# Petition for Writ of Certiorari — Teague v. Lane > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1437%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 489 U.S. 288 ## Text EDITOR'S NOTE THE FOLLOWING PAGES WERE POOR HARD COPY AT THE TIME OF FILMING. IF AND WHEN A BETTER COPY CAN BE OBTAINED, A NEW FICHE WIL. BE ISSUED, [ RECEIVED 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 I, i i ee 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1437%3A02. Public record. Not legal advice.