the basis of race, or sex, or religion; but it should prevent

him from either using his peremptories to exclude a]] members

of a certain group, where a fair number of members of that

group appear in the panel, or using al] his peremptories to

exclude members of a certain group. Either one will raise a

presumption of intentional interference with defendant's sixth

amendment rights.

All of this falls far short of destroying the peremptory

challenge. The prosecutor is free to use his challenges as he

chooses, so long as he does not use them for the impermissible

purpose of excluding blacks, or members of other cognizable

groups, from the petit jury. We agree with the optimistic tone

of the McCray opinion:

We would think that the number of occasions in which a

defendant would be able to make out a prima facie case .

. would be few;

750 F.24 at 1132 (emphasis added). Indeed we would expect the

number to decrease. Although we are not of the school that

believes that constitutional issues are to be determined

largely with an eye to the resulting burden on the courts, we

are sensitive to the issue of increased litigation. In a case

such as this one, uncertainty has itself led to a flow of

litigation (see below, foo note 7), and we can stem the tide by

resolving the issue one way or the other. If we were to decide

that the peremptory challenge deserved unrestricted protection,

defendants would gradually cease to raise the issue; if we

Gecided the matter the other way, as we do, prosecutors should

eventually stop the practice of excluding on the basis of race,

giving fewer occasions to object, most of those easily disposed

of by the trial court. Given the choice, it would be the worst

sort of miscalculation to give prosecutors the go-ahead to

continue the practice of exclusion just for the marginal effect

it will have on the caseload.

Iv.

The examination of jurors in the case before us was

conducted by the trial judge. On two occasions, after the

state had used six of its peremptory challenges and then again

after the state had used all ten of its challenges, the defense

moved for a mistrial on the grounds that the state was using

No. 84-2474 Page 24

its csallenges only against black jurors. The state responded

to the second motion by saying that “numerous individuals that

were excused were of very young years,” and that the state was

striving for "a balance of an equal number of men and women.”

The trial judge denied the motions. The Illinois Appellate

Court rejected the state's explanation, but affirmed the

conviction nevertheless, holding that the state's exercise of

peremptory challenges could not be restricted in the absence of

® Swain showing of systematic exclusion. 439 N.E.24 at 1069-71.

There is no question that a prima facie case of abuse has

been made out here. Of the ten peremptory challences the state

was able to exercise in the selection of the petit jury, every

one was used to excuse a black. ® Moreover, the state's

elimination of blacks had an effect: There were no black

jurors on the jury finally chosen. We cannot imagine a clearer

case for testing the rule.

Accordingly, the state is called upon to rebut. Since the

6 It is true that in the selection of the two alternates,

the state exercised its one peremptory challenge against a

white; but as far as we can tell, the first four jurors

examined for alternate duty were all white; the defense and the

state each excused one; and the remaining two alternates were

both white. It is also true, as the state claims, that the

defense is responsible for excusing one black from service on

the jury, but the husband of that juror was a policeman and

since the trial involved the shooting of a policeman the choice

would seem to be justified. In any case, we do not see why the

fact that the defense used one of its ten peremptories should

weaken its case; it suggests that the defense was not

eliminating jurors solely on the basis of race.

‘No. 84-2474 Page 25

state did not remain silent in response to the defendant's

protest, we might be able to forego a remand for a hearing into

the state's explanation for its actions. For the state gave

its explanation at trial, and the explanation it gave is

roughly of the sort that might carry the day, if believed: it

answered that it wanted to eliminate very young jurors, and to

achieve some balance between males and females. Neither the

Illinois Appellate Court nor the federal district court

addressed the rebuttal, believing that Swain controlled in this

situation. Under these circumstances, an appraisal of the

rebuttal may be within our competence, eliminating the need for

remand.

Nevertheless, the state may not have believed that its

rebuttal was necessary, and therefore there may be some

question about the fairness of taking seriously the answer that

it actually gave. In these circumstances a rush to judgment

may not be appropriate, and we think it better to remand for a

hearing into the state's explanation than to attempt to decide

the matter on the basis of the explanation already given. We

are aware that an opportunity to reconsider its explanation at

this late date may give the state an advantage; we have no

doubt that with sufficient time an explanation could be found

for the exclusion of any ten potential jurors. Still,

presuming good faith on the part of the state, it is

appropriate to allow the state to attempt to satisfy the

district court that there was a legitimate explanation for the

choices it made, and that the explanation was not pretextual.

No. 84-2474 Page 26

We agree with the Illinois Appellate Court that the reason

already given would appear to be pretextual. Below is a chart

of jurors in the order in which they were eliminated or

accepted:

ORDER OF ACCEPTANCE OR REJECTION

STATE STATE DEFENSE

CHALLENGE ACCEPTANCE CHALLENGE SEATED

(1) black male

(2) black female

(3 white male x

(4 white female x

(5 white male x

(6) black female

(7 black female x

(8 white male x

white male x

black female

white female x

white male x

black female

black female

white male x

black female

white female

black female

white female

white male x

white male x

white male

white fema‘e

white male

white male

white male x

white male x

black female

black female ’

(30) (peremptories exhausted) white female

(31) white female

(32) white female

x

WO YWIMKHWMSWHKYOW RB WIAHAUVSLWNHOM~WYYYYYYwY™

xx Kx

ee ee ee ee ee ee ee

RNNNNNNRNNRR RR RR eee ee

eee ee eee eee ee ee ee ee er

After its first challenge, every juror rejected by the state

was a black woman. At that point at which the only jurors

No. 84-2474 Page 27

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 siz 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 after the

state had exhausted its peremptories. Were we required to

Gecide the matter, we would find the state's explanation that

it sought to balance men and women extremely 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. We feel that the systematic exclusion of younger

jurors would be as pernicious as the exclusion of blacks; but

in any case, this explanation cannot by itself explain the

state's action. This explanation we would also find less than

credible.

In view, however, of the relative novelty of our holding,

we believe we must remand to give the prosecution another

opportunity to explain its actions. But we note that, on the

No. 84-2474 Page 28

present facts, a remand would be unnecessary and perhaps

undesirable in allowing the state to conjure up a rationale

having little to do with the reality at trial if a11 parties at

trial had had prior notice of today's holding. In the twenty

or so years since Swain, evidence has accumulated that, if

permitted, prosecutors are prepared to use the peremptory

challenge to exclude blacks from juries with a cynical

Gisregard for the rights of defendants to a jury drawn from a

representative cross-section; we would suppose that the

Illinois experience is more or less typical.’ Tf it

A shocking number of defendants in this State have

alleged that prosecutors used peremptory challenges to

exclude black people from the juries that convicted them:

People v. Payne (1983), 99 111.24 135, 75 Ill. Dec. 643,

457 N.E.2¢ 1202; People v, Yates, (1983), 93 111.24 502 at

540, 75 Ill. Dec. 1868, 456 N.E.2d 1369 (Simon, J.

dissenting); People v. Cobb (1983), 97 I11.24 465, 74 Ill.

Dec. 1, 455 N.E.2¢ 31; People v, Williams (1983), 97 I11.2¢

252, 73 Ill. Dec. 360, 454 N.E.24 220; People v. Bonilla

(1983), 117 Ill. App.3d 1041, 73 I11. Dec. 187, 453 N.E.2d

1322; People v. Gosberry (1983), 93 I11.24 544, 70 111.

Dec. 468, 449 N.E.2¢ 815; People v, Davis (1983), 95 I11.2¢

1, 69 Ill. Dec. 136, 447 N.E.26 353;

(1983), 112 Ill. App. 34 799, 68 Ill. Dec. 440, 445 (N.E.2¢

12983; People v. Newsome (1982), 110 I1l.App.3d 1043, 66

Ill. Dec. 708, 443 N.E.26 634; People v. Turner (1982), 110

Ill. App. 34 $19, 66 Ill. Dec. 211, 442 N.E.2d 637; People

(1982), 108 Ill. App. 34 891, 64 Ill. Dec. 401,

439 N.E.24 1066; People v, Belton (1982), 105 Ill. Appl. 3¢

10, 60 Ill. Dec. 881, 433 N.E.24 1119; People v. Dizon

(1982), 105 Ill. App. 34 340, 61 I11. Dec. 216, 434 N.E.2¢

369; People v. Gaines (1961), 88 I11.24 342, 58 I11. Dec.

795, 430 N.E.26 1046; People v, Mims (1981), 103 Ill. App.

34 673, 59 Ill. Dec. 369, 431 N.E.2¢6 1126; People v.

Lavinder (1981), 102 I11. App. 34 662, $8 I11. Dec. 301,

430 N.E.246 243; People v, Clearlee (1981), 101 Ill. App.3d

16, 56 Ill. Dec. 600, 427 N.E.2d 1005;

(1981), 100 I11. App. 34 1082, $6 Ill. Dec. 508, 427 N.E.2¢

(footnote continued on next page)

No. 84-2474 Page 29

undermines public confidence in the criminal justice system to

exclude blacks or women from the venire, does it not also

similarly undermine public confidence to place in the hands of

the prosecutor the authority to exclude all blacks from the

petit jury in those cases in which he thinks it matters? What

possible meaning can the sixth amendment's guarantee of a

representative venire have, when the prosecutor is free to

7 Continued.

840; People v. Tucker (1981), 99 I1l. App. 34 606, S4 111.

Dec. 646, 425 N.E.2¢ 511; People v. Allen (1981), 96 111.

App. 34 871, 52 Ill. dec. 419, 422 N.E.2d 100;

Bracey (1981), 93 Ill. App. 34 864, 49 I11. Dec. 202, 417

N.E.2¢ 1029; People v. Smith (1980), 91 I11. App. 34 523,

47 Ill. Dec. 1, 414 N.E.26 1117; People v. Fleming (1980);

91 Ill. App. 34 99, 46 Ill. Dec. 217, 413 N.E.2d 1330;

People v. Attaway (1976), 41 Ill. App. 34 837, 354 N.E.24

448; People v. Thornhill] (1975), 31 Ill. App. 34 779, 333

N.E.20 8; People v. King (1973), 54 Ill. 24 291, 296 N.E.2d

731; People v. Powe))] (1973), 53 Ill. 24 465, 292 N.E.24

409; People v, Petty (1972), 3 Ill. App. 3d 951, 279 N.E.24

509; People v, Fort (1971), 133 Ill. App. 24 473, 273

N.E.2¢ 439; People v, Butler (1970), 46 Ill. 24 162, 263

N.E.2¢ 89; People v, Cross (1968), 40 Ill. 2d 85, 237

N.E.26 437; People v. Dukes (1960), 19 Ill. 24 532, 169

N.E.2¢ 84; People v. Harris 1959), 17 Ill. 24 446, 161

N.E.2d 809.

People v. Payne, 457 N.E.24 1202, 1210-11 (I11. 1983) (Simon,

J. dissenting).

It 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, 445 N.E.2d 1293 (I11. App. 1983).

No. 84-2474 Page 29

Teague v. Lane, et al. -

COFFEY, Circuit Judge, dissenting. The petitioner, Frank

Teague, claims that che prosecution's use of all ten of its

1 bo exclude blacks from the petit jury in

pereaptory challenges

his case denied him his right to trial by a jury of his peers in

violation of the Sixth and Fourteenth Amendments. Teague is not

claiming that che prosecution systematically exercised its

pereaptory challenges in an effort to prevent blacks from ever

sitting on petit juries. Rather, Teague argues that the

prosecution's use of peremptory challenges to exclude blacks in

the context of the particular facts and circumstances of his case

violated his Sixth Amendment rights. As I believe the United

States Supreme Court decision in Swain v. Alabama, 380 U.S. 202

(1965), te clearly controlling in Teague's case, I dissent from

the majority's unwarranted departure from controlling legal

precedent. Furthermore, I find the arguments advanced in support

of che majority's holding to be unpersuasive.

1 Teague was charged with atteapted saurder, sppameees battery,

and armed robbery. Section 115-4(e) of the Illinois Code of

Criminal Procedure provides in pertinent part:

“A defendant ... shall be allowed 20

pereaptory challenges on a capital case, 10

in a case on which the punishment aay be

imprisonment in the penitentiary [including

attesapted surder and armed robbery], and 5

in all other cases.... The State shall be

allowed the same number of peremptory

challenges as all defendants."

Ill. Rev. Stat. Ch. 38, 115-4(e).

No. 84-2474 Page 30

eliminate all members of a certain race--not in every case,

granted (Swain prohibits that), but in every case in which it

matters?

We vacate and remand, for a hearing into the state's

explanation of its challenges and other proceedings not

inconsistent with this opinion.

No. 84-2474 ; Page 30

I.

In Swain v. Alabama, 380 U.S. 202 (1965), a black

defendant was convicted of rape in the circuit court of Taladega

County, Alabama. The prosecution in Swain exercised its

peremptory challenges to strike all six black members of the jury

venire, with the result that the petit jury that convicted the

defendant was without black representation. The defendant claimed

that the prosecution's use of peremptory challenges to exclude all

black jurors from the petit jury in his case and the prosecution's

systematic use of peremptory challenges to exclude any and all

blecks from ever serving on a petit jury in a criminal case in

Taladega County violated the Equal Protection Clause of

the Fourteenth Amendment.* In part II of che Swain decision,

the Court addressed the defendant's claims that the exclusion of

black jurors from the petit jury that convicted him violated the

Equal Protection Clause. Based on the history of the peremptory

challenge and its use and operation in this country, the Court

recognized merit in Alabama's contention that “its system of

peremptory strikes--challenges without cause, without explanation,

and without judicial scrutiny--affords a suitable and necessary

method of securing juries which in fact and in the opinion of the

parties are fair and impartial." Id. at 211-12. The Court

2 The defendant in Swain also claimed that the the systematic

underrepresentation OF Blacks on the grand and petit jury panels

in Taladega County violated the equal protection clause. In Part

I of its opinion, the Swain court concluded that the defendant

failed to carry his burden of proof on that issue, stating, "We

cannot say that purposeful discrimination based on race elene is

satisfactorily gooves by showing chat an identifiable group in the

en is underrepresented by as auch es 10%." 380 U.S. at

No. 84-2474 Page 31

outlined the history of the peremptory challenge from the days of

the common law of England to the law as it has developed in the

United States and concluded that "(tihe persistence of

peremptories and their extensive use demonstrate the long and

widely held belief that the peremptory challenge is a necessary

part of trial by jury. ... (T]he [peremptory] challenge is ‘one

of the sost important of the rights secured to the accused.'" Id.

at 219 (quoting Pointer v. United States, 151 U.S. 396 (1894)).

But the right of peremptory challenge is not limited to the

accused; the Swain court recognized that "the view in this country

has been that the system should guarantee ‘not only freedom froa

any bias against the accused, but also from any prejudice against

his prosecution. Between him and the state the scales are to be

evenly held.'" 380 U.S. at 220 (quoting Hayes v. State of

Missouri, 120 U.S. 68, 70 (1887)).

The Swain Court described the function of the peremptory

challenge as

“not only to eliminate extremes of povesel icy on

both sides, but to assure the parties that the

jurors before whom they try the case will decide

on the basis of the evidence placed before then,

and not otherwise -++ Indeed the very

availability of possaqorses allows counsel to

ascertain the possibility of bias through probing

questions on the voir dire and facilitates the

exercise of challenges for cause by removing the

fear of incurring a juror's hostility through

examination and challenge for cause."

380 U.S. at 219-20. The Court further noted, "The essential

nature of the peremptory challenge is that it is one exercised

without « reason stated, without inquiry and without being subject

to the court's control.” Id. at 220. “‘(I]t is, as Blackstone

says, an arbitrary and capricious right, and it must be exercised

No. 84-2474 Page 32

with full freedom, or it fails of ite full purpose.'" Id. at 219

(quoting Lewis v. United States, 146 U.S. 370, 378 (1892)).

With respect to the use of peremptory challenges to

exclude individuals on the basis of race or other group-related

characteristics, the Court stated:

“While challenges for cause permit rejection of

qusess on @ narrowly specified, provable, and

egally cognizable basis of partiality, the

Temaptory permits rejection for «a reai or

Tnagtned peretality that is less easily

ye mee or foe on pe lle Ie - Rng less

tly exercised on gr 6 norme

thought irrelevant to legal proceed sor

official action, namely, the race, religion,

nationality, oc tion or affiliations of

people summoned for jury duty. Yor the

= &@ prosecutor or-defense counsel sust

ecide is not whether a juror of a particular

race or nationality is in fact partial, but

whether one from a different group is less

likely to be. ... Hence veniremen are not

always judged solely as individuals for the

py se of exercising peremptory a

ther they are challenged in light of ¢

limited = - counsel has of them, which

may include their group affiliations, in the

context of the case to be tried.”

Id. at 220-21.

The Court, addressing the facts of the case, concluded:

“l\Wle cannot hold that the striking of Negroes

in a particular case is a denial of equal

a of pals ob In the quest for an

ttial and qualified ju Negro and white,

Sebesseone Pe ne subject to

being challenged without cause. To subject the

prosecutor's challenge in any particular case

to the demands and traditional standards of the

Equal Protection Clause would entail a radical

onge in the nature and operation of the

challenge. The challenge, pro tanto, would no

longer be peremptory, each a every challenge

being opened to examination, either at the cine

of the challenge or at a hearing afterwards.

In the light of the purpose of che

peremptory system and the function it serves in

No. 84-2474

a pluralistic society in connection with the

institution of jury trial, we cannot hold that

the constitution requires an examination of the

prosecutor's reasons f-~ the exercise of his

challenges in any given case. The presumption

in any particular case gust be that che

prosecutor is using the State's challenges to

obtain a fair and Tepartiel jury to try the

case before the court. The presumption is noc

overcome and the prosecutor therefore subjected

to examination by allegations chat in the case

at hand all Negroes were removed from the jury

or that they were removed because they were

Negroes. Any other result, we think, would

establish a rule wholly at odds with the

peremptory challenge system as we know ic."

Id. at 221-22.°

Page 33

Although Justice Goldberg, joined by Chief Justice Warren

and Justice Douglas, dissented from the sajority opinion in Swain,

the dissent did not take issue with the Supreme Court's sajority

holding in part II that the use of the peremptory challenge to

remove blacks from a jury in a given case did not violate the

Equal Protection Clause. Rather, the dissent contended that the

defendant had established a prima facia case of systematic

exclusion of jurors on the basis of race contrary to the

majority's conclusion in part III of the Swain opinion.

“The holding called for by this case, is that

where as here a Negro defendant proves chat

Negroes constitute « substantial segment of the

population, chat Negroes are qualified to serve

as jurors, and that none or only @ token number

has served on juries over an extended period of

time, a prima facia cese of the exclusion of

negroes from a is then made out. ... Such

a holding would not interfere with the rights

of defendants to use peremptories, nor the

3 In part III of its opinion, the court held chat che defendant

failed to carry his burden of proof of establishing « systematic

use of peremptories to exclude blacks from all pecic jurys.

“(Tjhe defendant sust, to pose the issue, show the prosecutor's

systematic use of peremptory challenges against Negroes over «

period of cine." 80 U.S. at 227.

No. 84-2474 Page 34

right of che State to use pereaptories, as they

normally and traditionally have been used.

It would not wean ... that Negroes are entitled

to proportionate representation on «@ jury.

... Nor would it sean thet where systematic

exclusion of Negroes from jury service has not

been shown, a prosecutor's sotives are subject

to question or judicial inquiry when he

excludes Negroes or any other — froa

sitting on a jury in a perticuler case. Only

where systematic exclusion has been shown,

would the State be called upon to jusitify ite

use of pereaptories or to negative the Stace s

involvement discriginatory jury selectica.

Id. at 244-45 (Goldberg, J., dissenting). Thus, not one justice

of the Supreme Court disagreed with the statement in Swain that

“we cannot hold that the constitution requires an examination of

the prosecutor's reasons for the exercise of his challenges in any

given case." Id. at 222.° ‘The Eighth Circuit in United States

v. Carter, 528 F.2d 844, 850 (8th Cir. 1975), cert. denied, 425

U.S. 961 (1976), aptly summarized that "the Supreme Court in Swain

made it clear that race or other group affiliation is in fact a

legitimate ground for challenge in an individual case."

It is crue chat Swain was decided on equal protection

grounds and chat Teague's claim is based upon the Sixth Amendment

right to a jury trial. Two recent opinions of this court reveal

that the Swain analysis is also to be applied to claims arising in

the context of the Sixth Amendment. In United States v. Clark,

737 F.24 679 (7th Cir. 1984), the defendant raised a Sixth

Amendment challenge to the prosecutor's use of peremptory

challenges to exclude blacks from the petit jury thac convicted

her. Although the court did not reach the issue of whether the

4 Justice Black concurred in the resule without filing an

opinion.

No. 84-2474 Page 35

Swain analysis is valid for Sixth Amendment claims, we noted with

approval that “most courts have concluded that Swain is still good

law fully applicable to federal as well as state trials." 737

F.2d at 682. We also noted that “several practical considerations

support the majority approach." Id. In United States ex rel.

Palmer v. DeRobertis, 738 F.2d 168 (7th Cir.), cert. denied, 105

$.Ce. 306 (1984), the petitioner, a black, contended that “he was

denied his right to «a trial by en impertial jury ... by the

prosecution's peremptory challenge of blacks, with the result chat

no meaber of the jury belonged to his race." Id. at 171. The

district court held that the petitioner's failure to comply with

state procedural rules waived his right to raise the issue in «a

habeas corpus proceeding absent a showing of the cause for and the

prejudice resulting from the procedural default. In determining

whether che petitioner was prejudiced by the waiver, we concluded,

“This case is controlled by Swain and its progeny." 738 F.2d at

172. =

With the sole exception of the Second Circuit, the United

States Courts of Appeals that have addressed the validity of Swain

in the Sixth Amendment context have concluded that the

prosecution's alleged use of peremptory challenges along racial

lines in the selection of a petit jury does not deprive a

defendant of the Sixth Amendment right to a trial by a jury. See

United States v. Thompson, 730 F.2d 82, 85 (8th Cir.), cert.

denied, 105 $.Ct. 443 (1984); Prejean v. Blackburn, 743 F.2d 1091,

1103-04 (Sth Cir. 1984); United States v. Whitfield, 715 F.2d 145,

146-47 (4th Cir. 1983); Weathersby v. Morris, 708 F.2d 1493, 1497

(9th Cir. 1983), cert. denied, 104 §.Ct. 719 (1984); cf. Willis v.

Zant, 720 F.2d 1212, 1219 n.14 (Jlth Cir. 1983), cert. denied, 104

No. 84-2474 Page 36

S.Ct. 3546 (1984). Moreover, in 1983 the Supreme Court declined

to grant certiorari in a case that presented the Court with an

opportunity to re-exemine whether the Swain analysis is applicable

in the context of the Sixth Amendment. McCray Vv. New York, 103

$.Ct. 2438 (1983) .°

From ay research to date, I note that only the Second

Circuit in McCray v. Abrams, 750 F.2d 1113 (1984), petition for

cert. filed, 53 U.S.L.W. 3671 (U.S. Mar. 4, 1985) (No.

84-1426) ,° has departed from the Swain analysis in holding chat

the prosecution's use of peremptory challenges to exclude all

blacks from the petit jury in a given case violates a defendant's

Sixth Amendment right to trial by jury. But the precedential

value of McCray is suspect due to the state's concession in that

case that the exercise of peremptory challenges to exclude

potential jurors from a petit jury solely on the basis of race

5 Justice Marshall, joined by Justice Brennan, dissented from

the denial of certiorari on the ground that "Swain was decided

before this Court held that che Sixeh Amendmefit applies to the

states through the Fourteenth Amendment ... [and] should be

reconsidered in light of Sixth Amendment principles established by

our recent cases." 103 S.Ct. at 2441 (Marshall, J. dissenting).

Justice Stevens’ opinion denying certiorari, joined by Justices

Blackmun and Powell, chm. ‘edged the importance of che issue, but

concluded that the * preae C-urt should allow the States to serve

as “laboratories ir which che issue receives further study before

ic is addressed by sis Court " 103 S.Ct. at 2439 (Stevens, J.).

6 Following the Sup*ese Cor rt's denial of certiorari in McCrae

v. New York, 103 S. Ce. 2458 (1983), McCray filed a petition for

Rabeas corpus reiief in the district court. The district court,

relying on the opinions accompanying the Supreme Court's denial of

McCray's petition for certiorari, concluded that Swain v. Alabama

was no longer good law and granted McCray's petition. McCray v.

Abrams, 576 F. Supp. 1244 (E.D.N.Y. 1983). The state appealed.

No. 84-2474 Page 37

viclates the Sixth and Fourteenth Amendments,’ id. at 1114,

with the result chat the issue of whether a potential pecit juror

may be peremptorily challenged on the basis of race was never

raised, discussed, much less argued, before the Second Circuit

panel chat decided McCray. Furthermore, one of the reasons given

by the McCray court in rejecting the Swain analysis was the McCray

court's belief that whites are not subject to being peremptorily

challenged on racial grounds .® Without any supporting

documentation or data, McCray posited that “as a practical matter,

the prosecution does not peremptorily exclude whites ssp) -

because they are whites." 750 F.2d at 1121. This premise was

contradicted in Roman v. Abrams, 608 F.Supp. 629 (D.C.N.Y. 1985),

one of the first reported district court decisions applying

McCray, where the districr court held that the prosecution's use

of its eleven peremptory challenges to exclude whites from the

jury chat convicted a white defendant established a prima facia

case that che white jurors were excluded solely because of their

race. Id. at 642. Thus, McCray cannot reasonably be construed as

authority for the proposition chat the exercise of peremptories on

the basis of race in the selection of petit juries violates the

7 The state contended that che petitioner had not established a

prima facie case chat the prosecution used its peremptories to

exclude blacks solely on the basis of race, and that if a prima

facie case was esteblished, che state was encitled to an

graqoastory Neersag to rebut the prima facie case. McCray, 750

. ac .

8 the Supreme Court in Swain reasoned to the contrary and in

fact stated that “in che quest for an impartial and qualified

jury, Negro and white, Protestant and Catholic, are alike subjecc

to being challenged without cause."' 380 U.S. at 221.

No. 84-2474 Page 38

Sixth and Fourteenth Amerdments since that issue was never raised

or discussed, auch less argued, before the court and sore

importantly it was based in part on an unfounded premise that

peremptory challenges are not used to exclude whites from petit

juries because of their race.

The majority's excursion into constitutional

decisionmaking contrary to the mandates of the nation's highest

court is unwarranted in light of the precedent in Swain, the

decisions in this and other circuits affirming the validity of

Swain in the Sixth Amendment context, and the Supreme Court's

refusal to reevaluate Swain in its denial of certiorari in McCray

v._ New York. This court sits "on the shores of Lake Michigan

rather than che banks of the Potomac," Vail v. Board of Education

of Paris Union School District No. 85, 706 F.2d 1435, 1445 (7th

Cir. 1983) (Eschbach, J., concurring), aff'd 466 U.S. 377 (1984),

and consequently we “must follow the decisions and interpretations

of our highest court in spite of any individual predilections” we

individually might possess. United States v. Chase, 281 F.2d 225,

229 (7th Cir. 1960). “Needless to say, only [the Supreme Court}

may overrule one of its precedents." Thurston Motor Lines v.

Jordan K. Rand, Led., 460 U.S. 533, 535 (1983) (per curiam).

The majority attempts to justify its departure from the

bending precedent in Swain by construing Justice Stevens’ opinion

denying certiorari in McCray v. New York, 103 S.Ct. 2438 (1983),

somehow as an invitation to federal courts to address the validity

of Swain in the Sixth Amendment context in spite of the opinion's

limited and exclusive reference to the States. Justice Stevens

stated, "|I]t is a sound exercise of discretion for the Court to

No. 84-2474 Page 39

allow the various States to serve as laboratories in which the

desue receives further study before it is addressed by this

Court." 103 $.Ct. at 2439 (Stevens, J.) (emphasis added).

Justice Stevens’ limiting language absolutely expresses no such

invitation to federal courts. After recognizing the important

“gubstantive and procedural ramifications of the problem,” id. at

2438, the opinion acknowledged that as of that date only two

States out of fifty had ruled that a criminal defendant's rights

under their respective state constitutions were violated in

certain circumstances by the prosecutor's use of peremptory

challenges to exclude members of cognizable groups from petit

juries. Justice Stevens noted that the procedural and substantive

issues associated with judicial review of peremptory challenges

were being litigated in the States of Massachusetts and

California. Thus, despite Justice Stevens limited “invitation” to

the states, the majority grasps the gauntlet and charges forward

to interpret Justice Stevens’ opinion, along with the dissent froa

the denial of certiorari of Justice Marshall, joined by Justice

Brennan, somehow as evidence that five justices have “effectively

urged the lower courts to consider the issue." In contrast to the

majority's conclusion, but consonant with Justice Stevens’

reasoning and the Supreme Court's refusal to reconsider the

constitutionality of the Swain analysis in the Sixth Amendment

context, I as convinced that we must follow the Supreme Court's

ruling and reasoning in Swain and exercise the proper respect and

discretion due the United States Supreme Court and allow our

nation's highest Court the opportunity to observe, review and

evaluate the experiences of State courts as they interpret their

No. 84-2474 Page 40

respective State constitutions .?

II.

Not only is the majority's holding in this case an

unwarranted departure from valid and sound precedent, but the

rationale advanced by the majority to support its holding is

unpersuasive. The majority asserts that “the problems arises in

the first place out of the clash between two devises, both

intended to secure the impartiality of the jury ...: the

peremptory challenge and the requirement of representativeness in

the jury pool.” Initially, it is obvious that there is no direct

conflict between the two devices, as peremptory challenges only

come into play during the selection of the petit jury, after «a

jury pool has been drawn and selected for a particular trial.

Thus, the peremptory challenge does not “clash” with the right of

a defendant to have his jury drawn from a representative jury

pool. The majority manufactures a clash between the peremptory

challenge and the requirement of representativeness in the jury

pool only by extending the cross section requirement beyond the

parameters of the area of concern delineated in the decisions of

the Supreme Court.

In Taylor v. Louisiana, 419 U.S. 522 (1975), the

Supreme Court held chat the systematic exclusion of women from

the jury pool denied che defendant his right to trial by an

impartial jury drawn from a venire representing « cross-section of

% Since the Supreme Court has granted certiorari in Batson v.

Kentucky, 105 S.Ct. 2111 (1985), @ case presenting the issue of

whether the Swain analysis applies in the Sixth Amendment context,

the majority”s attempt to predict the Supreme Court's ruling on

the issue is nothing gore than needless and unwarranted

speculation.

No. 84-2474 Page 41

the community. Id. at 535-36. The Court emphasized:

"“|Wjle impose no requirement that petit juries

actually chosen must wirror the community and

reflect the various distinctive groups in the

population. Defendants are not entitled to «

jury of any particular composition, ... but the

ury wheels, pools of names, panels, or venires

tom which juries are drawn sust not systemaci-

cally exclude distinctive groups from the

community and thereby fail to be reasonably

representative chereof."

Id. at 538. Taylor focused on two facets of the jury selection

process not present in the case before us. First, the Court

required that a fair cross-section of the community be represented

on jury venires and pools, but not on the specific petit jury

selected for a particuler case. '° Second, the fair cross-

section requirement prohibits only the systematic exclusion of ©

prospective jurors from the entire pool or venire--that is the

exclusion of jurors that is “inherent in the particular jury

10 Ic has been su gested chat the Court's refusal to extend the

cross-section scquiencat to a petit jury can be explained by

several factors. First, the process of random selection aay

result in the under- or overrepresentation of particular groups on

a venire and the removal of jurors for cause likewise say result

in the under- or overrepresentation of a group on a petit jury in

a given case. Second, the requirement that specific groups be

represented on any given petit jury would entail tremendous

administrative preblens; ta each case, the trial court would be

called upon to examine the race, nationality, religion,

occupation, and other characteristics of members of the community

in relation to the facts and circumstances of the case on trial

and determine which groups of the population were relevant, ard

thus essential to the composition of each and every petit gery

See Saltzburg & Powers, Peremptory Challenges and the Clas

Between Impartiality and ~Rev. 337,

No. 84-2474 eas 60

selection process used." Duren v. Missouri, 439 U.S. 357, 366

(1979) 22 Thus, the majority is absolutely correct in asserting

“(T)his requirement of representativeness does not extend directly

to the petic jury; no defendant has the right to « trial jury chat

reflects che aake-up of the community." But the majority, in order

to reach a desired result, confuses the issue of the jury pool

requirement and attempts to expand the cross-section Tequirement

into the selection of the petit jury as Teague does not claim that

the pool from which his jury was drawn failed to contain « fair

cross-section of the community; his quarrel is with only the

make-up of the petit jury (12 jurors plus 2 alternate jurors) chat

heard his particular case. Nor does Teague claim that it was

common practice in Cook County, Illinois, tc systematically

exclude blacks from all petit juries. His claim is confined to

the context of his specific trial. Thus, the holdings in Taylor

and Duren that members of a cognizable group may not be

systematically excluded from the jury venire or pool do not

provide the appropriate means for analyzing Teague's claim that

the use of peremptory challenges to exclude all blacks from his

pectic jury violated his Sixth amendnent right to trial by jury.

The majority seeks to expand and enlarge upon the

reasoning of Taylor by discussing Williams v. Florida, 399 U.S. 78

11 75 order to establish a prima facia violation of the fair-

cross-section requirement, the defendant must show (1) chat the

gtoup elleged to be excluded is a ‘distinctive’ group in the

community; (2) chat che representation of this group in venires

from which juries are selected is not fair and reasonable in

relation to the number of such persons in the community; and (3)

that this underrepresentation is due to systematic exclusion of

the group in the jury-selection process." Duren v. Missouri, 439

U.S. 357, 364 (1979). a:

No. 84-2474 Page 43

(1970), and Ballew v. Georgia, 435 U.S. 223 (1978). In Williams

the Supreme Court held that six person juries in state criminal

trials were constitutional under the Sixth and Fourceenth

Amendments. Eight years later in Ballew the court held chat five

person juries in state criminal trials were unconstitutional. The

majority asserts that in deciding Williams and Ballew, the Supreme

Court was “guided by the need to draw a line that would preserve

the possibility of a representative jury." Yet, while Williams

and Ballew pertain specifically to the composition of petit

juries, when viewed in the proper context, they ailitate against

the holding of the majority: the six person jury approved in

Williams certainly does not guarantee that the jury will coneist

of a representative cross-section of the community. The Court in

Williams stated:

"LE)ven the 12-man jury cannot insure

representation of every distinct voice in the

community, particularl iven the use of the

remptory challenge. As 8 tary

eetustoue Of a particular clase from che jury

rolls are forbidden, ... the concern chat the

cross-section will be significantly diminished if

the jury is decreased in size from 12 to six seems

an unrealistic one."

399 U.S. at 102 (emphasis added). The Court nevertheless

recognized in Ballew, “(T]he opportunity for meaningful and

appropriate representation does decrease with che size of the

panels.” 435 U.S. at 237. Thus, it can hardly be doubted that

the mathematical probability of obtaining a representative

cross-section of the community is reduced when a jury is chosen

consisting of six rather than twelve jurors. Notwithstanding the

Court's recognition that smaller juries counteract the goal of

meaningful and appropriate representation on the petit jury, the

=. 84-2474 Page 44

Court in Ballew refused to retreat from its holding in Williams.

The Supreme Court thue recognized that merely decreasing che

possibility of obtaining a fair cross-section of the community on

the pectic jury does not violate the Sixth Amendment right to a

trial by jury. Similarly, the right co the unrestrained exercise

of peremptortes in the context of the facts and circumstances of «

particuler case may decrease the possibility of obtaining a« truly

representative petic jury in a given case, but does not violate

the Sixth Amendment right to a jury trial where the pereapctories

are not exercised systematically to exclude a cognizable group.

The majority etates: “It would be odd if the right to «a

representative jury pool did not reach, in some way or other into

the triel jury. ..." The majority thus implies in their

condemnation of the peremptory challenge that the requirement of a

fair cross-section on the jury venire or pool is meaningless if

the prosecutor can use his peremptory challenges to exclude a

member of a cognizable group from the petit jury in a given

trial. However, the free and unrestrained exercise of the

peremptory challenge does not eliminate che effect of

represenctativeness in the jury pool. Judge Garwood cogently noted

the beneficial effect of requiring representativeness in the jury

pool despite the fact that individual jurors might be excluded

from the petit jury by means of peremptory challenge:

“Exclusion from the venire summons process

implies chat che ee yo (usually che

legislative or judicial branch) in ite capacity

as che neutral etructurer of the overall

justice ayenes has generally determined chat

those excluded are unfit to try any case.

Exercise of the peremptory eet ot: by

contrast, represencs che discrete decision,

made by one of two or more opposed litigants in

No. 84-2474 Page 45

the trial phase of our adversary systea of

justice, that the challenged venireperson will

be sore unfavorable to chat litigant in that

articuler case, than che others on the same

venire. =

Thus, excluding a particular cognizable

eu from all venire pools is stigmacizing and

iscriminatory in several interrelated ways

that the peremptory challenge is not. The

former singles out the excluded group, while

individuals of all groups are equally subject

to peremptory challenge on any basis, includin

their = affiliation. Further, venire-poo

exclusion bespeaks «a priori across-the-board

total unfitness, while pereaptory-strike

exclusion merely suggests potential partiality

in a particuler Leotated case. Exclusions fro

venires focuses on the inherent attributes of

the excluded group and infers its inferiority,

but the peremptory does not. To suggest chat «

particular race is unfit to judge in any case

necessarily is racially insulting. To suggest

that each race aay have own special

concerns, or even may tend to favor its own, is

not. For instance, it says nothing adverse, or

either truly racial, about blacks to infer chat

they may be more likely to have greater

antipathy to the Klu Klux Klan chan whites.”

United States v. Leslie, 759 F.2d 366, 392, reh'g granted, 761

F.2d 195 (Sth Cir. 1985)!* (Garwood, J., dissenting) (emphasis

original).

Commentators have also noted that the quirement that

12 In United States v. Leslie, 759 F.2d 366, reh'g granted, 761

F.2d 195 (SEN Cir. 1985), the Fifth Circuit exareteee Tee

supervisory power over federal district courts and federal

prosecutors to conclude that "the federal prosecutor's ... right

to employ peremptory challenges without review must yield on chose

cases where the defendant can establish chat che prosecutor

misused those challenges and engaged in invidious racial

discrimination." 759 F.2d at 374. But the court specifically

stated, "(Wje ... need not and therefore do not consider whether

the prosecutor's conduct in this case violated any of Leslie's

constitutional rights." Id. As discussed below, an examination of

the record in this case discloses that the prosecutor in Teague's

case did not engage in invidious racial discrimination, but

exercised his judgment based upon his experience and knowledge to

exclude those jurors who, as revealed in voir dire questioning

would in his bese judgment be unable to be fair and impertial {n

the context of the specific facts and circumstances of Teague's

case.

No. 84-2474 Pege 46

jury pools represent a fair cross-section of the community has an

impact on the petit jury notwithstanding the free exercise of

preemptory challenges. For example:

“ The effects of eliminating an individual

from a jury by the peremptory are also

sufficiently unlike those of eliminating the

same individual by exclusion from the jury pool

that the simple rationale of Taylor does not

apply. A venire member who i enged

ereaptorily still has some effect on the ...

ct of the jury simply by being on the

venire, and hence is unlike an ividual who is

eliminated prior to that point. For example, if

the formerly excluded women who are added to the

jury venire after Taylor (are sore likely to

convict] than any suker venire members, they

will be challenged by che defense in place of

the next least conviction-promoting venire

senbers, who otherwise would have been

removed. Thus, the [likelihood of conviction)

will rise, even though the newly included women

are removed by the peremptory.”

Note, Peremptory Challenges and the Meaning of Jury

Representation, 89 Yale L.J. 1177, 1192 (1980); see also Saltzburg

& Powers, supra at 360. e

The majority also contends chat the defendant may not

have the benefit of the prosecutor's concern to bring only

well-supported cases into court if the prosecutor knows he can

exclude all of the members of a cognizable group by means of the

peremptory challenge, “for the prosecutor will know that che

defendant's group will not be represented [on the petit jury), and

that he can count to some extent upon the prejudice of the

commjunity."" I do not agree. Initially, the record is barren of

any community prejudice towards Teague, the defendant in this

case. The majority assumes, without providing any supporting

evidence, that a black defendant is subject to prejudice in Cook

County, Illinois. I note that Cook County had a significant

No. 84-2474 — Page 47

number of blacks in the population providing « supply of potential

black jurors to establish an appropriate balance in the jury pool

at the cime of Teague's trial «as the population of Cook County was

approximately 252 black. Thus, the majority cannot, without

factual support, brazenly conclude that Teague, as a black, was

subject to community prejudice in the adainistration of justice.

Second, when @ prosecutor decides to bring « defendant before the

bar of justice and issues an indictment or an information, he has

no way of knowing the composition or sake-up of the particuler

jury pool from which the petit jury will be selected. Without

euch knowledge, the prosecutor cannot predict whether the number

of pereaptory challenges he is allowed will permit hia to exclude

all t'e smembers of the group or segment of society he wishes to

exclude. For example, in Teague's case, the prosecutor had ten

preemptory challeages; 36 prospective jurors were examined on voir

dire before the petit jury was accepted and 4 of the prospective

jurors were excused for cause. When the prosecutor brought

Teague's case to trial, he could in no way predict that only 11 of

the 32 prospective jurors not excused for cause would be black,

thus allowing him to exclude all but one black juror (the defense

exercised one of its peremptories to exclude the remaining

black). Had random selection produced a jury pool containing 20

blacks rather than 11, the prosecutor would have been unable Co

exclude all blacks from the jury--if in fact, as the majority

assumes in this case, the prosecutor desired to exclude all

blacks. Judge Garwood aade a similer observation:

“(T]he general exclusion from venire pools

allows the prosecutor (and the potential

defendant as well) greater ability to predict,

in advance of the decision to prosecute, the

No. 84-2474 Page 48

composition of the jury which will try the

case. If no cognizable group is excluded from

the venire formation process, the decision to

prosecute (or to commit an offense) normally

cannot be sade with assurance that any given

group will noc be so represented on che

perticular venire from which che trial jury

will be drawn that it cannot be eliminated by

peremptory challenges (or can be eliminated

only at unacceptable costs in cerms of other

peresptories foregone)."

Leslie, 759 F.2d at 393 (Garwood, J. dissenting). Thus, the free

and unrestrained exercise of peremptory challenges does not

eliminate the possibility of obtaining a truly representative

trial jury. So long as the jury pool contains a fair

cross-section of the community, the possibility of obtaining «

Tepresentative trial jury remains regardless of how either party

exercises its peremptory challenges. Thus. I am in agreement wien

the majority when it ecates, "[A)lthough the sixth amendment does

mot guarantee a representative trial jury, it does guarantee the

possibility of « representative jury."' But as explained above,

the exercise of pereaptory challenges does not eliminate the

possibility and/or probability of a representative petit jury.

Further, the majority asserts:

“Knowledge that blacks could be excluded at will

by prosecutors trying black defendants ... would

lead to cynicism among blacks in regard to the

jury system. The importance of « general

confidence in the accuracy of the penal

System--confidence chat che guilty cend to be

convicted end the innocent tend to be

acquitted--should noc be underestimated; such

confidence is crucial to the deterrent effect

puniashwenct aust heave. We do not increase

general respect for che law siaply by making it

easier to get convictions; and we cannot

increase the respect a certain group has for the

law by simply waking it easier to convict

wesbers of that group.”

Once again the sajority has sade bold, unsupported, and

No. 84-2474 Page 49

unwarranted assumptions concerning the functioning of our

criminal justice system. Initially, the majority focuses on the

"deterrent effect" of punishment, but the primary aia of

punishment is not at members of society at large or members of «a

convicted defendant's racial or ethnic group; rather punishment is

aimed primarily at deterring the convicted criminal from

committing further crimes and second at deterring others frosa

committing like crimes. Our goal is to ensure that each accused

receives a fair and iapartial trial, and as discussed below the

use of the peremptory challenge furthers rather than hinders the

selection of a fair and impartial jury in any given case. Second,

the majority assumes that the exercise of peremptory challenges

"make(er) it easier to get convictions” without any statistical

data or factual information to support the premise. Such

unsupported suppositions hardly provide an adequate basis for che

radical departure from the recognized and binding precedent in

Swain suggested by the majority.

The majority's analysis ignores the fact that che

peremptory challenge is an essential tool not only to the

prosecutor, but to the defendant as well, in their combined effort

to obtain « fair and impartial pecit jury in their search for the

truth of the facts presented and ultimate justice for all. The

"system of peremptory (challenges)--challenges without cause,

without explanation, and without judicial scrutiny--affords a

suitable and necessary sethod of securing juries which in fact and

in the opinion of the parties ere fair and impartial.” Swain, 380

U.S. at 211-12. And the peremptory challenge "'is, as Blackstone

says, an arbitrary and caricious right, and it must be exercised

No. 84-2474 Page 50

with full freedom, or it faile of its full purpose.'" Id. at 219

(quoting Lewis v. United States, 146 U.S. 370, 378 (1892)). The

Sixth Amendment literally provides, "in all criminal prosecutions,

the accused shall enjoy che right to a speedy and public trial, by

an impartiel jury." (emphasis added) “In essence, the right to «

jury trie. guerantees to the criminally accused a fair trial by «

penel of impartial, ‘indifferent’ jurors." Irvin v. Dowd, 366

U.S. 717, 722 (1961) (emphasis added). Although che Sixth

Amendment provides protection only for the defendant, if we

believe chat the American system of justice is based on the

premise that a jury triel is « search for the truth, we must

acknowledge that both sides are entitled to an impartial jury.

Thus, courts have recognized that "(Tjhe state also enjoys the

right to an impartial jury." Spinkellink v. Wainwright, 578 F.2d

582, 596 (Sth Cir. 1978), cert. denied, 440 U.S. 976 (1979).

“"[Tj)he system should guarantee ‘not only freedom from any bias

against che accused, but also from any prejudice against his

prosecution Between him and the State, the scales are to be

evenly held.’ Swain, 380 U.S. at 220 (quoting Hayes v. State of

Missouri, 120 U.S. 68, 70 (1887)); Spinkellink, 578 F.2d at 296.

Both the peremptory challenge and the requirement of a

representative venire advance che constitutional goal of obtaining

a fair and impartial jury in che undying quest and search for

justice. And ic may be that the requirement chat « jury venire or

pool represent a fair cross-section of the community in fact

increases the necessity of employing peremptories to obtain an

impartial pectic jury. “In contrast to the course in England,

where both peremptory challenge and challenge for cause have

No. 84-2474 Page 51

fallen into disuse, peremptories were and are freely used and

relied upon in this country, perhaps because juries here are drawn

from a greater cross-section of a heterogeneous society." Swain,

380 U.S. at 218 (emphasis added). The Swain court acknowledged

that the "peremptory chellenge is a necessary part of trial by

jury." Id. The Court recognized that the challenge for cause

alone is insufficient to assure che impartiality of the jury in «

given case. "While challenges for cause permit rejection of

jurors on « narrowly specified, provable and legally cognizable

basis of partiality, the peremptory challenge permits rejection

for a real or imagined partiality that is less easily designated

or demonstrable." Id. at 220. Commentators have likewise noted

the shortcomings of the challenge for cause:

"(Challenges for cause) depend upon the juror's

admitting actual bias or grounds for implied

bias. Some jurors will intentionally deceive the

court, perhaps because they are ashamed to admit

attitudes that are socially unfashionable or even

because they might welcome the chance to seek

retaliation against a litigant. Other jurors

simply are not aware of their prejudices or

underestimate the impact of their biases on their

ability to weight the evidence.”

Babcock, Voir Dire: Preserving “Its Wonderful Power," 27 Stan. L.

Rev. 545, 544 (1975); see also Saltzburg & Powers, supra at 356

("The detection of subconscious bias is too intuitive and

subjective to justify a judicial pronouncement that a juror is

unable to render an impartial judgmenct."'). Thus, courts have

found it proper to exercise a peremptory challenge to exclude a

juror who could uot be dismissed for cause in the context of «

given trial. See Dobbert v. Strickland, 718 F.2d 1518, 1524-25

(lich Cir. 1983); Jordan v. Watkins, 681 F.2d 1067, 1070 (Sth Cir.

1982).

No. 84-2474 Page 52

In addition to providing for the exclusion of jurors

- whose bias may not be able to be discovered on voir dire, the

peremptory challenge frequently facilitates che exercise of «a

challenge for cause to the ultimate satisfaction of the parties

and the relief of potentially embarrassed jurors. We must not

forget that thorough and exhaustive questioning on voir dire,

although not always establishing « basis for removal for cause,

oft times alienates a juror to such « degree that it is necessary

for the good of all concerned to strike that juror pereaptorily.

Without having the peremptory challenge to fall back on, counsel

will have to be auch gore circumspect and timid in voir dire

questioning to avoid alienating a juror and thus may be less

effective in discovering a prospective juror's bias and ultimately

less successful in fulfilling the underlying goal of obtaining a

fair and impartial jury. See Babcock, supra at 555. In this

vein, the Court in Swain noted, “the very availability of

peremptories allows counsel to ascertain the possibility of bias

through probing questions on the voir dire and facilitates the

exercise of challenges for cause by removing the fear of incurring

@ juror's hostility through examination and challenge for cause."

Id. at 219-20. Consequently,

"(eyJhe function of the challenge is not only to

eliminate extremes of partiality on both sides,

but to assure che parties chat che jurors before

whom they try the case will decide on che basis

of the evidence proces before chem, and not

otherwise. In this way che peremptory satisfies

the rule chat ‘to perform its high function in

the best way “Juecice must satis the appearance

of justice." 349 U.S. 133, 136 (1955).'"

Swain, 380 U.S. at 219 (quoting In re Murchison, 349 U.S. 133, 136

(1955)).

No. 84-2474 Page 53

In selecting a petit jury for a specific case, the

exercise of the peremptory challenge is merely "the tactical

determination of one contesting litigant's counsel that the

challenged person is, under the discrete facts of that particular

case, gore likely to favor the other side." Leslie, 759 F.2d at

392 (Garwood, J. dissenting). As Saltzburg & Powers observed:

“Parties ... are faced with a particular case,

specific evidence, and «a designated group of

jurors from which to pick. y want

individual jurors who will be fair to chem and

thus they seek a proxy, whether race or

something else, that relates to the specifics

of their case. The proxy aust be helpful in

my partiality, not generally, but in a

very specific context.

Saltzburg & Powers, supra at 360. According to the Supreme Court,

peremptory challenges may be

“exercised on ery normally thought

irrelevant to legal proceedings or official

action, namely, the race, religion,

nationality, occupation or affiliations of

people summoned for jury duty. For the

qeaessee @ prosecutor or defense counsel aust

ecide is not whether a juror of a particular

race or nationality is in fact partial, but

whether one from a different group is less

likely to be.... Hence veniremen are not always

judged solely as individuals for the purpose of

exercising peremptory challenges. Rather chey

are challenged in light of the limited

knowledge counsel has of them, which may

include their group affiliations, in the

context of the case to be tried.”

380 U.S. at 220-21. Consequently, “an attorney has not only e

right but an obligation to challenge «a prospective juror who may

be biased, even if the basis of her belief is « broad

generalization, which gay not in fact be true." McCray v. Abrams,

750 F.2d at 1138 (Meekill, J., dissenting) (emphasis original).

Thue, to further the constitutional goal of obtaining « truly fair

No. 84-2476 Page 54

and impartial jury to the best of his ability, « prosecutor or «

defense attorney may at cimes take race or other group

characteristics into account when he exercises a peremptory

challenge in the context of the specific facts and circumstances

of the particular case being tried. An attorney may well be

subject to malpractice litigation if in fact he fails to take all

relevant factors in the context of the case on trial into

consideration when exercising peremptory challenges.

The majority asserts that, because of the perceived clash

between pereaptory challenges exercised in the course of selecting

@ pectic jury and the requirement of representativeness in the jury

pool, we gust choose whether it is the pereaptory challenge or the

requirement of representativeness chat must give way. But such a

choice is not necessary. The majority goes out on an unsupported

limb and estates, “(I)f we were to insist on preserving the

peremptory challenge as ic is, immune to objection in any given

case, the constitutional goal of representativeness would be

thwarted entirely." As discussed above, the use of peremptory

challenges in any particular case does not and cannot logically

thwart the constitutional goal of representativeness, and we know

of no Supreme Court case or recognized legal treatise that has

ever held chat the constitutional requirement of a representative

cross-section reaches the petit jury in «a particuler trial. In

fact, the case holdings are to the contrary as the Suprese Court

has wisely and clearly mandated “defendants are not entitled to «

jury of any particular composition.” Taylor, 419 U.S. at 538.

Thus, only by expanding and enlarging upon the cross-section

requirement of the jury pools and venire can the sajority clais

No. 84-2474 Page 55

that the peremptory challenge interferes with che constitutional

goal of represencativeness.!?

The majority further contends that an aggressive

prosecutor would “pass up the opportunity to eliminate blacks in

the trial of a black only if he chinks it would do him no good,

and thus blacks would be assured of the chance to have blacks on

their jury only when it would make no difference." This

asevaption is nothing sore than « gratuitous comment, purely

specious, untrue, and again without any factually documented

support. The majority iteelf recognizes that “the peremptory

challenge allows each side to eliminate jurors it suspects, for

reasons it cannot articulate, or for reasons thac do not reach the

level of cause, of being partial to the other side." An ,

aggtese ve prosecutor would thus use the peremptory challenge to

exclude from the petit jury only those jurors he perceives to be

partial to the defendant and aggressive defense counsel would

peremptorily challenge those particular jurors he perceives to be

partial to the prosecution. Accordingly, if a black defendant is

13° the majority's reliance on the recent Sixth Circuit decision

in Booker v. Jabe, No. 83-1136 (6th Cir. October 24, 1985) is

suspect. The Sixth Circuit in the Booker decision and the

majority in this case fail to make EN@ Critical distinction

between the Sixth Amendment as it applies to the selection of

members for the jury pool and the Sixth Amendment and the role of

the peremptory challenge in selecting an impartial jury. Further,

as in McCray, the prosecutor in Booker did not challenge the

finding that he exercised his =. challenge on the basis of

race to exclude blecks from the jury. In fact, the prosecutor

noted that the resec he struck the black jurors from the pectic

jury was because che defense was using its peremptory challenges

to strike all white jurers from che Jury panel. Thus, I question

the aajoricy's cheracterizacion of t ooker decision as

employing a "stander? (chat) is subsetantlelly idencicel to our

own..."' Majority opinion act 9, a.5

:No. 84-2474 Page 56

on trial, the prosecutor would exclude a juror only if he

perceived in the exercise of his best reasoned judgment, chat che

particular juror, white or black, would be parcial to the

defendant. The sajority is once again guilty of making a bold

unsupported statement in assuming that a prosecutor would always

perceive black jurors to be the most partial towards a black

defendant and denies reality and the facts of life. "(Flor

instance, if a bleck college student is being tried in a draft

registration case, the prosecutor may prefer to challenge a white

social worker rather than a black veteran." McCray, 750 F.2d at

1138 (Meskill, J., dissenting) .** The majority has also failed

to provide any statistical data chet has stated, much less proven,

that a white juror is more likely co convict a black defendant

than a black juror, or that a black juror is more likely to

convict a white defendant than a white juror. Further, the

majority has ignored the fact that the impact of the oath

14 Saltzburg & Powers suggees that the peremptory challenge

incorporates an internal check against ..e misuse of peremptories.

“(A) party who insists on challenging pyeeee on the basis

of questionable stereotypes increases his chances of

removing friendly jurors and decreases his opportunitites

for pen, Bx toe more biased veniremen, thus reducing the

possibility of success act trial. If assessments of a

juror's prejudices based on group affiliation is

accurate, however, then counsel has exercised the

challenge as it was intended--to remove the most partial

jurors.

There are real opportunity costs, then, in exercising

peremptory challenges for the wrong reasons. Those who

strike jurors on grounds of race or sex or some other

classification chat is not « very — proxy for bias

miss opportunities for more selective strikes and thus

sick having « jury chec is noc as impartial es it might

e.

Saltzburg & Powers, supra act 365.

No. 84-2474 Page 57

administered to jurors ise the same whether the juror be black or

white. Nothing suggests chat a white is any less sincere chan 4

black, or that a black is any less sincere or dedicated than «@

white when the particular juror swears under oath that he will be

fair and impartial and will only decide the facts of the case on

the basis of the evidence presented in open court and the law as

presented in the jury instructions. I believe it ie unfair to

assume, and there is no basis for believing chat the racial

make-up of the jury in this case in any way affected the

defendant's constitutionally guaranteed right to a fair and

impartial jury.

Since the "clash" between the peremptory challenge and

requirement of representativeness perceived by the sajority is

based upon an unwarranted and expansive interpretation of the fair

cross-section requirement and unfounded conjecture concerning the

prosecutor's use of peremptory challenges in « given case, there

ig no need to choose between one or the other. As noted above,

the peremptory challenge and che fair cross-section requirement

are both necessary safeguards employed in reaching the ultimate

constitutional goal of obtaining «a fair and impartial jury ine

given case in our never-ending search for the truth and ultimate

justice in the American judicial systea.

Further, even if a choice between the peremptory

challenge and the fair cross section requirement is necessary, it

need not be the peremptory challenge chat yields. In Swain, the

Court quoted the often cited language of Stilson v. United States,

250 U.S. $83, 586 (1919), chat “(c]here is nothing in the

Constitution of the United States which requires the Congress {or

No. 84-2474 Page 58

the States) to grant peremptory challenges." 380 U.S. at 219

Yet the Swain court found the peremptory challenge to be so

entwined with the concept of a fair jury trial that it upheld the

unrestrained use of peremptory challenges in any given case

ageinet a claim that such use of the peremptory challenge violated

the Equal Protection Clause of the Fourteenth Amendment. The

Court concluded:

“(We cannot hold that the striking of Negroes

in @ particular case is « denial of equal

rotection of the laws. In the quest for an

fapartial and qualified jury, Negro and white,

Protestant and Catholic, are alike subject to

being challenged without cause. To subject the

prosecutor's yee in any particular case to

the demands and traditional standards of the

Equal Protection Clause would entail a radical

change in the nature and operation of the

challenge. The challenge, pre tanto, would no

a

rt

longer be peremptory, each and every challenge

Se a opened to examination, either at the time

of the challenge or at a hearing afterward.

Swain, 380 U.S. at 221-22.

In fact, Professor Babcock concluded that "Swain's

approach co the importance of the peremptory challenge is so

radically different from Stilscn's ... that it could be read as a

virtual overruling of Stilson."” Babcock, supra at 556.35

Finally, the majority ignores the practical effect of its

holding--the elimination and eradication of the peremptory

challenge as we know it. Ic is ironic chat the majority rejects

the remedy of placing «a limit on the number of peremptory

challenges available to the prosecution because to be effective irc

15 Babcock notes that Stilson was based on a reading of history

that has been subject to revision and correction. "“[CJlontrary to

the implications of Stilson, the Court in Swain found that froa

the time of che first Jury trials, peremptory challenges were

allowable in noncapital felonies."" Babcock, supra at 556.

No. 84-2474 Page 59

would “eliminat(e) [for all time) ... the peremptory challenge as

we know it" and its value in our search for justice. In

subjecting the prosecutor to an examination of his motives for

excercising peremptory challenges, che majority has effectively

eliminated the essential nature of the peremptory challenge. ‘The

essential nature of the peremptory challenge is that ic is one

exercised without « reason stated, without inquiry and without

being subject to the court's control.” Swain, 380 U.S. at 220.

The peremptory challenge “is, as Blackstone says, an arbitrary and

capricous right, and it must be exercised with full freedoa, or te

faile of its full purpose,” Lewis v. United States, 146 U.S. at

378, and “any system that prevents or embarrasses the full,

unrestricted exercise of that right of challenge must be

condemned." Pointer v. United States, 151 U.S. 396, 408 (1893).

Judge Meskill clearly recognized the effect of subjecting the

prosecutor's motives to examination when he stated “the result the

majority reaches spells the end of the peremptory challenge as an

effective jury selection tool." McCray, 750 F.2d at 1139

(Meskill, J., dissenting).

As we have previously recognized,

"If such objections are allowed, it is hard

to see how the peremptory « « lenge which has

been called a ‘necessary per: of cae triel by

ury,' Swain v. Alabama, supra., U.S. at

15” «ss Will survive. Whenever counsel

alleged chac his opponent had a racial or

similar type of motivation in exercising «a

perepemptory challenge (whether he used that

challenge to exclude a white or black--and ic

would have to be one or the other--or,

extending the principal as one could hardly

resist doing, @ man or « woman, a Jew or «

entile, etc.) the opponent would have to come

Sorvard with a reason for wanting to exclude

the juror. In other words he would have to

No. 84-2474 Page 61

criminal defendant, and not when it haras the

rovide good cause, or something very close to law abiding community represented by the

ct; and che pecenetesy challenge would collapse prosecutor, the prosecutor would be allowed to

into the challenge for cause. object to the defendant's making racial

hallenges if the defendant could

Clark, 737 F.2d at 682. In Clark, we also noted "the potential eOiect te the prosecutor's doing so. Maybe it

would be better--not least from the defendancs'

for stretching out criminal trials thet are already too long, by standpoint--if neither counsel ere allowed to

. object.”

making the voir dire a Title VII proceeding in miniature." Id.

737 F.2d at 682; see also United States v. Newma’,, 549 F.2d 240,

250 2.8. (2nd Cir. 1977).

A further practical problem in the majority's analysis is

Increasing the extent of voir dire examination to provide counsel

with relevant information concerning juror biases is unnecessary,

time-consuming and costly. After all, “[t]he Constitution

guarantees [a defendant) « fair trial, not « perfect one." United determining when « defendant has established « prima facie case of

States ex rel Crist v. Bene, 745 F.2d 476, 482 (7th Cir. 1984);

see also Lutwak v. United States, 344 U.S. 604 (1958). Further,

pereaptory challenges exercised on the basis of race. In Teague's

case, 10 blacks were pereaptorily challenged by the prosecution.

But what if only five blacks had been in the jury pool and the

subjecting prospective jurors to an ell-inclusive detailed

prosecution challenged all five--would the peremptory challenge of

interrogation without any restraints in open court not only

the only five black prospective jurors demonstrate that the

impedes the timely search for justice, but all too frequently

challeges were based on race? Or what if only two blecks were

forces jurors to disclose embarrassing and immaterial information

weabers of the jury pool? A line sust de drawn somewhere, but the

or unpopular views, and frequently generates hostility toward the

d for determining when a defendant

litigants or the judicial system. See Saltzburg & Powers, supra eajority offers no guidence for dete 8 S

at 361, 369.

The impact of the gajority's holding would not be limited

establishes « prima facia case of peremptory challenges

impermissably based on race, but blatantly would have us cast

aside the peremptory challenge as we know it and accept it today

to the prosecution alone, but the defendant would ultimately

as an integral component of the American system of justice. Nor

suffer as well. As previously noted, if we believe that both che

does the gaajority offer any guidance for determining what group

prosecution and the defendant are entitled to a fair trial, the

characteristics gay permissably be the basis of a peremptory

prosecution, as well as che defendent, is encitled to an impartial

challenge. The sajority holds chat race is an improper basis for

petic jury. Spinkellink, 578 F.2d at 596. Thus, as we noted in

peremptory challenge, but says nothing about such group

Clark:

characteristics as sex, age, religion, occupation, education,

“It would be hard co argue that only «

defendant should be allowed to challenge political affiliation, or socio-economic status. Again, the line

racially smocivated gy rt challenges. a

As it cannot be right to believe that racial must be drawn somewhere, but we get not even a hint from the

discrigination is wror’ only when it harms «

‘ 26746

No. 84-246 Pege 62

majority where that line should be drawn. Thus, in ita attempt to

do away with the peremptory challenge, the majority has failed co

delineate any outer limite for the analysis ict has adopted and

invites endless licigation as defendants will doubtless press

claims suggesting chat every conceivable group characteristic is

inappropriate as « baste for the exercise of peremptory challenges.

I am conwinced that to fulfill ite funetion in our

constitutionally guaranteed system of triel by jury, the exercise

of peremptory challenges by either party--prosecution or

defense--must not be subjected to examination by the court. In

this case, however, I examine the record of the voir dire in

detail, including the questioning of the jurors, because of whac I

perceive to be « most serious unfounded accusation on the part of

the defendant and his attorney that the state exercised their

peremptory challenges solely on the basis of race and the

majority's unfounded conclusion that a “prima facie case of abuse

has been wade out here." For the @ajority to say chat the state

excluded jurors on the basis of their race is unfair and

inaccurate and glosses over the facts in the record. An in depth

examination of the record reveals chat an appropriate and valid

justification existed for each and every challenge exercised by

the estate. Of the ten jurors excused by the state, three had

fami.y or friends involved in law enforcement; three either were

victims of crimes or had family members who had been victias of

crimes; two had either personally been convicted of an offense or

had a family member who had been convicted of an offense; two were

students with unusual demands on cheir time; and three jurors or

members of their family had been created by psychiatrists.

No. 94-2474 Page 63

(Teague's sanity was « central itesue at hie trial.) Although I

agein must emphasize chat such « review of the record to justify

pereaptory challenges is neither the duty nor province of the

court, the record in this case clearly demonstrates chat che

state's exercise of peremptory challenges were fully justified and

appropriate in the context of the facts and circumstances of

Teague's case. The voir dire's value once again was established

and an examination of the record revealed and raised legitinate

concerns of the challenged juror's perceived ability to be

impartial. Each of the factors recited above suggests that the

prospective jurors might very well have hed « subconscious

partiality with respect to issues chat were to be decided by the

jury. Thus, these were not arbitrary exclusions of prospective

jurors but were challenges based upon the prosecutor's exercise of

sound judgment in the context of the facts and circumstances of

Teague's case.

Further, « review of the voir dire examination of the

jurore challenged by the defense reveals the presence of similar

factors raising similar concerns about their ability to be

impartial. Of the ten jurors challenged by the defense, two had

friends or family involved in law enforcement; two had either been

the victia of «a crime or wembers of their family had been crise

victims; four jurors or meabers of cheir family had been treated

by psychiatriets; one recognized che name of « police officer

involved in Teague's case; and one stared that she “didn't care

for violence." Thus, @ comparison of the responses given by those

jurors excused by the prosecution and by the defense wich cheir

respective peremptory challenges reveals that they were exercised

No. 84-2474 Page 64

by wach party for the very same logical reasons--chat is, co

remove only those jurors whose backgrounds seemed to disclose

facts suggesting che possibility or probability of partiality or

the presence of preconceived ideas regarding key iesues on trial.

A close examination of the record thus discloses, contrary to the

majority's conclusion, that counsel for both sides properly and

legitimately exercised their peremptory challenges to remove those

jurors which they determined could not be fair and impartial in

evaluating the evidence and deciding the facts of Teague's case.

The majority has done nothing more than to advance «

sociological theory not yet recommended, auch less adopted by any

Supreme Court in the history of the nation and now recognized by

osly 3 out of 50 Scates.'® Further, the majority has failed 20

provide any sound, valid, or logical reasons for thie court to

depart from the Swain analysis when presented with a claim that

the use of peremptory challenges to exclude all blacks from «

pectic jury violated the defendant's Sixth Amendment right to «

jury trial. The free and unfettered exercise of the peremptory

challenge in the context of the specific facts and circumstances

of @ particular case is “a necessary part of trial by jury,”

Swain, 380 U.S. at 219, and is essential to the selection of the

fair and impartia) pectic jury guaranteed by the Sixth Amendment to

~~tn@ Constitution. The availability of the peremptory challenge

“permite rejection for « real or imagined partiality chat is less

16 In addicion to California and Massachusets, the State of

Florida has recognized that its State constitution prohibits the

prosecutor's use of race as « basis for exercising peremptory

challenges. See State v. Neil, 457 So.2d 481 (Fla. 1984).

No. $4-2474 Page 65

easily designated or demonstrable. ... (T)he question « prosecutor

or defense counsel aust decide is not whether « juror of «

perticuler race or nationality is in fact partial, but whether one

from a different group is less likely to be." Id. at 220-21.

Thus, the Supreme Court in Swain clearly held:

"In the light of the se of the pereaptor

systea andthe funetion Le serves ta’s ,

H uralietic society in connection with the

netitution of jury triel, we cannot hold that

the constitution requires an examination of the

prosecutor's reasons for the exercise of his

challenges in any given case. The presumption

in any particuler case suet be that the

prosecutor is using the State's challenges to

obtain «a fair and rtiel jury to try the case

before the court. presumption is not

overcome and the prosecutor therefore subjected

to an examination by allegations that in

case at hand 411 Negroes were removed from che

jury or that they were removed because they we»

Negroes. Any other result, we think, would

establirh a rule wholly at odds with the

peremptory challenge system as we know it.”

Id. at 222. The majority's unwarranted and unsupported holding

destroys the essence of the peremptory challenge, and “any system

that prevents or embarrasses the full, unrestricted exercise of

that right of challenge aust be condeaned.” Pointer v. United

States, 151 U.S. 396, 408 (1893). For the peremptory challenge

"'¢e an arbitrary and capricious right, and it must be exercised

with full freedom, or it fails of its full purpose.’ Swain, 380

U.S. at 219 (quoting Lewis v. United States, 146 U.S. 370, 378

(1892)). Thus, the sajoricty's ill-advised, and unsupported

departure from the analysis set forth in Swain v. Alabama

eviscerating the effectiveness of the peremptory challenge “aust

be condeaned."" Finally, although I am convinced chat an

examination of the basis for the exercise of peremptory challenges

would ultimately frustrate che timely search for justice and

APPENDIX B

1332 Thy FEDERAL REPORTER o¢ series

P, whee" Pia’ Gass Ce au * 6

197 92 SCr ot 402 The Board te ©’

ser Ol WH Create BF eacepUON UW Pet!

fd) for economic necessith The boarc:

decusion stems from ite special uncer

standing of the Act and of the compies \«

of industrna! relations and hence ware’

our deference NLRB» Ene Reo

Corp 873 US at 26 83 SCr at 11%

NLRB i. United Steelworkers 45° |

$57. 962-63. 76 SC. 1266 1271-72 &

L.Ed 26 1383 (1963) In refusing w recog

nize Maniey & defense of economic neces»

ty. the Board acted within iu statuwn

authonty *

For the reasons stated above the

Board's petuivon for enforcement wu

GrawTen

UNITED STATES of America. ex rel.

Frank TEAGUE, Petitioner Appellant,

Michae! P. LANE. Director, Department

of Corrections and Michael O'Leary.

Warden, Stateville Correctional Center.

Respondents Appellees

No. 84-2474

United States Court of Appeals

Seventh Circuit

Dec 30. 1985

Appea! from the United States Distnce:

Court for the Northern Disunct of Illinois

Eastern Division, Wilham T Han Judge

& We find unconvincing Manies 5 argumen: tha:

Ue Boards powuon contravenes Une imien’ apd

purpose of the Act Manic, cites one case for

example in which the Board allowed an em

to rase @ defense of economic necesw')

.

York Mirror Diwnon Hears' Comp 1%)

NLRB 634 (1965) Yeu char case involved the

employers sale of an enure facility Such an

Bot mandaion|) pegouebie under

6d) The fact dha! the Board has recognued

an economic necessi!y defense in such circum

Vette Uneinn, Chicage Ii for peu

Ott appr laent

Marh Rovers Asst Atty Ger Chicago,

1 for respondenw appellee:

Before CUMMINGS Chie! Judge and

BAL ER WOOL CLDAHY POSNER

COFFEY FLALM EASTERBROOK ang

RIPPLE Circun Judges

ORDER

Ths case war argued on Apmi 9. 1985 w

® pane! consistung of Judges Cudahy and

Coffey wether with Senior Cireunt Judge

John W. Peck of the Sixth Circuit, sitting

by designation

Pursuant to Circuit Rule 16(e), the pane!

Opinion wn Uhus case was circulated to al! the

judges of the court in regular active ser.

vice =A majority of the judges in regular

acuve service have voted to rehear thu

case en banc, the ume of argument to be

Sei at @ dat) convenient t the court

CUDAHY. Circuit Judge. dissenting

This case involves the question whether

the Consutuson prohibits prosecutors from,

using they peremptory challenges w ex-

clude potertim! jurors exclusively on the

basis of race The matter was orginally

heard by # pane! consisung of Judge Cof.

fey. Senior Circuit Judge John W Peck of

the Suxth Cwrcurt. situng by designavon,

and me The pane! opinion which | wrote.

vacated and remanded or. the grounds that

the exercise of peremptory challenges by

the prosecutor in Uus case violated, at least

prima facie the defendants Suh Amend.

ances in 00 wa) preciudes Ue Board from

rejecting i! on Ue contex’ of the unman: case

The Supreme Cour too ha» allowed ar employ

er © Asser an economy necessity defense in

regard to matiers of permussve bargaining 0

the conte! of » pania’ plan: closure bul in so

doing Uve Cour eapress!s disunguished tha! i+

sue from matiers of mandation bargasoing such

as the wage rave: involved here Airs: Manone!

Maintenance Corp + ALRE 452 US O66.

O75 101 SCi 2S") 2870 09 L Ea 2d 318 (1981)

ITED) STATES PX REL TLAGIE ss 1 133

Cor ee TRE DEN Cw ree

men’ mght & an imparua’ jun Th pane

opinion together with a dissent mm Juag:

Coffey. was then circulated under ovr Cir

cuit Rule 16 tw the full cour which sotec

to rehear the matter en bane | fhe

prefs outline here the essentia cerie’:

the opinion of the pane! majority te ina ate

wh | beleve that en banc review i unr

essary Judge Peck has requesued tre: °

record his agreement with the views wie!

follow

Frank Teague « bleck war tried be fore

8 jury in an Tllinow court and convicted of

attempted murder and armed robbers

Each side had ten peremptory challenges

and the state exercised a!) of is challenges

w exclude black jurors The defense also

4

¢

z

H

Fi

:

é

;

tra! by

potential jurors on the basis of race

it was attempting obsain « balance of

men and women on the jury and that 1 had

excused @ number of voung people The

Iinow Appellate Cour powd that the

record did not support the state s explane

gon but held that under exwtung law it

could place no restmcuor oF & prosecuwr st

use of his peremptory challenges

The precise issue raised war whether

defendants Suth Amendmen: nghu are

moleted when @ prosecutor uses his per

emptor challenges to exclude members of

one race from a peut jury Such s use w

pot @ wolavon of the Equa! Protecuon

Clause of the Fourteenth Amendment se

long as the exclusion dees not prevent

members of a race from ever stung on

yunes “in case after case whatever Ue

circumstances. whatever the emme and

whoever the defendant or wietim may be”

Swain + Alabama 38 LS 202 223 BS

SCt 824, 63. 13 LE@2d T5¥ (1965)

Swain was clearly decided on equa! protec

won grounds and. although the Coun did

vu.

no! question tne stanary °° tt. Oefer dar:

Swain the mphu assemec anc sdaressec

pm the Coum were ir late Meature the

rghu of blacks who were prevented from

serving as jurors But tne ryr vy score

jury ® Quite distinct from ine mer’ of fe

deferdant w be uned by @ tur from wher

remters of hw race have fo bee Sitar

aticalls exciuded

The Fourwenth Amendmen guarantees

due process as wel! as equa proweto" dul

at the me Swain was decided was not

yet settied which jum-tma’ nghu sere

guaranteed by that amendments due pro

cess clause We now know that the Suh

Amendment apples fully to the states

through the Fourteenth Amendment. Dun

con v Lowwmona, 991 US 145, 68 SCL

1444, 20 L.Ed 24 49) (1968), what has pot

beer, resolved us whether the Surth Amend

ment guarantees the right to @ jury from

which ehgible jurors have not been exclud

ed because of thew race The quesvon

was raised but not decided in two recent

cases in this circuit, See United States v

Clark, 13° F.2d 679 (Tun Cir. 1984) (fects of

case failed to raise presumption of recs!

mouvauon), United States ex rel Palmer

t DeRobverts 73+ F 2d 168 (7th Cur), cert

denied — US ——, 105 SCu 306, 8

LEd2d 24) (1954) (habeas petiuoner

waved obyecuor by failing rawe nh wm

stave coun ther euwcuits have split on

Une quesvion compore Weatheraby t+ Mor

ms TUE F.2d 1493 1497 (Oh Cu 1983) and

United States t Childress “15 Fad 1313

(bth Cur 1983) ine Sucth Amerdment nght)

with McCray t Abrams 750 F 2d 1118 (26

Cur 1984) and Booker't Jabe 775 F 2d 762

(6th Cir 1485) and the Supreme Court has

heard ore’ argument on this quesuon wm an

appea! frum & stale supreme court Batson

1 Aentuckhy — US —, 105 8Ct 2111

BS L Ed 20 476 (1985)

As Judge Peck and | heave wewed it the

quesuor presents . clash berween two de

vices. the peremptory challenge and the

requirement of representativeness in Ue

jury pool both of which are intended w

secure an impart! jury and neither of

which we wanted to see destroyed For

1334 “*+ FEEVEKAL KEPORTER ce Stk

the most pert thes go no confeet but

wher thes Go one mur’ give ¥e) Pere)

sc Unat nemther wi) be desirevec

The Sixth Amendmen: guatarcees thar

the jury poo! from which 8 yur) & Sewcted

must Contain & Pepresenial\« Cross seCUOr

of the community Toplor : Lourtiane

419 US 822 95 SC: 692 42 LEc 2c Sm

(1975) The represenustiveness require

ment does not eatend duect!) t the peut

jum —no defendant can demanc s perfec:

cross-secuon on his jury—but the fact that

there is not @ direct connection does not

mean that there ws no connecuor at ai! If

the Suxth Amendmen’ has implicavons for

taining a representative cross-section

the community” /¢d at 100. 90 SCt at

1906 (emphasis added) In Ballew + Geor

gia, 435 US 223 96S Ct 1029 55 LEd 26

234 (1978). it held that a fiwepersor jury

was Nol, expressing concern about “the

ability of jumes truly w represent the com

munity as membershy decreases below

sw” Je ot 242 9 SCt a 1000 Al

though the Sixth Amendment does not

guavantee & representative tra! jury it

does appear W guarantee the possi? /i'y of

a representative jury in the absence of

that possibility whe negative effect upor

defendarts who belong w the group e>

chided us not difficult to mmagine it wil: be

especially severe where the group suffers

from community prejudice Judge Peck

and | thought it beyond duspute therefore

that the Surth Amendment § p

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